The Jury Has Spoken: Tesla Liable for $136.9 Million in Individual Race Harassment Case

Owen Diaz was vindicated after fighting back against the appalling racial harassment he endured at the hands of Tesla. He won a resounding victory this month when a jury awarded him $136.9 million, including an enormous $130 million in punitive damages. This verdict is one of the largest of its kind.

Mr. Diaz, who is African-American, worked at Tesla‘s Fremont factory as an elevator operator. Supervisors accosted him using racial epithets frequently, including the N-word, and Mr. Diaz found racist caricatures and swastikas written in the factory and bathrooms. Mr. Diaz complained to management, which did nothing. Dismayed but undeterred, Mr. Diaz courageously stood up to Tesla’s behavior “straight from the Jim Crow era and filed a lawsuit against Tesla.

Tesla fiercely litigated against Mr. Diaz over the four years that followed, but Mr. Diaz prevailed. Tesla argued that even though Mr. Diaz worked at Tesla, followed Tesla workers’ instructions, and earned a rate of pay set by Tesla, that it somehow had no responsibility to prevent the awful treatment he and other African-American workers at the Fremont Tesla factory endured. The jury did not fall for it.

Tesla also argued that Mr. Diaz had not shown any evidence of race discrimination, but the jury saw through that ruse. At one illustrative point in the trial proceedings, Tesla’s attorney asked a witness if the N-word was used in the workplace. After the witness confirmed it was, Tesla’s attorney asked if the epithet was used in a friendly way, completely failing to recognize that such degrading language has no place in any workplace, in any context, for any reason. The evidence of race discrimination at Tesla was so overwhelming that the jury returned an unprecedented verdict with $130 million in punitive damages, finding that Tesla intentionally violated the law.

Tesla forces most employees to sign arbitration agreements, which prevents them from coming together to hold Tesla accountable for its discriminatory treatment and veils in secrecy much of Tesla’s unlawful employment practices. Thanks to Mr. Diaz’s courage, Tesla is at last being held accountable publicly and by the community for its disgraceful and unlawful actions.

Whether Tesla’s expensive loss prompts corporate changes is yet to be determined; as Bryan Schwartz Law previously wrote, Tesla CEO Elon Musk stated that it was “worth it” to intentionally violate securities law and incur a $20 million fine, and he unlawfully threatened employees with a loss of stock options if they chose to unionize. Hopefully, this verdict pushes Tesla to begin to treat its workers with fairness and respect.

Tesla’s disdain for the employees on which it relies – particularly its non-white employees – is familiar to Bryan Schwartz Law. Bryan Schwartz Law has been litigating against Tesla in a race discrimination class action lawsuit, along with co-counsel the California Civil Rights Law Group, which also represents Mr. Diaz. If you have been the subject of race discrimination at Tesla, please contact Bryan Schwartz Law.

Workers Sue Whole Foods After Being Disciplined for Wearing Black Lives Matter Masks

Employees of Whole Foods have filed a class action lawsuit against the supermarket for race discrimination and retaliation after they were allegedly disciplined for wearing masks supporting the Black Lives Matter (BLM) Movement. While Whole Foods—owned by Amazon—has always had a corporate policy forbidding workers from wearing slogans or logos that are not company-related, the workers allege that this policy was not enforced until many employees began wearing BLM slogans at work. The lawsuit seeks reimbursement for lost wages and expungement of any disciplinary action for the disciplined workers. It also seeks permanent injunctive relief for all employees, calling for Whole Foods to end its policy of not allowing BLM masks at work.

 

According to the complaint filed in Massachusetts District Court by fifteen workers across five stores, Whole Foods disciplined about 40 employees and fired one employee—Savannah Kinzer—for wearing BLM masks or slogans at work. Employees were sent home or threatened with termination when they wore their BLM masks. Others were written up or placed on a “corrective action pathway,” which requires employees to re-train. Kinzer, in particular, had also organized workers to wear BLM masks. When workers were disciplined, she filed complaints with the National Labor Relations Board and the Equal Employment Opportunity Commission but was fired within an hour of informing her manager of the complaints. Whole Food maintains that Kinzer’s termination has no relation to her wearing BLM masks and was due to her repeated violations of Whole Food’s Time & Attendance policy. 

 

The suit alleges that no employees have previously been disciplined for wearing non-work-related slogans, including employees who have worn pins supporting the LGBTQ movement and one employee who wore a pin that said, “Lock him up.” The workers and their lawyers argue that disciplining employees who wear BLM slogans constitutes discrimination against Black employees and other employees who support their Black coworkers. 

 

This lawsuit comes at a time when many companies have broadened their dress code policy to allow workers to wear BLM apparel at work, including Starbucks, McDonald’s, and Taco Bell. Meanwhile, an independent federal agency called the Office of Special Counsel found that federal employees may express support for the BLM Movement in the workplace without violating the Hatch Act, which restricts political activity by government employees, because the term BLM does not amount to “inherently political activity.”

 

Bryan Schwartz Law has written about the Black Lives Matter Movement, race discrimination, and retaliation many times before. If you believe you were discriminated against or retaliated against at work, please contact Bryan Schwartz Law today.

Victory! U.S. Supreme Court Rules that Employers Cannot Discriminate Against Their Employees for Being LGBT

Today, the Supreme Court ruled that Title VII protections apply to lesbian, gay, bisexual, and transgender workers. Title VII was created in 1964 and prohibits employment discrimination based on race, color, religion, sex, and national origin. After hearing oral arguments for three cases last October, the Court ruled in a 6-3 decision that prohibited discrimination “because of sex” under Title VII also extends to LGBT workers.  This landmark ruling is a huge victory for employees and the LGBT movement. 

Before Monday’s ruling, employees in more than half the states could be fired for being LGBT. The three cases discussed before the Supreme Court involved two gay men and one transgender woman, all of whom were terminated immediately after their employer discovered they were LGBT. Gerald Bostock was an award-winning child welfare advocate in Georgia but was fired after his employer found out he participated in a gay recreational softball league. Donald Zarda, a skydiving instructor in New York, was fired days after mentioning he was gay to a client. Aimee Stephens, a transgender woman working at Harris Funeral Homes in Michigan, was fired after announcing she planned to “live and work full-time as a woman.” 

The Court’s decision was surprising to most, as Justice Gorsuch, appointed by President Trump, wrote for the Court. Justice Gorsuch was joined by Republican-appointee Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. The majority found that Title VII’s “because of sex” was originally enacted with protections for LGBT employees in mind. Further, even if an employer’s ultimate goal is to discriminate against its employees on the basis of sexual orientation, the employer intentionally treats an employee worse based on that individual’s sex along the way. For example, if two identical employees are attracted to men, and the employer fires the male employee for no other reason other than the fact he is attracted to men, the employer discriminates against him for traits it tolerates in its female employee. The Court found that this is simply discrimination based on sex, with Justice Gorsuch stating that this analysis “involve(s) no more than the straight-forward application of legal terms with plain and settled meanings.” 

Justice Gorsuch’s decision was surprising because of who appointed him—but, to the vast majority of Americans identifying with both political parties, it is clear that LGBT people in the workplace should not suffer discrimination because of their sexual orientation, i.e., because of sex. In fact, according to The New York Times, 90% of Democrats and 74% of Republicans believe it should be illegal for employees to be fired based on sexual orientation. Similarly, 86% of Democrats and 69% of Republicans believe it should be illegal for employees to be fired for being transgender.

Justice Samuel Alito and Clarence Thomas joined in a dissent out of touch with what the American public has long believed, arguing that the Court was wrongly stepping into the shoes of legislators. Justice Alito stated that if Congress wanted Title VII to include protections for the LGBT population, it would have amended the statute to explicitly include “sexual orientation” or “gender identity.” Meanwhile, in a separate dissent, Justice Kavanaugh focused primarily on statutory interpretation and argued that the majority failed to analyze appropriately the “ordinary meaning” of Title VII. 

The Court’s decision resolved a split among federal circuit courts, with the Eleventh Circuit previously holding that sexual-orientation-based claims were not actionable under Title VII but the Second, Sixth, and Seventh Circuit reaching the contrary decision. In Bostock’s case, the Eleventh Circuit upheld the district court’s dismissal of Bostock’s complaint due to a previous panel holding that found Title VII did not apply to sexual orientation claims, holding that “under [the] prior panel precedent rule, we cannot overrule a prior panel’s holding, regardless of whether we think it was wrong.” The prior panel had explained, “[d]ischarge for homosexuality is not prohibited by Title VII,” highlighting that no Supreme Court decision had ever “squarely address[ed] whether sexual orientation discrimination is prohibited by Title VII.” Evans v. Georgia Reg'l Hosp., 850 F.3d 1248, 1255-56 (11th Cir. 2017) (citing Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979)). Similarly, the district court in Stephen’s case stated that “neither transgender status nor gender identity are protected classes under Title VII.” E.E.O.C. v. R.G. & G.R. Harris Funeral Homes, 201 F. Supp. 3d 837, 861 (E.D. Mich. 2016). In his dissent in Zarda v. Altitude Express, Inc., the Second Circuit case finding that sexual-orientation-based claims were actionable under Title VII, Judge Gerard E. Lynch stated, “I would be delighted to awake one morning and learn that Congress had just passed legislation adding sexual orientation to the list of grounds of employment discrimination prohibited under Title VII[, but when] I actually woke up[, I] realized that I must have been still asleep and dreaming. Because we all know that Congress did no such thing.” 883 F.3d 100, 137 (2d Cir. 2018). With the Supreme Court’s decision today, we can wake up knowing that we all have the right to be protected against employment discrimination under Title VII.

In his opinion, Justice Gorsuch wrote that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” We agree. To the tireless activists—including Mr. Zarda and Ms. Stephens, both of whom passed away before this decision could be published—and decades of LGBT activism that led to this momentous decision today, we thank you and look forward to ensuring employers adhere to this ruling in the years to come.

Bryan Schwartz Law celebrates today’s important decision. The firm has written about Title VII many times before. If you believe you were discriminated against on the basis of sex, please contact Bryan Schwartz Law today.

U.S. Supreme Court Sides with Baker and Emboldens Anti-LGBTQ Efforts in Masterpiece Cakeshop Decision

The Supreme Court issued today its highly-anticipated decision in MasterpieceCakeshop, Ltd. v. Colorado Civil Rights Commission, No. 16-111 (Jun. 4, 2018). While the opinion’s narrow holding sets no groundbreaking precedent, it strengthens anti-LGBTQ activists and their narrative of state-led, anti-Christian persecution as the substantive debate returns to lower courts.

In 2012, Jack Phillips, owner of the bakery Masterpiece Cakeshop outside of Denver, refused David Mullins and Charlie Craig a wedding cake because he believed creating a cake for a same-sex wedding violated his religious beliefs. (Slip Op. at 1). Mullins and Craig filed a charge under the Colorado Anti-Discrimination Act, which prohibits discrimination based on sexual orientation in any “place of business engaged in any sales to the public and any place offering services . . . to the public.” (Slip Op. 5). The Colorado Civil Rights Commission sided with Mullins and Craig, and the Colorado Court of Appeals affirmed. (Slip Op. at 8).

The Supreme Court’s reversal in favor of Phillips, authored by Justice Anthony Kennedy, comes as a surprise given Justice Kennedy’s career-defining support for LGBTQ rights. Among his authored opinions are Lawrence v. Texas, 539 U.S. 558 (2003), invalidating anti-sodomy laws, United States v. Windsor, 570 U.S. 744 (2013), declaring the Defense of Marriage Act unconstitutional, and Obergefell v. Hodges, 135 S.Ct. 2584 (2015), legalizing same-sex marriage nationwide.

In Masterpiece Cakeshop, Justice Kennedy acknowledges “[o]ur society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth.” (Slip Op. at 9). But the Court still sided with Phillips, finding that the state had not met its obligation of religious neutrality. (Slip Op. 2). Instead of giving Phillips “neutral and respectful consideration,” the Court found the Commission exhibited anti-religious hostility in violation of the Free Exercise Clause. (Slip Op. at 9). Especially troubling to Justice Kennedy were the comments of one Commissioner who likened Phillips’s position to defenses of slavery and the holocaust and disparaged Phillips’s religious beliefs as “despicable” and merely “rhetoric.” (Slip Op. at 13-14). Justice Kennedy also took issue with the Commission’s treatment of Phillips compared to secular bakers who had refused to bake cakes with homophobic messages in other discrimination claims. (Slip Op. at 14-16).

By reversing the lower court on these narrow grounds, the Supreme Court avoided ruling on the case’s main issue of to what extent religious freedom can justify discrimination based on sexual orientation. “The outcome of cases like this in other circumstances must await further elaboration in the courts,” writes Justice Kennedy. (Slip Op. at 18). While his motivation is unclear, limiting the decision to the case’s particular facts may be an attempt to prevent further polarization in an already divided culture.

But even with its narrow holding, Masterpiece Cakeshop will negatively shape the debate over LGBTQ rights as the issue returns to lower courts. Most significant may be Justice Kennedy’s broad definition of “hostility.” In their dissent, Justices Ginsburg and Sotomayor criticize Justice Kennedy’s conclusion that statements made by one or two Commissioners can taint proceedings involving “several layers of independent decisionmaking, of which the Commission was but one.” (Slip Op. at 7). Finding such a low level of “hostility” violates the state’s obligation of religious neutrality expands on Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993), the only case cited by Justice Kennedy as support. Lukumi involved only one decisionmaking body, compared to several in Masterpiece Cakeshop, and anti-religious animus motivated the passing of an entire law, not just a couple of a law’s enforcers. (Slip Op. at 7-8). As a result, Masterpiece Cakeshop may embolden those discriminating based on sexual orientation to seek redress in court by claiming that their animus against gay people is based upon religion.

The Supreme Court has dealt LGBTQ rights a blow with Masterpiece Cakeshop. But the wound is not fatal, and the widespread “recognition that gay persons and gay couples cannot be treated as social outcasts” provides hope that the civil rights of the LGBTQ community will prevail as the substantive issues of law return to the lower courts.

If you have experienced discrimination based upon your sexual orientation or gender identity and need help, please contact Bryan Schwartz Law.

California Lawmakers introduce new proposals to address Sexual Harassment in the workplace

Today in California, employees who are subjected to unwanted sexual advances at work have just one year to file a claim under the state's Fair Employment and Housing Act (FEHA). Assemblywoman Eloise Gomez Reyes and her colleagues believe that window of time is far too short. That's why today, Assemblywoman Reyes introduced Assembly Bill 1870, one of many pending proposals inspired by the "Me Too" movement. 

Reyes has proposed tripling the length of time that public and private-sector employees have to file sexual harassment claims under California's Fair Employment and Housing Act, extending the statute of limitations for sexual harassment claims to three years. Assemblywoman Reyes says that it has become clear that California's current rules for sexual harassment are inadequate as a result of the powerful movement of women courageously standing up to end sexual harassment in the workplace all across the country.

Reyes stated that many victims of sexual harassment in the workplace fear retaliation and feel too ashamed to come forward and report it as reasons for why California should extend the time that employees have to file sexual harassment claims. Reyes is confident that her bill to extend the statute of limitations for sexual harassment claims will become law. 

Reyes is also sponsoring Assembly Bill 1867, which would require all employers with 50 or more employees to keep records of sexual harassment complaints for 10 years. Senate Bill 820 by Sen. Connie Leyva would prohibit settlements from including non-disclosure agreements related to sexual assault, harassment and discrimination, and would apply to public and private employers. 

If you have been a victim of sexual harassment or unwanted sexual advances in the workplace, please contact Bryan Schwartz Law today. 

California's Public Civil Rights Agency Reaches Agreement with Airbnb to Combat Discrimination

California's Department of Fair Employment and Housing (DFEH) has reached an agreement with Airbnb, the online "sharing economy" platform that allows individuals to rent their homes to guests, that will support ongoing efforts to reduce bias and combat discrimination on Airbnb's platform.

Criticism of Airbnb began with a 2015 Harvard School of Business study that found guests with African-American sounding names had a tougher time renting rooms on Airbnb's platform than guests with white sounding names. In early 2016, DFEH began investigating taking action against Airbnb after reports of discrimination on Airbnb's platform became widespread on social media. 

At the time, Bryan Schwartz Law Associate Logan Talbot was working at the DFEH as a Civil Rights Fellow. Talbot was asked by the agency to research the issue and explore the agency's options for action. Talbot drafted a memorandum for DFEH Director Kevin Kish that recommended pursuing a Director's Complaint against Airbnb, alleging that Airbnb may have engaged in acts of discrimination and failed to prevent discrimination in violation of California's Fair Employment and Housing Act and Unruh Civil Rights Act.

DFEH thereafter filed the Director's Complaint. On April 27, 2017, the DFEH issued a press release stating that the agency had reached a voluntary agreement with Airbnb to combat housing discrimination on Airbnb's platform. Under the Agreement, Airbnb will advise all renters in California who complain of discrimination of their right to file a complaint with DFEH. Additionally, Airbnb will regularly provide reports to DFEH on complaints of discrimination by Airbnb users in California and guest acceptance rates by race and national origin in California. The Agreement also provides that Airbnb employees who review Airbnb Host and Guest complaints will receive training on how to recognize complaints of discrimination and the proper methods for referring discrimination complaints to Airbnb's anti-discrimination team. As part of the agreement with DFEH, Airbnb will also post on its website and email to all California Hosts a notice of the opportunity to obtain free online unconscious bias training. 

The agreement also allows for DFEH to conduct fair housing testing on California hosts who have been the subject or one or more discrimination complaints and have three or more listings on Airbnb's platform. Airbnb has agreed to not interfere with DFEH's fair housing testing and will allow them to create accounts and profiles for such testing.

“We will continue to work collaboratively with Airbnb to prevent racial discrimination by its hosts,” said DFEH Director Kevin Kish. “California is committed to removing all discriminatory barriers in housing, including in new platforms and marketplaces. Fair housing testing is an important and powerful tool in enforcing fair housing laws.” 

A Single Racial Slur Can Support a Hostile Work Environment Claim

For a harassment claim to be actionable under Title VII of the Civil Rights Act, the workplace conduct “must be sufficiently severe or pervasive to alter the conditions of [the victim’s] employment and create an abusive working environment.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). Employers frequently seek to escape liability for harassment by arguing that the discriminatory conduct alleged by the employee was too minor to create liability.

Now the Second Circuit Court of Appeal, in New York, has ruled that the single use of a racial slur can form the basis for a hostile work environment claim under Title VII, when viewed together with other seemingly “neutral,” i.e. non-racial, harassing behavior. Daniel v. T&M Protection Resources LLC, __ Fed.Appx. ___, 2017 WL 1476598 (2d Cir. Apr. 25, 2017).

In Daniel, an unrepresented employee, Otis Daniel, appealed a district court order dismissing his hostile work environment case against his former employer on summary judgment. Mr. Daniel had alleged numerous incidents of harassment during his 15-month period of employment. The vast majority of incidents alleged were not specifically racist, on their face. But, he also alleged that his supervisor once addressed him as “you fucking nigger.”

The Court held that the district court erred when it determined, as a matter of law, that Mr. Daniel failed to alleged facts sufficient to support a hostile work environment claim based on race. The Court explained, that “[b]ecause ‘some evidentiary basis’ existed for inferring that [a] ‘neutral’ incident was animated by hostility because of Daniel’s race, [the district court should have considered that evidence] as part of Daniel’s racial harassment claim.” Slip Op. at *2. That is, where a supervisor makes a racially-charged statement to his or her subordinate employee, on summary judgment a court should consider that fact together with other incidents the employee alleges were harassing, but not overtly racial in nature.

The Court did not need to rule on the question of whether the “one-time use of the slur ‘nigger’ from a supervisor to a subordinate can, by itself, support a hostile work environment claim.” Daniel, Slip Op. at *1 (emphasis added). However, the Court of Appeals did conclude that the lower court “improperly relied on our precedents when it rejected this possibility as a matter of law.” Id. at *1. The appellate court explained that Second Circuit case law does “not foreclose the possibility that the one-time use of a severe racial slur could, by itself, support a hostile work environment claim when evaluated in the cumulative reality of the work environment.” Id. at *1. The Court highlighted  dicta in Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 24 (2d Cir. 2014) that “‘perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as nigger by a supervisor in the presence of his subordinates.’” Slip Op. at *1 (emph. added by Daniel court).

If you have been the victim of a racial slur, that illuminates the true motivation behind other unfair treatment by an employer, and you want to discuss this with an attorney, contact Bryan Schwartz Law today.

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Seventh Circuit Joins Fourth and Fifth Circuits in Disapproving of Racially Discriminatory Voting Restrictions

As a result of three new appellate court rulings, more voters of
color in Wisconsin, Texas, and North Carolina will likely be able 
to participate in the general election on November 8, 2016.

On Monday, the U.S. Court of Appeals for the Seventh Circuit denied Wisconsin’s motion to stay a district court ruling striking down a provision in the state’s voter suppression law that significantly reduced early voting, as well as assorted voter ID requirements in the law. As the district court found, in removing early voting on evenings and weekends, the Wisconsin legislature targeted African-American and Latino voters, who disproportionately took advantage of the extended voting hours. In particular, eliminating early voting on Sundays has become a common tactic to reduce African-American voting by directly targeting “Souls to the Polls” events where churches provide transportation to polling locations after Sunday services. The three-judge panel of the Seventh Circuit was composed entirely of Republican appointees, who denied the stay request without a written opinion.

Earlier this summer, the Fifth Circuit questioned the legitimacy of Texas’s strict voter ID law in an en banc ruling, noting that the law required forms of identification that voters of color were much less likely to possess. It further noted that Texas failed to take any reasonable steps to ameliorate the discriminatory effects of the strict voter ID requirement.

Just a few weeks ago, the Fourth Circuit struck down a much wider range of voting restrictions in North Carolina as racially discriminatory – including strict voter ID, a ban on same-day registration, and cutbacks in early voting (including Sunday voting). The Fourth Circuit took the district court to task for its “failure of perspective [which] led the court to ignore critical facts bearing on legislative intent, including the inextricable link between race and politics in North Carolina.”  The district court had approved the restrictions as grounded in partisanship rather than race, justifying them as “politics as usual.” Noting the strong correlation between party identification and race in North Carolina, the Fourth Circuit held that such an explanation “cannot be accepted where politics as usual translates into race-based discrimination.”

Both the Wisconsin district court and the Fourth Circuit found that the plaintiffs had met the difficult burden of showing that the voting laws were enacted with discriminatory intent, in addition to the discriminatory effect the laws would have on voters of color. The Fifth Circuit found that Texas’s law had a discriminatory effect, but remanded to the district court for reconsideration of whether the law also reflected the legislature’s intent to discriminate. Only a finding of discriminatory impact is required to obtain relief under the Voting Rights Act, but a finding of discriminatory intent allows for broader remedies.

The new rulings are a welcome development for voting rights advocates, who had been playing defense since the U.S. Supreme Court’s 2013 ruling overturning Section 5 of the Voting Rights Act of 1965 in Shelby County v. Holder. Section 5 required that jurisdictions – including both counties and entire states – with a record of racially discriminatory voting practices submit any proposed changes to voting laws to the Department of Justice for preclearance. Section 5 recognized the practical problem that an individual denied access to the polls on Election Day might have to wait years for the courts to sort out whether a violation had occurred. Section 5 instead placed the burden on the state seeking to introduce a new election law to show that it would not have a discriminatory effect on access to the polls. Despite of Section 5’s record of success (or perhaps because of it) and its bipartisan reauthorization by Congress in 2006, Justice Roberts wrote for a five-justice majority of the Court and concluded: “Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.”*

The aftermath of Shelby County was predictable: with the protections of Section 5 gone, states across the country enacted (or began enforcing) voter suppression laws which directly targeted voters of color. For instance, the day of the Shelby County ruling Texas announced  that it would begin enforcing its strict photo ID law, which had been blocked by Section 5 due to its racially discriminatory effects. North Carolina then passed one of the most comprehensive voter suppression laws in the country after the legislature conducted studies which found that African-Americans would be impacted most by the new voting requirements. (Wisconsin was not covered by Section 5’s preclearance requirement.)

The spate of activity in the voting rights arena this summer has led many to ask: why now? An obvious answer may be that with the 2016 presidential election fast approaching, this summer marked the last reasonable opportunity for courts to intervene. Some commentators have pointed to the recent passing of Justice Antonin Scalia and the absence of a fifth vote on the high court to uphold racially discriminatory voting restrictions (or put more charitably, to interpret such restrictions as motivated by race). Linda Greenhouse of The New York Times argues that the decisions overturning voter suppression laws are part of a larger trend of federal courts being increasingly willing to look beyond phony motives offered by legislatures, particularly in the context of laws which purport to solve imaginary problems like in-person voter fraud. As Judge Catharina Haynes of the Fifth Circuit stated as to the Texas law: “We cannot say the district court had to simply accept that legislators were really so concerned about this almost nonexistent problem.” Similarly, Judge Diana Gribbon Motz of the Fourth Circuit reasoned with respect to North Carolina’s law: “Although the new provisions target African Americans with almost surgical precision, they constitute inapt remedies for the problems assertedly justifying them and, in fact, impose cures for problems that did not exist.”

Although the general election is only 75 days away, this story is far from over, as the Supreme Court may still intervene: North Carolina has already requested a stay of the Fourth Circuit’s ruling, and Wisconsin may yet seek similar relief. Still, it appears unlikely there are enough votes on the eight-member high court to disrupt these appellate court rulings before Tuesday, November 8.

The timing could not be more critical, with Republican nominee Donald Trump running an unprecedented campaign (at least, in recent history) founded on racist statements and appeals concerning Latinos, Muslims, and African Americans, among other groups. Thanks to an emerging consensus among the Circuit Courts of Appeal, a broader and more diverse community of Americans will be able to exercise their right to vote in Wisconsin, North Carolina, and Texas this November. Voters should seize the opportunity to send a clear message that such racist appeals have no place in American politics.

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* Technically, the Court struck down the coverage formula for Section 5 (contained within Section 4(b) of the Act) and left Section 5 in tact. However, without a coverage formula, Section 5 is toothless. In theory, Congress could pass a new coverage formula to put the teeth back in Section 5, but that would require Congress to agree on a new coverage formula.

Court Sanctions Defense Attorney for His Sexist Remarks to Opposing Counsel

In a clarion call for civility among attorneys, Magistrate Judge Paul Grewal granted plaintiffs’ motion for sanctions in a civil rights case,[1] and excoriated defendants’ attorney for “repeatedly and unapologetically flout[ing]” the Northern District of California’s Guidelines for Professional Conduct[2], the Federal Rules of Civil Procedure (FRCP), the court’s prior order, and – in this firm’s opinion – offending standards of basic civility most of us learned on the playground, as children.[3] The order is available here.

            Defendants’ attorney produced documents relevant to a deposition in a “physically cracked and unusable disc” on the day of said deposition, delayed correcting this abjectly deficient production for over a month after being repeatedly asked to do so by plaintiffs’ counsel (only to produce documents defendants’ attorney already knew to be in plaintiffs’ possession), made “extremely long speaking objections” in corrective depositions ordered by the court, and many more violations.[4] Tellingly, defendants’ attorney made “no attempt to defend any of this conduct.”[5]

            Escalating his disgraceful misconduct from unprofessionalism to sexism, defendants’ attorney told one of the plaintiffs’ female attorneys, at a deposition she was taking, “[D]on’t raise your voice at me. It’s not becoming of a woman ….”[6] In briefing his opposition to plaintiffs' sanctions request, defendants’ attorney doubled down on his statement with a sorry-not-sorry apology.[7]

As M.J. Grewal explains in his order, defendants’ attorney’s attack “endorsed the stereotype that women are subject to a different standard of behavior than their fellow attorneys.” M.J. Grewal further elaborates that such gender-based vitriol “reflects not only on the attorney’s lack of professionalism, but also tarnishes the image of the entire legal profession and disgraces our system of justice.” The Court found that such statements – in addition to harming the many female attorneys that regularly endure similar treatment – degrades the legitimacy of the legal system itself.

Gendered attacks “reflect and reinforce the male-dominated attitude of our profession.”[8] At a time when the opportunity for female attorneys to advance to leadership roles in law firms remains stymied,[9] our profession should, at the very minimum, not tolerate such Mad-Men-styled sexism from its members.

Fortunately, M.J. Grewal suffers no fools. Because of defendants’ attorney’s egregious misconduct, M.J. Grewal awarded plaintiffs their fees and costs in bringing the motion for sanctions, as well as attorneys’ fees for depositions, including the deposition during which the sexist comment was made. Recognizing that monetary compensation for plaintiffs’ attorneys' fees and legal costs falls short of a just result, M.J. Grewal ordered the “specific and appropriate sanction” of compelling defendants’ attorney to “donate $250 to the Women Lawyers Association of Los Angeles Foundation … and submit a declaration to the court confirming his compliance with this order.”[10]

Courts should emulate Magistrate Judge Paul Grewal, enforcing both women’s equality and basic civility in the legal profession.

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[1] Claypole v. Cnty. of Monterey, No. 14-cv-02730-BLF (filed June 12, 2014). More information regarding the case can be found here.

[2] The Northern District of California’s Professional Guidelines are available here: http://www.cand.uscourts.gov/professional_conduct_guidelines.

[3] Claypole, No. 14-cv-02730-BLF, slip op. at 1 (N.D. Cal. January 12, 2016).

[4] Id. at 2-3, 5.

[5] Id. at 6.

[6] Id. at 8.

[7] Id. (Defendants’ attorney “offered only a halfhearted politician’s apology ‘if [he] offended’ Plaintiff’s counsel, and he nevertheless tried to justify the comment because it ‘was made in the context of [Plaintiff’s counsel] literally yelling at [his] client and creating a hostile environment during the deposition’ … Other than his own characterization, [Defendants’ attorney] offers no deposition excerpts or other evidence that suggests this.")

[8] Id.

[9] Stephanie A. Scharf & Roberta A. Liebenberg, Am. Bar Ass’n, First Chairs at Trial: More Women Need Seats at the Table 14-15 (2015), available at http://www.americanbar.org/content/dam/aba/marketing/women/first_chairs2015.authcheckdam.pdf. 

[10] Claypole, at 10.

It Doesn’t Hurt to Ask: New CA Law Protects Right to Ask for Reasonable Accommodation Under California’s Anti-Discrimination Law

Governor Brow­­­­n recently signed into law Assembly Bill 987, overturning the wrong result in Rope v. Auto-Chlor System of Washington, Inc., 220 Cal. App. 4th 635 (2013), review denied (Jan. 29, 2014), and thereby ensuring that all Californians need not fear retaliation should they request a reasonable accommodation from their employer.

In Rope, the plaintiff sought to donate his kidney to his sister. Accordingly, he requested leave from his employer to undergo the transplant surgery and recover from the operation. After repeatedly ignoring Mr. Rope’s requests for leave, the employer eventually approved an unspecified amount of leave. However, only two months before the operation date, Mr. Rope’s employer fired him for allegedly poor performance. Importantly, Mr. Rope had received only positive performance reviews during his employment and had no disciplinary problems prior to his termination.

Mr. Rope filed suit asserting multiple claims including retaliation for requesting a reasonable accommodation under the Fair Employment and Housing Act (FEHA). The trial court dismissed his lawsuit on demurrer, including the retaliation claim. Mr. Rope appealed.

To the dismay of worker advocates statewide, the Court of Appeal affirmed the trial court’s dismissal of Mr. Rope’s retaliation claim. The appellate court interpreted the retaliation provision under the FEHA to require that 1) an employee “engaged in activities in opposition to the employer at the time of the alleged retaliation,” and 2) the employer knew about it. Id. at 653. While the Court of Appeal acknowledged that the FEHA “encompasses a broad range of protected activity,” does not require that an employee “file a formal charge,” and that “[t]he determination as to what constitutes a protected activity is inherently fact driven,” the court nevertheless held that requesting a reasonable accommodation categorically is not “protected activity” under the FEHA. Id. at 652-653. The court did not interpret an employee’s request for reasonable accommodation as “opposition” to an employer. Id. at 652-53.

Other courts have reached different results in similar circumstances, noting that “[i]t would seem anomalous … to think Congress intended no retaliation protection for employees who request a reasonable accommodation unless they also file a formal charge. This would leave employees unprotected if an employer granted the accommodation and shortly thereafter terminated the employee in retaliation.” Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 191 (3d Cir. 2003) (in the context of a lawsuit brought under the Americans with Disabilities Act). The Third Circuit’s concern was warranted, given the outcome in Rope.

Assembly Bill 987 corrects the anomalous result in Rope by ensuring that employees can request reasonable accommodations in the workplace without fear of retaliation. Employers should take notice that, separate from their duty to engage in the interactive process, they may not retaliate against an employee for requesting a reasonable accommodation.

If you believe your employer retaliated against you because you requested a reasonable accommodation, please contact Bryan Schwartz Law.