Before the Civil Rights Act of 1964, employers were free to discriminate against employees for almost any reason – whether it be their race, religion, or, of course, their gender.  Even after the passage of the Civil Rights Act, employers continued to post gender- (and race-) specific help-wanted ads:

In 1968, after a year-long fight by women’s organizations against the Equal Employment Opportunity Commission and some of the largest publications in America, including the New York Times, the EEOC determined that this practice of gendering help-wanted ads was contrary to the mandates of the Civil Rights Act and federal law — outlawing the practice for good.

Or so it seemed.  In today’s social-media economy, the ugly practice of limiting opportunities based on gender (or otherwise) is alive-and-well.  Facebook, and other social-media platforms, allow employers to specify the gender sought when placing help-wanted ads on the platform.

When an employer specifies a gender in its Facebook job posting, members of the excluded gender do not see the ad.  Unlike in the 1960s when women knew of the job-openings but were discouraged from applying because the job was categorized as “for males,” women (or non-binary individuals) looking for jobs on Facebook may not even be aware that employers are discriminating against them.

The ACLU is taking action against both employers and Facebook — the organization filed charges in the EEOC against 10 employers and Facebook on September 18, 2018.

These charges cannot be news to Facebook.  In 2016, the social-media platform came under attack after a ProPublica investigation demonstrated that Facebook allowed discrimination based on race and “ethnic affinity” in the areas of housing and credit.  While Facebook allegedly took steps to prevent groups from engaging in racial discrimination following the ProPublica investigation, it looks like the platform is still not doing enough to prevent employers and other individuals from discriminating on the basis of race.

And so it goes with gender — not only did Facebook know two years ago that it’s targeted ads were in conflict with federal law, it took no proactive steps to ensure compliance.  The fact that employers are allowed to exclude women from viewing their help-wanted ads is not a mere “technical issue” for which Facebook was simply not placed on notice until now — the platform is specifically designed to aid in such discrimination.

While it is “important to note that online platforms like Facebook are generally not liable for content published by others,” says ACLU attorney Galen Sherwin, “Facebook is doing much more than merely publishing content created by others.  It has built the architecture for this discriminatory marketing framework, enabled and encouraged advertisers to use it, and delivered the gender-based ads according to the employers’ sex-based preferences.”

Discrimination in employment on the basis of race, color, religion, sex, national origin, age, or disability is strictly prohibited by federal law.  In addition to the categories listed above, it is unlawful for an employer to discriminate on the basis of creed, marital status, status with regard to public assistance, familial status, or sexual orientation under Minnesota state law.

If you believe that you’ve been discriminated against on the basis of one of these categories, call us for a free consultation:  612.349.2729.

To follow the ACLUs action against the 10 employers and Facebook, mentioned above, click here.

For more information on this story, click here or here.

The cases brought in the names of Philando Castile, Terence Crutcher, Tamir Rice and Freddie Gray never made it to trial. Each was brought to a halt earlier in the civil court process. This is an all-too-common occurrence, says Joshua Newville, a civil rights attorney in Minneapolis.

“It can be disheartening to see a flood of cases that overwhelmingly side with police officers,” he says. “Judges, like most Americans, want to believe that the people we choose to protect us aren’t capable of the heinous acts that they are accused of. They truly at their core want to believe that. In some of these cases, [the belief] clouds judges’ summary judgment and qualified immunity analysis in a way that it shouldn’t.”

Motions and Hearings, Briefly Explained

As soon as a lawsuit is filed alleging police misconduct, it is assigned to a district court judge. The attorney defending the police officer then has the option to file myriad motions seeking to dismiss the suit or certain elements of it (an item of evidence, for example). The defense attorney can also file motions for hearings that, depending on their result, can also stop a case before it reaches a jury trial.

Practically speaking, an alleged victim must win at several of these hearings to be allowed to be given an opportunity for settlement or a civil jury trial. If they do win, Newville says settlement offers often become much more substantial.

A hearing for summary judgment is a common one that gets in the way. At this hearing, an alleged victim must prove to the court that there is a dispute on a material fact relating to the claim, and a reasonable jury could believe the allegations that would allow them to prove liability. This can be difficult to prove in many civil cases, but in police misconduct cases, specifically, it often hinges on a he-said, she-said situation. That should be viewed as the very definition of a dispute as to the material facts, Newville says, but judges often rule otherwise and the case doesn’t move beyond this hearing.

There is another standard in police misconduct or brutality cases: the qualified immunity standard. An alleged victim must prove two things:

1. that a reasonable officer in the same position would have known that the conduct was unlawful
2. that the conduct is clearly established as unlawful.

“These two standards collectively have been used to throw police misconduct cases out far too often,” says Newville. “The numbers are disproportionate to other cases. The rulings coming out of the court seem to show that these standards are being applied in a way that isn’t fair to police victims.”

In her dissent on Kisela v. Hughes, U.S. Supreme Court Justice Sonia Sotomayor agreed: “Such a one-sided approach to qualified immunity transforms the doctrine into an absolute shield for law enforcement officers, gutting the deterrent effect of the Fourth Amendment. It also sends an alarming signal to law enforcement officers and the public. … It tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”

What can a victim of misconduct do?

Before making any complaints with the police, gather all the evidence you can (e.g. witness statements, videos, pictures of injuries). Then find an experienced and reputable civil rights litigation attorney immediately.

Despite the challenges they may face, a victim must try to make their voice heard, Newville says. “The last bastion of hope is the courts.”

Here at Madia Law, a huge number of the clients we serve are people that have been injured while at work.

In Minnesota, your employer must pay for your care if you are injured at work.  Employers in Minnesota are required to carry workers’ compensation insurance and use that insurance when an employee has been injured on the job.

That said, the first thing you need to do if you’ve been injured on the job is report the injury to a supervisor.

Now – let’s be careful here:  Most employers have policies and procedures around when and how to report workplace injuries.  Most employers require you to report injuries to a supervisor as soon as they happen no matter how small the injury.  Make a commitment today, after reading this post, to look at your employee handbook and read the workplace injury policy.  Familiarize yourself with this policy, commit it to memory, so you know exactly what is expected of you if you get injured.

Even if you don’t know your employer’s specific policy, however, make sure to report all workplace injuries to a supervisor as soon as you are able to do so.  After you’ve reported the workplace injury, follow your employer’s instructions about what to do next.

What if my employer won’t pay for my treatment after I’ve been injured on the job?

In the event that you report your injury to your employer and your employer doesn’t let you fill out paperwork to file a workers’ compensation claim, you’ll need a workers’ compensation attorney.  While we aren’t workers’ compensation attorneys here at Madia Law, we have great relationships with a variety of workers’ compensation attorneys and would be happy to connect you with someone.

What if my employer fires me after I’ve been injured?

Your employer is not allowed to fire you because you got injured on the job.  For that matter, your employer is not allowed to treat you in any negative way because you’ve been injured on the job – that means that your employer is not allowed to demote you, cut your hours, cut your pay, or terminate you because you’ve been injured.

If you feel you’re being treated differently because you were injured on the job, call us at Madia Law for a free consultation.

What if my employer won’t accommodate my physical limitations after I’ve been injured?

If you have physical limitations or are disabled as a result of your injury, your employer must try to accommodate the physical limitations attendant with your recovery or disability.  If your employer refuses to provide you with any accommodations, call us at Madia Law for a free consultation.

Just last week, I complained that courts are too often rubber-stamping excessive police force. On cue, the Minnesota Court of Appeals issued a great decision today for Minnesotans who care about police accountability.

In City of Richfield v. Law Enforcement Labor Services, Inc. (on behalf of Nathan Kinsey), the Court of Appeals overturned an arbitrator’s decision to reinstate Nathan Kinsey, who was fired by the City of Richfield police department for repeatedly failing to report use of force.

From the decision:

We agree that Kinsey’s repeated failure to report his use of force makes him a serious risk to public safety and the interest of the public must be given precedence over the arbitration award reinstating him.

…

Reinstating Kinsey—an officer who admittedly failed to report his use of force when he should have and has had prior offenses and warnings regarding the same duty to report—interferes with the RPD’s legal obligation to establish and enforce minimum standards of conduct for its police officers. Specifically, it interferes with the clear public policy in favor of police officers demonstrating self-regulation by being transparent and properly reporting their use of force.

Further, the arbitration award interferes with the public policy against police officers using excessive force because the only way a city and police department can successfully uphold that public policy is if they are given the opportunity to review occasions involving the use of force.

We are aware that our decision today is only the second time this court has vacated an arbitration award involving the reinstatement of a Minnesota Police Officer because of a violation of public policy. See Brooklyn Center, 635 N.W.2d 236 (applying the public- policy exception to vacate an arbitration award that reinstated a Minnesota Police Officer for the first time). We do not take this action lightly, but rather thoughtfully and unanimously. Nevertheless, we are obligated to follow the law. To do otherwise would violate a well-defined and dominant public policy by jeopardizing public safety and undermining public trust in law enforcement.