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.