Guest Post

  • August 20, 2015
    Guest Post

    by Michael Vargas, Associate, Rimon, PC. Vargas is programming co-chair of the Bay Area Lawyer Chapter.

    When President Obama nominated then-Georgetown law professor Chai Feldblum for a seat on the Equal Employment Opportunity Commission (EEOC) in 2009, it was clear that the former counsel to the Employment Non-Discrimination Act (ENDA) was going to shake up the Commission. As the first openly LGBT person to sit on the Commission, she did not disappoint. In 2012, the Commission announced its unanimous decision in Macy v. Holder (ATF), holding that discrimination against transgender employees was sex discrimination and actionable under Title VII. On July 16, 2015, the Commission issued an even more revolutionary decision in Complainant v. Foxx (FAA), holding that discrimination on the basis of sexual orientation is also sex discrimination and, therefore, must also be actionable under Title VII.

    In the EEOC’s decision, an unnamed complainant filed a complaint alleging that his supervisor would say things like “we don’t need to hear about that gay stuff” whenever the claimant would talk about his partner, and that he was subsequently denied a promotion. In dismissing the case, the FAA treated the complainant’s sexual orientation claim as separate from his sex discrimination claim and therefore not appealable to the EEOC.

    The EEOC summarily reversed the FAA, holding that sexual orientation was “inherently a sex-based consideration” and therefore was “necessarily an allegation of sex discrimination under Title VII.” The EEOC rested their decision on three different theories:

    First, the EEOC argued that sexual orientation necessarily involves treating employees differently because of their sex. To illustrate, the Commission gave the example of a male employee who is fired for having a picture of his husband on his desk when female employees with pictures of their husbands on their desks are not. This, the Commission declared, would be a classic case of sex discrimination.

    Second, the Commission found that sexual orientation discrimination was essentially associational discrimination, which is already recognized in the race discrimination context. If a person cannot be discriminated against because of the race of their spouse, then so too should they be protected from discrimination because of the gender of their spouse.

    Finally, the Commission recognized that discrimination against gays and lesbians is tinged with sex stereotypes, or expectations about what men or women should or should not do, which is yet another form of prohibited sex discrimination.

  • August 19, 2015
    Guest Post
    by Elizabeth B. Wydra, chief counsel, Constitutional Accountability Center. Read her ACS Issue Brief, "Birthright Citizenship: A Constitutional Guarantee,"  here.
     
    *This post originally appeared on the Constitutional Accountability Center's Text & History Blog.
     
    The arguments against the constitutional guarantee of birthright citizenship put forth by Donald Trump and other conservatives are, to borrow a descriptor oft-used by Trump himself, losers. Literally. Far from offering a bold new immigration reform plan that would "make America great again," Trump's plan recycles anti-immigrant ideas that were resoundingly defeated 150 years ago. In the process, he foolishly rejects values that are part of what makes America great in the first place.
     
    Since its ratification in 1868, the Fourteenth Amendment has guaranteed that "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." Just a decade before this language was added to our Constitution, the Supreme Court held in Dred Scott v. Sandford that persons of African descent could not be citizens under the Constitution. Our nation fought a civil war at least in part to repudiate the terrible error of Dred Scott and to secure, in the Constitution, citizenship for all persons born on U.S. soil, regardless of race, color, or parental origin.
     
    When members of the Reconstruction Congress assembled to draft the birthright citizenship clause, they were writing against a backdrop of prejudice not only against African Americans, but also various immigrant communities, such as the Chinese in the West and Roma communities in the East. Much of the hostility against these 19th-century immigrants was similar to the resentment and distrust leveled at immigrants today: concern that immigrants would take away good jobs from U.S. citizens (while exhibiting a willingness to allow immigrants to take jobs perceived as undesirable); fear of waves of immigrants "invading" or overtaking existing American communities; and distrust of different cultures and languages.
     
    For example, early in the 1866 debates, an opponent of birthright citizenship--Senator Edgar Cowan, often cited by modern opponents of birthright citizenship--objected to the citizenship provision by asking whether "it will not have the effect of naturalizing the children of the Chinese and Gypsies born in this country." Senator Lyman Trumbull, a key proponent of the citizenship clause, replied that it would, "undoubtedly," and made clear in the face of Cowan's xenophobic remarks that the child of such immigrants "is just as much a citizen as the child of a European."
     
  • August 14, 2015
    Guest Post

    by Franita Tolson, the Betty T. Ferguson Professor of Voting Rights, Florida State University College of Law.

    *This post is part of ACSblog’s symposium regarding the 50th anniversary of the Voting Rights Act of 1965.

    The fiftieth anniversary of the Voting Rights Act of 1965 provides an opportunity to reflect, not only on its marveled history, but also on the next frontier of voting rights litigation and policy. The Act has faced unprecedented challenges in recent years, culminating in the 2013 U.S. Supreme Court decision of Shelby County v. Holder. In Shelby County, the Court invalidated the coverage formula of section 4(b) of the Voting Rights Act.  The coverage formula required certain jurisdictions, mostly in the south, to preclear all changes to their electoral laws with the federal government under section 5 of the Act.  The Court found that the formula unduly infringed on the states’ sovereign authority over elections because Congress had not updated the formula in over forty years, and racial discrimination in voting had substantially decreased over this time period. 

    Contrary to the Court’s assertions of post-racialism, the years since Shelby County have welcomed a considerable increase in the number of restrictions designed to undermine the right to vote. According to the Brennan Center, states have introduced 113 bills this year alone that limit access to registration and voting. There also has been litigation challenging voting restrictions in North Carolina and Texas, which enacted very restrictive voting laws immediately following the Shelby County decision.  Unsurprisingly, both the U.S. Department of Justice and private litigants have turned to section 2 of the Voting Rights Act to challenge these provisions after the Supreme Court crippled the preclearance regime of sections 4(b) and 5. Section 2 of the Act forbids any “standard, practice, or procedure” that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.”  Unlike the preclearance regime, section 2 applies nationwide and allows plaintiffs to challenge a law after it goes into effect.

    The strategic decision by the Justice Department and private litigants to use section 2 to fill the gap left in the Voting Rights Act post-Shelby County has brought renewed attention to section 2’s constitutionality.  The Supreme Court has never directly addressed this issue, and critics argue that section 2 raises many of the same federalism concerns as the recently invalidated coverage formula.  Texas, in the current litigation over its voter identification law, explicitly argued that it is unconstitutional to apply section 2 to address the racially discriminatory effects of its voter identification law absent a showing that the law is intentionally discriminatory. So far, courts have been unresponsive to this type of argument, but very few courts have confronted the issue in the post-Shelby County world. 

  • August 14, 2015
    Guest Post

    by Gregg Leslie, Legal Defense Director, The Reporters Committee for Freedom of the Press

    The unrest in Ferguson, Mo., concerns civil rights issues of the most fundamental nature. And the concerns of journalists who get arrested covering that unrest seem to pale in comparison to the issues underlying the protests. But when we see things like this week’s decision to bring charges against journalists who were arrested last year, it’s important to remember that the right to cover these controversies is as important to the public as the right to protest in the first place. Without news accounts – be they by established “mainstream” media or independent bloggers – the controversy could not be fully understood by those who want to know what happened and what needs to change.

    The decision to prosecute – which apparently affects nearly everyone arrested last summer, not just the journalists whose cases have been publicized this week – seems odd, and tied more to the looming statute of limitations deadline than the renewed protests there. It also seems that prosecutors may be pursuing this only because the county still fears that those arrested for exercising their rights will bring civil rights suits; an offer to drop criminal charges can make those suits settle quickly.

    Each arrest has a unique set of facts, but many of the journalists arrested last year were simply gathering news. The two reporters whose arrests got much of the attention, The Washington Post’s Wesley Lowery and the Huffington Post’s Ryan Reilly, weren’t even involved in a contentious encounter. They were instead sitting in a McDonald’s, recharging their phones.  The reporters were ordered to leave a public restaurant, and while they were leaving, they asked questions and videotaped the officers. This is perfectly lawful and appropriate behavior; they weren’t refusing to leave, just daring to ask questions while they were being forced out of a public place. Their newsgathering does not justify the officers’ decision to arrest them for “disobeying” an order, and certainly cannot justify a trespassing charge in a restaurant open to the public.

  • August 13, 2015
    Guest Post

    by Stacey Dembo, Law Offices of Stacey J. Dembo

    Tomorrow, we celebrate the 80th anniversary of Social Security. The Social Security Act (SSA) was signed into law by President Franklin Delano Roosevelt on August 14, 1935. In his public statement that day, FDR expressed concern for “young people [who] have come to wonder what would be their lot when they came to old age” and those who were working but did not have job security. He acknowledged that “we can never insure one hundred percent of the population against one hundred percent of the hazards and vicissitudes of life,” but stated that he hoped the Act would prevent older Americans from becoming impoverished.

    Few Americans working today can remember a time when Social Security wasn’t part of the social fabric of America. The Social Security program has expanded in important ways since it was initially enacted by FDR in 1935. For example, in 1939, benefits for dependent survivors of wage earners were added. And in 1956, disability insurance benefits were added. Today, as in the past, millions of Americans rely on these programs for income in the event of their own retirement, disability or death of a family wage earner.

    Because Social Security is a vital part of our social fabric, we cannot afford to take its future for granted. As we celebrate the 80th anniversary of Social Security, it is time to ensure that the Social Security programs remain strong for the next generation. Now more than ever, as an increasing number of workers approach retirement, we cannot afford to jeopardize the stability that Social Security provides to millions of families. Further, the risk of becoming disabled or dying before reaching retirement age is greater than many realize. About one-third of workers will become disabled or die before reaching the full retirement age. Social Security offers vital protection to nearly all American workers and their families so that if they face serious disability, illness or injury before reaching retirement age, they will receive a monthly benefit. And, in the event of death, it provides some financial protection to the surviving family members.