Saturday, August 10, 2019

Virginia Schools’ Bathroom Rule Violates Transgender Rights, U.S. Judge Says

NY Times: Virginia Schools’ Bathroom Rule Violates Transgender Rights, U.S. Judge Says The ruling is an important victory for transgender rights advocates as legal battles over school bathroom policies continue to play out across the country.

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Monday, July 15, 2019

'It's A Career Ender': 2 LGBTQ Former Dell Workers Share Their Stories

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'It's A Career Ender': 2 LGBTQ Former Dell Workers Share Their Stories

NPR Morning Edition reports on my clients' suits against computer company Dell. From NPR Morning Edition:

Helen Harris doesn't wear makeup or feminine jewelry. She mostly dresses in men's tailored suits and men's shoes. She's gender nonconforming and identifies as a woman. And, she says, that's nobody's business. Which is why in late 2015, when she started taking hormones to become more masculine looking, she did it quietly. Harris, 37, is a systems engineer who worked at Dell, selling technology to major companies and helping them set it up. But she says she had a tough time moving up at the computer company and was assigned to a lengthy training period, while colleagues were promoted. She says she got heckled by co-workers when she gave presentations. And, Harris says, one of her instructors kept telling her "people have to like you for you to be able to do this job. He kept saying stuff like that to me."

NPR spoke to four colleagues with whom Harris has worked. They described a talented young woman whose career was completely derailed a few years ago. And they, like Harris, suspect she had a tough time because of the way she looks. Article continues after sponsor message Her struggle at Dell led Harris to file a complaint with New York City's Commission on Human Rights, alleging the company didn't want to put her in front of customers because of her appearance. Dell says Harris' situation was resolved amicably. But there are at least two other cases against the company from LGBTQ workers alleging discrimination. Dell, which is an NPR sponsor, denied liability in one case. The other is ongoing.

After Harris' company merged with Dell, she and other employees were assigned to training. Harris says she was heckled by co-workers when she gave presentations. She says her colleagues who attended the training started moving up the corporate ladder, but Harris didn't. Elias Williams for NPR Harris says her problems happened around the same time her employer, EMC, was merging with Dell. In her complaint, Harris detailed how she kept being told she needed to keep on training. So she did — for three years. During that time, she says, she'd speak with managers, executives, colleagues and human resources. "What is the problem? Like, if there is a problem with me, like [with] what I'm doing, can someone please speak up?" she says she asked them.

The rights of trans and gender-nonconforming people in the U.S. are starting to get more attention. Activists say limited job opportunities and lack of clear protection from workplace discrimination have helped marginalize transgender people and hurt them financially. Over 200 companies — including Amazon, Google and Uber — have urged the U.S. Supreme Court to rule that federal civil rights law prohibits discrimination against gay and transgender workers. The Justice Department has argued that it does not. '

 And there's this idea that the tech industry is a place where stuff like this doesn't happen: Scooter in to work and have piercings and tattoos? No problem. As long as you work hard, it doesn't matter who you are or what you look like. The diversity numbers at big tech companies like Google, Facebook and Apple tell a different story. Take Facebook: Less than a quarter of tech roles there are held by women; African Americans make up only about 1%. And when you look at Dell, you get a complicated picture. Cicilia Gilbert, who was also a systems engineer at Dell, was let go in 2018, during the middle of her transition.

The company has repeatedly been ranked among the 50 best for diversity. But several current and former Dell employees, who requested anonymity for fear of retaliation, said the company's New York office has the reputation of being a "boys club." Cicilia Gilbert, who was also a systems engineer at Dell, says it's especially bad in the tech sales division. Gilbert, 58, is suing Dell for, among other things, allegedly discriminating against her for her gender transition. The case is ongoing. She told NPR that when she decided to transition from male to female, a trans co-worker advised her: "Don't tell these people that you're transgender. It's a career ender." In her lawsuit, Gilbert said that in late 2018, right in the middle of her transition, she was let go. "They said, 'We're laying you off because your transgender transition is impeding your ability to travel,' " she told NPR. It's not unusual for a company as large as Dell to have discrimination lawsuits.

Jennifer Davis, a spokeswoman for Dell, told NPR that Gilbert's layoff had nothing to do with her gender — it was part of a restructuring in which hundreds lost their jobs. Gilbert and her wife, Alexandra, stand in their yard in upstate New York. Gilbert is suing Dell for, among other things, allegedly discriminating against her for her gender transition. The case is ongoing. And Davis pointed to the company's support network for trans employees. NPR spoke to two workers who say the extensive medical coverage and support Dell offers made their gender transition possible. They said they consider themselves very fortunate to work for a company that's so inclusive. But in 2017, the Massachusetts attorney general investigated the case of a former intern who is trans and who had complained about discrimination. Dell denied wrongdoing but paid a $110,000 settlement.

Harris says she always saw the tech industry as a place where, no matter what you look like, "if you put your head down and you learn the stuff and you do the work, you can change your circumstances." Earlier this summer, Harris told NPR she was still on Dell's payroll, but she wasn't going into the office on a regular basis anymore. In her complaint to New York City's Commission on Human Rights, she detailed her problems using Dell's bathrooms. "That's the truth," she told NPR. She added that after being harassed a second time about which restroom she was using, she decided to stop going to work. Harris said she was exhausted. A few weeks later, she left the company. Harris quit working at Dell but plans on staying in a career in tech. Elias Williams for NPR Davis, Dell's spokeswoman, wouldn't provide details about Harris' time at the company, saying she wishes to respect Harris' privacy. But Davis said, "The matter was resolved amicably." Despite her experience at Dell, Harris said she wants to keep working in the tech industry. "I want my money. I don't want to be poor," she said. "My father, he picked cotton. My grandfather was a sharecropper. I'm a systems engineer. So, I'd rather stay."

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Monday, July 8, 2019

LGBTQ Workplace Fairness from the Litigator's POV

I spoke to Eric Lesh of LeGal about my work in LGBTQ employment discrimination, how I got into this line, the history of court involvement in these issues, and where the courts may be going with this. tw: legal jargon

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Monday, June 17, 2019

The United States Equal Employment Opportunity Commission Continues to Deteriorate

"It’s a classic Washington catch-22: For years, Congress has chastised the agency that investigates workplace discrimination for its unwieldy backlog of unresolved cases while giving it little to no extra money to address the problem.
In turn, officials at the US Equal Employment Opportunity Commission have found a workaround: Close more cases without investigating them.
Since 2008, the EEOC has doubled the share of complaints involving companies or local government agencies that it places on its lowest-priority track, effectively guaranteeing no probes, mediation, or other substantive efforts on behalf of those workers. About 30 percent of cases were shunted to that category last year, according to internal data obtained by the Center for Public Integrity through a public records request."

Here's my editorial comment: For myself, although I'm continuing to litigate federal discrimination claims, I've bypassed the agency as much as possible. Unfortunately, the Federal Civil Rights Act, passed in 1964 at a time of optimism, requires that one must go through the agency before one can bring a federal lawsuit. The idea was that the EEOC would give employers a chance to set things right prior to litigation. This almost never happens. I've resorted to requesting an immediate right-to-sue letter without waiting for an agency investigation. These investigations can take years, if they happen at all. At the end of the investigation, the agency has no power to compel change or restitution. Employers, who know that they can ignore the process for years with no consequences, are unwilling to agree to reasonable restitution at the EEOC stage. Once we get into federal court, however, they know their ability to obfuscate is limited. At that point, the evidence comes out, and they usually see the light. Recognizing that their defenses aren't very strong, they usually settle up. It's sad to see an agency dedicated to civil rights letting people down who are going through the devastating experience of discrimination. The purpose of the agency is to diminish discrimination, not increase the burden on those who are going through it. To employers: you and your representatives have done a great job in hamstringing the agency that is supposed to address the issues before litigation happens, so stop complaining when you are served with my federal summonses and complaints.     

Thursday, June 13, 2019

Transgender, and ostracized on campus: Kingsborough Community College is mistreating me

Trans and ostracized on campus "Six months after I came out as trans at work by requesting a name and pronoun change and sharing that I was getting top surgery, Kingsborough’s administration announced that it was defunding my concentration. Its rationale cited constrained resources, higher education regulations, financial aid and transfer issues. None of these rationales stand up to scrutiny."

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Monday, June 3, 2019

11th Circ. Upholds NetJets Win In Muslim Pilot's Bias Suit - Law360

11th Circ. Upholds NetJets Win In Muslim Pilot's Bias Suit

By Danielle Nichole Smith

"Law360 (May 31, 2019, 7:01 PM EDT) -- The Eleventh Circuit on Friday refused to revive a former NetJets pilot's suit alleging he was placed on administrative leave and ultimately fired because he was Pakistani and Muslim, finding the pilot didn't show his firing stemmed from discrimination."

I find this case very interesting, as it is a reminder of the kind of evidence needed to win an employment discrimination lawsuit. Of course, the 11th Circuit US Court of Appeals (covering Alabama, Georgia and Florida) is very conservative when it comes to this, but so are some others. Essentially, the Court said that showing other people who were treated differently isn't enough to show bias. Showing retaliation for complaining requires a very close connection in time between the complaint and the termination or other allegedly retaliatory action -- closer than 3 months.

Here's how Law 360 summarized the case: "But Siddiqui does not point to any evidence in the record, apart from his proffered comparators, that would support an inference that the real reason for either the initial investigation or the ensuing delay was discrimination on the basis of his race, religion or national origin." The panel also held that the lower court properly dismissed Siddiqui's retaliation claims, finding the pilot hadn't shown there was a causal connection between a letter from his attorney raising concerns of discrimination and the decision to extend his administrative leave. Nor could he claim retaliation based on the company's decision to fire him 90 days after he received a right to sue letter from the U.S. Equal Employment Opportunity Commission, the panel said, since receiving the letter wasn't protected activity.

"And even if it were protected activity, temporal proximity must be very close — absent other evidence — to indicate causation," the panel wrote. "The three-month delay here, without more, is not enough." Read more at:

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