Monday, April 22, 2019

BREAKING: High Court Accepts Cases Over Whether Title VII Covers LGBT Bias

BREAKING: High Court Accepts Cases Over Whether Title VII Covers LGBT Bias
By Vin Gurrieri
Law360 (April 22, 2019, 9:43 AM EDT) -- The U.S. Supreme Court on Monday agreed to hear a trio of closely watched cases that hinge on whether gay and transgender workers are protected from discrimination under Title VII of the Civil Rights Act.
The high court granted petitions for certiorari in three cases — Altitude Express v. Zarda, Bostock v. Clayton County, Georgia, and R.G. & G.R. Harris Funeral Homes Inc. v. EEOC — giving the justices a chance to settle hotly-debated questions about the scope of the cornerstone federal anti-bias statute.
The three cases each pose similar questions about the scope of Title VII of the Civil Rights Act of 1964. Zarda and Bostock ask the justices to decide whether the law’s existing ban on sex discrimination protects workers from bias based on their sexual orientation, and Harris Funeral Homes asks whether workers are protected from gender identity discrimination under the statute.

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In the Harris Funeral Homes case, the company and its owner are appealing a Sixth Circuit decision that Title VII does protect transgender people from discrimination. The appellate court’s decision led to the reopening of an EEOC suit challenging the company’s decision to fire worker Aimee Stephens after she told her boss she would transition to a female gender identity and wanted to dress in women’s clothing at work.

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And in the Harris Funeral Homes case, U.S. Solicitor General Noel Francisco filed a brief with the U.S. Supreme Court in October outlining the federal government’s position that gender identity isn’t covered under Title VII — a stance that directly contradicts the EEOC’s current position on the issue.


UPDATE:
The Harris Funeral Home case, one of three for which the Supreme Court has granted cert, is only being reviewed regarding the question of whether Title VII protects transgender people from sex discrimination. The question of religious freedom raised under the Religious Freedom Restoration Act is not being reviewed. This leaves the Sixth Circuit decision in place regarding the argument that protection of the transgender employee violated religious freedom. The Sixth Circuit held that the employer's religious freedom was not violated. That portion of the Sixth Circuit ruling will remain in force.




Wednesday, April 3, 2019

CloudHQ for Lawyers

This post is for my lawyer friends in private practice.

I love my work. I love cool tech. I hate billing. It's one of the most difficult administrative tasks we have is time-based billing. Perhaps long ago, before multi-tasking was invented, and you could only do one thing at a time, perhaps time-based billing made sense. Now it's nearly impossible to keep track of everything I'm doing in one day, especially on email. I spend hours on email, but because each one is only 5 minutes or so, it takes more time to track than it's worth. I've found some cool tech that allows me to do my work and deal with a good chunk of my billing almost automatically.

CloudHQ offers a time tracker for Gmail. It automatically provides a spreadsheet of the time spent on each email, with columns for the sender, the recipient and the subject line. After sorting the spreadsheet by client and date, it's easy for my assistant to input into my billing program.  While each email may be short in time, added together it is a good chunk of my time. It's also good for a privilege log of emails (after appropriate editing, of course). I'm not sure how I lived without this before, but it's pretty clear that I can live without it going forward.

CloudHQ offers a lot of other useful things that I haven't yet explored in detail. I have used their email multi-forward, which is great for forwarding a series of emails, and they can be forwarded as written, or put into a pdf attachment. Great for discovery. Also email downloading, which is useful for discovery. And a lot of other cool stuff, but you can see for yourself at https://www.cloudhq.net/g_suite

Of course, many of these services exist as standalone products, but it's helpful to have all of these in one because I don't have to spend time searching for what I need. The price is right too ($4.99/mo)

Here's a screenshot of all their offerings.



Thursday, March 28, 2019

DOD Can Implement 'Transgender Ban' After DC Circ. Ruling - Law360

DOD Can Implement 'Transgender Ban' After DC Circ. Ruling

By Daniel Wilson

Law360 (March 27, 2019, 4:17 PM EDT) ­­ The D.C. Circuit on Tuesday issued a formal mandate for its January judgment dissolving an injunction against a Trump administration policy heavily restricting military service by transgender people, clearing the way for the contentious policy to go into effect in April. A three-­judge panel ordered the clerk of the court to issue the mandate in response to an emergency motion for clarification filed by the government on March 20, after a district court ruled its injunction against the disputed transgender policy would remain in effect until that mandate was issued.

The panel did not specify why it had chosen to issue the mandate now, having previously said it would wait until after a pending deadline for requesting rehearing, but noted that it came after reading the government's motion and a reply from challengers to the policy. The government said continuing to keep the preliminary injunction in place was "irreconcilable" with the circuit court's January judgment and associated denial of a request to stay the injunction as moot, as well as the U.S. Supreme Court's decision later that month staying "materially indistinguishable" injunctions from two similar cases. The government claimed it should not be put in a "worse position" compared to other similar cases when it had prevailed on its appeal. The challengers, however, said the circuit court set a "clear timetable" for resolving the case and that the government should have respected that timetable rather than pushing forward with a plan to put the disputed policy into effect on Apr. 12.

The issuance of the mandate clears the last legal hurdle in the way of implementing the policy, and Shannon Minter of the National Center for Lesbian Rights, co-­counsel for challengers to the policy, said in a statement Tuesday that "the courts have failed to do their job, to the detriment of the military and the country, and allowed a blatantly unconstitutional policy to take effect." "We will keep fighting, and the courts may yet do the right thing, but this is a shameful day," he said. A representative for the U.S. Department of Defense, which is responsible for implementing the policy, said only that "the department will continue with the new policy as scheduled with an implementation date of April 12."

The disputed policy, introduced in March 2018, allows transgender people to join or serve in the military only if they don't have gender dysphoria — a disconnect between one's biological sex and the gender with which one identifies, resulting in distress — and have not already undergone a gender transition, with limited exceptions for those currently serving. Legal challengers, civil rights groups and Democratic lawmakers have all criticized the policy, saying it effectively amounts to a "transgender ban," similar to an earlier version of the policy issued in August 2017. That earlier policy would have imposed a blanket ban on military service by openly transgender people, based on President Donald Trump's stated concerns about military readiness, unit cohesion and allegedly "tremendous" associated medical costs. It was a reversal of a 2016 policy issued under the Obama administration, seeking to allow transgender troops to openly serve for the first time.

Four district court judges issued preliminary injunctions against the blanket ban, and kept them in place as the administration issued its newer policy, prompting the government to appeal. Subsequently, the D.C. Circuit vacated one of the injunctions, ruling that U.S. District Judge Colleen Kollar-Kotelly had erroneously found that there had been no significant change between the initial version of the transgender policy and the overhauled version. Later that month, the Supreme Court stayed two more of the injunctions while a Ninth Circuit appeal moves forward, and a Maryland district judge on March 7 also lifted his injunction, ruling that he was bound by the high court's stay order, after which the DOD announced its plans to implement the transgender policy in April. But challengers to the policy said Judge Kollar­-Kotelly's injunction was still effective until the D.C. Circuit issued a formal mandate, and the district court judge agreed, ruling on March 19 that the circuit court's decision wasn't yet final. The circuit court delayed the mandate to allow for a pair of concurring opinions to follow its judgment in March and to give the parties time to ask for rehearing — with those requests due on Mar. 29 — and initially said the mandate would not go into effect until a week after any petition for rehearing was resolved.

Judges Thomas B. Griffith, Robert L. Wilkins and Stephen F. Williams sat on the panel for the D.C. Circuit. The government is represented by Mark R. Freeman, Marleigh D. Dover and Tara S. Morrissey of the U.S. Department of Justice's Civil Division. The challengers are represented by Paul R.Q. Wolfson, John T. Byrnes, Kevin M. Lamb, Jack Starcher, Alan E. Schoenfeld and Adam M. Cambier of WilmerHale, Jennifer Levi and Mary L. Bonauto of GLBTQ Legal Advocates and Defenders, Shannon P. Minter, Amy Whelan, Christopher F. Stoll and Alexander Chen of the National Center for Lesbian Rights, and Matthew E. Miller and Theresa M. Roosevelt of Foley Hoag LLP. The case is Jane Doe 2 et al. v. Shanahan et al., case number 18­5257, in the U.S. Court of Appeals for the District of Columbia Circuit. ­­ Editing by Stephen Berg. https://ift.tt/2FBBlws?

See this link: https://www.law360.com/employment/articles/1143521/dod-can-implement-transgender-ban-after-dc-circ-ruling?nl_pk=8a8ce1fc-75c7-4ce5-917e-8a07a0ec3dcd&utm_source=newsletter&utm_medium=email&utm_campaign=employment

Wednesday, March 20, 2019

DOD Still Can't Implement 'Transgender Ban,' Judge Rules - Law360

DOD Still Can't Implement 'Transgender Ban,' Judge Rules By Dave Simpson Share us on: Law360

(March 19, 2019, 11:15 PM EDT) -- A D.C. federal judge told the government Tuesday that it can't implement its contentious military transgender policy even though other courts have lifted an injunction against it, because the plaintiffs that challenged the ban in Washington, D.C., still have time to ask for a rehearing. While the D.C. Circuit did issue an order in January vacating the D.C. district court’s preliminary injunction against the policy banning certain transgender people from serving in the military, it specifically told the court clerk not to issue a mandate until seven days after a resolution of a petition to rehear its decision, U.S. District Judge Colleen Kollar-Kotelly said Tuesday. The challengers have until March 29 to file for a rehearing or a rehearing en banc, she said. She also shot down the notion that rulings on other injunctions across the country should nix the one before the D.C. federal courts.

"The fact that the three other nationwide preliminary injunctions which had been in place are now stayed has no impact on the continued effectiveness of this court’s preliminary injunction," Judge Kollar-Kotelly said Tuesday. The disputed policy, issued in March 2018, allows transgender people to join or serve in the military only if they don't have gender dysphoria — a disconnect between biological sex and the gender with which they identify that causes distress — and have not already transitioned between genders, with limited exceptions for current troops.

In its January ruling vacating the injunction, the D.C. Circuit found that the district court hadn't given given sufficient credit to the DOD's efforts to address issues with an earlier version of the policy, issued in August 2017 — a blanket ban on military service by openly transgender people — or to military considerations when the judge refused to lift her injunction, originally imposed against the earlier policy.

Last week, the federal government said that the "only logical reading" of the judgment is that it was immediately effective, despite what challengers to the policy have argued. "The D.C. Circuit's decision to deny the stay motion as moot necessarily presumes that this court's injunction does not remain in effect," it said. "Plaintiffs' arguments to the contrary are meritless." Challengers to the policy have argued that the D.C. Circuit's judgment — and therefore the injunction being lifted — will only be finalized once the circuit court's formal mandate is issued. The challengers are a group of current and prospective transgender troops who claim the new policy still amounts to an effective "transgender ban" that violates their constitutional equal protection rights.

The circuit court issued two concurring opinions on March 8 fleshing out its earlier judgment, and has allowed the parties 21 days to ask for a rehearing following those concurrences. The distinction between a judgment and mandate is a technical one that matters only for some purposes, the government argued last week, citing a 1980 Third Circuit opinion — Finberg v. Sullivan — in which that court had noted that "the entry of judgment, rather than the issuance of mandate, marks the effective end of a controversy on appeal" and that issuing a mandate "is largely a ministerial function." In this case, the D.C. Circuit withholding the mandate was simply to allow extra time to ask for rehearing, the government said. With the understanding that concurring opinions would follow the judgment, its judgment still had immediate effect, as demonstrated by the ruling mooting the stay motion, the government claimed. Judge Kollar-Kotelly disagreed Tuesday in her three-page order, noting simply that “absent a mandate, the D.C. Circuit’s January 4, 2019 Judgment vacating this court’s preliminary injunction is not final.” In January, shortly after the D.C. Circuit’s ruling, the U.S. Supreme Court agreed in a 5-4 vote to stay two preliminary injunctions against the U.S. Department of Defense’s policy.

Earlier this month, the DOD sent a memorandum setting an April 12 effective date for the disputed policy — issued after a Maryland federal court lifted the last remaining injunction against the policy. Counsel for the parties did not immediately respond to request for comment Tuesday.

The plaintiffs are represented by Paul R.Q. Wolfson, Kevin M. Lamb, Alan E. Schoenfeld and Adam M. Cambier of WilmerHale, Jennifer Levi and Mary L. Bonauto of LGBTQ Legal Advocates and Defenders, Shannon P. Minter, Amy Whelan and Christopher F. Stoll of the National Center for Lesbian Rights, and Matthew E. Miller, Kathleen M. Brill, Michael J. Licker, Rachel C. Hutchinson and Theresa M. Roosevelt of Foley Hoag LLP. The government is represented by Joseph H. Hunt, Brett A. Shumate, John R. Griffiths, Anthony J. Coppolino and Andrew E. Carmichael of the U.S. Department of Justice's Civil Division.

The case is Doe 2 et al. v. Trump et al., case number 1:17-cv-01597, in the U.S. District Court for the District of Columbia. --Additional reporting by Daniel Wilson. Editing by Emily Kokoll. https://ift.tt/2UKk9ve

See this link: https://www.law360.com/employment/articles/1140736/dod-still-can-t-implement-transgender-ban-judge-rules?nl_pk=8a8ce1fc-75c7-4ce5-917e-8a07a0ec3dcd&utm_source=newsletter&utm_medium=email&utm_campaign=employment

Saturday, March 16, 2019

Law360's Employment Editorial Advisory Board - Law360

Law360's Employment Editorial Advisory Board Law360 (March 15, 2019, 3:00 PM EDT) --

Law360 is pleased to announce the formation of its 2019 Employment Editorial Advisory Board. The purpose of the editorial advisory board is to get feedback on Law360's coverage and gain insight from experts in the field on how best to shape future coverage.

The members of Law360's 2019 Employment Editorial Advisory Board are: Fred Alvarez, Coblentz Patch Duffy & Bass LLP Elena Baca, Paul Hastings LLP Anne Clark, Vladeck Raskin & Clark PC Dennis Duffy, BakerHostetler Gerald L. Maatman Jr., Seyfarth Shaw LLP Tammy McCutchen, Littler Mendelson PC Kate Mueting, Sanford Heisler Sharp LLP Yoora Pak, Wilson Elser Moskowitz Edelman & Dicker LLP Peter Romer-Friedman, Outten & Golden LLP Jillian Weiss, Jillian T. Weiss PC

See this link: https://www.law360.com/employment/articles/1137765

Thursday, March 14, 2019

DOD 'Transgender Ban' Set To Take Effect In April - Law360

DOD 'Transgender Ban' Set To Take Effect In April Law360 (March 13, 2019, 5:20 PM EDT) -- The

U.S. Department of Defense announced it will implement its contentious policy heavily restricting the service and recruitment of transgender troops on April 12, despite the D.C. Circuit having yet to rule on whether it will rehear a dispute related to the policy. The DOD confirmed Tuesday that it intends to put its March 2018 transgender policy into effect on April 12, following the leak of a related memorandum, drawing sharp criticism from challengers to the policy. Those challengers argued that the move to implement the policy — which they claim is effectively a "transgender ban" — defies a court order. The disputed policy allows transgender people to join or serve in the military only if they don't have gender dysphoria — a disconnect between biological sex and the gender with which they identify that causes distress — and have not already transitioned between genders, with limited exceptions for current troops.

While the D.C. Circuit had vacated a preliminary injunction that had prevented the policy going into effect after finding that a district judge had not given sufficient credit to the DOD's efforts to address issues with an earlier version of the disputed policy, the appeals court has not yet issued a formal mandate for that January judgment, giving the parties time to potentially seek a rehearing.

"With brazen disregard for the judicial process, the Pentagon is prematurely and illegally rolling out a plan to implement the ban when a court injunction remains in place prohibiting them from doing so," Jennifer Levi, director of GLBTQ Legal Advocates & Defenders' Transgender Rights project, said in a statement Wednesday. Levi is co-counsel for the challengers in the circuit court case.

The DOD's move to implement the transgender policy comes after a Maryland federal judge on March 7 stayed the last of four preliminary injunctions against the policy going into effect, saying he was bound by a similar stay issued by the U.S. Supreme Court in January. But the D.C. Circuit, as mentioned by the challengers, is still yet to formally lift its injunction after having issued two concurring opinions on March 8 fleshing out its earlier judgment, which effectively argue over the level of deference that courts are required to give military decisions. The circuit court panel had given the parties 21 days to ask for a rehearing or en banc rehearing following those concurrences and its mandate will only go into effect a week after any petition for rehearing is resolved.

Legal challengers to the DOD's policy were not the only ones to slam the department's plan to implement the policy, with other LGBTQ advocacy and civil rights groups and Democratic lawmakers also criticizing the move. House Majority Leader Nancy Pelosi, D-Calif., said in a statement Tuesday that "the revival of [this] bigoted, disgusting ban on transgender servicemembers is a stunning attack on the patriots who keep us safe and on the most fundamental ideals of our nation."

The disputed policy stems back to a directive issued by then-Defense Secretary Ashton Carter in June 2016, allowing transgender servicemembers to serve openly for the first time. Carter said that the department had studied the issue and found that it would not affect military readiness, and that "Americans who want to serve and can meet our standards should be afforded the opportunity to compete to do so." President Donald Trump, however, claimed in a series of July 2017 tweets — later formalized in a presidential memo in August that year — that he would reimplement the ban on open service, citing purported negative effects on military readiness and unit cohesion, as well as allegedly "tremendous" related medical costs.

That prompted a series of lawsuits from current and prospective transgender servicemembers challenging the ban, arguing it violated their constitutional equal protection rights, and several district judges subsequently issued preliminary injunctions against the policy going into effect. In response, the administration issued its updated policy in March 2018, supported by the "Mattis plan," named after then-Defense Secretary James Mattis. The plan cites the opinions of a panel of military officials regarding how best to protect "lethality and readiness," and criticizes the RAND Corp. report that had underpinned the 2016 policy. District courts remained unmoved, however, finding the new policy to be substantially similar to the previous blanket ban, prompting the administration to appeal to the Ninth Circuit, D.C. Circuit and — in an unusual move — the Supreme Court, arguing that the district judges had not given sufficient respect to military decisions and that the injunctions should not apply nationwide.

The Ninth Circuit is still yet to rule on the injunctions stayed by the Supreme Court, with district courts also yet to make any merits rulings regarding the disputed policy. There is also legislation pending in Congress to effectively overturn the policy, although it has limited Republican support, meaning it is unlikely to gain traction in the Senate. Read more at: https://ift.tt/2TR6m8I

See this link: https://www.law360.com/employment/articles/1138566/dod-transgender-ban-set-to-take-effect-in-april?nl_pk=8a8ce1fc-75c7-4ce5-917e-8a07a0ec3dcd&utm_source=newsletter&utm_medium=email&utm_campaign=employment%3Fcopied%3D1

Tuesday, March 12, 2019

Seven Lawyers from Outten & Golden LLP Named to Lawdragon's 500 Leading Lawyers in America

Seven Lawyers from Outten & Golden LLP Named to Lawdragon's 500 Leading Lawyers in America

Lawdragon's elite list honors attorneys from preeminent full-service employee-rights law firm ---

Lawdragon has published the 2019 edition of its 500 Leading Lawyers in America, featuring seven lawyers from Outten & Golden LLP among its distinguished honorees. The attorneys named to the list are:


  • Adam T. Klein – Managing Partner and Co-Chair, Class & Collective Actions Practice Group 
  • Wendi S. Lazar – Co-Chair, Individual Practice Area and Executives & Professionals Practice Group 
  • Tammy Marzigliano – Co-Chair, Whistleblower Retaliation and Financial Services Industry Practice Groups 
  • Laurence Moy – Deputy Managing Partner, Co-Chair, Individual Practice Area and Financial Services Industry Practice Group 
  • Wayne N. Outten – Firm Chair and Co-Chair, Executives & Professionals and Whistleblower Retaliation Practice Groups 
  • Justin M. Swartz – Co-Chair, Class & Collective Actions Practice Group 
  • Jillian Weiss, Ph.D. – Of Counsel, Member, Lesbian, Gay, Bisexual, Transgender & Queer (LGBTQ) Workplace Rights Practice Group 


"We are delighted that the firm once again ranks prominently on the Lawdragon 500," said Mr. Klein, a multiple award winner who the magazine previously spotlighted in a Lawyer Limelight, "and we are especially proud that so many of our practice areas are reflected." From offices in New York, Chicago, San Francisco, and Washington, D.C., Outten & Golden's attorneys represent employees in a wide array of matters, from discrimination, sexual harassment, wage-and-hour, and WARN Act cases to employment, separation, compensation, and expat agreements.

According to Lawdragon, the 500 Leading Lawyers for 2019 were selected through editorial research, submissions from law firms, and peer nominations. This year's guide features a record 40 percent women and is 20 percent inclusive – a mix consistent with Outten & Golden's honorees.

Outten & Golden LLP focuses on advising and representing individuals in employment, partnership, and related workplace matters both domestically and internationally. The firm counsels individuals on employment and severance agreements; handles complex compensation and benefits issues (including bonuses, commissions, and stock/option agreements); and advises professionals (including doctors and lawyers) on contractual issues. It also represents employees with a wide variety of claims, including discrimination and harassment based on sex, sexual orientation, gender identity and expression, race, disability, national origin, religion, and age, as well as retaliation, whistleblower, and contract claims. The firm handles class actions involving a wide range of employment issues, including economic exploitation, gender- and race-based discrimination, wage-and-hour violations, violations of the WARN Act and of USERRA, and other systemic workers' rights issues.

Outten & Golden has nine practice groups: Executives & Professionals, Financial Services, Sexual Harassment & Sex Discrimination, Family Responsibilities & Disability Discrimination, Lesbian, Gay, Bisexual, Transgender & Queer (LGBTQ) Workplace Rights, Discrimination & Retaliation, Whistleblower Retaliation, Class & Collective Actions, and WARN Act. Outten & Golden has offices in New York, Chicago, San Francisco, and Washington, DC. https://ift.tt/2VZMr5f

See this link: https://www.prnewswire.com/news-releases/seven-lawyers-from-outten--golden-llp-named-to-lawdragons-500-leading-lawyers-in-america-300810177.html