(Minneapolis; March 7, 2019)—Alice James will join Attorney General Keith Ellison and Department of Human Rights (MDHR) Commissioner Rebecca Lucero in suing a plasma collection company for its discriminatory ban on donations by transgender persons.

In 2011, Ms. James began donating plasma at CSL Plasma locations in Minnesota. For nearly four years, CSL refused to acknowledge Ms. James’ gender identity. In 2015, CSL stopped allowing Ms. James to donate plasma, citing a company policy barring transgender persons from making such donations. That policy violates the Minnesota Human Rights Act. In 2016, Ms. James filed a discrimination complaint with the MDHR. That complaint led to the lawsuit filed this week by the MDHR and Attorney General.

Minnesota has long been a leader in rejecting unfounded and overly simplistic notions regarding gender. In 1975, the Minneapolis became the first government in the nation to outlaw gender identity discrimination. In 1993, Minnesota was the first state to do so.

In the 43 years since Minneapolis led the way, our collective understanding of gender has grown substantially, and dozens of states and localities now ban businesses from discriminating simply because a person’s gender differs from the one assigned at birth.

Said Joshua Newville, one of Ms. James’ lawyers: “CSL brazenly ignores these laws and bans all transgender persons from donating plasma purely on account of their transgender status. There is no legitimate justification for such a ban. We look forward to joining this lawsuit and to working with the Attorney General and the Commissioner. We are also grateful for their support.”

Said Ms. James: “I am proud to live in a state where the law demands that people be treated fairly. I hope this case helps to ensure fair treatment for other Minnesotans.”

From the Minneapolis Star Tribune:

The Minnesota Department of Human Rights is suing a self-proclaimed “leader in plasma collection” for allegedly discriminating against a transgender woman who was banned from donating because of her gender identity.

Minnesota Attorney General Keith Ellison is expected to file the lawsuit Thursday on behalf of the department against CSL Plasma Inc., which identifies itself as “one of the world’s largest collectors of human plasma.”

“Obviously, anyone’s gender identity is a core component of who they are, and we want to make sure that the core component of who they are is protected and celebrated,” said Irina Vaynerman, the department’s deputy commissioner of human rights.

CSL Plasma Inc. declined to comment Thursday.
“Since the matter is in litigation, we will have no comment as we have not yet been served with the suit,” the company said in a written statement.

The department is suing in response to a complaint filed by Minneapolis resident Alice James, whose attorney said he expects her to also join the suit as a plaintiff.

“I am proud to live in a state where the law demands that people be treated fairly,” James said in a written statement provided by her attorney. “I hope this case helps to ensure fair treatment for other Minnesotans.”

James would not be speaking with the media about her experience with CSL Plasma, said her attorney, Joshua Newville.

“Although she is very interested in the outcome of this matter and seeing justice done for both herself and others in the state of Minnesota, she doesn’t really want this case focused on her,” Newville said. “She wants this case focused on CSL Plasma and the broader understanding of gender identity.”

James was a regular donor at CSL Plasma for years and relied on it as part of her income until the company told her in 2015 that it did not accept donations from transgender people, Newville said.

“That had a pretty catastrophic impact on her both financially and emotionally,” he said. “That sort of conduct can’t stand, especially in places like Minnesota, and I hope this lawsuit will make that clear.”
According to Newville: James was living in Duluth in 2011 when she began donating plasma at the company’s location there. She identified herself as a woman, but the facility “rejected” that and forced her to identify as a man in their records.

James donated plasma a few times a week throughout the years in Duluth. In 2015, she pushed the company to identify her as a woman in their records. At some point after that, her attorney said, she was told she could no longer donate because of her gender identity.

James filed a discrimination complaint with the Minnesota Department of Human Rights in 2016, which investigated and found in 2017 that the allegation had merit.

The department tried to initiate settlement talks with CSL Plasma Inc. that included recommended policy changes, but the company refused to engage, Vaynerman said.

The company reported that it had “a flat ban on all transgender donors,” Vaynerman said, adding that its refusal to engage in settlement talks compelled the lawsuit.

The company’s practice flies in the face of FDA recommendations, which allow donors to self-report their gender and recommends “screening out only men who have had sex with other men once or more in the past year,” the lawsuit said.

James never met that criterion for being screened out, her attorney said.
Newville said James attempted to donate plasma in October 2018 at a Minneapolis location. She was denied again, and the company stopped responding to Newville’s queries.

“She was told there is indeed a policy in place — and I was told this by their attorneys as well … that bans transgender persons from donating plasma,” Newville said. “They have not really explained their rational or justification behind it.”

The company’s alleged actions are especially egregious, he said, because in 1975, Minneapolis became the nation’s first governmental body to make discrimination based on gender identity illegal, and in 1993, Minnesota was the first state in the country to do the same.

The state’s lawsuit is asking that a judge: Find CSL Plasma in violation of the state anti-discrimination law, financially compensate James “up to three times the actual damages sustained as well as damages for mental anguish and suffering,” require the company to pay a civil penalty to the state, order their employees to undergo training on discrimination, submit quarterly reports regarding its deferral of transgender donors at its Minnesota locations and reimburse the Department of Human Rights and the state Attorney General’s Office for expenses.

According to the company’s website, CSL Plasma is headquartered in Boca Raton, Fla., and is a division of CSL Behring of Pennsylvania. The parent company, CSL Limited (ASX: CSL), is headquartered in Melbourne, Australia.

Twitter: @ChaoStrib

Madia Law’s Joshua Newville has been selected to serve on the Federal Practice Committee for the United States District Court for the District of Minnesota. The Federal Practice Committee works with the Court to improve the administration of justice in Minnesota’s federal courts. Newville was nominated to the Committee in 2018 by United States District Court Judge Patrick J. Schiltz. Newville will serve on the Committee from January 2019 to December 2021.

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.

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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.”