April 2016

  • 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 29, 2016

    by Jim Thompson

    Proponents of the “Ban the Box” campaign have started targeting colleges and universities, seeking to protect students from being asked about their criminal histories during the application process, writes Juleyka Lantigua-Williams at The Atlantic.

    At The Marshall Project, Eli Hager assesses the negative consequences that judicial vacancies have on the criminal justice system, including “unresolved motions, habeas corpus petitions waiting years to be heard (or being handled by law clerks instead of judges), judges spending less time on each case, and defendants pleading guilty because they believed a trial would not get the timely attention it deserved.”

    Legislation to repeal sentencing enhancements for certain drug crimes failed to pass before the California State Senate on Monday, reports Andrew M. Ironside at Civil Rights Law & Policy Blog

  • April 27, 2016
    Guest Post

    by Catherine Fisk, Chancellor’s Professor of Law, University of California, Irvine School of Law           

    Although it has been widely reported that Uber has agreed to settle class action suits by drivers in California and Massachusetts, it is far from clear that the settlement will be approved or that, even if it is approved, it will resolve the question of the employment status of Uber drivers. And it seems fairly clear that the settlement does not protect some drivers from poor working conditions.

    The two class actions allege that Uber misclassifies its drivers as independent contractors and thereby deprives them of the right to receive tips, minimum wage, overtime, and reimbursement for the expenses they incur (like the cost of the vehicle, insurance, and gas). The settlement agreement stipulates that, in exchange for payments totaling between $84 and $100 million and Uber’s agreement to modify the way it eliminates drivers from its program and to meet regularly with elected representatives of the Uber Driver Association, the plaintiff classes will abandon their claim that they are employees rather than independent contractors.

    Uber has touted the settlement as a major victory in its effort to keep its drivers as independent contractors rather than employees. If the settlement is approved, it would be a temporary victory on that issue. Another judge recently rejected a proposed settlement of a similar action brought by Lyft drivers because the judge found the agreement on damages failed adequately to compensate the plaintiffs, but in his order rejecting the settlement the judge said that he would accept a settlement that did not provide that drivers were employees.

    But Uber’s legal troubles over the employment status of its drivers will not end even if Judge Chen accepts the settlement, and there is no assurance that he will. Objections to the proposed settlement have been filed by other lawyers who represent some of the class members and who were apparently not involved in the settlement negotiations. And, of course, drivers who started working for Uber after the period covered by the suit are not among the plaintiffs in the class. Therefore, the settlement agreement will not foreclose them from suing for misclassification.

  • April 27, 2016

    by Jim Thompson

    A federal judge in North Carolina on Monday “upheld one of the most regressive and restrictive voting laws in the country — a 2013 North Carolina law that eliminated same-day voter registration and preregistration for 16- and 17-year-olds; cut back on early voting by a week; barred counting votes cast outside voters’ home precincts; and required voters to show identification at the polls,” laments the Editorial Board at The New York Times.

    Sen. Patrick Leahy (D-Vt.) in a speech Tuesday invoked the legacy of Ted Kennedy in calling on the Senate to honor its constitutional duties and act on Chief Judge Merrick Garland’s nomination to the Supreme Court, writes Mike DeBonis at The Washington Post.

    The Colorado Supreme Court declined to hear an appeal from a bakery found in violation of state civil rights law after refusing to prepare a cake for a same-sex wedding, reports Chris Johnson at The Washington Blade

  • April 26, 2016
    Guest Post

    by Gail M. Deady, Esq., The Secular Society Women’s Rights Legal Fellow at the ACLU of Virginia

    Gavin Grimm is a junior in high school in Gloucester, Virginia. Gavin is a boy but, because he is also transgender, his school district prohibits him from using the boys’ restrooms. He is instead forced to use the girls’ restroom or single-user, gender-neutral restrooms. With the help of the ACLU of Virginia and the ACLU LGBT & AIDS Project, Gavin challenged this policy in federal court as discriminatory. In a landmark decision last week, the United States Court of Appeals for the Fourth Circuit agreed with him.

    Under Title IX of the Education Amendments of 1972, educational institutions receiving federal education funds are prohibited from discriminating against students on the basis of sex. There are some exceptions to that general prohibition, such as a regulation allowing schools to designate separate restrooms for male and female students.

    In April 2014, however, the Department of Education issued guidance stating that if schools treat male and female students differently, they must treat transgender students consistently with their gender identity.

    Gavin came out to his family as a transgender boy in the summer of 2014 and began his transition, which meant living all aspects of his life as a boy. That fall, Gavin enrolled in school as a male student with his new legal name: Gavin. Unsure of how his peers would react to his transition, Gavin initially asked to use the nurse’s restroom.

    At first, everything went well. School staff supported Gavin’s transition, and most of his peers accepted him as just another male student. When it became clear to Gavin that he could safely use the boys’ restrooms, he asked for and received school administrators’ permission to do so. Gavin used the boys’ restrooms without any problems for about seven weeks.