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."

See this link: https://www.nydailynews.com/opinion/ny-oped-transgender-and-ostracized-on-campus-20190613-sryzi7exyjdele6wrhr4hbzgau-story.html

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: http://bit.ly/2HU0yEZ

See this link: https://www.law360.com/employment/articles/1164861/11th-circ-upholds-netjets-win-in-muslim-pilot-s-bias-suit?nl_pk=8a8ce1fc-75c7-4ce5-917e-8a07a0ec3dcd&utm_source=newsletter&utm_medium=email&utm_campaign=employment%3Fcopied%3D1

Sunday, June 2, 2019

ACLU of Iowa Files Lawsuit to Block Iowa Law Preventing Transgender Iowans from Accessing Medicaid for Medically Necessary Gender-Affirming Surgery

"Today the ACLU of Iowa and national ACLU LGBT and HIV Project filed a lawsuit to block implementation of a recently passed Iowa law that specifically allows denial of coverage under Medicaid of essential, gender-affirming surgery to transgender Iowans."

"In April, Iowa lawmakers passed legislation that amended the Iowa Civil Rights Act’s protections against discrimination for transgender people in public accommodations that were put into place in 2007. The new law created a new exception to those nondiscrimination protections, specifically allowing Medicaid to deny coverage to transgender Iowans for their medically necessary gender-affirming surgery."

"The new law was passed in response to an Iowa Supreme Court unanimous decision in March that found that an Iowa Medicaid regulation which excluded coverage for medically necessary gender-affirming surgery while providing coverage for all other medically necessary surgery violated the Iowa Civil Rights Act by discriminating on the basis of gender identity. That ruling required that Medicaid must indeed cover such medically necessary surgery for transgender people. The March Supreme Court ruling also determined that public accommodations include Medicaid, which is the government-funded health insurance available to low-income Iowans."

We have links to today's filings.

• Petition for Injunctive and Declaratory Relief: http://bit.ly/2JMxvFz
• Motion for Temporary Injunction: http://bit.ly/2JRYvn1
• Brief in Support of Motion: http://bit.ly/2QBh8w1

See this link: https://www.aclu-ia.org/en/press-releases/aclu-iowa-files-lawsuit-block-iowa-law-preventing-transgender-iowans-accessing

Thursday, May 30, 2019

Transgender Women Challenge Pa. Name-Change Rules - Law360

Transgender Women Challenge Pa. Name-Change Rules

By Matt Fair Law360 (May 29, 2019, 8:29 PM EDT) --

A trio of transgender women filed suit in Pennsylvania court on Wednesday alleging that state rules regarding name changes for ex-felons created unfair complications in seeking health care and employment opportunities. The women said the state’s so-called irrebuttable conviction bar, which precludes people convicted of felonies from changing their names, forced them to continue using their male birth names when visiting doctors or applying for jobs and violated due process and free speech rights.

“The right to control one’s name and self-identity is a fundamental right, as is the right to avoid disclosure of sensitive personal matters,” said Luke Debevec, an attorney with Reed Smith LLP representing the three women. “A person ought to be able to obtain a name change to match their gender.”

The complaint filed in Commonwealth Court by Chauntey Porter, Alonda Talley and Priscylla Von Noaker said the bar was adopted by the General Assembly in the late 1990s to prevent fraud that might be committed as a result of allowing people to change their legal name after being convicted of certain crimes, including murder, rape and aggravated assault. The law required courts on the receiving end of a name-change petition to submit the request to the Pennsylvania State Police to ensure compliance. Since this step takes place before a hearing over a possible name change can take place, the complaint said that individuals like Porter, Talley and Von Noaker had been deprived of an opportunity to make arguments. Unable to obtain a name change, the women said they had each faced serious challenges as they continued to use legal documents, including driver's licenses, that identified them as male. Porter said doctors told her that she did not qualify for sex reassignment surgery because her continued use of her legal name meant she was not “living as a woman.” Talley said she had faced questions when appearing to vote and when trying to pay bills over the telephone.

“As a result, Ms. Talley is forced to inform strangers that she is transgender or forced to come to an office in person to complete tasks that others can do quickly over the phone,” the complaint said. Von Noaker said she was forced to use her legal name during recent hospital stays after suffering two heart attacks.

The women claim that the bar violates their due process rights under the Pennsylvania Constitution, including their right to privacy and to protect their own reputation. “The bar’s irrebuttable presumption that individuals previously convicted of felonies are engaging in fraud when they seek a name change unconstitutionally infringes upon the right to control one’s name,” the complaint said. The complaint also claims that the bar violates the Pennsylvania Constitution’s guarantee against compelled speech by requiring them to use a name they do not want and do not identify with. They asked the court to change the law to allow them and other transgender individuals to have a chance to present evidence that their desire to change their names was based on an earnest expression of their gender identity.

A spokesperson for the Pennsylvania Department of State did not immediately return a message seeking comment on Wednesday.

The petitioners are represented by James Martin, Gregory Vose, Zachary Roman, M. Patrick Yingling, Luke Debevec, Matthew Rosso, Christian Saucedo and Todd Kim of Reed Smith LLP, and Noah Lewis of the Transgender Legal Defense & Education Fund. Counsel information for the state was not immediately available.

The case is Scott Porter AKA Chauntey Mo’nique Porter et al. v. Commonwealth of Pennsylvania, case number 303 MD 2019, before the Pennsylvania Commonwealth Court. --Editing by Haylee Pearl. http://bit.ly/2WEuPjm

See this link: https://www.law360.com/employment/articles/1164074/transgender-women-challenge-pa-name-change-rules?nl_pk=8a8ce1fc-75c7-4ce5-917e-8a07a0ec3dcd&utm_source=newsletter&utm_medium=email&utm_campaign=employment

Monday, April 29, 2019

Federal Court Issues Statewide Injunction Against Wisconsin’s Categorical Medicaid Exclusion on Transgender Healthcare



Federal Court Issues Statewide Injunction Against Wisconsin’s Categorical Medicaid Exclusion on Transgender Healthcare
On April 23, 2019, a federal court issued a preliminary injunction invalidating Wisconsin’s categorical exclusion on coverage for medically-necessary gender-confirming treatments for transgender Medicaid beneficiaries. The injunction bars enforcement of the discriminatory exclusion, which has been in effect since 1997, to deny coverage for treatments for gender dysphoria. The court also certified the case as a class action on behalf of all transgender Wisconsin Medicaid beneficiaries seeking treatments for gender dysphoria.
In April 2018, Relman, Dane & Colfax and its co-counsel filed the lawsuit, Flack v. Wisconsin Department of Health Services, on behalf of Cody Flack of Green Bay and Sara Ann Makenzie of Baraboo, who had been denied medically necessary gender-confirming surgeries under the blanket exclusion. In July 2018—finding that they were likely to prevail on their sex discrimination claims under Section 1557 of the Affordable Care Act and the federal Constitution and recognizing the significant harm of being denied care—U.S. District Judge William Conley entered an injunction on behalf of Mr. Flack and Ms. Makenzie.
Following that decision, two additional named plaintiffs, Marie Kelly of Milwaukee and Courtney Sherwin of Janesville, were added to the case. The firm then moved to certify the case as a class action and to expand the July 2018 injunction to cover every member of the class.
In the 27-page decision, Judge Conley granted both motions. He certified the case as a class action on behalf of “all transgender individuals who are or will be enrolled in Wisconsin Medicaid, have or will have a diagnosis of gender dysphoria, and who are seeking or will seek surgical or medical treatments or services to treat gender dysphoria,” and expanded the injunction to cover all members of the class. In the decision, Judge Conley found that “plaintiffs have provided overwhelming evidence that gender-confirming surgical treatments can be medically necessary” and that “the larger medical community considers gender-confirming treatments – including surgery – to be valid aspects of medical care.” The court credited the opinion of plaintiffs’ expert witnesses in concluding that members of the class faced irreparable harm if they remained unable to obtain treatments for gender dysphoria deemed medically necessary by their medical providers.
Under the expanded injunction, Wisconsin Medicaid is required to evaluate transgender beneficiaries’ requests for gender-confirming care based on their individual medical need. Plaintiffs recently filed an affirmative motion for summary judgment on all claims. A trial is set for September 2019.
The Relman, Dane & Colfax case team is led by Joe Wardenski, Jennifer Klar, Orly May, and Alexa Milton. The firm is co-counseling with Robert Theine (Rock) Pledl of Davis & Pledl, S.C. in Milwaukee, and Abigail Coursolle and Catherine McKee of the National Health Law Program.

See this link: https://bit.ly/2VxkV2i