May 2019 Legal Report
U.S. Judicial Decisions
Census. The justices of the U.S. Supreme Court will review a challenge to the Trump administration’s decision to add a citizenship question to the 2020 census. The Court scheduled oral arguments in late April, bypassing the usual procedure where a federal appeals court first issues a decision.
The challenge concerns the March 2018 decision from U.S. Secretary of Commerce Wilbur Ross to include a citizenship question in the upcoming census. According to the administration, answers to the question would assist the U.S. Department of Justice’s efforts to better enforce voting rights. State and local governments, civil rights groups, and other plaintiffs in the case claim that households with undocumented residents are less likely to respond to the question, resulting in inaccurate data.
The Court previously agreed to review an evidence dispute with the case and barred the plaintiffs from questioning Ross. The Court did allow questioning of then-head of the civil rights division for the Justice Department, John Gore.
In January, the Trump administration asked the Supreme Court to review the trial court’s decision without requiring the government to appeal first to the U.S. Second Circuit Court of Appeals.
The deadline for finalizing the questions for the census is 30 June 2019.
Sexual Harassment. The U.S. Fourth Circuit Court of Appeals ruled that under Title VII of the Civil Rights Act, employers may be liable for not effectively addressing and stopping rumors of an alleged sexual relationship between a female employee and a male supervisor. The ruling maintains that sex discrimination includes entertaining the stereotype that women’s sexuality is of greater value than their merit.
The case was presented to the federal appeals court in Richmond, Virginia, after Evangeline Parker sued her former employer for sex discrimination and retaliation after a competing male subordinate started a rumor that she had used her “womanhood” to obtain a promotion. The rumor was spread by other men, including managers, and the company ultimately fired Parker after she filed complaints with human resources. A U.S. Supreme Court ruling in 1998 established that bosses using their authority to pressure employees into sexual relationships are guilty of sexual harassment, and that sexual harassment victims can sue their employers under Title VII. The decision in Parker’s suit outlined why subjecting a female employee to false rumors of an affair is a violation of Title VII.
Parker began working for a military contractor, Reema Consulting Services Inc., in December 2014 as a low-level clerk in a warehouse facility. During her employment, she was promoted six times, ultimately to the position of assistant operations manager of the facility in March 2016.
About two weeks after her last promotion, a male subordinate described by the appellate court as the “rumormonger” began a rumor that her promotion was due to a sexual affair instead of her hard work.
Although the rumor was false, it spread throughout the warehouse where Parker worked for six weeks—sometimes with assistance from the highest-ranking manager at the warehouse, Larry Moppins. Moppins allegedly treated Parker with hostility and less respect, while coworkers were openly hostile because of the gossip.
Parker filed sexual harassment claims with Reema’s human resources department against both Moppins and the rumormonger.
In mid-May, the rumormonger complained to human resources that Parker was creating a hostile work environment. The department ordered Parker to stay away from the employee without issuing similar restrictions on the rumormonger, allowing him to remain in her work area to distract the employees she managed while he allegedly stared and laughed at her.
Although Parker complained to her superior and human resources about the rumormonger’s continuing hostile behavior, the behavior was not addressed, “exacerbating Parker’s experience of a hostile work environment,” according to court documents.
Approximately one month after that last complaint to human resources, Parker was fired in May 2016 during a meeting with Moppins, human resources, and Reema’s in-house counsel.
Disagreeing with the Fourth Circuit’s ruling, the federal court found that Parker adequately alleged a hostile work environment for sex discrimination. “These facts in combination—the spreading of a rumor rooted in base stereotypes about female professionals, plus Parker’s disparate treatment compared with members of the opposite sex—fairly permit the inference that Parker was treated with less dignity because she is a woman,” Judge Albert Diaz wrote in his decision.
Judge Paul Niemeyer added that Parker’s allegations supported her harassment claim since her experience “was severe or pervasive such that it altered the conditions of her employment and created an abusive atmosphere.” He also noted that the harassment was at times “physically threatening.”
“That this harassment came from Parker’s supervisor made it all the more threatening,” Niemeyer wrote. (Parker v. Reema Consulting Servs., U.S. Fourth Circuit Court of Appeals, No. 18-1206, 2019)
TSA. Two U.S. congressmen reintroduced legislation to improve the U.S. Transportation Security Administration’s (TSA) frontline workforce by granting TSA officers certain benefits, such as full collective bargaining rights.
The bill from Representatives Nita Lowey (D-NY), chair of the Appropriations Committee, and Bennie Thompson (D-MS), chair of the Committee on Homeland Security, would ensure that transportation security officers (TSOs) have the same worker rights and protections given to other federal workers under Title 5 of the U.S. Code.
H.R. 1140, or the Rights for Transportation Security Officers Act, would offer TSOs not only full collective bargaining rights, but also chances to effectively raise issues in disputes to an independent third party for an impartial resolution. It would also make the officers subject to the General Services Administration’s wage system, which is the primary wage system for federal employees. TSOs comprise more than 70 percent of the administration’s workforce. They have labor union representation but due to limitations imposed by the TSA are denied certain privileges. The bill also includes protections so officers’ pay is not decreased due to the transition of the personnel system.
The bill was reintroduced after the latest partial U.S. government shutdown, during which TSOs—considered “essential” personnel and required to work without pay during lapses in appropriations—worked for 35 days.
Due to missed paychecks during the lapse in appropriations, some officers took second jobs, relied on food banks and charities, or left the TSA for paid employment.
According to Lowey, the legislation would aim to not only grant additional workplace rights, but also improve the nation’s security by retaining experienced officers with better morale.
Racial Discrimination. The New York Commission on Human Rights issued new guidelines on 18 February, outlining that segregating people based on their hair or hairstyles is a type of racial discrimination.
The New York City Human Rights Law (NYCHRL) safeguards people dealing with racism, especially through hair-based discrimination. “Anti-Black bias also includes discrimination based on characteristics and cultural practices associated with being Black, including prohibitions on natural hair or hairstyles most closely associated with Black people,” the commission said.
Employers cannot legally discriminate or dictate how New Yorkers style their hair, according to the new guidance. Instead, such employees can maintain natural hair or other hairstyles linked to their cultural, ethnic, or racial identities. “Grooming or appearance policies that generally target communities of color, religious minorities, or other communities protected under the NYCHRL are also unlawful,” the commission wrote.
The guidance allows that employers might have legitimate health or safety concerns regarding hairstyles; however, alternative methods to addressing these concerns should be considered before levying a ban or restriction on hairstyles.
The law closely follows an investigation into discrimination accusations from employees of several businesses in Manhattan, Queens, and the Bronx.
Recent guidance from the Equal Employment Opportunity Commission runs parallel to the NYCHRL, explaining that “hair texture” is a protected racial attribute and that related restrictions are a kind of prohibited discriminatory stereotyping.regulations
Sexual Misconduct. The Nevada Gaming Commission fined casino magnate Steve Wynn’s former company a record $20 million for failing to investigate sexual misconduct claims against Wynn.
The gaming regulators penalized Wynn Resorts Ltd. at the conclusion of an investigation into misconduct claims made prior to Wynn’s resignation from the company in 2018. Wynn reportedly harassed or assaulted several women. Regulators allowed the company to retain its gambling license.
The commission froze Wynn’s state casino license.
One of the commissioners said the issue concerned the failure of a “corporate culture.” Wynn denied all allegations made against him, and sold his company shares. However, Wynn Resorts confirmed that several former board members and executives were aware yet failed to investigate the claims, including one where Wynn paid $7.5 million to a former employee who alleged he raped her, resulting in a pregnancy.
Massachusetts gambling regulators opened a similar investigation into Wynn Resorts, looking into whether to permit the company to operate a roughly $2 billion casino resort scheduled to open in June 2019. The Massachusetts Gaming Commission is not evaluating the truth or falsity of the allegations against Wynn, but the company’s response to the allegations, as an indicator of corporate governance. A company settlement is pending in the state.
Elsewhere in the Courts
Corruption. Pakistan’s National Accountability Bureau indicted the country’s opposition leader, Shahbaz Sharif, on corruption charges related to a housing scheme. On 18 February, the corruption tribunal indicted Pakistan Muslim League President Sharif and nine others in connection with a scam in Lahore. The Ashiyana Iqbal housing project began in 2010 in the Punjab province, where Sharif served as chief minister from 2013 to 2018. The tribunal accused Sharif of abusing his authority as chief minister to award the contracts to unqualified businesses of people associated with his party, causing the loss of millions of rupees to the national treasury. Sharif denied the charges.
Discrimination. The Iowa District Court for Polk County ordered the state to pay a transgender nurse $120,000 in damages due to gender-related discrimination. On 13 February, the court found that the state discriminated against Jesse Vroegh by forcing him to use female restrooms at the Iowa Correctional Institution for Women and that the state’s employee medical insurance plan specifically denied him coverage for transition-related surgeries. Claiming he was treated differently compared to other male employees because he is transgender, Vroegh successfully sued Iowa’s Department of Corrections, the Department of Administrative Services, and Patti Wachtendorf, a former warden at the prison. The state added gender identity protections to its Civil Rights Act in 2017, which now protects transgender Iowans from discrimination in education, employment, housing, and public accommodations. (Vroegh v. Iowa Department of Corrections, et al., Iowa District Court for Polk County, No. LACL138797, 2019)
Bribery. A former Atlanta mayoral official was sentenced to 21 months in prison, three years of supervised release, and a fine of almost $15,000. Katrina Taylor-Parks pleaded guilty in August 2018 of accepting bribes as the mayor’s deputy chief of staff, as well as lying to the FBI and using her position to force other city employees to behave unethically. (U.S. v. Taylor-Parks, U.S. District Court for the Northern District of Georgia Atlanta Division, No. 1:18-CR-299-SCJ, 2018)