First Amendment Retaliation (Retaliatory Arrest)
Please listen to a radio interview concerning the retaliatory arrest of our client, Melanie Carter:
https://kdkaradio.radio.com/media/audio-channel/attorney-alec-b-wright
Second Circuit Decides in Employment Discrimination Case that it is Unlawful to Discriminate on the Basis of Sexual Orientation
Today, the Second Circuit found in an employment discrimination case that it is unlawful to discriminate against an individual based on his or her “sexual orientation” under Title VII. This decision is compelling for civil rights litigators seeking to protect clients from employment discrimination on the basis of their sexual orientation. The Third Circuit has yet to definitively decide this issue, and district courts have reached different conclusions. We are hopeful that the Third Circuit will soon follow the Second Circuit’s decision and find it to be unlawful to discriminate against an individual in his or her employment based on sexual orientation.
Reasonable Accommodations Under the Americans with Disabilities Act
Employment discrimination encompasses discrimination based on a person’s disability and making reasonable accommodations for that person’s disability.
I. Reasonable Accommodations
The Americans with Disabilities Act (“ADA”) prohibits employers from discriminating against disabled employees. 42 USC § 12112, Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir. Pa. 1999.). A primary goal of the ADA is to ensure that disabled individuals are able to fully participate in society. 42 U.S. Code § 12101. To this end, “discrimination” under the ADA encompasses not only overt discrimination but also the failure to make reasonable modifications to the job or the workplace in order to accommodate an employee’s disability. 42 U.S.C. § 12112(b)(5)(A).
These are known as “reasonable accommodations” under the ADA.
The “reasonable accommodation” provisions of the ADA essentially require an employer to figure out if there is something reasonable it can do to allow a disabled employee to perform her job.
If there is, the employer must do it.
II. When an Employee is Entitled to a Reasonable Accommodation
An employee is entitled to a reasonable accommodation if she can demonstrate that she is as qualified individual with a disability within the meaning of the ADA. 42 U.S.C. § 12112(b)(5)(A). A qualified individual with a disability is a person who (1) has a physical or mental impairment which significantly limits one or more life activities and (2) and is able to perform the essential functions of her job with or without an accommodation. 42 U.S.C. 12111(8).
An employee must notify the employer of his disability and need for an accommodation. All an employee has to do to is express to the employer that they need help performing their job because of a medical condition. Taylor, 184 F.3d at 313. This can be done informally and the employee does not need to use the term “reasonable accommodation” or “ADA.” Id.
Once the employer is on notice, the employer must engage the employee in an “interactive process” to identify an accommodation which will work for the employee. Id. at 311-12. The interactive process must be flexible and imposes a burden on the employer to request any additional information it needs to determine whether accommodation is possible. Id. at 316; see also Bultemeyer v. Fort Wayne Community Sch., 100 F.3d 1281, 1285 (7th Cir. 1996).
III. Scope of a Reasonable Accommodation
The scope of potential reasonable accommodations is vast and depends on the employee’s needs and resources. Reasonable accommodations can include alterations to facilities or equipment, job restructuring, modified work schedules, reassignment, providing interpreters, changing workplace policies and more.
If an accommodation is possible, the employer must provide the accommodation unless doing so would cause “undue hardship.” Id. at 311; 42 U.S.C. § 12112(b)(5)(A). This means that the employer can refuse the accommodation only if it would impose significant difficulty or expense in light of the employer’s resources or the employee’s job. If an employer refuses an accommodation and is later sued for discrimination, the employer must prove that the requested accommodation posed an “undue hardship.” US Airways, Inc. v. Barnett, 535 U.S. 391, 402 (2002).
An employer who refuses to accommodate a disable employee takes on a significant financial risk. If an employer fires an employee instead of providing an accommodation, it may be responsible for paying the employees lost wages and benefits, out of pocket losses and emotional distress and attorneys’ fees. 42 U.S.C. § 12117(a); 42 U.S.C. § 1981(a)(3). In some cases, punitive damages may be awarded. Id. In these cases, the employers refusal to accommodate is ultimately much more expensive and burdensome than the requested accommodation would have been.
The Housing Fight for Rights for Transgender Women in Prisons and Jails
Last Sunday the Pittsburgh Tribune Review published an extensive profile of our client, Jules Williams. Ms. Williams is a transgender woman who has courageously stepped forward to file a groundbreaking civil rights lawsuit against the Allegheny County Jail (ACJ) challenging its practice of housing transgender women with men. As the story suggests, like many transgender individuals, Ms. Williams has experienced great difficulty in being accepted by society at large.
Over the past few years she was jailed multiple times at the ACJ for minor offenses. Each time she was processed and housed with men and was subjected to emotional and physical abuse including sexual assaults, verbal abuse and humiliation. In one instance, Ms. Williams was placed in solitary confinement with a male inmate where she was confined to that cell with that male inmate for 23 hours per day. She was repeatedly sexually assaulted by the male inmate over a period of four straight days. This is just one instance of the harm caused by housing transgender women with men.
We are determined to make this lawsuit the catalyst for humane treatment of transgender individuals in corrections institutions. In a perfect world, this lawsuit would also serve as the catalyst for greater acceptance in society at large for transgender individuals.
Race Discrimination in Employment
Issue: Employers are prohibited from discriminating against employees because of race. This article discusses a specific federal statute prohibiting race discrimination in employment, as well as a recently filed case in federal court asserting claims of employment discrimination against three African American employees because of race.
Employment discrimination is often attributed to being enforced through Title VII and the Equal Employment Opportunity Commission (known as the EEOC), the federal administrative agency charged with enforcing such claims of employment discrimination. Too often we overlook older civil rights statutes that are as powerful today as they were when codified years and years ago. These civil rights statutes may provide longer statute of limitations (i.e., the period during which you can sue) and have no requirement to first exhaust your administrative remedies before filing in federal court.
One such statute is 42 U.S.C. § 1981 (“Section 1981”).
Race Discrimination Under Section 1981:
Section 1981 first became law in 1866. It was intended to reconcile the detrimental effects of slavery. Section 1981 is arguably the oldest of our civil rights statutes. Under Section 1981, African American citizens were provided equal rights under the law.
Even today, over 150 years later, Section 1981 states that “[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.”
“Make and enforce contracts” has expanded over time to include “the making, performance, modification and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.”
Section 1981 provides a vehicle for relief for anyone who has been discriminated against because of their race, provided they have (or would have) rights under an existing or proposed contract.
Every employee in the United States has rights under an existing (i.e., you are employed) or proposed (i.e., you are seeking to become employed) employment contract, regardless of whether that employee is at-will or not.
Recently Filed Lawsuit Under Section 1981:
On Monday, November 27, 2017, Attorney Alec Wright from this law firm filed a complaint on behalf of three African American employees against American Tire Distributors, Inc. (“ATD”). Race discrimination is the sole basis of the complaint. The complaint asserts that the privileges, terms and conditions of plaintiffs’ employment, because of their race, was worse than that afforded to white employees. The race discrimination is alleged to have occurred at ATD’s location in Clinton, Pennsylvania.
The complaint asserts, among other things, that plaintiffs were required to work longer and harder routes than their white counterparts. They were also provided with less resources than white employees, including being required to drive old and unsafe company trucks while white employees were always permitted to drive new company trucks. The complaint also asserts that plaintiffs were disciplined for matters that white employees were not. In the case of two of plaintiffs, they were fired for alleged driving infractions that white employees had also committed but were not terminated for.
Plaintiffs assert that the worse privileges, terms and conditions of their employment was because of their race.
The Point:
As citizens in this democracy, we always have a voice. Unfortunately, that voice is not always heard. In this case, these hardworking African American employees reported their perception of race discrimination at ATD over and over, but either nothing was done to correct it or they were told that nothing could be done.
We utilize various civil rights statutes–here, Section 1981–to make our voice heard.
In our view, equal opportunity is the fundamental foundation on which we must build. That means removing race discrimination from employment to the greatest extent possible. This law firm is committed to that end.