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  • 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 20, 2015

    by Jim Thompson

    Matt Apuzzo in The New York Times discusses the Justice Department’s expanded use of statements of interest to push its civil rights agenda.

    At NPR, Cory Turner reports that the U.S. District Court for the Central District of California will preside over a hearing today against the Compton Unified School District in which the plaintiff argues that schools are legally obliged to make special accommodations for traumatized students.    

    Terri Lively at Fortune explains that parents outside of the tech industry still struggle to afford the high cost of having a child, quoting ACS president Caroline Fredrickson who notes that many developing countries have surpassed the U.S. in terms of paid maternity leave. 

    In The New York Times, Alec Karakatsanis argues that the Obama administration has, despite recent initiatives, largely worked to keep individuals in prison on the basis of outdated, unjustifiable charges.   

  • 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 19, 2015

    by Jim Thompson

    In The Daily Business Review, Celia Ampel writes about the judicial emergency facing the Southern District of Florida, which is currently confirming judges at the slowest rate since 1953.

    Kim Soffen at The New York Times opines that Texas laws could provide a national template for limiting access to abortions.

    In the Los Angeles Times, Molly Hennessy-Fiske describes the dismal working environment for immigration judges and warns that many may vacate their seats as a result.

    Jeremy Wallace at the Miami Herald discusses the battle in Florida to determine the methodology for counting prisoners when redrawing congressional districts.

    Zoe Tillman at The National Law Journal reports that the U.S. Court of Appeals for the District of Columbia Circuit ruled Tuesday that Texas must pay $1 million in legal fees to groups that challenged its redistricting plans before the Shelby County v. Holder decision was made.  

  • August 18, 2015

    by Jim Thompson

    In The Nation, Michelle Chen highlights the benefits of providing financial aid to incarcerated adults pursuing college-level education programs.

    Becca Andrews at Mother Jones celebrates the decision by Judge Myron Thompson of the U.S. District Court for the Middle District of Alabama to temporarily block a regulatory requirement that would have forced the state’s largest abortion clinic to close.

    On FixGov, the blog of The Brookings Institution, Russell Wheeler writes about the large number of judicial vacancies, citing partisan differences between the White House and Senate as the root of the problem. 

    Rebecca Kaplan at CBS News discusses the plausibility and implications of ending birthright citizenship.