Title VII

In a nearly unanimous Supreme Court decision released yesterday, the Supreme Court dealt a blow to clothing retailer Abercrombie & Fitch for refusing to hire a Muslim job applicant because she wore a hijab to a 2008 job interview.

Minnesota Religious Discrimination Employment Attorneys

While Abercrombie won at the Tenth Circuit Court of Appeals, the Supreme Court reversed that opinion and the accompanying notion that “actual knowledge” of a necessary religious accommodation is required to find discrimination. The Court explained, “an applicant need only show that his need for [a religious] accommodation was a motivating factor in the employer’s decision.” Because Abercrombie had a “Look Policy” in place that prohibited black clothing and “caps,” the Court explained that it ran afoul of Title VII‘s prohibition on religious discrimination even without more than an “unsubstantiated suspicion” that religious accommodation would be necessary.

Having clarified the legal test, the Supreme Court remanded the case for further consideration to determine whether in fact Abercrombie discriminated against the plaintiff.

Madia Law represents victims of religious discrimination in the workplace. State and federal law in Minnesota and Wisconsin prohibit employers from choosing not to hire someone based on the person’s religious beliefs (or perceived religious beliefs).

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Historic, unprecedented, monumental… no single word fully encapsulates the magnitude and impact the past three years have had on marriage rights for gay and lesbian Americans. By the end of next month, the Supreme Court will decide whether gay and lesbians have a constitutional right to marry and whether states can permissibly deny them of that right by refusing to issue them marriage licenses and/or denying them recognition of out-of-state marriages. How did we get to this point? What is left for the Supreme Court to decide? What will be the impacts of the Supreme Court’s pending decision? To answer these questions, let’s reflect on the legal history related to marriage and gay rights that brings us to where we stand today, and may give us insight into where we’re headed next.

Twin Cities Discrimination Attorneys

Background

In 1967, the Supreme Court decided Loving v. Virginia, 388 U.S. 1, a case in which police conducted a nighttime raid of the home of Mildred and Richard Loving. The Lovings, an interracial couple married in Washington D.C. in 1958, were arrested for living together as husband and wife—violating Virginia’s anti-miscegenation law. The Supreme Court unanimously struck down the law, writing that marriage is a fundamental civil right and that depriving that right on the basis of a race was not permissible. Id. at 12.

In 1970, a gay couple from the University of Minnesota—Richard Baker and James McConnell—applied for a marriage license in Hennepin County. After being denied, they sued for violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Among their claims, the plaintiffs argued that the law impermissibly classified on the basis of gender. The trial court dismissed their case, which the Minnesota Supreme Court upheld in 1971. Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971). The couple then appealed to the U.S. Supreme Court. Until 1988, it was mandatory for the Court to accept such appeals from state supreme courts. Thus, although a denial of certiorari is not usually an endorsement of a lower court’s decision, in the case of Baker, the Supreme Court’s one sentence opinion that, “[t]he appeal is dismissed for want of a substantial federal question[,]” Baker v. Nelson, 409 U.S. 810 (1972), was—at least at that time—considered to be a binding decision on the merits.

Just one year after Baker was decided, in 1973, the Supreme Court elevated the level of constitutional scrutiny for laws that classify based on gender, concluding that such laws must, like race and national origin, be subjected to heightened judicial scrutiny. Frontiero v. Richardson, 411 U.S. 677, 688 (1973).

In 1974, the State of Wisconsin denied Roger Redhail a marriage license because he was in arrears on court ordered child support after having a child while in high school. Redhail filed a class action suit against a Milwaukee County official, which found its way to a Supreme Court opinion in 1978. Justice Marshall cited and reiterated the Court’s position in Loving, writing that marriage is a fundamental right, the deprivation of which requires strict scrutiny. Zablocki v. Redhail, 434 U.S. 374 (1978). Nine years later, the Supreme Court again recognized the fundamental right to marry in Turner v. Safley, 482 U.S. 78 (1987) (striking down a law barring prison inmates from marrying).

In 1986, the Supreme Court upheld a Georgia law that criminalized gay sex. Chief Justice Warren Burger wrote in concurrence that ancient roots prohibited homosexual sex, calling it an infamous crime against nature that is worse than rape. He argued that framing such laws as fundamental rights violations would be to “cast aside millennia of moral teaching.” Bowers v. Hardwick, 478 U.S. 186 (1986).

In 1992, a 53% majority of Colorado voters approved a ballot measure that amended the Colorado Constitution. The amendment prohibited every county, city, and town within Colorado from protecting gay and lesbian individuals from discrimination. In 1996, the Supreme Court reviewed the amendment in Romer v. Evans, 517 U.S. 620 (1996). In the Court’s opinion, Justice Kennedy did not explicitly state which level of constitutional scrutiny the Court was applying, but wrote that, “laws of the kind… raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected,” and concluded that the ballot measure was born of a “bare… desire to harm a politically unpopular group.” Id. at 634. The Court added, “[i]f the constitutional conception of equal protection of the laws means anything, it must at the very least mean that a bare… desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” Id. (emphasis in original) (internal citations omitted).

Then, in the mid-1990’s, following a Hawaii Supreme Court decision that raised the prospect of same-sex couples being allowed to marry,[1] both the federal government and states across the country began enacting statutory bans explicitly excluding same-sex couples from marrying and/or recognizing those marriages. Like the myriad state laws passed at that time, the federal Defense of Marriage Act, passed by Congress in 1996, was also motivated by a desire to specifically avoid recognizing marriages of same-sex couples. This represented a stark departure from both the federal government’s and most states’ longstanding practice of recognizing valid marriages from any of the states. This rule—known as the “place of celebration rule”—is recognized in nearly every state and is a defining element of our federal system and American family law.[2] For example, some states will allow cousins to marry while many will not; yet, even in states that don’t grant such marriages, those states will usually recognize out-of-state marriages as long as they are valid in the conferring state.[3] That rule usually applies even when a couple leaves a state to marry in order to avoid a prohibition under their home-state marriage laws.[4]

In 1998, Alaska became the first state in the union to go beyond a statutory ban on marriage for same-sex couples, also passing a ballot measure that constitutionally restricted marriage to one man and one woman. Despite—and perhaps because of—the Supreme Court’s decision in Romer, gay and lesbian Americans were being targeted for disparate governmental treatment like never before. That same year, officials in Texas criminally prosecuted a gay male couple for having sex in the confines of a private bedroom. Texas’ sodomy laws, like those in 13 other states, explicitly prohibited homosexual acts, effectively making homosexuality illegal. See generally Lawrence v. Texas, 539 U.S. 558 (2003).

In 2003, the Supreme Court struck down those laws—and overruled its Bowers decision in Lawrence, concluding that the two Texans, like all individuals, were free under the Constitution to engage in intimate sexual conduct “in the confines of their homes and their own private lives and still retain their dignity as free persons.” 539 U.S. at 567. The Court found that “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.” Id. Further, while the Court held that “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice[.]” Id. at 577.

Also in 2003, the Massachusetts Supreme Court became the first court in the country to strike down a state’s marriage ban and require the state to marry same-sex couples. Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003). The backlash was swift and widespread. Dozens of states began following Alaska’s lead and incorporating marriage bans into their constitutions in an effort to block state courts from overruling their statutory bans. By 2008, 29 states passed measures similar to Alaska at the polls, many barring not only marriages, but also prohibiting state recognition of any type of same-sex relationship. Nebraska was one such state. It was also the first to state to have its ban struck down in federal court.

Before he was overturned by the Eighth Circuit, U.S. District Court Judge Joseph Bataillon struck down Nebraska’s ban in a Romer-style equal protection case called Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006). The plaintiffs argued that Nebraska’s constitutional amendment impermissibly “raise[d] an insurmountable political barrier to same-sex couples,” but they did not seek the right to marry. Id. at 865. The Eighth Circuit wrote that, in order to determine the appropriate level of scrutiny for classifications based on sexual orientation, “the most relevant precedents [were] murky,” Id. at 865–66 (emphasis added). Accordingly, the court tested Nebraska’s ban against the lowest level of constitutional scrutiny—the rational-basis test. Under that deferential standard, the Eighth Circuit upheld the amendment, writing that “laws limiting the state-recognized institution of marriage to heterosexual couples . . . do not violate the Constitution of the United States.” Id.

The Eighth Circuit wasn’t the only appellate court to struggle with the Supreme Court’s “murky” precedent on constitutional scrutiny for sexual orientation classifications. For example, in 2008, the Ninth Circuit reached a similar conclusion to the Bruning court in Witt v. Dep’t of Air Force, 527 F.3d 806, 821 (9th Cir. 2008), concluding that barring further pronouncement by the Supreme Court, it would apply rational basis review to equal protection claims involving classifications based on sexual orientation. Nevertheless, gay rights advocates doubled their efforts, focusing on engaging the public and winning hearts and minds by having conversations about love and fairness.

Recent Developments

Three years ago, in May 2012, President Obama declared his support for marriage equality. At the time, only six states allowed same-sex couples to marry, and the federal government refused to recognize those nuptials. In Minnesota, voters were debating what became the most expensive ballot initiative in our history, a measure that—had it been successful—would’ve made Minnesota the 31st state to constitutionally ban marriage for gay and lesbian couples. Minnesota became the first state in the nation to successfully block such an amendment at the ballot box.

Two years ago today, marriage equality advocates were anxiously awaiting decisions from the Supreme Court in United States v. Windsor, 133 S. Ct. 2675 (2013), a case challenging the constitutionality of the federal Defense of Marriage Act (“DOMA”), and Hollingsworth v. Perry, 133 S. Ct. 2652 (2013), a California case challenging the constitutionality of one of those state-level ballot measures (“Proposition 8”). Pundits heralded the lawsuits as two of the most important civil rights cases of our time, each having the potential to become landmark precedent.

As it turned out, Perry was mostly forgotten after the Supreme Court’s standing-based decision didn’t address whether states may deny marriage based on sexual orientation or gender.[5] The Court’s failure to reach the merits of the case was a disappointment for millions of gay Americans, including same-sex couples in the 37 states that, following the decision, still suffered marriage discrimination by their government and the resulting stigma that they were less equal than their neighbors.

Yet, despite Perry’s narrow results, the Supreme Court’s 2013 term was a win—a win for the same-sex couples in those 13 states that did have marriage equality, a win for gay and lesbians in general, a win for civil rights, and a win for the principles of equality, morality, and human dignity. This is because the Court’s decision in Windsor struck at the heart of DOMA, declaring—in no uncertain terms—that gay and lesbian relationships deserve dignity, due process, and equal protection. Justice Kennedy, writing for the Court, repeatedly emphasized that although states may generally define and regulate marriage, that such regulation, “of course, must respect the constitutional rights of persons.” 133 S. Ct. 2675, 2691. Thus, although Windsor didn’t explicitly decide whether states may block same-sex couples from marrying, it prompted marriage equality advocates to use its conspicuous tea leaves to light a fire.

Within one year of the decision, advocates challenged every state marriage ban and anti-recognition law in the country with at least one lawsuit. Since then, nearly every court to rule has held that Windsor’s logic requires invalidation of such laws. In numbers, that is 60+ rulings in over 40 different courts in every corner of the country, including the United States Courts of Appeals for the Tenth, Ninth, Seventh, and Fourth Circuits. In contrast, only one federal appellate court—the Sixth Circuit—and a handful of trial courts have upheld such bans.

When the Fourth, Seventh, Ninth, and Tenth Circuits struck down marriage bans and anti-recognition laws, most legal experts expected that the United States Supreme Court would review some or all of those decisions—particularly in light of the fact that all parties asked the Court to do so. But in September 2014, while visiting the University of Minnesota Law School, Justice Ginsburg hinted that the Court likely wouldn’t take the cases unless there was a circuit split. She reasoned that there was “no urgency” since the there wasn’t any disagreement. Sure enough, less than one month later, the Supreme Court denied cert. in the 10th, 7th, and 4th Circuit cases.

Pending Supreme Court Decision

Then, in November 2014, in DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014), the Sixth Circuit Court of Appeals overturned lower federal court decisions in Michigan, Kentucky, Tennessee, and Ohio, becoming the first and only federal appellate court, after Windsor, to uphold marriage bans and anti-recognition laws. This created the circuit split Justice Ginsburg was talking about, which explains why the Court granted cert. in the Sixth Circuit cases in January of this year.

Today, after less time has elapsed than it takes to complete law school, 31 more states have marriage equality than did in May 2012. As of the publishing of this article, the total stands at 37—a complete reversal in numbers from only two years ago. Although Minnesota is among the few states added to that tally by legislation, the majority were put there pursuant to judicial decree, and mostly within the past year. By the end of next month—most likely on June 29, the last day of the term—the Supreme Court will decide whether those courts have gotten it right.

Unlike Perry, there are no standing issues that may prevent the Court from reaching a decision on the merits. Among the matters the Court will decide, look for the majority opinion to discuss: 1) whether its summary dismissal in Baker is still valid precedent; 2) whether same-sex couples share in the fundamental right to marry that the Court discussed in Loving, Zablocki, Turner, and other cases; 3) whether the Court considers the contested marriage laws to classify on the basis of gender—meaning that they must be subject to heightened constitutional scrutiny; 4) whether laws classifying on the basis of sexual orientation must be subject to heightened scrutiny; 5) whether principles of federalism (such as the Tenth Amendment and the domestic relations exception to federal jurisdiction) can legitimate the contested marriage laws; 6) whether a stated intent to maintain marriage as between a man and a woman can be considered animus evidence sufficient to strike down the ban; and 7) whether any rationale offered by the States, such as promoting procreation or deferring to the political process, can legitimate the challenged marriage laws.

In deciding question 1—whether its summary dismissal in Baker is still valid precedent—look to see if the Court also addresses question 3—whether the contested marriage laws classify on the basis of gender and are thus subject to heightened constitutional scrutiny. During oral arguments in Perry, Justice Kennedy stated that it was an interesting question, one that he had been wrestling with. Justice Ginsburg also indicated that Baker was from a different era, one that preceded heightened scrutiny for gender classifications.

On question 2—whether same-sex couples share in the fundamental right to marry—look for the Court to discuss its historical treatment of marriage and to also discuss question 5—whether principles of federalism can legitimate the contested marriage laws. The Supreme Court has articulated the right to marry no less than 14 times, describing it as a right associated with other fundamental rights, including privacy and association. While the Windsor opinion discusses the States’ historical regulation of marriage at length, principles of federalism have not previously stopped the Court from striking down state marriage laws that violate the Constitution. Thus, if the Court answers question 2 affirmatively, simultaneously doing so with question 5 would be difficult.

Regarding question 7—whether any rationale offered by the States, such as promoting procreation or deferring to the political process, can legitimate the challenged marriage laws—look for the Supreme Court to specifically address the Sixth Circuit’s assertion that deference to the political process constitutes a rational basis to uphold the contested marriage bans. The Supreme Court already dismissed the other rationales in Windsor.

While the Court’s precedent on marriage and gay rights may offer some strong clues into its likely opinion on the issue of marriage for gay and lesbian couples, perhaps the most anticipated answers for those now anxiously awaiting the Supreme Court’s pending decision is with regard to questions 4 and 6. With regard to 4—whether laws classifying on the basis of sexual orientation must be subject to heightened scrutiny, although the Eighth and Ninth Circuits have both previously ruled that the Supreme Court’s precedent only requires rational basis level review for laws that target gay and lesbians, the Supreme Court’s opinion in Windsor suggests otherwise. Indeed, the Ninth Circuit recently reversed its 2008 Witt opinion, concluding that Windsor was “dispositive of the question of the appropriate level of scrutiny” for sexual orientation classifications and requires heightened scrutiny. SmithKline v. Abbott Labs, 740 F.3d 471, 480–481 (9th Cir. 2014).

With regard to question 6—whether a stated interest in maintaining the “traditional” heterosexual definition of marriage is evidence of animus sufficient to strike down the laws—there is some thought that the Court could answer this affirmatively and avoid answering questions 4 and 7 altogether. The Court’s developing animus doctrine is something that University of Minnesota Law Professor Dale Carpenter has written about at length.[6] Essentially, the Court’s precedent seems to indicate that although a finding of animus toward a particular class of people is not necessary to strike down a law, a finding of animus is in fact sufficient to render the law unconstitutional. This doctrine is not part of the Court’s traditional equal protection analysis.

The significance of the answers from the Supreme Court on questions 4 and 6 extends beyond the issue of marriage equality. Across the country—most recently and most significantly in Indiana—states are passing laws meant to chip away at the rights of gay and lesbian citizens. In some cases, the laws don’t explicitly classify on the basis of sexual orientation but are nonetheless rooted in allowing discrimination on the basis of sexual orientation. Such laws, much like DOMA and the 13 remaining state marriage bans, inflict serious harms on gay and lesbian persons and their children, depriving them of hundreds of rights and protections, and stigmatizing them as inferior and unworthy of respect. Allowing the laws to stand would burden the lives of gay and lesbians persons “by reason of government decree, in visible and public ways . . . from the mundane to the profound.” Windsor, 133 S. Ct. at 2694.

Like the Supreme Court’s previous cases involving gay and lesbian persons, its pending decision will have long-term implications. To the extent that the Court answers the above-posited questions, with the above-discussed history in mind, come June 29, 2015, we may likely have some insight into the next legal steps for the gay civil rights movement.

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[1] Baehr v. Lewin, 852 P.2d 44 (Haw. 1993).

[2] Garcia v. Garcia, 127 N.W. 586, 589 (S.D. 1910). Indeed, the “policy of the civilized world[] is to sustain marriages, not to upset them.” Madewell v. United States, 84 F. Supp. 329, 332 (E.D. Tenn. 1949); see also In re Lenherr’s Estate, 314 A.2d 255, 258 (Pa. 1974) (“In an age of widespread travel and ease of mobility, it would create inordinate confusion and defy the reasonable expectations of citizens whose marriage is valid in one state to hold that marriage invalid elsewhere.”).

[3] e.g., Garcia, 127 N.W at. 587-589 (recognizing a marriage between first cousins that would have been prohibited and void if the parties had attempted to marry in South Dakota).

[4] Id.

[5] Although the Perry decision didn’t reach the merits, it did add to the Supreme Court’s evolving standing doctrine and effectively brought marriage equality to California.

[6] http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2424743

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In a memo dated December 15, 2014 from United States Attorney General Eric Holder to United States Attorneys and other officials, the Attorney General has declared that Title VII of the Civil Rights Act of 1964‘s prohibition of sex discrimination encompasses discrimination based on gender identity, including transgender status.

Minneapolis Transgender Employment Attorneys

 

The Attorney General wrote,

“The most straightforward reading of Title VII is that discrimination ‘because of  . . . sex’ includes discrimination because an employee’s gender identification is as a member of a particular sex, or because the employee is transitioning, or has transitioned, to another sex.”

The memo comes after Congress failed to pass the Employment Non-Discrimination Act, which would provide a Title VII-equivalent prohibition on discrimination based on sexual orientation and/or gender identity. While the memo shows the federal government playing catchup with many courts’ interpretation (The Justice Department previously declared that Title VII per se didn’t prohibit discrimination based on gender identity), it is a sign of hope for those who have been discriminated against in the workplace based on their gender identification.

However, because courts have widely found that Title VII does not prohibit discrimination based on sexual orientation, it will take passage of the Employment Non-Discrimination Act to protect gay and lesbian individuals from discrimination at work that is not based on sex stereotyping.

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On Friday, May 2, Madia Law filed a federal lawsuit in the United States District Court for the Western District of Wisconsin. The lawsuit, filed against NeuroScience, Inc. and Pharmasan Labs, Inc., alleges pay discrimination on the basis of sex/gender.

Wisconsin Sex Discrimination Lawyers

Defendants NeuroScience and Pharmasan Labs advertise themselves as being committed to delivering personalized health care solutions. The companies include a clinical laboratory improvements-regulated specialty reference laboratory, purportedly providing licensed health care providers with integrative clinical assessments (testing) and proprietary nutraceuticals (supplements) that purportedly identify and target neurological and hormonal imbalances.

Plaintiff Danielle Ailts Campeau has a bachelor’s degree and a master’s degree from the University of Wisconsin at River Falls. Campeau’s full-time employment with Defendants began in May 2007.  Campeau began as a technical support specialist and quickly rose to one of the most senior positions in the company, overseeing multiple departments and projects and assisting in privacy and compliance officer functions.

Midway through her employment with Defendants, Campeau discovered that she was substantially underpaid compared to men in the company who had both similar and significantly less education, experience, and responsibility.  Campeau approached Defendants regarding this unequal pay and was rebuffed.  Campeau remained grossly underpaid compared to men in both comparable and less comparable positions (with regard to education, experience, and job responsibilities).

In February 2014, after opposing unfair treatment of a fellow female employee, Campeau was immediately terminated by Defendants.

Campeau is in possession of substantial evidence that she and other female employees of Defendants were and are significantly underpaid compared to men in the company.  Defendants’ actions in this regard violate Title VII of the Civil Rights Act of 1964 and the Equal Pay Act.

Campeau’s lawsuit is filed on behalf of herself and other female employees of Defendants.  Female employees will have the opportunity to join Campeau’s lawsuit as opt-in plaintiffs in this action, pursuing monetary damages from Defendants, punitive damages, and all other relief available by law.

Campeau’s attorney is Madia Law’s Joshua Newville, a Minnesota and Wisconsin employment and civil rights attorney.  Newville’s phone number is 612.349.2743.

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I’ll admit it.  When I first learned about “The Woman Question” during my first year of a law school, I wasn’t impressed.  I immediately equated this feminist approach to the world (and particularly, to the law) with what I felt was as an overly radicalized modern feminism.

Minnesota Gender Discrimination Lawyers This week, I was reminded of The Woman Question.  A new study (conducted by the University of Toronto and published September 16) shows that I wasn’t alone in my thoughts on feminism.  As a society, the study determines, we tend to distrust movements heavily supported by overt activism.  Salon’s Tom Jacobs concludes:

So the message to advocates is clear: Avoid rhetoric or actions that reinforce the stereotype of the angry activist. Realize that if people find you off-putting, they’re not going to listen to your message. As Bashir and her colleagues note, potential converts to your cause “may be more receptive to advocates who defy stereotypes by coming across as pleasant and approachable.”

As a threshold matter, the angry activists have reason to be angry.  American women make 81 cents on the dollar when compared to men.  The United States is one of only 8 countries in the world that don’t offer paid maternity leave (with the likes of Suriname, Liberia, Palau, Papua New Guinea, Nauru, Western Samoa and Tonga).  In 2011, women ran only 12 of the Fortune 500 companies.  In 2010, women accounted for only 31.5% of all lawyers.  Unfortunately, I could go on with employment (and other) disparities.

In any event, as I’ve come to learn since that first year of law school, the kind of strident activism employed by groups such as feminists, environmentalists, and gay rights advocates serves one incredibly important purpose: it forces those in a position of power to pay attention, to take pause, to ask questions.   [click to continue…]

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It’s been a busy week for employment law and civil rights.  The impact of the past week’s Supreme Court decisions on these two areas of law cannot be understated.  The Voting Rights Act was gutted, killing protections put in place to prevent discrimination at the ballot box.  The Civil Rights Act was substantially weakened, stripping minority employees across the country from access to Title VII remedies. And although the news for same-sex couples was brighter, the Court’s narrow decisions on that front leave much work to be done in the struggle for equality.

Wednesday, the Supreme Court released its decisions in United States v. Windsor (the “DOMA” case) and Hollingsworth v. Perry (the “Prop 8″ case).  These two cases each had the potential to become landmark civil rights precedent, with monumental significance for gay and lesbian Americans; they were heralded by pundits as the most important civil rights cases of our generation.

Indeed, the decision in Windsor will go down as one of the most significant decisions in Supreme Court history; it struck at the heart of DOMA and declared gay and lesbians deserving of equal protection under the law.  The Court’s decision in Perry, on the other hand, will soon be brushed into the dusty corners of irrelevance; in that case, a group of five strange bedfellow Justices entirely ducked the question of whether same-sex couples are entitled to marriage equality.  Thus, the struggle for gay civil rights marches on – and there is a lot of ground to cover. [click to continue…]

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From Justice Ginsburg’s dissent in today’s Supreme Court Decision in Vance v. Ball State, which narrowly defined “supervisor” so as to limit employer liability (thus, employee protection) in workplace harassment cases:

Minnesota Employment Harassment Lawyers

Exhibiting remarkable resistance to the thrust of our prior decisions, workplace realities, and the EEOC’s Guidance, the Court embraces a position that relieves scores of employers of responsibility for the behavior of the supervisors they employ. Trumpeting the virtues of simplicity and administrability, the Court restricts supervisor status to those with power to take tangible employment actions. In so restricting the definition of supervisor, the Court once again shuts from sight the “robust protection against workplace discrimination Congress intended Title VII to secure.”

Regrettably, the Court has seized upon Vance’s thin case to narrow the definition of supervisor, and thereby manifestly limit Title VII’s protections against workplace harassment. Not even Ball State, the defendant-employer in this case, has advanced the restrictive definition the Court adopts. See supra, at 5. Yet the Court, insistent on constructing artificial categories where context should be key, proceeds on an immoderate and unrestrained course to corral Title VII. Congress has, in the recent past, intervened to correct this Court’s wayward interpretations of Title VII. See Lilly Ledbetter Fair Pay Act of 2009, 123 Stat. 5, superseding Ledbetter v. Goodyear Tire & Rubber Co., 550 U. S. 618 (2007). See also Civil Rights Act of 1991, 105 Stat.1071, superseding in part, Lorance v. AT&T Technologies, Inc., 490 U. S. 900 (1989); Martin v. Wilks, 490 U. S. 755 (1989); Wards Cove Packing Co. v. Atonio, 490 U. S. 642 (1989); and Price Waterhouse v. Hopkins, 490 U. S. 228 (1989). The ball is once again in Congress’ court to correct the error into which this Court has fallen, and to restore the robust protections against workplace harassment the Court weakens today.

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It’s a tactic long used by defendants in both civil and criminal cases.  From charges of rape to sexual harassment, men take the stand and point the finger at their female victims.  Claiming that they “asked for it,” or that they “wanted it,” such men have often found sympathetic audiences in judges and juries.

In three recent and sensational examples (one in Iowa, one in Minnesota, and one in Arizona), Defendants’ attempts to use the “blame her defense” have yielded strikingly different results.  While the cases are very different, both legally and factually, they serve as fascinating examples of a kind of defense that, despite such protections as Title VII and the Minnesota Human Rights Act, female victims must continue to grapple with.

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Madia Law, representing a woman who worked at a Twin Cities technology company, has initiated a sex discrimination lawsuit against the company pursuant to the Minnesota Human Rights Act.  Just prior to the Plaintiff’s hire, the company (which has been in business for decades) employed dozens of men and not a single woman.

In Fall 2012, the Plaintiff commenced employment as a department manager. Around the same time, the Defendant hired two other women. During her interview, a senior-level executive told the Plaintiff that although he was willing to hire her, the company had bad past experiences with women and “doesn’t like to hire” them.  Shortly after starting, the Plaintiff was told that she would have to “prove” herself by, “doing better than any man” if she wanted to keep her job; she was also repeatedly told that she was, “at a disadvantage” because she was a woman. [click to continue…]

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As published in the Harvard Law & Policy Review, Kevin M. Clermont & Stewart J. Schwab observed that from 1979-2006, plaintiffs bringing employment law matters (discrimination, wrongful termination, etc) in federal court won only 15% of the time. When paired with the observation that plaintiffs in non job-related matters won 51% of the time, that 15% figure is stunning. Questions as to why there is such an imbalance in employment law compared to other areas of law have been the focus of many journalists, lawyers and academics. But for attorneys who represent plaintiffs in employment discrimination cases, there is one key factor worth focusing on: properly preparing a case to survive motions for dismissal, particularly summary judgement motions.

http://www.hlpronline.com/Vol3.1/Clermont-Schwab_HLPR.pdf

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Twin Cities Lead Nation in Racial Unemployment Gap

July 7, 2012

In Brown v. Board (U.S. 1954), the United States Supreme Court ordered that public schools across the nation integrate, supposedly putting an end to the segregation of schools on the basis of race. Yet, Minnesota spent the better part of the next thirty years attempting to achieve that end. In 1964, Title VII of The […]

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Lawsuit Alleges Old Boys’ Club in Young Industry

June 12, 2012

In Bradwell v. Illinois, (U.S. 1873), the Supreme Court declared that allowing a woman to practice law would surely destroy her femininity. According to the 8-1 decision, law is a man’s profession and  women simply aren’t well-suited for such rigor. While that may seem archaic, it wouldn’t be until 1971 that the Court invalidated such discrimination by […]

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Federal District Court Allows Sexual Harassment Claim to Proceed to Trial

May 7, 2012

Mehl v. PortaCo, Inc. and Timothy Wilson (D. Minn. 2012):  A federal district court in Minnesota denied almost all of PortaCo, Inc.’s motion for summary judgment and allowed Cassandra Mehl to proceed to trial on her claims of sexual harassment under Title VII and the Minnesota Human Rights Act.

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EEOC: Employers may not automatically deny employment based on criminal record

April 15, 2012

The EEOC updated its guidance regarding how criminal records can be used by employers in hiring decisions.  The EEOC reaffirmed that – in some instances – an employer’s use of an individual’s criminal records when making employment decisions will violate Title VII’s ban on employment discrimination.

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Eighth Circuit reverses district court and finds constructive discharge in race discrimination case

February 28, 2012

Sanders v. Lee County School District, No. 10-3240 (8th Cir. 2012).  An Arkansas jury found in favor of plaintiff Sharon Sanders on her Title VII claims of race discrimination and constructive discharge.  The jury awarded $10,000 in compensatory damages for race discrimination, $60,825 in back and front pay damages for her constructive discharge, and $8,000 […]

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Feb. 2012: Madia Law beats City’s motion and forces settlement to police officer pushed out because he was gay

February 22, 2012

For nearly three years, Sean Lathrop was a star of the St. Cloud Police Department.  Known as the “Golden Boy,” Officer Lathrop earned superlative performance evaluations, garnered high recommendations from community members, and quickly advanced to positions of responsibility. Officer Lathrop’s ascent within the Department came to an abrupt end on May 12, 2009, when […]

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Mar. 2011: Madia Law beats summary judgment motion brought by one of MN’s biggest law firms; settles case for retaliation victim

March 18, 2011

“Sam” worked as a salesman for several years at the same company. On occasion, he heard his supervisor and colleagues use anti-Semitic slurs in the workplace. Sam sent a very polite email stating that he had family members who died in the Holocaust and would like it if the comments stopped. All of a sudden, […]

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The Lilly Ledbetter Fair Pay Act makes it easier to sue for unlawful employment discrimination

December 15, 2010

Congress passed the LLFPA to reverse the Supreme Court’s 2007 holding in Ledbetter v. Goodyear Tire and Rubber Co., Inc.    In that case, Justice Alito led a 5-4 majority in concluding that Ledbetter could not sue Goodyear under Title VII of the Civil Rights Act of 1964 for gender based pay discrimination that she had experienced […]

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May 2009: Introducing Madia Law

May 1, 2009

Dear Friends, I am excited to inform you that I am starting a new business venture, Madia Law LLC – a dynamic and aggressive law firm that will serve Minnesota individuals and small businesses.

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