Access to Justice

  • August 10, 2016
    Since discontinuing “Stop and Frisk” policies, which disproportionately target African and Latino Americans, New York City’s crime rate has decreased dramatically, reports Brentin Mock at City Lab.
    Adam Liptak at The New York Times cites a new study showing criminal defendants appearing in front of the Supreme Court are less likely to have expert counsel than any other type of defendant. 
    J. Lester Feder and Nikki Tsukamoto Kininmonth explain in a recent article on BuzzFeed how, even after a 2003 law allowed for individuals to change their legal gender, doctors in Japan are using an antiquated and oppositional diagnosis to help Transgender people.
    According to an article by Elizabeth Olson in The New York Times, the American Bar Association is considering an amendment to its model rules of professional conduct that would prohibit harassment and discrimination by practicing lawyers.  
  • May 5, 2016
    Guest Post

    by Paul Bland, Executive Director, Public Justice

    *This post first appeared on the Huffington Post.

    Banks and payday lenders have had a good deal going for a while: They could break the law, trick their customers in illegal ways, and not have to face any consumer lawsuits. Armed by some pretty bad 5-4 Supreme Court decisions, they could hide behind Forced Arbitration clauses (fine print contracts that say consumers can’t go to court even when a bank acts illegally), even when it was clear that the arbitration clauses made it impossible for a consumer to protect their rights.

    But the free ride is coming to an end. After an extensive study, that proved beyond any doubt how unfair these fine print clauses have been for consumers, the CFPB is taking a strong step to reign in these abusive practices. In a new rule, the CFPB says banks can no longer use forced arbitration clauses to ban consumers from joining together in class action lawsuits. That means banks can no longer just wipe away the most effective means consumers often have for fighting illegal behavior.

    This is a common sense rule that will go a long way in combating some of the financial industry’s worst practices.

  • May 5, 2016
    Guest Post

    by Julie Wilensky, Director of the California Office of the Civil Rights Education and Enforcement Center (CREEC) and member, National Employment Lawyers Association (NELA)

    On March 26, the North Carolina General Assembly convened a special legislative session to preempt a local ordinance passed by the city of Charlotte, which had amended its antidiscrimination law to explicitly include protections based on sexual orientation and gender identity. The state legislature introduced and rapidly passed HB 2, North Carolina’s extraordinarily broad “Bathroom Bill,” which Governor Pat McCrory signed into law the same day. The focus of HB 2, and much of the debate and dialogue surrounding it, is about forcing transgender people to use sex-segregated restrooms according to the sex listed on their birth certificate, instead of the restrooms corresponding to their gender identity. HB 2 also prohibits local governments in North Carolina from enacting their own anti-discrimination protections based on sexual orientation and gender identity and from establishing minimum wages other than for the local government’s own employees.

    Advocates have filed suit challenging aspects of HB 2 as violating the U.S. Constitution as well as Title IX, a claim vindicated by the Fourth Circuit’s April 19 decision in G.G. v. Gloucester County School Board. That decision confirms that Title IX, which prohibits sex discrimination in educational programs receiving federal funding, protects the rights of transgender students to use sex-segregated facilities consistent with their gender identity. Quite simply, HB 2 requires North Carolina’s local governments and schools receiving federal funding to discriminate against transgender and gender nonconforming people in violation of federal law.

    HB 2 also takes the extreme step of expressly revoking the right for workers to bring state-law discrimination claims in state court North Carolina Equal Employment Practices Act. For many years, the North Carolina courts have recognized a common law right to file suit for wrongful termination based on the public policy under the Act. Taking this right away is an unprecedented and extreme step. While HB 2 states that North Carolina’s Human Relations Commission will have the authority to “investigate and conciliate charges of discrimination,” state officials have not provided guidance on how this will be implemented, and this is no substitute for a worker being able to file a lawsuit in state court.

  • April 29, 2016
    Guest Post

    by Geraldine Sumter, attorney, Ferguson Chambers & Sumter, P.A., Charlotte, North Carolina

    In a Special Session on March 23, 2016, the state of North Carolina enacted House Bill 2 (“HB2”) which ensured that an ordinance passed by the City of Charlotte to recognize the human rights of the LGBT community would not become law. That ordinance contained a provision which allowed transgender persons to use the bathroom which corresponded with their gender identity. The General Assembly, riding on a wave of unfounded hysteria about child molestation in bathrooms, enacted HB2 in one day. The text of this bill was not released to the public in advance of the opening of the special session. It was signed into law by the governor within hours of its passage. Since the passage of HB2, there has been considerable attention given to the bathroom issue.

    An equally devastating result of HB2 is that it deprives every citizen of the state of North Carolina who might have a claim involving illegal discrimination in the work place (race, sex, age, national origin, religious belief, or disability) from suing in state court. Since 1985 when the North Carolina Supreme Court recognized a common law cause of action for wrongful discharge in violation of public policy, North Carolina citizens have been able to pursue claims for wrongful discharge in state court. The General Assembly abolished that right when it enacted HB2. The North Carolina General Assembly now forces its citizens to resort to federal court to pursue claims that they may have involving wrongful discharge against their employers.

    One may think that the availability of the federal remedy renders concern about the deprivation of the right to pursue these claims in state court as being trivial. However, a review of the differences in the access to the courts shows the harm that the enactment of HB2 will have on North Carolina citizens.

  • April 21, 2016
    Guest Post

    by Joseph M. Sellers and Miriam R. Nemeth. Mr. Sellers is the head of the Civil Rights and Employment practice group at Cohen Milstein Sellers & Toll, PLLC. Ms. Nemeth is an associate in that practice group. In May, Cohen Milstein will be opening an office in Raleigh, North Carolina that will be headed by the Honorable Martha Geer, who is leaving the North Carolina Court of Appeals to take on that role.

    North Carolina has justifiably been pilloried in recent weeks for enacting legislation that requires public school students and state employees to use the bathrooms reserved for their biological sex, regardless of the gender with which they identify. In many ways, this legislation resurrects memories of racially segregated restrooms that were mandated by law until the middle of the last century. Motivated by the same kind of fear and unjustified stereotypes as before, the segregation this time is directed at transgender people.

    The bill’s requirement that state employees and public school students use restrooms designated for their sex at birth, regardless of the gender with which they identify, is bad enough. But the bill also limits protections against sex discrimination to one’s “biological sex,” which further reinforces state-sponsored hostility to transgender people. Although such a limitation may not impose the same daily inconvenience or humiliation as the restroom restriction, it wholly exempts transgender people from the state’s legal protection. Like the bigotry of racism, this officially sanctioned discrimination rests on unfounded stereotypes and fears about transgender people. Nowhere else do we require employees and students who wish to use public restrooms to announce what their genitalia look like.

    Even more troubling and little noticed, however, this legislation also gutted the state’s civil rights laws. Enacted as the Public Facilities Privacy and Security Act, a wholesome title that masks its pernicious effect, this legislation withdrew a private right for anyone (not just transgender people) to challenge in the state’s courts any form of discrimination in employment and public accommodations. Part III specifically provides that the state’s existing statutory protections—including the language added by House Bill 2—do not “create or support a statutory or common law private right of action and no persons may bring any civil action based upon the [discrimination prohibitions] expressed therein.” House Bill 2, Sess. Law 2016-3, Pt III. In that one clause, the legislation abolished North Carolina’s common law cause of action for wrongful discharge based on discrimination, which had been recognized by the courts since 1989.