Wednesday, May 30, 2018

Transgender protections finding a haven under federal law - Business Insurance

We lost one. Are our protections going down the drain?

Quoted in Business Insurance Magazine re the loss of a trans case, EEOC v. Rent-A-Center, in Illinois federal court:

“There were pretty significant differences in testimony about why (Ms. Kerr) was terminated,” said Jillian Weiss, a New York-based solo attorney, who represents LGBT people. “The jury resolved the credibility question in favor of the employer,” she said. “It’s a signal that transgender people now get to be treated like any other employee” and “juries have a right to believe them or not, and I think that’s as fair a result as can be hoped for.”

I said this in the context of the court ruling in this case, prior to trial. The court held that transgender people are protected from sex discrimination. It also ruled there was enough evidence for a reasonable jury to find sex discrimination.


Thus, courts, including in the Heartland, understand we're protected under the law. It also means we have an equal chance with everyone else to have our day in court. But for employees, that day is a little bit shorter. The target is a bit farther away.

Statistics show that only about 30% of job discrimination plaintiffs going to trial in federal court win a verdict, as opposed to 45% of plaintiff wins in federal cases generally. That's a huge differential. The deck is stacked against job discrimination plaintiffs across the board, not just LGBTQ employees. Careful and thoughtful curation of cases is important, and even so, it's probably better to settle if you can. Even after a verdict is won, there are appeals, and large verdicts are often pared down a lot. A bad settlement is better than a good judgment.

I don't think LGBTQ job protections are going down the drain. However, I do think we need to strengthen our job discrimination laws generally. There's speculation in the article that the jury was infected with anti-trans bias. Given the poisonous climate in our country, it's certainly plausible. But I haven't seen any evidence of it in this case yet.


I also noted this hopeful point in the article: “There’s no indication that I’ve ever seen that the EEOC is pulling back from its position regarding protection to transgender people from discrimination,” said Ms. Weiss.

In fact, I just received word of a victory at the EEOC in one of my cases against a major aerospace defense contractor. Thankfully, the EEOC is an independent commission that doesn't answer directly to the Administration.

While there are many troubling developments in law and politics under the current Administration, we've still got the federal courts. There are about 145 federal judicial vacancies, 19 in the appeals court and 125 in the district court. The Administration has seated 14 appeals court judges and 14 district court judges as of May 2018. Lambda Legal issued a report in December 2017 indicating that it classified about one-third as anti-LGBT. At this rate, it will take them many years to stack the deck against us. At some point, we may need to switch to state courts. Not yet.

The new nominee for EEOC General Counsel, Sharon Fast Gustafson, is troublesome, however. The Leadership Conference on Human and Civil Rights issued a letter stating concerns about her evasive answers on LGBTQ rights.

I'll keep on fighting, and I hope you will too.

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