ABA Study Finds Attorneys with Disabilities or in the LGBTQ+ Community Face Prevalent Discrimination

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Discrimination can take many forms, and target many different kinds of minorities. Until now, most studies of discrimination within the legal community have focused on traits you can see: race, gender, age, etc. Now a recent study has looked into the “invisible” traits of disabilities, sexual orientation and gender identity. The study found that attorneys with disabilities or in the LGBTQ+ community face prevalent discrimination as well.

ABA Survey Studies Diversity and Inclusion Among Lawyers

In Spring 2020, researchers from the Burton Blatt Institute at Syracuse University partnered with the American Bar Association to investigate issues of diversity and inclusion within the American legal profession. Their report, published in the University of the District of Columbia’s Law Journal, holds itself out as “among the first and largest undertaking of its kind to focus on attorneys with disabilities or that have health impairments and conditions, and lawyers who identify as LGBTQ+.”

Previous studies had focused on “visible” minorities, such as race and gender. But lawyers across the spectrum of disabilities, gender expressions, and sexual orientations are “among the groups most stigmatized by society and in the workplace.” This report, the first in a longitudinal study, intended to document LGBTQ+ and disability discrimination within the industry, and suggest ways to mitigate the effects of that stigma.

The Demographics of the Study

To do this, the ABA sent out nearly 200,000 emails to lawyers associated with disability organizations and the LGBTQ+ community. Of the 3,590 responses received:

  • 6% identified as lesbian, gay, or bisexual (LGB)
  • 1% identified as transgender, non-binary, non-binary-non-gender-conforming, gender fluid, gender nonconforming, androgynous, or agender
  • 4% identified as other sexual orientations including demi-sexual or pan-sexual
  • 25% reported a health impairment, condition, or disability

The report acknowledged that the study was trying to oversample lawyers with multiple marginalized identities (representing intersectionality). However, very few lawyers fit into that group. Among those who reported health and disability issues, only 18.7% identified as LGB and 1.4% reported other gender identities. However, 42.1% were in later stages of their career, which suggested their disabilities may have been age-related.

Study Identifies Gender Discrimination and Sexual Orientation Discrimination Within the Legal Industry

This study reinforced prior work showing that the LGBTQ+ community faces negative attitudes and stereotypes in the workplace. This often causes them to be passed over for advancement, or be paid less based on conscious and unconscious biases about their performance.

During the past 10 years, the number of openly LGBTQ+ lawyers has more than doubled, but they are still not widespread in the industry. They are most often found in public interest organizations and are geographically focused in four major cities: New York, Washington D.C., San Francisco, and Los Angeles.

Even when they are able to advance, professionally, gay and Trans* workers often experience organizational barriers from verbal and nonverbal microaggressions to intentional bias. Across the study, about 40.2% of respondents said they had experienced some form of bias and descrimination. This included:

  • 9% experiencing bullying
  • 0% experiencing discrimination
  • 7% experiencing subtle and intentional biases
  • 5% experiencing subtle but unintentional biases

Among the LGB respondents, more than 47% said they had experienced implicit bias within the legal industry.

Disability Discrimination Takes More Overt Forms, Including Refusing Accommodations, Study Says

One quarter of all respondents reported having some health impairment, condition, or disability. Out of the 830 lawyers who answered the question, almost one third (30.8%) reported a mental condition, including:

  • Depression
  • Anxiety
  • Learning disabilities
  • ADHD
  • Autism
  • Sleep disorders

The study found that these attorneys with disabilities “reported experiencing proportionally more overt forms of discrimination, such as bullying and harassment, as compared to people who do not have such conditions.”

Workplace accommodations is one way disability discrimination varies from other forms of bias. Under the Americans with Disabilities Act, disabled workers may request reasonable accommodations from their employer to make it easier for them to perform their assigned tasks. In the study, more than one-quarter of total respondents (28.4%) had requested workplace accommodations. Among those who identified as a person with a disability, that number increased to 65.0%. These accommodations included:

  • 3% asked for changes to a work schedule (including flex time, shift changes, or part-time work)
  • 3% asked for modifications to their personal work environment (such as orthopedic chairs or lowered desks)
  • 8% asked to work from home or telecommute

When workers did request accommodations, their requests were granted 76% of the time, and another 15% had some accommodations made. However, in more than 10% of cases, their requests for accommodations were denied.

What Can Be Done to Mitigate Discrimination Against “Invisible” Traits

Mitigating discrimination in the legal industry, and other workplaces, requires employers to break down unintentional biases and take active steps against more overt discriminatory practices. The study asked respondents to gauge the effect mitigation efforts in their organization. Nearly half (46%) of respondents said mitigation efforts had been effective in lessening bias against discrimination. This can serve as a guide for employers looking to improve the diversity and inclusion in their workplace:

  • 5% said mentoring within the organization helped
  • 4% said external mentoring was effective
  • 1% said membership in specialized law networks or support groups also helped

Ultimately, the study’s authors encouraged the legal industry to change the way they think about diversity and inclusion to focus on 3 core areas:

  • Diversity of talent (appreciation and meaningful representation of valued benefits)
  • Inclusion of talent (understanding, accepting, and engaging with those with different perspectives)
  • Accommodation of talent (providing meaningful support to enable people to contribute to the maximum extent possible)

The study concluded:

“These diversity, inclusion, and accommodation strategies, both individually and in combination, contribute to an organization’s mission and success. They also contribute to individual commitment to and satisfaction with the organization.”

By narrowing “the divergence between the person’s particular profile of job-related strength and needs, and their work environment” the authors say employers can mitigate social biases and help everyone in their workplace feel accepted and work to their greatest potential.

At Eisenberg & Baum, we understand how to work with state and federal law to fight back against sexual orientation, gender identity, and disability discrimination at work. Our employment discrimination attorneys, help LGBTQ+ and disabled workers protect their rights under Title VII, the Americans with Disabilities Act, and state civil rights laws. If you have been the victim of disability, transgender or sexual orientation discrimination, contact us. We’ll meet with you and help create a strategy that protects you and moves you closer to equality.

Baptist Church Pastor Fired after Coming Out as Trans in Sermon

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In the latest intersection between LGBTQ+ rights and religious freedoms, a Canadian Baptist church pastor was voted out after she came out as Trans in a sermon. Find out what happened, and how recent court decisions have shaped and limited the options available to religious leaders here in the United States.

Baptist Church Votes to Remove Pastor Fired for Coming Out as Trans

The livestreamed sermon on June 14, 2020, for the Lorne Park Baptist Church in Mississauga, Toronto, Canada, wasn’t your everyday Sunday lesson. In front the whole congregation and the greater community of the internet, Junia Joplin came out as a trans woman.

“I want to proclaim to my transgender siblings that I believe in a God who knows your name, even if that name hasn’t been chosen yet,” she said during the livestream. “I believe in a God who calls you a beloved daughter even if your parents insist you’ll always be their son.”

The sermon became popular among LGBTQ Christians online, who valued how she wove together themes of the religionand self-acceptance that so many gay and trans individuals struggle with. Many of Joplin’s parishioners were supportive as well, including some she hadn’t expected.

However, not everyone was so enthusiastic about her coming out, however. Shortly afterward she received an email from church leadership, and on July 20, the congregation voted on whether to remove Joplin from her position. Aftera a narrow vote, the congregation fired her for coming out as trans.

A Congregation Divided Over a Trans Pastor’s Coming Out

The close vote raised questions and controversy for many within the Lorne Park Baptist Church community. A former pastor of the church spoke up on the church Facebook account, perpetuating the gender identity discrimination by deadnaming Joplin and intentionally using the wrong pronouns. At the same time, other frequent attendees questioned how the vote was done, finding that they had been excluded because they were not official members of the congregation.

In the months since the vote, the church has experienced substantial upheaval. Six of its eight executive council members and two of its pastoral team have stepped down. When asked their reasoning for removing her, several parishioners admitted they voted against her for reasons other than the church’s theological beliefs, indicating that their motives were purely discriminatory, rather than based on some religious belief or tenant.

Trans Employees’ Rights in the Face of Gender Discrimination

Here in the United States, 2020 has been a big year for Trans employees’ rights. Earlier this year, the United States Supreme Court extended Title VII’s protections against gender discrimination officially include same-sex orientation discrimination and gender identity discrimination. Now, no matter where Trans* employees live and work, they can file wrongful termination or gender discrimination claims with the Equal Employment Opportunity Commission or in federal court when they are fired for coming out or expressing their true gender identity.

Pastors Find Employment Law Doors Closed Under Ministerial Exception

Pastor Joplin is far from the first minister to find herself removed from her pulpit after coming out as LGBTQ. The Shower of Stoles project has gathered over a thousand liturgical stoles and sacred items from pastors, priests, ministers, and rabbis who faced sexual orientation and transgender discrimination within their churches, synagogues, and places of worship.

However, while their Trans* brothers and sisters have found shelter in the Supreme Court’s rulings, pastors and ministers still do not have access to those same federal laws. That is because of the “Ministerial Exception” to federal anti-discrimination laws. This exception says that, because of the U.S. Constitution’s law against government-established religion, churches and other religious institutions must be allowed to control who they employ in ministerial positions. The Supreme Court recently ruled that this included Catholic school teachers. It would even more clearly apply to a Baptist church pastor such as Joplin.

That doesn’t mean there is nothing to be done when transgender religious discrimination threatens the job of a Trans pastor or minister. At Eisenberg & Baum, we understand the impact gender identity discrimination on transgender and nonbinary pastors and employees. From our office in New York City, our employment discrimination attorneys can help Trans* pastors negotiate with congregations and employers to protect their rights. We are committed to making our office a safe space for you and your loved ones. If you feel like your position is at risk because of your gender identity or expression, contact us. We’ll meet with you and help create a strategy that protects you against gender identity discrimination.

SCOTUS Rules Federal Employment Discrimination Laws Do Not Extend to Catholic School Teachers

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The United States Supreme Court handed down two decisions interpreting federal anti-discrimination laws this year. In Our Lady of Guadalupe School v Morrissey-Berru, the Supreme Court ruled that federal employment discrimination laws do not extend to teachers at Catholic schools under the “ministerial exception.”

Catholic School Teachers Claim Age, Disability Discrimination

Agnes Morrissey-Berru and Kristen Biel each say that their contracts as Catholic school teachers were not renewed for discriminatory reasons. Morrissey-Berru taught fifth and sixth grade at Our Lady of Guadalupe School (OLG), a primary Catholic school in Los Angeles. In 2014, OLG reduced her role from full-time to part-time. The next year, it declined to renew her contract. Morrissey-Berru filed a claim with the Equal Employment Opportunity Commission (EEOC) saying that OLG’s actions were motivated by a desire to replace her with a younger teacher in violation of the Age Discrimination in Employment Act (ADEA). OLG’s response to her complaint was similar to many ADEA cases: that an older employee was having difficulty adjusting to a new program — in this case, reading and writing.

Kristen Biel was also a Catholic school teacher in Los Angeles, teaching first and then fifth grade at St. James School. When St. James declined to renew her contract she too filed charges at the EEOC. Biel claimed that the Catholic school had violated the Americans with Disabilities Act after she requested a leave of absence to receive treatment for breast cancer. St. James’ defense said she failed to observe the school’s planned curriculum and keep an orderly classroom.

Federal Employment Discrimination Laws and the Freedom of Religion

If the two plaintiffs had been public school teachers, their claims of age and disability discrimination would have been squarely within federal anti-discrimination laws. But because Morrissey-Berru and Biel worked for private religious schools, the schools said that they were immune to the federal discrimination laws under the First Amendment’s freedom of religion.

Federal anti-discrimination laws, including the ADA and the ADEA are designed to protect employees nationwide against hiring, firing, and other employment decisions because of who or what they are. The Age Discrimination in Employment Act protects older workers from actions that favor younger employees. The Americans with Disabilities Act prevents discrimination based on a person’s current or past medical condition or treatment.

However, all federal laws must fit within the boundaries set by the United States Constitution. That includes the First Amendment, which says “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The Supreme Court has said that means federal law can’t interfere with religious institutions’ ability to decide matters “of faith and doctrine.” As Justice Alito explained in the Court’s recent decision:

This does not mean that religious institutions enjoy a general immunity from secular laws, but it does protect their autonomy with respect to internal management decisions that are essential to the institution’s central mission. And a component of this autonomy is the selection of the individuals who play certain key roles.

In the context of employment discrimination laws, this is called the “ministerial exception.” It means that secular courts can’t get involved in employment disputes involving “ministerial” positions within religious institutions.

SCOTUS Opinion Expands Ministerial Exception Beyond Ministers

Until now, the ministerial exception has been defined narrowly. An earlier SCOTUS decision, Hosanna-Tabor Evangelical Lutheran Church and School v EEOC, laid out four factors in deciding that the exception applied to a “Minister of Religion, Commissioned” in a Lutheran private school:

  • Title
  • Extent of religious training
  • The employee’s holding herself out as a minister within the church community
  • Responsibility to teach religion and participate in religious activities

In reviewing Morrissey-Berru and Biel’s cases, the Ninth Circuit Court of Appeals had applied these four factors, and found that teachers at Catholic schools didn’t qualify as ministers. However, on July 8, 2020, the United States Supreme Court decision in Our Lady of Guadalupe School v Morrissee-Berru overturned the Ninth Circuit and expanded the ministerial exception by changing the way a person’s role was evaluated.

In a 7-2 opinion (with only Justices Sotomayor and Ginsberg dissenting), the Supreme Court said:

“What matters, at bottom, is what an employee does.”

The fact that Morrissey-Berru and Biel were titled teachers, not ministers, didn’t matter. Nor did the fact that neither of them had gone to seminary or received much formal religious education. The Court didn’t even mention whether the ladies held themselves out as ministers (presumably because they did not), though it did say it was not the court’s job to decide if the plaintiffs were “co-religious” with the school’s teachings. Instead, the Court focused almost exclusively on the religious aspects of the plaintiffs’ work as teachers in Catholic schools:

  • That they taught all subjects, including religion
  • That they took religious education courses at the schools’ request
  • That they were expected to attend prayer
  • That they prayed with their students
  • That they worshipped with their students
  • That they prepared their students for Mass, Confession, and Communion rites
  • That they took their students to Mass
  • That the employment agreements they signed defined the school’s mission as “to develop and promote a Catholic School Faith Community”
  • That their employment was evaluated based on Catholic faith and morals

Based on all these factors related to the plaintiffs’ job descriptions, the Court found:

“As elementary school teachers responsible for providing instruction in all subjects, including religion, they were the members of the school staff who were entrusted most directly with the responsibility of educating their students in the faith. And not only were they obligated to provide instruction about the Catholic faith, but they were also expected to guide their students, by word and deed, toward the goal of living their lives in accordance with the faith.”

Therefore, the ministerial exception applied to the plaintiffs’ cases, and the federal discrimination laws did not.

The ministerial exception can feel like a wall standing between employees of religious institutions and their rights. However, the federal processes it applies to are not the only option to get relief. At Eisenberg & Baum, LLP, our employment discrimination attorneys know how to work with the law, and employers, to get employees the relief they need. We can  negotiate with religious institutions and, when necessary, fight back against ministerial exception defenses to make sure your rights are protected, and your needs met.  Contact Eisenberg & Baum, LLP, today to talk to an attorney.

The Invest in Child Safety and EARN IT Acts Aim to Fight Online Child Sexual Exploitation

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The number of child pornography images online is growing exponentially. Addressing online child sexual exploitation has become a congressional priority. With several bills competing for representatives’ and senators’ votes, including the Invest in Child Safety Act and EARN IT Act, the question seems to be less whether a federal law will be passed, than which one.

45 Million Images of Child Pornography Prompt Action

According to a New York Times investigation, in 2018, there were 45 million photos and videos of child sexual abuse material online. That number was nearly double the images found in 2017. Every one of those images is a crime, and every one has a victim.

The victims of child pornography face ongoing trauma as their images circle the internet. The children used in exploitive imagery grow up never knowing who around them has seen them at their most vulnerable. Strangers stalk them. Prosecutors and police contact them years, even decades later, after their images are found in another pedophile’s hard drive.

The Fight Against Online Child Sexual Abuse

Child pornography has long been illegal across the country under both state and federal laws. By 2008, the federal government knew it needed to do more. With less than 1 million online child pornography images, Washington passed the PROTECT Our Children Act. The law empowered the Attorney General and the Department of Justice to coordinate with state, local, and nonprofit entities to coordinate child exploitation prevention efforts and implement national monitoring and assessment. The law came with a $30 million appropriation to cover the cost of personnel and equipment.

However, as the numbers of child exploitative images increased, the personnel and funding did not. Law enforcement agencies now find themselves underfunded and ill equipped to keep up with the demand for investigations. In addition, the national coordinator position at the Department of Justice was never given the full authority described in the law, limiting its effectiveness.

At the same time, technology companies such as Microsoft and Google, resist cooperating with police during these investigations, often based on privacy concerns. In their place, private companies like Clearview AI have created software for police to use in investigating child exploitative materials. But when these programs turned to identifying victims, rather than perpetrators, sex abuse victims’ advocates raised privacy concerns of their own.

Congress Raises Competing Bills to Stop Online Child Exploitation

With the release of the 2018 statistics, Congress seems ready to make another attempt in creating federal regulation to fight online child sexual abuse. But representatives and senators don’t seem to agree on how to get that done. The result is several bills that take different approaches to prevention.

The END Child Exploitation Act Pushes Companies to Cooperate with Law Enforcement

The first bill proposed in response to the New York Times investigation was the END Child Exploitation Act. This bill was very small in scope. It doubles the time communications companies must retain child sexual abuse materials they find on their platforms. The hope is that this would give local law enforcement more time to investigate child pornography charges. This bill was introduced on December 10, 2019, by Ohio Representative Anthony Gonzalez, but has not yet moved out of committee.

The EARN IT Act Opens the Door for Decryption During Child Sexual Abuse Investigations

On March 5, 2020, Senator Lindsey Graham of South Carolina presented the “Eliminating Abusive and Rampant Neglect of Interactive Technologies Act” or EARN IT Act. The bill put the burden of stopping online child sexual abuse on technology companies. It would create a 19-member commission to create a set of standards and give tech companies a strong incentive to follow them.

Generally speaking, social media companies and search engines are not legally responsible for the content their users add to their sites. However, companies that don’t follow the EARN IT Act standard could lose that protection. This would allow sex abuse victims to sue the technology companies for failing to take reasonable steps to screen for and remove child exploitative imagery.

The bill was approved by the Senate Judiciary Committee on July 2, 2020, and is now up for consideration by the Senate as a whole. However, privacy advocates and the tech industry are lobbying against it. They are concerned that the commission may endorse compelled decryption of user data or a government encryption backdoor for use in law enforcement investigations. Attorney General William Barr has called for these kinds of “lawful access” to encrypted information, but advocates are concerned that this could lead to unconstitutional invasions of privacy in the name of criminal investigations.

Invest in Child Safety Act

On May 6, 2020, Senator Ron Wyden of Oregon proposed his own bill, the Invest in Child Safety Act. Unlike the EARN IT Act, Wyden’s bill would focus on law enforcement rather than tech companies. The bill would increase federal funding by $15 million and create a Senate-confirmed director for the program. The bill would allow federal, state, and nonprofit agencies to increase staffing and update equipment, while also increasing accountability to make sure prevention efforts were effective.

“You put somebody working in the same building as the president and that means you got somebody to actually hold accountable for success and failure,” said Mr. Wyden.

The Invest in Child Safety Act is still being considered by the Judiciary Committee. However, without the tech companies opposing it, this bill may have the best chance of becoming law in the future.

At Eisenberg & Baum, our sexual abuse attorneys to stand beside child victims and their families against their abusers and the social media companies. We make it a priority to follow changes in federal and state laws so we can best protect your loved ones. Contact us today to schedule a free consultation.

Me Too Movement Shared as Part of Political Campaign

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The survivors of sexual assault often feel that their voices and their stories go unheard, prompting the recent Me Too Movement. This year one Virginia woman made her #MeToo experience the focal point of her political campaign, telling potential constituents that she knows what it’s like to feel voiceless, and now she’s speaking out.

Democrat, Mother, Survivor, and Marine Tells Her Story

Claire Russo is a 40 year old combat veteran. She served in Iraq and Afghanistan before returning home and eventually running for Congress in southern Virginia. She is also a rape survivor. That was the story she told to her potential constituents in a campaign video released in May 2020.

In 2004, while serving in the military, Russo attended the Marine Corps Ball where she was drugged and raped by a superior officer. The Marine Corps refused to charge her abuser, or allow her to transfer to another military base. She spent years trying to bring her abuser to justice. She took her case to civilian court with the San Diego district attorney’s office. Eventually, her attacker pleaded guilty to sodomy and was sentenced to three years in prison.

Even that conviction wasn’t enough to get the military to treat Russo’s sexual assault seriously. About halfway through his prison sentence her abuser received an honorable discharge from the Marines, even while she continued to serve her country.

Virginia Democratic Candidate Makes Sex Abuse a Focus of Her Campaign

When Ms. Russo decided to run in a southern Virginia congressional race, she could have focused on her military service record, her role as a mother, or any other part of her history. Instead, she chose to make the story of her rape the center of her campaign. She created a video that told her story, starting with a black screen and the year, 2004, and very quickly telling viewers, “I was raped.”

See the campaign video.

She sees this story as a crucial part of what she would bring to the office. Ms. Russo used a significant portion of her advertising budget to distribute the video, hoping to connect with voters who felt excluded and unheard.

“I have been someone whose voice has been silenced. I have been someone who was denied justice,” Ms. Russo [told the New York Times]. “It is important to show the voters in this district that we can win and that we can take power back.”

Ms. Russo’s video was the first time a political candidate featured her personal recollection of rape. Ms. Russo lost her 2020 election primary on June 23, 2020, pulling just over 18% of the vote. However, her campaign shows the influence the Me Too movement has on politics, and casts a light on sexual harassment among and against the nation’s elected officials.

The History of the Me Too Movement in Politics

Ms. Russo’s campaign ad is part of a long line of sex assault stories within politics. When the Me Too movement went viral in 2017, there were several politicians accused of sexual harassment:

  • Senator Al Franken (Democrat, Minnesota) resigned due to allegations from 6 women
  • Representative John Conyers (Democrat, Michigan) resigned due to allegations from a former staffer
  • Representative Blake Farenthold (Republican, Texas) settled a sexual harassment lawsuit filed by a former aide
  • Representative Ruben Kihuen (Democrat, Nevada), apologized for allegations of sexual touching during his 2016 campaign
  • Representative Trent Franks (Republican, Arizona), resigned under allegations by staffers

Sexual harassment also played a significant role in the 2016 presidential campaign. After video was released showing now-president Donald Trump openly talking about sexual assaulting women, his opponent, Hilary Clinton made it a campaign issue, saying:

“What we all saw and heard on Friday was Donald talking about women — what he thinks about women, what he does to women.”

Following that debate, a number of women came forward, saying “me too”, raising their own allegations of sexual assault and inappropriate behavior against the current present.

By the 2018 midterm elections, the Me Too Movement was in full swing, and the Democratic Party had made its messages part of the party platform. Democrats running for office set themselves apart, contrasting themselves with the allegations of sexual assault against the President, and his Supreme Court nominee, Brent Kavanaugh.

The Nation Wrestles with Sexual Harassment in Politics

Even though Ms. Russo is no longer in the race, sexual assault and harassment promises to remain a hot topic in the 2020 election cycle. Earlier this year, before Ms. Russo’s ads aired, Tara Reade accused Democratic presidential front-runner Joe Biden of inappropriate sexual touching. Ms. Reade worked as a staff assistant in Biden’s Senate office. She said that Mr. Biden had sexually assaulted her in 1993, pinning her against a wall and reaching under her clothing to touch her. Others have also come forward saying that Mr. Biden had kissed, hugged, or touched them in ways that made them feel uncomfortable. The New York Times investigation into the issue “found no pattern of sexual misconduct by Mr. Biden.”

However, the way the Democratic Party has addressed Ms. Reade’s allegations have caused some to claim hypocrisy. In the three years since the Me Too movement Biden and other Democrats have expressed a zero-tolerance position against sexual misconduct, positioning the party as “for women, by women.” That position paved the way for Ms. Russo and other political candidates to come forward and tell their stories of sexual abuse and harassment. Now that there are allegations of the same nature against the presumptive head of the party, gender issues, sexual abuse, and the Me Too Movement promises to play an important part of the campaign leading up to November 3.

Political staffers and federal government employees face sexual harassment and abuse just like in any other part of society. At Eisenberg & Baum, our sex abuse attorneys take every story seriously. If you have been the victim of sex abuse by a superior, colleague, or anyone, we will listen to your story and help you get justice against your abuser. We can meet with you at our headquarters in the heart of New York City, or conference with you remotely, to help navigate the criminal, civil, and regulatory processes needed to help you find justice. Contact Eisenberg & Baum, LLP, today to talk to a sexual abuse attorney.

Supreme Court Extends Civil Rights Protections to LGBTQ Employees

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Can you be fired from your job for coming out as gay or transgender? Not anymore. In a landmark case, the Supreme Court has extended Title VII civil rights protections to LGBTQ employees nationwide. The opinion, written by Trump appointee, Justice Neal Gorsuch, surprised legal commentators and solidified gay and trans* workers’ right to be free from workplace discrimination because of their sexual orientation or gender identity.

A Queer-Friendly Ruling from a “Conservative” Supreme Court

June was pride month across the U.S. and around the world. It also lines up with the end of the Supreme Court’s yearly term. In recent years, that has meant that LGBTQ advocates have looked forward to June as a time for big decisions on gay rights coming down from the country’s highest court. However, the appointment of two conservative Supreme Court justices in recent years meant that this June brought more anxiety than anticipation.

Last October, the Supreme Court heard oral arguments on three consolidated cases involving sexual orientation and gender identity discrimination:

  • Bostock v Clayton County, where a child welfare services coordinator was discriminated against based on sexual orientation and gender stereotyping
  • Zarda v Altitude Express Inc, where a skydiving instructor was fired for revealing he was gay
  • RG & GR Harris Funeral Homes Inc v EEOC, where a transgender woman was fired after informing her employer she would be presenting as a woman at work and complying with female dress codes

Following oral arguments, commentators found it hard to tell whether the Supreme Court would side with the LGBTQ employees, or find in favor of the employers. While the newly-appointed conservative justices had asked some questions tending to show their support for LGBTQ civil rights protections, those familiar with the Court warned that it is never wise to assume what will happen between oral argument and the release of a written decision. That is why the final opinion, written by Justice Neal Gorush and released on June 15, 2020, caught some by surprise.

Supreme Court Says Sexual Orientation and Gender Identity Discrimination are Necessarily “On the Basis of Sex”

The question before the court boiled down to whether sexual orientation and gender identity discrimination were forms of discrimination “on the basis of sex” under Title VII of the federal Civil Rights Act, or whether they were different forms of discrimination beyond what the legislature had intended to cover at the time it passed the law in 1964. The opinion said:

“Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

The 33 page majority opinion was signed by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor and Kagan, making it a 6-3 decision. Justices Alito and Kavanaugh each filed dissenting opinions, and Justice Thomas joined with Justice Alito’s dissent.

Those who read the opinion closely may have been disappointed to see that it framed questions of sexual orientation and gender identity discrimination on the basis of sex, “referring only to biological distinctions between male and female.” Transgender advocates in particular often try to distance questions of gender identity and expression from the sometimes arbitrary assignments of sex made by doctors at the time of a child’s birth.

However, this language reflects Justice Gorush’s attempts to tie the opinion as closely as possible to the actual wording in the federal civil rights statute, which says it is “unlawful . . . for an employer . . .  to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual’s . . . sex.” The Court emphasized that Title VII complaints need only show that a person’s sex was a motivating factor in an employer’s decisionmaking.

“So, taken together, an employer who intentionally treats a person worse because of sex—such as by firing the person for actions or attributes it would tolerate in an individual of another sex—discriminates against that person in violation of Title VII.”

The Court said this is an individual right, and that employers violate Title VII when they act against an individual because of that person’s sexual orientation or gender identity, even when the employer would treat all gay or transgender employees or applicants the same (by firing them or refusing to hire them).

What the Ruling Means for LGBTQ Employees

When the Supreme Court found that “homosexuality and transgender status are inextricably bound up with sex” it unlocked access to all of Title VII’s civil rights protections for LGBTQ employees. Workers across the nation who are fired because of who they love or their gender expression may now file complaints with the EEOC and have their cases heard in federal court. This has already been true in parts of the country, including New York where the state Human Rights Law explicitly includes sexual orientation and gender identity. However, in the 29 states without explicit state-level protections, queer and LGBT workers can now rest assured that their rights will be protected under federal law.

At Eisenberg & Baum, LLP, our gender discrimination attorneys make it our job to stay on top of changes in the law, here in New York, and across the country. We know how to navigate the landscape of sexual orientation discrimination and gender identity discrimination. If you are gay or transgender and looking for help ending discrimination at work, contact us today to schedule a free consultation.

Cheer Star Lawsuit Brings to Light Sex Abuse in Competitive Cheerleading

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The general public may think of cheerleading as a “sexy” activity involving attractive women and the strong men who hold them in the air. However, competitive cheerleading is an active and intensely competitive sport involving children as young as 5 years old. Now Cheer star Jerry Harris has been federally charged and civilly sued for sex abuse after admitting to soliciting pornographic images from members of his team. The lawsuit is shining a light on an industry whose record of responding to sex abuse complaints is shady at best.

Competitive Cheerleading Isn’t About Being “Sexy”

The idea of cheerleading brings to mind young women in short skirts and pom-poms standing on the sidelines of a high school football or basketball game rooting for their team. However, competitive cheerleading is an athletic sport unto itself. According to the USA Today, more than 3.7 million people participate in cheerleading competitions every year — from age 5 through college — including both boys and girls. At its highest levels, competitive cheerleading involves college athletes performing aerial gymnastics on nationally televised competitions.

The world of competitive cheerleading has been given a spotlight by the popular web-streaming service, Netflix. Its documentary series Cheer, released in January 2020, followed Navarro College’s cheerleading team through a year of competition. But now that spotlight has revealed some ugly secrets hiding in the sport’s shadows.

Jerry Harris Admits Soliciting Pornography from Teenage Cheerleaders

On Thursday, September 17, 2020, Jerry Harris, celebrity youth cheerleading coach and star of the Cheer series was arrested by the FBI and charged with producing child pornography. The victims of his sexual abuse were 10 to 15 minors, including 14-year-old twin brothers who were on Harris’s cheerleading squad. Charlie and Sam (whose last name is anonymous) reported that Harris had put them through more a year of sexual harassment, both online through Snapchat, and at cheer competitions. The pattern of sexual abuse began when he was 19 and they were only 13 years old.

Based on the twins’ reports, the FBI began an investigation that revealed Harris had solicited explicit imagery from 10-15 known minors, had sex with a 15-year-old during a cheerleading competition, and paid a 17-year-old for nude photos. Harris, now 21 years old, has admitted his involvement. The boys’ mother has now filed a lawsuit against Harris, as well as against the athletic company Varsity Spirit, which runs the cheer competitions, USA Cheer, and the United States All Star Federation (USASF).

A History of Ignoring Sex Abuse Complaints in Competitive Cheer

The two organizational defendants are responsible for regulating the sport of competitive cheerleading. The lawsuit alleges that they have been ignoring complaints of sex abuse in competitive cheer, and not doing enough to protect the young men and women who compete in the sport.

That complaint is supported by the USA Today’s investigation of competitive cheerleading published earlier this year. According to the report, the USASF and USA Cheer had nearly 180 people affiliated with their youth cheerleading organizations who had been charged or convicted of sexual misconduct involving minors. That included more than 140 convicted sex abusers and 74 registered sex offenders including choreographers, coaches, and gym owners. The report said that as of mid-July, the governing bodies had just 21 individuals on its public-facing list of suspensions and bans — a list designed to warn parents and gym owners about potential threats to their children. However, during the two months of the USA Today’s investigation, that list grew to 118 names, mostly due to the newspaper’s efforts to identify sex offenders and child molesters associated with the organization.

USA Cheer Policy Protections Only Go So Far

The lawsuit against Harris, USASF and USA Cheer says that, “a systemically exploitative environment that has been bubbling within the All-Star Cheer community for years.” Harris is said to have taken advantage of that environment. According to Dana Moore Storms, a former cheerleading coach and cheer-mom, who spoke to Teen Vogue about the lawsuit:

“I think that the culture of the sport kind of created an unfortunate perfect breeding ground for children to be taken advantage of. . . . The focus at cheer competitions with security has been more [about] who is walking in the door than what the people inside the door are doing.”

USA Cheer released a statement saying it “takes any allegation of sexual misconduct very seriously” and does “everything possible to safeguard our kids.” However, the lawsuit alleges that USASF, USA Cheer, and Varsity Spirit were informed of Harris’s sexual harassment, exploitation, and molestation of children in the past, and failed to investigate the claims or monitor his activities. Nancy Hogshead-Makar, the CEO of Champion Women, told Teen Vogue:

“‘It’s like any other youth-serving organization,’ she says. ‘Wherever you find two ingredients, you’re going to find sexual harassment and abuse. One is children. The other is power.’ Putting policies in place to protect minors, and enforcing those policies, is ‘expensive, it’s time consuming, it costs relationships and strife within an organization. But it has to be done.’”

The competitive cheerleading lawsuit, if it prevails, will demonstrate that having the policies in place is not enough. Organizations like USA Cheer must be held accountable for doing the work of enforcing them to protect student athletes from sexual abuse by their coaches, gym owners, and other adults.

At Eisenberg & Baum, LLP, we know how ard it can be to come forward and report sex abuse when it happens, especially in the context of teenage athletes. If you have been abused because of your participation in a sport such as competitive cheerleading, we will help you get the justice and compensation you need to move on. Contact us today to schedule a free consultation.

Discrimination Concerns Raised by DOJ for Yale’s College Application Process

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The Trump Administration’s Department of Justice has had its eye on Affirmative Action policies used at Ivy League colleges for years. Now, while a private lawsuit against Harvard goes up on appeal, the DOJ has turned its attention to Yale University, and what it calls racial discrimination against Asian Americans and white applicants in the college application process.

Yale University Targeted for Application Discrimination by DOJ

On August 13, 2020, the U.S. Department of Justice announced it had found that Yale University illegally discriminated against Asian-American and white applicants in its undergraduate college application process. The press release included this statement:

“There is no such thing as a nice form of race discrimination,” said Assistant Attorney General Eric Dreiband for the Civil Rights Division. “Unlawfully dividing Americans into racial and ethnic blocs fosters stereotypes, bitterness, and division. It is past time for American institutions to recognize that all people should be treated with decency and respect and without unlawful regard to the color of their skin.”

The notice targeted Yale’s Affirmative Action policies that are designed to lift up racial minorities. These students are often at a disadvantage when applying to elite colleges and universities because of reduced access to educational opportunities in their communities, and the lower standardized test scores that result. The notice demanded that Yale not use race or national origin in its 2020-2021 undergraduate admissions cycle, and then submit a plan for future college admissions processes showing how it would narrowly tailor the use of race, and identify a date for ending its use entirely.

Yale Responds Saying Admissions Policies Promote Diversity on Campus

It appears Yale has no intention of complying with the DOJ’s demands. It issued a statement saying that its applications process looks at the “whole person”, considering academic achievement, interests, leadership, and “the likelihood that they will contribute to the Yale community and the world.” Peter Salovey, Yale’s president, told the New York Times:

“The department’s allegation is baseless. . . . At this unique moment in our history, when so much attention properly is being paid to issues of race, Yale will not waver in its commitment to educating a student body whose diversity is a mark of its excellence.”

The notice also demonstrates the Department of Justice’s shift on how it views diversity and racial discrimination under the Trump Administration. Rachel Kleinman, senior counsel at the NAACP Legal Defense and Educational Fund said she was “shocked but not surprised” by the finding. The New York Times reported:

“This particular Department of Justice has been laser-focused on ending affirmative action,” she said, adding that she believed the department’s finding was “a foregone conclusion before they started their investigation. . . .

“They’re sticking with the analysis that any use of race is racism and insidious.”

Affirmative Action and Racial Discrimination Under Title IX

Affirmative Action and racial discrimination have come before the courts before. The U.S. Supreme Court has allowed colleges and universities to use race as one factor among many in their admissions process when the purpose was to promote diversity. However, these lawsuits have been raised under the U.S. Constitution’s 14th Amendment Equal Protection Clause.

The DOJ notice, and any lawsuit related to it, would instead be based on a violation of Title IX of the 1964 Civil Rights Act, which requires educational facilities that receive federal funding to avoid discrimination based on protected traits, including race and national origin. The federal Civil Rights Act is designed to protect students, employees, and residents from discrimination and promote fair treatment of minorities. However, the language of the law is neutral, which allows members of the majority (in this case white students) to use it when they feel they have been discriminated against in favor of minorities. This is sometimes called “reverse racism” or “reverse discrimination.” If a federal court finds that the Yale University college admissions process violated Title IX by including racial discrimination in its application process, it could require the university to change how it admits students or lose federal funding.

Harvard College Application Process, Approved by Judge, Now Up on Appeal

The timing of the notice to Yale University is also getting the attention of commentators. It came less than a month before DOJ attorneys were expected to present the same argument in a private lawsuit by Asian-American students against Harvard College. The students, represented by Students for Fair Admissions, brought their lawsuit as an Equal Protection claim.

Last year, Judge Allison D. Burroughs of the United States District Court for the District of Massachusetts, ruled in favor of the college. Her 130-page opinion said Harvard’s college application process wasn’t perfect, and could be susceptible to implicit bias by admissions staff. However, overall she found the process fair and committed to attracting applicants “who are exceptional across multiple dimensions.” Race, she said, was only ever used as a “plus” factor, not to hurt applicants.

“Although racial identity may be considered by admissions officers when they are assigning an applicant’s overall rating, including when an applicant discloses their race but does not otherwise discuss itin their application, race has no specified value in the admissions process and is never viewed as a negative attribute. Admissions officers are not supposed to, and do not intentionally, consider race in assigning ratings other than the overall rating.”

The Harvard case is currently up on appeal before the United States Court of Appeals for the First Circuit. Many commentators believe it will eventually make its way before the U.S. Supreme Court. This will give a panel of judges including at least two appointed by the Trump Administration a new opportunity to weigh in on Affirmative Action and racial discrimination. Depending on how the Yale situation progresses, it could become a hotly contested lawsuit as well, defining students’ rights in the area of application discrimination not only under the Equal Protection Clause of the Constitution, but under Title IX as well.

At Eisenberg & Baum, LLP, our discrimination attorneys understand the complex relationship between Affirmative Action and racial discrimination, both for students, and the employees of colleges and universities. If you believe Affirmative Action has improperly worked against you, we can help you review your options and protect your rights. Contact Eisenberg & Baum, LLP, today to talk to a discrimination attorney.

$90,000 Settlement Shows Discrimination in the Workplace Against HIV Positive Employees

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Can you be denied a job because you are HIV positive? Many LGBTQ+ employees and others who live with this diagnosis worry any time an employer requires a medical check. But a recent settlement shows that HIV discrimination is illegal under the Americans with Disabilities Act. Find out what you can do if you believe you lost a job because of your health circumstances.

Ex-Cop Faces Discrimination Based on HIV Status

In 2012, a former police officer, Liam Pierce, was denied a job with the Iberia Parish Sheriff’s Office in Louisiana after his pre-employment medical evaluation revealed he was HIV positive. Pierce had experience as a police officer, volunteer firefighter, and paramedic, and seemed well qualified for the position. The ex-cop had lost a previous job over a claim of misconduct. However, he and his employment discrimination attorneys said that misconduct had been addressed during his interviews. “They said it wasn’t a problem,” Pierce’s attorney said. Everything was “perfectly on track” for Pierce to become a deputy sheriff with the department.

But then Pierce underwent a pre-employment medical exam. He told the medical team that he was HIV positive. While he says the doctors told him having HIV didn’t disqualify him from the job, it didn’t take long for the sheriff’s office to deny him the job after the results of the exam were sent in. Suddenly, Pierce’s past misconduct became a problem — a pretense for the true basis for the denial: workplace discrimination against HIV positive employees.

The ADA and Disability Discrimination in the Workplace

The Americans with Disabilities Act (ADA) prevents employers from treating employers or applicants differently because of their medical disabilities. Unfavorable employment decisions could include anything from shift assignments to rejecting an otherwise qualified applicant. The ADA requires employers to provide reasonable accommodations to employees or job applicants who have a medical diagnosis or disability, unless the needed accommodation would cause significant difficulty, expense or “undue hardship” to the employer.

But plenty of medical conditions have no effect on an applicant’s ability to do the job at all. Employees and applicants may be able to manage their symptoms through medication or other treatments, or the expressions of the condition may not overlap with the needs of the job. In these cases, it is illegal for employers to treat an employee less favorably because he or she:

  • Used to have a condition
  • Has a history of health-related events
  • Has a current diagnosis
  • Is believed to have a permanent or lasting condition (even if false)
  • Is related to a person with a disability

HIV Job Discrimination Leads to $90,000 Settlement

Pierce’s lawsuit had to do with this form of asymptomatic disability discrimination in the workplace. After he was passed over for the job in 2012, his attorney helped him file a complaint with the Equal Employment Opportunity Commission (EEOC). In 2018, the EEOC said that Pierce had probable cause to bring a lawsuit based on what happened to him. Two years later, on April 24, 2020, he announced that the case had settled. Pierce is set to receive $90,000 in damages for his HIV job discrimination claim.

HIV Discrimination Based on Biases and Bad Data

Pierce was represented by the LGBTQ+ advocacy firm Lambda Legal. Earlier this year, the firm also won an argument in a similar HIV discrimination case against the U.S. Air Force. There, the 4th Circuit Court of Appeals upheld a preliminary injunction preventing the Air Force from discharging soldiers simply because they tested HIV positive. They also have 2 other lawsuits pending against other branches of the U.S. military.

HIV discrimination is especially challenging because many people are affected by decades-old stigma and bias against the disease. HIV is difficult to transmit and when treated can even be reduced to undetectable levels. Even in jobs where there are risks of contact with bodily fluids, the Centers for Disease Control says the risk of spreading HIV is “near zero.”

Still, many employers hold entrenched beliefs that people with HIV are somehow “dirty” or “bad.” Much of this stems from false information about the disease from the 1980s and 1990s. Those who are HIV-positive must also deal with homophobia and sexual orientation discrimination because HIV and AIDS were originally thought to primarily affect gay men.

Lawsuits that fight against discrimination in the workplace based on HIV status are important to help employees understand that the ADA protects them too. All too often, employees suffer the stigma related to this disease in silence, not realizing they have the right to demand better. At Eisenberg & Baum, our experienced employment discrimination attorneys know how to use the ADA and other state and federal anti-discrimination laws to protect HIV-positive and LGBTQ+ workers. If you have been turned down for a position because of your condition, we will help you explore your options, and protect your rights. Contact us today to schedule a free consultation.

ABA Ethics Committee Releases Discrimination and Harassment Guidelines in New Opinion

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Lawyers, specifically employment lawyers, are the ones who help employees fight back against discrimination and harassment at work. But what about when they are the victims of the behavior, or the ones doing the harassing? The American Bar Association’s Ethics Committee has released a new formal opinion that provides discrimination and harassment guidelines for lawyers, judges, and state supreme courts across the country.

ABA Sets Discrimination and Harassment Guidelines

The American Bar Association (ABA) is a nationwide organization that guides the practice of law across the country. One way the ABA does this is by issuing its “Model Rules of Professional Conduct”. However, the Model Rules themselves don’t affect anyone. Instead, they represent industry best practices, which individual states’ supreme courts can decide to adopt, adjust, or reject.

In 2016, after years of study and debate, the ABA House of Delegates voted to update Model Rule 8.4(g), which applies to discrimination and harassment. The current version of the model rule says:

It is professional misconduct for a lawyer to . . . engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.

The official comments on the rule provide some important definitions:

  • “Discrimination” includes “harmful verbal or physical conduct that manifests bias or prejudice towards others.”
  • “Harassment” includes “derogatory or demeaning verbal or physical conduct.”
  • “Sexual harassment” includes “unwelcome sexual advances, requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature.”

States Split Over Adoption of ABA Harassment and Discrimination Guidelines

Since the new discrimination and harassment guidelines went into effect, state courts and legal experts have been divided on whether to adopt the Model Rules for themselves. The most vocal opponents to the Model Rules said they unconstitutionally restricted lawyers’ First Amendment rights to free speech and free exercise of religion. Marc Randazza, a First Amendment attorney from Las Vegas, called the Model Rule, “a speech trap for any lawyer who sticks his or her neck out on issues that might be considered controversial.”

Opponents also said the Model Rule went too far, allowing a single inappropriate action to create grounds for attorney disciplinary action — even disbarment. Because of the controversy, as of June 2019, only two states had adopted the ABA’s discrimination and harrasment guidelines.

ABA Model Rules Hold Lawyers to Higher Standard

Title VII of the federal Civil Rights Act and state and local anti-discrimination laws set similar standards for employers across the U.S. These laws generally require employers to take reasonable steps to address severe or ongoing sexual harassment and discrimination that happens in the workplace. Single incidents, unless they are particularly serious, are not enough to trigger the obligation to respond.

The ABA Model Rules go further. As the recent ABA ethics opinion explained, “Although conduct that violates Title VII of the Civil Rights Act of 1964 would necessarily violate paragraph (g), the reverse may not be true.” The ethics opinion made clear that even a single derogatory sexual comment could violate the anti-harassment guideline. “The isolated nature of the conduct, however, could be a mitigating factor in the disciplinary process.” The opinion acknowledged that this held lawyers to a higher standard than the general public:

“Harassment and discrimination damage the public’s confidence in the legal system and its trust in the profession.”

What Counts as Discrimination and Harrasment Under the Model Rules

To provide guidance to state supreme courts considering adopting the ABA model discrimination and harassment guidelines, the Ethics Committee set out five hypothetical situations, and addressed whether each would count as discrimination or harassment under the rule:

Representation of Organizations Advocating for Discriminatory Policies: Not Misconduct

It is not misconduct for a lawyer to represent a religious organization challenging a local ordinance requiring schools to offer gender-neutral restroom or locker room facilities. Offering advice or advocacy on issues, even if others may disagree with the position, does not violate the rules.

Advocating Controversial Viewpoints at Lawyer Education Programs: Not Misconduct

It would also not be discrimination or misconduct to advocate against affirmative action policies while at a continuing legal education (CLE) program. While attendance at these programs is covered by the anti-discrimination rules, a general point of view is not harassment or discrimination, even if others might find it upsetting or offensive.

Participating in Advocacy Against Existing Anti-Discrimination Laws: Not Misconduct

A lawyer can also not be disciplined for participating in a religious legal organization that advocates in favor of allowing discrimination based on sexual orientation or gender identity. Even though the actions the organization advocates for are illegal under federal or state laws, pure advocacy is not harmful discrimination or a violation of the rule.

Unwelcome Physical Conduct by an Adjunct Professor at a Law School: Misconduct

An adjunct professor at a law school clinic who makes unwanted physical advances against the law student can be disciplined for misconduct. Even though his action took place outside the scope of representation of a client, it still qualifies as “conduct related to the practice of law.”

Law Firm Partner Makes Discriminatory Policy Planning Remarks: Misconduct

A partner at a law firm who makes discriminatory comments that the firm should not employ or represent Muslims as clients can be disciplined for misconduct because her behavior is “related to the practice of law”. This is true even if the person listening is not the target of the discriminatory comment.

Most states have some form of anti-discrimination policy included in their bar association’s code of professional responsibility, but few go as far as the Model Rules. In time, perhaps this ABA ethics opinion will quiet concerns about lawyers’ free speech, and shield attorneys from discrimination and harassment in the law offices, bar association programs, and social events that are essential parts of being a lawyer.

At Eisenberg & Baum, LLP, our employment discrimination lawyers know how to use model rules and industry standards to your benefit when discrimination or harassment happens at work. Whether you are an attorney at a big law firm or a clerk in the mail room, will review your case and help you prepare a strategy to get the relief you need. Contact us today to schedule a free initial consultation and get your case started.