Tag Archives: civil rights

Fifth Circuit Holds Lactation Discrimination is Unlawful Sex Discrimination

The E.E.O.C. (Equal Employment Opportunity Commission) issued a press release about an important decision coming from the Fifth Circuit Court of Appeals.

In this decision, the court held that the company unlawfully discriminated against a female employee when they fired her.  In this case, the female employee was lactating or expressing milk.  The female employee asked her employer if she would be able to pump breast milk at work.  The company then fired the employee.

The court relied on the Title VII of Civil Rights Act, which was amended by the Pregnancy Discrimination Act of 1987.  The Pregnancy Discrimination Act provided that a company could not discriminate against a female worker on the basis of pregnancy, childbirth, or a related medical condition.

The Fifth Circuit Court of Appeals dismissed the argument that “pregnancy-related conditions” ended on the day the mother gave birth.  In its decision, the court explained that lactation was a physiological condition distinct to women who have undergone a pregnancy.  In other words, women, not men, lactate or express milk.  Therefore, a company discriminates based on sex when it fires a woman for lactating.

via Fifth Circuit Holds Lactation Discrimination is Unlawful Sex Discrimination.

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Successor Liability does not cover federal claims

Teed v. Thomas & Betts Power Solutions, LLC (7th Cir. 2013) held that  a buyer of a company’s assets can’t rely on state law to keep  a seller’s violations of the Fair Labor Standards Act (FLSA) from transferring to the buyer of the Seller company’s assets.  This standard has been previously applied to the LMRA, NLRA, Title VII, ADEA, and FMLA.

The Seventh Circuit explained that federal labor law claims are governed by federal common law, not state law.  Further, the court explained that employees do not have the power to stop an owner from selling the company.  Therefore, the buyer (successor) is stuck with the seller’s (prior owner) liability regardless of what the contract states.

To determine whether successor liability will apply, the Seventh Circuit considered the following multi-part balancing test:

  1. Whether the successor had notice of the pending law suit;
  2. Whether the predecessor would have been able to provide the relief sought in the lawsuit before the sale;
  3. Whether the predecessor could have provided relief after the sale;
  4. Whether the successor can provide the relief sought in the suit (if not successor liability is a phantom); and
  5. Whether there is continuity between the operations and work force of the predecessor and the successor – which favors successor liability because nothing really has changed.

via Buyer Beware of Successor Liability For FLSA Claims | Sands Anderson PC – JDSupra.

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Court orders legal representation for immigrants in deportation proceedings

I first came across this decision when I was listening to NPR.  In this case, which is a first of its kind, a federal judge ordered that states have to provide legal representation for immigrants with mental disabilities – when these immigrants are being detained and facing deportation.

This case is really surprising because immigrants generally do not have a right to an attorney.  The Supreme Court in Gideon v. Wainwright, 371 US 335 (1963), decided that the right to counsel is a fundamental right in criminal cases.  In INS v. Lopez-Mendoza, 468 US 1032 (1984), the Supreme Court reaffirmed that a deportation case is not a criminal case, but an administrative one.

Since deportation proceedings are not a criminal crime, there is no right to a lawyer.  The detainees not guaranteed counsel had presumably covered children, the mentally disabled, victims of sex trafficking, refugees, torture survivors and legal permanent residents.

Federal Judge Dolly M. Fee ordered immigration courts in three states to provide legal representation for immigrants with mental disabilities who are in detention and facing deportation, if they cannot represent themselves.  The immigrant in this case had severe mental retardation that prevented him from arguing for himself in court or even understanding his situation.

The NY Times reports that subsequently, “federal immigration officials issued a new policy that would expand the California ruling nationwide, making government-paid legal representation available to people with mental disabilities in courts in every state.”

Edited: To add other Supreme Court cases.

via Legal Aid Ordered for Mentally Disabled Immigrants – NYTimes.com.

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Drop in Employment Civil Rights Lawsuits

TRAC Reports has recently released its latest data on the trends of employment civil rights lawsuits.  The decrease of civil rights lawsuits in the employment context is not surprising.

TRAC Reports states:

The latest available data from the federal courts show that during February 2013 the government reported 950 new employment civil rights filings. According to the case-by-case information analyzed by the Transactional Records Access Clearinghouse TRAC, this number is down 7.9 percent over the previous month when the number of filings of this type totaled 1,032, and has dropped 13.2 percent from its level one year ago see Table 1.

Drop in Employment Civil Rights Lawsuits

 

TRAC further states that the volume of civil rights matters filed in federal districts during February 2013 was 3.1 per every million persons in the US.  Last year, that number of filings was 4.2.

via Drop in Employment Civil Rights Lawsuits.

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Sup. Ct. March Calendar

Next month, the Supreme Court will be hearing high profile cases – including the gay marriage debate (California’s Proposition 8 and DOMA), as well as voter registration laws.  In addition, the Supreme Court will hear a variety of important issues, such as class arbitration waivers, generic pharmaceutical regulations, and reimbursement or payment under the Takings Clause.

The following are the oral arguments scheduled for March.

Monday March 18

Arizona v. Inter Tribal Council of Arizona:

  1. Whether the 9th Circuit erred in creating a new, heightened preemption test under Art. 1, Sec. 4, Cl. 1 of the U.S. Constitution (“the Elections Clause”) that is contrary to the Supreme Court’s authority and conflicts with other circuit court decisions; and
  2. Whether the 9th Circuit erred in holding that under that test the National Voter Registration Act preempts an Arizona law that requests persons who are registering to vote to show evidence that they are eligible to vote.

Bullock v. Bankchampaign

  1. What degree of misconduct by a trustee constitute “defalcation” under Sec. 523(a)(4) of the Bankruptcy Code that disqualifies the errant trustee’s resulting debt from a bankruptcy discharge, and whether it includes actions that result in no loss of trust property.

Tuesday March 19

Sebelius v. Cloer

  1. Whether a person whose petition under the National Vaccine Injury Compensation Program is dismissed as untimely may recover from the United States an award of attorney’s fees and costs.

Mutual Pharmaceutical Co. v. Bartlett

  1. Whether the 1st Circuit erred when it created a circuit split and held – in clear conflict with this Court’s decisions in PLIVA v. Mensing, Riegel v. Medtronic, and Cipollone v. Ligget Group – that federal law does not preempt state law design-defect claims targeting generic pharmaceutical products because the conceded conflict between such claims and the federal laws governing generic pharmaceutical design allegedly can be avoided if the makers of generic pharmaceuticals simply stop making their products.

Wednesday March 20

Horne v. Dept. of Agriculture

  1. Whether the 9th Circuit erred in holding, contrary to the decisions of 5 other circuit courts of appeals, that a party may not raise the Takings Clause as a defense to a “direct transfer of funds mandated by the Government,” E. Enterp. v. Apfel, but instead must pay the money and then bring a separate, later claim requesting reimbursement of the money under the Tucker Act in the Court of Federal Claims; and
  2. Whether the 9th Circuit erred in holding, contrary to the decision of the Federal Circuit, that it lacked jurisdiction over petitioner’s takings defense, even though petitioners, as “handlers” of raisin under the Raisin Marketing Order, as statutory required under 7 USC 608c(15) to exhaust all claims and defenses in administrative proceedings before the United States Department of Agriculture, with exclusive jurisdiction for review in federal district court.

Dan’s City Used Cars v. Pelkey

  1. Whether state statutory, common law negligence, and consumer protection act enforcement actions against two-motor carrier based on state law regulating the sale and disposal of a towed vehicle are related to a transportation service provided by the carrier and thus preempted by 49 USC 14501-c-1.

Monday March 25

Oxford Health Plans v. Sutter

  1. Whether an arbitrator acts within his powers under the Federal Arbitration Act (as the 2nd and 3d Circuits have held) or exceeds those powers (as the 5th Circuit has held) by determining that parties affirmatively “agreed to authorize class arbitration,” Stolt-Nielsen S.A. v. Animalfeeds Int’l Corp., based solely on their use of broad contractual language precluding litigation and requiring arbitration of any dispute arising under their contract.

Federal Trade Commission v. Actavis

  1. Whether reverse-payment agreements are per se lawful unless the underlying patent litigation was a sham or the patent was obtained by fraud (as the court below held), or instead are presumptively anticompetitive and unlawful (as the 3d Circuit has held).

Tuesday March 26

Hollingsworth v. Perry

  1. Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman; and
  2. Whether petitioners have standing under Art. III, Sec. 2 of the Constitution in this case.

Wednesday March 27

United States v. Windsor

  1. Whether Section 3 of the Defense Marriage Act (DOMA) violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State; 
  2. Whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and
  3. Whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case.

via New March argument calendar : SCOTUSblog.

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Update on NYPD’s surveillance and infiltration of Muslim groupds

Are Muslim communities being unfairly targeted by law enforcement?  This is the conversation being raised after the New York Civil Liberties Union sought to revisit a 41-year old case.

You may have heard about news articles discussing NYPD’s surveillance and infiltration of New York-based Muslim groups.  Last year, the Associated Press confirmed the existence of a program, called the Assessment Program, formerly known as the Demographics Unit, which spied on Muslims.

As way of background, in 1985, a Manhattan federal judge ordered a consent decree (known as “Handschu guidelines”) whereby the police is barred from investigating political and religious organizations without “specific information” linking the group to a crime.  In that case, Handschu v. Special Services Division, the police had extensive dossiers on a large array of political groups, including the Black Panthers.

After 9-11, the judge loosened the Handschu guidelines to give police wider powers to investigate political groups in the war on terror.

The New York Civil Liberties Union released a memorandum, submitted to the court, seeking to end the NYPD’s Assessment Program.  In the memorandum there is testimony stating that an informant was paid as much as $1,500 a month to take part in the NYPD’s alleged “create and capture” program.  The informant stated,

This meant I was to pretend to be a devout Muslim and start an inflammatory conversation about jihad or terrorism and then capture the respond to sent to the NYPD.

I did this on numerous occasions with people I met at the mosques and other locations.

The question to be decided is – how much latitude law enforcement given when conducting surveillance of political and religious groups?

As a side note, you may have also come across the story regarding the FBI’s surveillance on Muslims groups, known as “Operation Flex.”  That story has been reported in many news circles, including the Business Insider here.

via Courthouse News Service.

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VA Can’t Refuse To Treat Medical Conditions Of Inmates

The District Court for the Western District of Virginia refused to dismiss a class action alleging that a womens prison in Virginia fails to treat medical conditions as a way to cut costs.

Five prisoners at Fluvanna Correction Center for Women FCCW in Troy, Va., are leading the charge against the Virginia Department of Corrections VDOC, which they say routinely violates Eighth Amendment rights and shows deliberate indifference to medical needs.

U.S. District Judge Norman Moon denied the states motion to dismiss Tuesday.

“Plaintiffs allege that, as a result of cost-saving concerns, medical personnel at FCCW have failed, or refused, to invest the time or effort required to acknowledge, examine, diagnose and treat them with respect to existing or potentially serious medical problems and concerns,” he wrote. “Indeed, the complaint is replete with specific examples of how Plaintiffs have been adversely affected as a result of this concern.”

The decision states that officials with the Virginia Department of Corrections allegedly received hundreds of grievances, which should have notified them of a continuing problem at the prison facility.  Consequently, Judge Moon held that the class may proceed.

“Given that plaintiffs have alleged that the VDOC defendants remained inactive despite personal knowledge of information disclosing alleged ongoing deficiencies in medical care, plaintiffs Eighth Amendment claim may proceed against them directly.”

The complaint alleges the prison refused to treat medical conditions in the following examples of the putative class representatives.

  • The prison failed to give the proper dosage of medication prescribed to Cynthia Scott after she was diagnosed with sarcoidosis, a disease that formed nodules in her lungs, spleen and liver. Scott also allegedly developed a blood clot in her leg that was left untreated until it traveled to her lungs.
  • Bobinette Fearce, a second named plaintiff, says she has degenerative disc disease, causing her chronic pain. The prison doctors allegedly refused to give her enough Tylenol to alleviate her pain. She also claims to suffer from incontinence and must wear a diaper at all times, but an FCCW doctor said she is “too old to be afforded the surgery that would correct her bladder condition.”
  • Patricia Knight says that a stroke caused her to lose grip strength and made walking difficult. Because her conditions allegedly prevent her from performing any prison job, Knight says she cannot afford the $5 “co-pay” for prison medical visits and therefore gets little medical care.
  • Marguerite Richardson says she visited the medical staff when she developed a number of boils on her leg. A test found that she had a highly contagious antibiotic-resistant infection, but the prison waited five months to give her medication to treat the infection, the complaint states.
  • Rebecca Scott, the fifth plaintiff, allegedly suffers from recurring tonsillitis. She says an FCCW doctor told her he “does not believe in removal of tonsils by surgery,” that the prison has rejected her requests to see an outside specialist.

via Courthouse News Service.

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DOMA and Prop 8 goes to Court

On Friday, the Supreme Court agreed to hear two cases regarding the constitutionality of the Defense of Marriage Act (DOMA) and California’s Prop 8.

In Hollingsworth v. Perry (docket 12-144), the issue os whether Proposition 8 from California is constitutional.  These are the highlights and arguments in this case.

In United States v. Windsor (docket 12-307), the issue is whether the Defense of Marriage Act (DOMA) is constitutional as it relates by providing that the definition of marriage means only a union between a man and a woman.

via Evening round-up : SCOTUSblog.

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Who is a “supervisor” in a sexual harassment case? Supreme Court will decide

On November 26th, the Supreme Court will hear arguments in the case Vance v. Ball State University (11-556) coming from the 7th Circuit.  The issue in this case centers around the word “supervisor.”

In Faragher/Ellerth, as decided by the Supreme Court, the Court stated there is vicarious liability when the sexual harasser is the victim’s supervisor.  In other words, if the harasser is the supervisor, the employer is immediately liable unless two exceptions (described in Faragher/Ellerth) are met.

The issued posited to the Supreme Court is whether the supervisor liability rule is limited to those who have the authority to direct and oversee the victim’s daily work, or limited to those who have the power to hire, fire, demote, promote, transfer or discipline.

What’s so interesting about this case, you may ask?  The fact that courts all throughout the US are split on this definition.  Will this definition be broadly construed, narrowly construed?  If so, what would the consequences be of this decision.  Will sexual harassment claims be significantly reduced?  Will attorneys think of these claims as incredibly risky, and be less likely to pursue these claims?

As it is, civil rights have traditionally been limited.  The purpose of Title VII is to be broadly construed in order to provide civil rights protection.  The purpose of Title VII appears to be eaten away slowly.  It really does remind me of ADA before Congress enacted the ADAA.

In the ADA situation, Courts continuously narrowed the definitions and limited the extent to which a disability was covered by the Act.  Under the ADA, a disability was not covered if medical treatment reduced its impairment whereby the impairment was no longer significant.  When the ADAA was passed, Congress sternly pointed out to the extent the Courts had gone out of their way to prevent coverage under the Act for disabilities. In the ADAA, Congress specifically pointed to Supreme Court cases narrowing coverage under the Act.

Is it time for Congress to act once again?

via Vance v. Ball State University : SCOTUSblog.

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City of Detroit Faces Default Judgment

Good reminder to Defendants why they need to respond to a lawsuit.  If you don’t, you will likely face default judgment.

The City of Detroit is facing a $1.1 million judgment in a civil rights suit, after failing to respond to the litigation and being held in default by a federal judge.  Caleb Sosa, who is now 19, says he was coerced at age 14 into initialing a confession he couldnt read, to a murder he had nothing to do with, and held in juvenile detention for two years before he was acquitted at trial. His lawyer, Ronnie Cromer Jr., said he might well have been able to persuade a jury to award even more than U.S. Judge Sean Cox did had the case gone to trial, the Associated Press reports.  The city has declined to discuss the management of the Sosa case and why no response was ever filed to the 2010 suit, even after an amended complaint was filed in 2011 and hand-delivered to Detroits law department. The suit accused city police of faking Sosas confession and covering up evidence in his favor.

via After City of Detroit Ignores Civil Rights Suit, Federal Judge Declares Default, Awards $1.1M – News – ABA Journal.

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