Wednesday, September 16, 2020
A portion of the discourse on the anniversary of 9/11 addressed the ongoing suffering of Muslims and those of Middle Eastern heritage. Immigrants are particularly vulnerable but bias against those of Middle Eastern ethnicity continues against all generations of Muslim Americans. In 2017 Pew Research Center reported that assaults against Muslims exceeded 2001 levels. Intimidation and property damage are two of the most common assaults on Muslims, along with all forms of discrimination. Ignored are Middle Eastern and Muslim families who also lost friends and love ones in the 9/11 attacks. The government is a major perpetrator of this discrimination.
This week a U.S. district court judge, Alison Nathan, who this week "castigated federal prosecutors in the Southern District of New York for repeatedly withholding exculpatory evidence in the case of an Iranian businessman who was convicted of funneling more than $115 million through the American financial system." Prosecutors agreed to vacate the judgment after their improprieties came to light, including misrepresentations around discovery in the case. Judge Nathan commented that "serious and pervasive issues related to disclosure failures and misleading statements to the court."
Judge Nathan was appalled that the federal ethics overseers declined to investigate the case. "The cost of such government misconduct is high. With each misstep, the public faith in the criminal -justice system further erodes. With each document wrongfully withheld, an innocent person face the chance of wrongful conviction."
Tuesday, June 16, 2020
Guest Blogger Professor John Rice, UMass Law School, shares his thoughts on Bostock v Clayton County, Ga.
On June 15, 2020, the Supreme Court announced its opinion in the Title VII trifecta—Bostock v. Clayton County., Ga.; Altitude Express, Inc. v. Zarda; and R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC. At the outset, I acknowledge the roles that Aimee Stevens and Donald Zarda played in this litigation. Both litigants passed away prior to the Court’s ruling in their cases. I thank both of these individuals for their courage and veracity in bring these suits, and I offer warm wishes of peace and comfort to their loved ones.
This opinion has been hailed—rightly—by many as a significant civil rights victory, particularly regarding equality for the LGBTQIA+ community. Captioned Bostock (Bostock was the first of the three cases docketed), the Court considered whether the prohibition of “discrimination on the basis of . . . sex” set forth in Title VII of the Civil Rights Act of 1964 extended to prohibit discrimination of the basis of sexual orientation or gender identity. The Court presented what it characterized as a simple answer to a simple question: “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex[.]” Thus, an employer who engages in such discrimination violates Title VII.
I receive this victory with cautious optimism. Much should, can, and will be written about the “next” issues arising and the inherent limits of the moment. The Court was construing Title VII, which only applies to employers who have more than 15 employees and from which religious organizations are exempt. Relatedly, it’s hard to avoid noticing that Justice Gorsuch allocated almost two pages (out of thirty-three) discussing what issues are not before the Court, including any purported tension between non-discrimination and an employer’s religious convictions. Indeed, a case in the Court’s pipeline—Fulton v. City of Philadelphia—will soon explore that precise issue. Additionally, Bostock only addressed the term “sex” in the context of a single statute; it remains unseen whether the term “sex” likewise encompasses sexual orientation and gender identity for purposes of heightened constitutional scrutiny. Likewise, across the country, the federal executive and state governments are engaged in a barrage of attacks against the LGBTQIA+ community, including rolling back healthcare protections and permitting adoption discrimination. Without doubt, the fight continues. But for now, let us take a moment to celebrate and breathe a sigh of relief.
I join with those who offer praise for the Court’s ruling. While, for most, the jubilation is over the victory for the equality movement, we should also celebrate this opinion as significant in advancing the rule of law and promoting public confidence in the judiciary. The principles underlying the rule of law can generally be framed as three core values: first, that no one is above the law and no one is beneath it; second, that law is formed through a public and transparent process—there is no such thing as “secret” law; and finally, that the institutions that make, interpret, and enforce our laws are consistent and predictable. In Bostock, the Court fulfilled each of these promises.
Most notably, Bostock is about statutory interpretation. Here, the Court engaged in one of its most foundational duties and employed familiar canons of statutory construction to arrive at its conclusion. While acknowledging that the statute’s drafters may not have anticipated this particular application of the law, the letter of the law still necessitated the conclusion. In fact, the majority reasoned that adoption of the employers’ positions would be a deviation from the plain language of the statute. Despite sharp criticism from the dissents that the Court was expanding the plain language of the statue, “legislating from the bench,” the majority made it clear: “homosexuality and transgender status are inextricably bound up with sex.” Thus, discrimination based on sexual orientation or gender identity is discrimination based on sex, which is prohibited by Title VII.
Next, Bostock was consistent with the Court’s precedent and offered an analytical framework for moving forward. The Court primarily relied on three of its past Title VII rulings: Phillips v. Martin Marietta Corp., L.A. Dept. of Water & Power v. Manhart, and Oncale v. Sundower Offshore Services, Inc. Each of these cases involved “sex plus” discrimination—that is, discrimination on the basis of sex “plus” something else (e.g., having young children, a longer life expectancy, or being of the same sex as one’s harasser). Although the discrimination may have been primarily motivated by the non-sex factor, each instance nevertheless still involved sex, and was therefore prohibited under Title VII.
Similarly, Bostock offered a framework for legal analysis in future cases. Unlike some of the Court’s past monumental opinions, Bostock did not rely on evasive principles such as “dignity,” “intimate association,” “[safeguarding] children and families,” or “the Obergefell v. Hodges, 576 U.S. 644 (2015), or United States v. Windsor. Of course, this may be attributable to Bostock’s presentation of a different sort of legal issue, one that is more technical and separate and apart from issues of fundamental rights under the Constitution. But still, Bostock offers sound insight into how courts may in the future analyze other prohibitions of discrimination based on sex, such as in the context of healthcare, education, or adoption.
Finally, the Court soundly rejected the notion of “secret” law or the idea that a legislature’s subjective intent—or perhaps even just the subjective intent of a few legislators—could supersede the plain language of a statute. Certainly not. In a line that sent chills up my spine, the majority reminded us: “Only the written word is the law, and all persons are entitled to its benefit.”
Indeed, your Honors. Indeed.
Monday, June 15, 2020
Parallel to our symposium on Mr Floyd's death and the aftermath, we are running posts on this term's Supreme Court decisions having human rights and civil rights implications. Prof. Shirley Lin of NYU Law School discusses an unexpected result.
In a historic opinion that reenvisions Title VII as “sweeping” and “expansive,” the Supreme Court ruled that hostility against an individual for “being homosexual or transgender” is sex discrimination in Bostock v. Clayton County, Ga. One of the broadest readings of Title VII in decades, the 6-3 opinion implicitly honored the courage and perseverance of plaintiffs Aimee Stephens and Donald Zarda, whose cases were consolidated with Gerald Bostock's but who unfortunately passed away before hearing the opinion issued. The Court recognized their dedication to their employers and, using accessible language, acknowledged their gender identity and sexual orientation with dignity.
The cases hinged upon Title VII’s statutory language, which states simply that it is “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual . . . because of such individual’s . . . sex.” 42 U.S.C. § 2000e–2(a)(1). Relying upon reasoning that alternated between textual, plain meaning, and a concerning debut of “ordinary public meaning” as to a remedial civil rights statute, Justice Gorsuch wrote:
"An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision; exactly what Title VII forbids."
Bostock represents a major shift in how courts analyze discriminatory intent in Title VII cases. By providing a categorical rule that one’s status, “trait or actions” related to sexual orientation or gender identity, is “sex”-based, the opinion is a landmark victory for LGBTQIA+ communities that further eases the burden judicial interpretations had until now made very difficult in proving claims that raise the social traits of race, color, national origin, and religion. The opinion acknowledges that but-for causation “can be a sweeping standard” that “often [includes] multiple but-for causes,” but the sea change lies in the following passage:
Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge. Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.
Among the remarkable aspects of Bostock is its elevation of multiple motives in its broadened description of but-for causation while ignoring the less-preferred alternative called “motivating factor.” It implicitly responds to a doctrinal correction as to causation instigated by lower courts that read the statute’s plain text to include any subordination of a worker beyond the Court’s gratuitously narrowed articulation of but-for causation over the last two decades. Those courts read the protected trait of “sex” through social construction evidence, which the Court did in the above passage through a comparative argument.
Notably, because the circumstances of all three plaintiffs did not involve non-binary gender presentation the Court sidestepped having to define “sex” conclusively and left the question for a future case in stating that it “proceed[ed] on the assumption that 'sex' [in 1964] signified what the employers suggest, referring only to biological distinctions between male and female.” The majority acknowledged “nothing in [its] approach to these cases turns on the outcome of the parties’ debate” over whether sex’s meaning includes “norms concerning gender identity and sexual orientation.” But implicitly, the Court for now viewed both statuses as a “plus” in the vein of its sex-plus precedent, rather than as subsets of “sex.” It also reserved for another day the application of religion objections brought by both religious employers, exceptions for ministerial employees, and claims under the Religious Freedom Restoration Act, as none of those issues were raised on appeal.
Not content with the majority’s imputed meaning of sex “in 1964,” in a dissent joined by Justice Thomas, Justice Alito accused the majority of judicial legislating, and Justice Kavanaugh separately wrote: “Seneca Falls was not Stonewall . . . . [T]o think that sexual orientation discrimination is just a form of sex discrimination is not just a mistake of language and psychology, but also a mistake of history and sociology.”
Particularly in light of the Trump Administration’s relentless assault on the legal rights of LGBTQIA+ communities, the decision has potent implications for Title IX, which is viewed as analytically identical to Title VII and yielded equally momentous public-school student victories that propelled public support for communities nationwide to affirm transgender students’ gender identity. Today’s decision indeed marked a euphoric moment for the triumph of principle over ends-driven interpretation.
Sunday, May 31, 2020
Editors' Note:In two previous posts, Professor Lin wrote about the dignitary interests foregrounded in the statutory interpretation and causation issues in the trio of cases addressing Title VII and gender identity and sexual orientation pending before the Supreme Court.
The essence of Title VII is that employers are uniquely positioned in our society to inflict severe economic and psychological harm as a form of social control. This is no less true today than in the Civil Rights Act’s passage in 1964. But by spending considerable time on bathroom and dress codes during last Fall’s arguments in Harris Funeral Homes and the consolidated Zarda and Bostock cases, the Court’s justices implicitly demonstrated confusion about self-identified sex, whether “biological sex” is solely defined by anatomy, and whether the discomfort of others can veto equality at work.
Answering the third: there is no “heckler’s veto” within Title VII law, and America’s history of race discrimination and segregation have made this clear. Nor can Title VII be warped so far as to allow employers to determine our sincerely held sex or gender identity for us. But that is exactly what the defendant funeral home sought to do in Aimee Stephens’ case, and the Court’s inquiries seem to imply. And a ruling against the employees here would be an egregious blow to the legitimacy of the Court.
The fact of sex’s complexity is reflected in dictionary definitions’ use of the word “properties” of the socially constructed trait and “typical” connotations. Sexual variation beyond a fixed binary view was amply acknowledged in medical and social science literature by mid-century. Since the 1960s, U.S. medical experts in developmental sexology have considered several non-exclusive criteria in determining sex including: (1) genetic or chromosomal sex; (2) gonadal sex; (3) internal morphologic sex; (4) external morphologic sex; (5) hormonal sex; (6) phenotypic sex; (7) assigned sex/gender of rearing; and (8) “self-identified sex” (i.e., gender identity). Thus, for millions of individuals and the medical community, sex cannot be deemed only biologically external, immutable, or dimorphic.
The complexity of sex was documented within the United States throughout the first eight decades of the twentieth century, reflecting earlier understanding that gender identity is a major determinant of one’s sex. Prominent stories include Christine Jorgensen, who returned from successful sex reassignment surgery in Denmark and caused a “media sensation” in 1953. By the 1940s, the term “transsexual” appeared in American medical discourse. The idea that sex is mutable became conventional medical advice by the 1950s. Dr. Harry Benjamin further popularized the term transsexual during this time as the published his seminal text, The Transsexual Phenomenon, in 1966. Although wide surveys did not exist until recently, the size of the adult U.S. transgender-identified population is currently about 1.4 million, with a recent federal study estimating that approximately 1.8% of all high school students identify as transgender, and an additional 1.6% have responded that they were unsure. (For additional reading, I recommend the amicus brief in support of the employees filed by Law & History Professors.)
Natural sexual variation by the 1950s was also admittedly more complex than binary male or female, and thus a legal definition of “sex” should not foreclose the existence of non-binary individuals. A comprehensive survey of medical literature from 1955 to 2000 concluded that “[b]iologists and medical scientists recognize . . . that absolute dimorphism is a Platonic ideal not actually achieved in the natural world.” For example, the frequency of intersexuality is approximately 1.7% of live births, or millions of Americans at any point in the last half-century. (For additional reading, I recommend the amicus brief in support of the employees filed by InterACT: Advocates for Intersex Youth and expert amici.)
Arguments that original public meaning or original legislative intent should drive interpretation of Title VII must not only overcome issues with collective attribution when actual experiences and opinions are diffuse. This alone could end the debate. But they must contend also with scientific and public knowledge at the time regarding considerable sexual variation. Rather than “updating” statutory construction with twenty-first century meanings of “sex,” what a tidal wave of lower courts has done since 2015 is acknowledge existing complexity and typographies that serve as functions of sex. By so doing, these courts have rejected the inaccurately narrow “biological-as-anatomical” view of sex as not neutral.
As an arm of the State, the Court must focus on its actual task of determining the scope of the social trait of “sex,” and avoid the harm of imposing its own close-ended concept of sex. As to sexual orientation, the Court acknowledged in Obergefell v. Hodges that laws targeting homosexuality “put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied.” The political branches continue to engage in variable and oppositional politics regarding sex. Currently, the Trump Administration’s policies seek to rescind gender identity and sexual orientation from federal non-discrimination protections, while states and localities expand their laws and policies memorializing such protections or defining sex and gender even more broadly, and offering non-binary or third sex markers, and other policies.
It is not only up to litigants and civil rights counsel who have tirelessly raised these points to give our dignitary interests their meaning. We must do our part to engage in these conversations and address these misconceptions and biases within our own communities also.
Thursday, August 24, 2017
In the land of “who’da thunk it,” I find myself voluntarily associating with Arnold Schwarzenegger, Mitt Romney, and Charles Krauthammer. I hereby claim them as allies who are willing to stand against racism, anti-Semitism, and general moral vacuousness.
I recently gave a nod to tennis great Andy Murray as an ally in securing the recognition of women’s accomplishments in tennis---successes that should have been hard to ignore but had been overlooked nonetheless. The Murray shout-out was not much of a reach. However, it is important to find allies in the cause of equity anywhere we can, even if it is a stretch.
In this down-the-rabbit-hole time we live in, Schwarzenegger, Romney, and Krauthammer have all spoken out in different fora against Donald Trump’s post-Charlottesville truck with racists and bigots of all stripes. Although the President has been giving offense for a very long time, his recent assertions, first made after the Charlottesville rally and reiterated at his Phoenix campaign speech Tuesday night, have been both more egregious and led to wider condemnation.
Krauthammer made his views known on a Fox news panel on the same day that President Trump engaged with reporters at an infrastructure week event and made painfully plain his real views on the Charlottesville violence. No longer were the teleprompter-read words of his aides able to prevail. Trump’s comments were a “moral disgrace,” Krauthammer declared, not mincing words. Well said, Charles.
Schwarzenegger gets the prize with the longest and most personal appeal against the most recent and offensive presidential sentiments. In recorded remarks, he spoke directly to different audiences, including neo-nazis and President Trump. His comments to Trump showcased a bit of their rivalry over, inter alia, The Apprentice show ratings, as Schwarzenegger “helped” the President see how easy it is to script a speech that does not equivocate in its condemnation of hate. Schwarzenegger’s comments to neo-nazis were especially powerful, as he recounted growing up on post-war Austria. Go, Arnold, go.
Other conservatives have spoken out, too. Senators Marco Rubio, John McCain, and, recently, Senator Bob Corker--a Trump friend—come to mind. But it is fair to say that many more have remained all too silent; no danger of running out of Profiles in Courage awards this month.
But I get it, conservatives. Commenting on everything would be a fulltime job and, after all, you do want to advance your legislative agenda. But some things simply demand comment and condemnation. The President’s racially loaded remarks and—to my lights—his even worse indulging of the racists and anti-semites fall firmly in the category.
“In the end, we will remember not the words of our enemies, but the silence of our friends,” said Martin Luther King, Jr. Schwarzenegger, Romney, and Krauthammer fit into neither category for me, but I am glad they spoke out and did so forcefully. As white supremacists and neo-nazis feel emboldened in the current climate, more and more people across our wide and divided political spectrum must denounce their execrable views.
Monday, August 7, 2017
Two opinion pieces were published this week that underscore the foundation of racism upon which the Trump Administration policies are built. Both pieces follow the "leak" this week of a memo outlining the Department of Justice's plans to pursue dismantling of affirmative actions programs. Both pieces point out the absurdity of portraying US whites as victims. Prof. Carol Anderson , is the author of White Rage, the Unspoken Truth of Our Racial Divide. She reminds us in her NYT opinion, white men benefit from flexible undergraduate admissions programs. If objective scores and grades were the predominant selection method, white males would be a distinct minority on campus. Flexible admissions policies that consider gender as a bona fide admissions factor, benefit white males as much as anyone else. But it is race of which whites most complain.
In his New Yorker piece, Jelani Cobb focuses on the heart of racist thinking. Whites view their economic status comparatively. One African American succeeding financially is an affront to less affluent whites. The underlying assumption that whites deserve to be successful in every way before any person of color "succeeds", (however that is defined), is the source of white resentment. Whiteness as the ideal standard is what Trump and many followers look to preserve.
Mr. Trump may not be a seasoned politician. He may be unable to deliver on his major campaign promises. But he knows how to stoke his base. Through feeding anger and irrationality, Mr. Trump has begun his re-election campaign.
Sunday, August 6, 2017
You may recall for Martha Davis' post on preemption, Missouri legislators overrode St. Louis' efforts to raise the minimum wage within city limits.
Missouri continues to lead the nation in disregard of human rights. In response, last week the NAACP issued its first ever state-wide travel advisory. The NAACP warns people of color to avoid the entire state of Missouri through August 28th. The warning comes after a disturbing series of events. Since the presidential election, an increase in race based incidents has been reported nation wide. Missouri was, of course, the scene of the notorious Michael Brown killing. Recently the Missouri Attorney General revealed that African-Americans are 75% more likely to be stopped by police. Derrick Johnson, interim NAACP president and CEO stated: “The numerous racist incidents, and the statistics cited by the Missouri Attorney General in the advisory, namely the fact that African Americans in Missouri are 75 percent more likely to be stopped and searched by law enforcement officers than Caucasians, are unconscionable, and are simply unacceptable in a progressive society."
Missouri Bill SB 43, signed by the governor on June 30th, virtually legalized individual harassment and discrimination in the state, while prohibiting self-defense by those who experience the harassment. This bill restricted the civil rights African-Americans and other vulnerable populations, including women and immigrants. The bill shifted the burden to the Plaintiffs to prove that their protected class was the "motivating" factor in the firing or other damaging action. Not only was the burden of proof shifted, but the amount of potential damages is capped. The governor disguised his discriminatory action by referring to this law as a "pro-business" move.
The NAACP issued the state-wide advisory partially in response to the implementation of the "Jim Crow" bill, SB 43.
Monday, July 31, 2017
Last week the Justice Department submitted a brief arguing that the anti-discrimination law Title VII do not protect LGBT employees. The administration filed an amicus brief in a New York case in which the government is not directly involved. The brief was filed on the same day that the President announced in a tweet that transgender individuals would not be permitted to serve in the military.
By filing, Justice Department has made it clear that the administration is withdrawing Obama era guidance that Title VII's provisions protect from discrimination based on gender identity.
The case before the court was brought by a man who was fired after disclosing to the a customer that he is gay. The circumstances were that Mr. Zarda, an employee who accompanied customers o parachute jumps, told a female customer with whom he was about to do a tandem jump that he is gay. The customer's husband complained to the employer, who then fired Zarda. Mr. Zarda sued under Title IX.
While courts are not mandated to follow Justice's guidance, many do. Mr. Zarda's case will be a test of whether the courts will be guided by the new administration's interpretations or will consider marriage equality and other changes in federal law sufficient to reinterpret the reach of Title VII. We have seen the importance and power of an independent judiciary over the past six months. How the court decides is not a slam dunk for Mr. Sessions.
Tuesday, May 23, 2017
The Yogyakarta Principles for eliminating sexual identity and gender discrimination were written in 2006. In 2010, an Activists Guide to the principles was published. The target audience for the guide is LBGTQ activists, with a secondary audience being academics and others interested in human rights implementation. The principles themselves are directed toward the state, and in particular those creating and implementing policy.
Recently a global conference was held in Bangkok to discuss updating the principles by addressing any existing gaps.
Stephen Leonelli of the Men Who Have Sex with Men Global Forum, seeks to bring more awareness of HIV to the principles. At present, there are only two references to HIV contained in the principles. Leonelli, who was a representative at the Bangkok meeting, has written a critique of the principles from the perspective of what changes might be made in order to appropriately address HIV/AIDS.
One of Leonelli's goals is to bring awareness to the collateral consequences of having HIV. Often acknowledged are the public health concerns HIV raises. But less appreciated are the impacts of criminalization, discrimination, violence and stigma. To read more on Leonelli's suggestions for advancing HIV awareness through the Yogyakarta Principles, click here.
The revisions are scheduled to be completed this fall.
Wednesday, April 5, 2017
For the first time, the U.S. Court of Appeals ruled, in an 8-3 decision, that the Civil Rights Act of 1964 protects lesbian, gay, bi-sexual, and transgender employees from workplace discrimination. The Seventh Circuit recognized that discrimination based upon one's perceived or actual sexual orientation is a civil rights violation. The decision of Hively v. Ivy Tech was heard en banc after a three judge panel earlier ruled against the Plaintiff, Kimberly Hively, who claimed that she experienced workplace discrimination based upon her identification as a lesbian.
Historically, opponents argued successfully that LGBT individuals could not benefit from discrimination protections because discrimination based upon sexual orientation was not specifically mentioned in the act. As recently as March 10, 2017, the 11th circuit wrote that it was bound by prior case law that limited protections to straight men and women. "Because Congress has not made sexual orientation a protected class, the appropriate venue for pressing the argument [that LGBT individuals are protected] raised by the Commission and the dissent is before Congress, not this court." A dissenting opinion forecast the reasoning used in Hively.
Hively's Judge Wood declared on Tuesday that "For many years, the court of appeals of this country understood the prohibition against sex discrimination to exclude discrimination on the basis of a person's sexual orientation. We conclude today that discrimination on the basis of sexual orientation is a form of sex discrimination." Judge Wood continues: "It would take considerable calisthenics to remove the 'sex' from 'sexual orientation'."
Ms. Hively was represented by Lambda Legal who undoubtedly will next argue the case before the US Supreme Court. Watch for more posts on this case.
Wednesday, January 25, 2017
by Jeremiah Ho
Last week, the Supreme Court heard Lee v. Tam, a case in which an Asian-American rock band that calls itself “The Slants” is challenging its unsuccessful trademark registration application at the U.S. Patent and Trademark Office. (Arguments may be heard here.) At issue is whether the PTO’s determination that “The Slants” is disparaging under the Lanham Act correctly disqualified registration as a mark. As an attorney, the legal aspects of the case are fascinating enough. But as an Asian-American gay man, I find the language aspects of the case truly mind-boggling.
Of course, as a child—particularly when I first arrived in the U.S. in the 1980s—I certainly have been on the receiving end of racially-charged slant-eyed gestures on the school playground from my all-American classmates. As an adult, I think back on moments such as that or episodes of being asked by other children whether I had cat for dinner the night before as unwelcoming gestures that perhaps every person of color or minority status have had to endure in some form or another.
What Simon Tam, the band leader of The Slants, was trying to do was to overcome those moments of victimization. In a New York Times Magazine article that ran last week, Tam claimed that his band tries to celebrate the Asian-American experience and the name was a way of reappropriating the slur—in much the same way that other groups such as Dykes on Bikes or N.W.A. have done in the past. Already, the Federal Circuit had sided with Tam, finding that the disparagement clause of the Lanham Act was unconstitutional based on viewpoint discrimination theories.
Technically, Section 2(a) of the Lanham Act (the disparagement act) prevents the registration of trademarks comprised of “immoral, deceptive, or scandalous matter[,] or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” In effect, Section 2(a) has blocked the registration of many trademark applications in the past that had contained racial slurs, swear words, and arguably vulgar designs since the act’s post-war inception.
What complicates this case even more is to see what can be gained if the disparagement clause under the Lanham Act is found unconstitutional by SCOTUS altogether for reasons of vagueness or for contributing to viewpoint discrimination by the government. The Lanham Act, governing trademark issues, was not designed as a challenge to the First Amendment by its drafters. Rather the Lanham Act regulates unfair competition as it pertains to trademarks and intellectual property. If the disparagement clause is found to be unconstitutional for reasons of vagueness or viewpoint discrimination or otherwise, wouldn’t such a ruling allow an organization such as the Washington Redskins to legitimately register and claim rights to a mark that has disparaged and is disparaging of Native Americans?
Perhaps the term “disparage” ought to be redefined to skirt viewpoint discrimination, but also include the subtle uses of language—subtleties that allow for instances of reappropriation or reclamation of a controversial term, such as the one Tam is attempting to reclaim, versus outright use of a slur in a mark that would legitimately marginalize a certain group of people, such as in the Redskins situation. (Application of The Redskins mark was recently rejected, but a SCOTUS ruling that rids the disparagement clause could reignite attempts at a post-Lee v. Tam application.)
Although personally I don’t like the use of slurs—whether linguistically as a weapon to put down someone else or as a symbolic form of reappropriation—I see the value of what Tam was doing by giving his band the name, The Slants. I can draw the analogy to an example of an oppressor using a knife as a weapon to physically subdue another human being. The knife here can assault, victimize, and rob another person of his or her dignity. Likewise, so can an oppressor’s use of racial slurs and hate speech upon a person who belongs in a group in which the slur or speech disparages or mocks. One way of viewing Tam’s use of The Slants is as if the victim, once held at knifepoint, has now taken back the knife and is using it on him- or herself. But that view misses the point (all puns intended) of reappropriation. Instead of the victim using the knife on him or herself, the victim is using the knife in a way that both empowers the victim and also changes the character or the bluntness of the knife. Each use of the word “slant” by Tam blunts its meaning. Gradually, the knife becomes useless as a weapon. Similarly, the slur gains other utility and loses its racial significance. When that happens, it should be a sign of progress. At the same time, this perspectives shows how language is constantly fluid and how it can change over time.
One could—and I do amusingly—look at this case as one that demonstrates how clumsy and obtuse the law sometimes can be at approaching the ironies of life and civility. But in this political age, when civility is seemingly becoming a lost art, the urgency of this case is ever more apparent. I hope that SCOTUS will find a solution somewhere in middle that allows The Slants to be registered but rejects examples such as The Redskins.
One final note: during those first couple of months when I started school in the U.S. and several of my white elementary-school classmates would come up and perform their slant-eyed gestures at me, I would always wonder what they were trying to do. It wasn’t until much later that I learned that such gestures were racial slurs. (And who’s to say that my first-grade counterparts knew any better or worse?) But I do remember that at that time, when I was brand new to this country and hardly spoke any English, I would see kids making their gestures at me and think to myself, “Boy, these American kids are so weird.” The joke was always on them.
Oral arguments for Lee v. Tam is here: https://www.oyez.org/cases/2016/15-1293.
Monday, November 28, 2016
Special Rapporteur on Violence Against Women, Dubravka Simonovic, spoke about global concerns of increased risks to women as fundamentalism and "populism" rise around the globe. A group of UN human rights experts including Simonovic, Alda Facio, Chairperson-Rapporteur of the Working Group on the issue of discrimination against women in law and in practice; and Michel Forst, Special Rapporteur on the situation of human rights defenders, issued a joint statement expressing the concerns of many women around the globe.
“In the face of rising populism and fundamentalisms and deplorable setbacks on the women's human rights agenda, we need more than ever to unite our forces to preserve the democratic space in which women human rights defenders represent an essential counter-power and a colossal force of action.”
"The experts highlighted a host of specific challenges faced by women rights defenders – including misogynistic attitudes, threats of sexual assault, travel bans, lack of protection and access to justice, imprisonment, killings, laws which violate their rights, gender-based defamation questioning their “femininity” or sexuality, and gender stereotyping which questions their engagement in public life instead of sticking to their caretaker role in the family."
US women recognize the fragility of their advances in the post-Trump climate.
What supports the concerns of US women is the fact that there has been no general outcry from men denouncing the wave of misogyny that has let lose since the Trump campaign began. If men are not willing to risk the ridicule of other men by taking a public stand against misogyny, how can women be safe? Particularly silent are the men of Congress. Are all too busy worrying about how to get along with the incoming president? Or they are concerned with how to retain their seats and have Trump's support. This is no time for cowards to represent us. But bravery has not been a hallmark of many of our male representatives for some time. The few vocal male congressional supporters are insufficient to create change. There was some hope when Republican leadership publicly stated they could not support Trump because of his videotaped remarks. But that assessment seems to have diminished in the race to preserve their status. Respecting and accepting the process is very different from silence in the face of bias.
Sunday, September 18, 2016
I do not recall a presidential campaign where news coverage of the candidates was so lopsided. Donald Trump would be trailing Hillary Clinton by quite a bit except for the publicity he has been provided at the expense of a campaign that actually focuses on issues. Thanks to reality tv and exploitative, rather than balanced, journalism, the "soundbite" method of reporting has been an advantage to Mr. Trump. Bullies are ready producers of soundbites. More respectful folks are not. The nation now believes that Mr. Trump has just about an equal chance of being elected president, largely a media creation. The media kept Donald Trump in the spotlight for years with his false "birther" claims. The media knew these claims were ridiculous but supported the offensive and racist theory by providing coverage any time that Mr. Trump yelled "birther". If anyone else had made such a claim, it is doubtful the Times would have printed the story. But because a rich bully said it, media printed the defamatory allegations over and over, thus providing another distraction from President's Obama's number one task of governing.
The lopsided coverage continues.
Take for example, today's poll as reported by the NYT. The reporting soundbites give more credibility to the Trump campaign than is deserved. The lead reads "Our poll shows a nearly even split among voters nationally, with Donald Trump seen as riskier but more potentially transformative and Hillary Clinton seen as safer and more temperamentally suited for the job." The transformation question was designed in a way that gives Mr. Trump a more positive bounce than he otherwise would have. No information was given to the type of transformation we could expect from a Trump presidency. Media can not stand behind faux neutrality to defend coverage that pretends Mr. Trump's brand of transformation is anything but dangerous to millions of voters and others living within our borders.
Misogyny is substituting for the racism of the last two elections. The press would do well to acknowledge the undercurrent of hatred that drives Mr. Trump's campaign. Recently Mr. Trump suggested that his opponent's government provided protection should stand down so that we could "see what happens to her." Earlier Mr. Trump encouraged supporters to rebel against Mrs. Clinton should she be elected. Perhaps the headlines should have read that Mr. Trump is planting the seeds of violence and treason, whose growth will be seen post election. Mr. Trump provided the perfect opening for an article on the dangers portended by his rise. Reporting on the dangers Mr. Trump creates might have been a better service to readers than providing shocking but dangerous soundbites originating with the Republican nominee. For anyone who doubts the role of misogyny in this campaign, watch this disturbing interview with the Trump supporter whose t-shirt reads "Trump that Bitch".
More credible reporting would characterize Mr. Trumps remarks as what they are: divisive and dangerous. Our mainstream media has fallen for the bully's tactics through its coverage. You cannot stop bullies from speaking the outrageous. But you can encourage their escalation through reporting the sensational soundbite slogans while avoiding discussion of the consequences.
Sunday, July 3, 2016
Elie Wiesel was our conscience and our memory of the Holocaust. He was voice for millions of the murdered because of the hatred and madness of one leader and his supporters. But also the Jewish citizens died due to the overwhelming silence of others. It is both easy and difficult to understand the fear of speaking out when neighbors are disappearing. Consequences of disagreeing with Hitler, as with other dictators, were and are severe and usually fatal. But that begs the question on how dictators ascend to national control in the first instance.
Anyone who read Night was no doubt haunted by the inhumanity. But one of the lessons Mr. Wiesel taught us was not to wait in confronting hateful conditions as they are developing. Politics rooted in hate can be powerful and, if not curbed, lead to the sort of unimaginable suffering that Mr. Wiesel endured. Not confronting hatred when it first appears permits inhumanity to grow. Failure to confront hatred opens the door for demagogues.
Wednesday, March 30, 2016
When the Georgia legislature passed a bill that would protect religious organizations when they discriminate against gay and transgender individuals, the business community reacted. The "religious freedom" bill would have permitted faith based organizations to discriminate because of sexual identity. In what were likely unnecessary provisions, the bill also would have protected clergy who decline to perform same sex marriages and those who would not attend weddings based on their religious beliefs.
The Georgia statue was not unique. It followed a wave of states passing similar legislation. Georgia's Governor Deal vetoed the bill, saying it was unnecessary to protecting religious freedom. He also claimed that his decision was a matter of "character" of the state. Deal said that "Georgia is a welcoming state." What was out of character for Governor Deal was his decision to veto the bill. But he had impressive economic pressure to do so.
Major corporations threatened to move their operations from Georgia. Fans of "The Walking Dead" would no longer see their show filmed on a Georgia landscape because AMC threatened to film elsewhere. Disney and Marvel joined AMC in stating that they are inclusive companies and would no longer film in Georgia. Perhaps the most economically powerful company that threatened to leave the state is Coca-Cola, for decades a major Atlanta employer. The National Football League announced that the chances of Atlanta hosting a super bowl would be hurt.
While businesses such as Bank of America in Charlotte, NC, have voiced concern about their state's recent array of anti-gay and transgender legislation, they did not assert their economic power to prevent the enactment of the bills. Granted, the NC bill was passed and signed into law during a twelve hour period. BOA and others (PayPal, Dow Chemical, NBA and Google) have voiced opposition but have not threatened any economic consequences.
By contrast, Georgia based businesses put money on the line. While re-locating a major business, such as Coca-Cola, would cost millions of dollars, the economic damage to the state would cost more.
Cheers to these Georgia businesses for using their power to effect positive change and promoting human rights principles along the way.
Wednesday, March 2, 2016
by Jeremiah Ho
In the wake of marriage equality at the Supreme Court, pro-gay rights cases that are trying to expand anti-discrimination protections based on sexual orientation have ensued. In the employment realm, there are a few pending cases that are trying to expand Title VII’s protections to include discrimination based on sexual orientation. One of them to watch for is Lively v. Fletcher Hospital, a case that was filed in federal district court in North Carolina on February 10, 2016.
Sandra Lively and Catherine Hipwell have been together as a couple for 15 years. Sandra has been a registered nurse at North Carolina hospital Park Ridge Health since 2012, while Catherine is self-employed. In 2005, Catherine was diagnosed with stage three uterine cancer and has been through intensive treatment. In October 2014, after North Carolina permitted same-sex marriages, Sandra and Catherine were quickly married. Soon afterwards, Sandra sought health care coverage for Catherine through Park Ridge Health, but was rejected repeatedly. Catherine, as a cancer survivor, needs health coverage. However, with Park Ridge Health’s refusal to cover Catherine and cuts in her subsidy through the Affordable Care Act because of her marital status, thousands of dollars were spent out-of-pocket for a private health plan. After Sandra complained through the EEOC in April 2015, Park Ridge Health changed its policy and allowed Catherine to enroll in May. But Park Ridge Health still refuses to reimburse the couple for the expenses they incurred for private coverage while they were denied enrollment in the employee plan. A suit filed by Lambda Legal alleges that Park Ridge Health’s prior policy of denying spousal coverage to married same-sex couples on the basis of sex and religion violated Title VII of the federal Civil Rights Act of 1964 and the Equal Pay Act.
Although Title VII does not explicitly protect sexual orientation, it does protect against sex discrimination. In addition, the EEOC has recently ruled that sexual orientation discrimination is protected under sex discrimination. Among her several Title VII claims (including one for sex discrimination), Lively’s claim tries to extend her sex discrimination claim to also cover discrimination based on sexual orientation. Her complaint reads: “Sexual orientation inherently is a sex-based consideration because sexual orientation cannot be defined or understood without reference to sex. Ms. Lively’s sexual orientation as a lesbian is inseparable from, and inescapably linked to, the fact that she is a woman who fell in love with and married another woman.” In this way, “denying spousal coverage to Ms. Lively based on her sexual orientation denies her spousal coverage based on her sex.”
Now that the same-sex marriage question has been directly resolved by the Supreme Court, will litigation such as Lively’s, which uses marriage, in part, to leverage toward antidiscrimination finally bring actual progress for more protections based on sexual orientation? The question from the federal district court in North Carolina is one to watch.
Monday, February 1, 2016
A recent report from the social sciences field explores the trend of higher gay and lesbian presence in certain fields of labor and careers than others. The title of the report is Concealable Stigma and Occupational Segregation: Toward a Theory of Gay and Lesbian Occupations. It was published by Administrative Science Quarterly, but has been featured separately on the London School of Economics and Political Science’s Business Review Blog and Paul Caron’s TaxProfBlog in the last few weeks.
So why are gay and lesbians overrepresented in certain fields such as psychology, social work, law, and higher ed teaching? Are there truthful correlations in age-old stereotypes regarding the type of careers that gays and lesbians take on in the workplace (e.g., gay hairdressers and lesbian truck drivers)?
In assessing, what the title of the report calls, “concealable stigma” and its link to occupational segregation of sexual minorities into certain jobs, the authors of the report, András Tilcsik (University of Toronto), Michael Anteby (Boston University), and Carly R. Knight (Harvard), have observed that sexual minorities tend to hold occupations that allow them to rely on their experiences of discrimination and social stigma. Gay men and lesbians tend to be drawn to occupations that require task independence—the ability to perform tasks without large dependence on coworkers—because it allows concealment of sexual orientation and reduces negative consequences of being “out.” They also tend to hold occupations that require high social perceptiveness—of being able to accurately read, anticipate and gauge others’ reactions. A table of empirical data regarding the types of occupations with high numbers of gay and lesbian workers from the report with observations regarding whether such occupations require task independence and/or social perceptiveness is reproduced here:
Occupations with the Highest Joint Proportion of Gay and Lesbian Workers
1. Psychologists (S*, T**)
2. Training and development specialists and managers (S)
3. Social and community service managers (S, T)
4. Technical writers (T)
5. Occupational therapists (S, T)
6. Massage therapists (S, T)
7. Urban and regional planners (S, T)
8. Producers and directors (S, T)
9. Postsecondary teachers (S, T)
10. Probation officers and correctional treatment specialists (S, T)
11. Morticians, undertakers, and funeral directors (S)
12. Physical therapists and exercise physiologists (S, T)
13. Computer and information systems managers (S, T)
14. Lawyers, and judges, magistrates, and other judicial workers (S, T)
15. Web developers (T)
*S = Occupation requires above-average social perceptiveness
**T = Above-average task independence is associated with the occupation
The authors theorize that eventually such occupational trends might change as sexual minorities become more visible and accepted due to the visibility of same-sex relationships. Gay and lesbians might lose their social perceptiveness. But for now, the authors believe that there will continue to be strong correlation between social stigma and discrimination and the career paths that gays and lesbians pick.
What’s interesting for this writer of the HRAH blog is how social stigma of sexual minorities is characterized by this report as a strong but invisible influence for career choices and how it contributes to segregation and hierarchy in the workplace. Occupational choices are complicated for the livelihoods of gays and lesbian just as they are for everyone else. But as the report seems to suggest, the choice of career paths for gays and lesbians consists of influences and skills obtained from their history of societal marginalization and segregation. Whether the truth is as emphatic as the authors present here, their ideas are fascinating considering the substantial amount of time that we all spend in our lifetimes at work.
Sunday, December 20, 2015
Last week, a Massachusetts state judge ruled that a Catholic high school discriminated against a gay man when it rescinded a job offer upon learning that the candidate's spouse is male. The decision is believed to be the first in the nation employment discrimination case since the enactment of marriage equality. The candidate, Matthew Barrett, accepted an offer as food service director. But when he listed his husband as his emergency contact in completing employment forms, the school withdrew its offer.
Mr. Barrett is represented by GLAD attorney, Ben Klein. Judge Douglas Wilkins, in deciding the case, rejected the school's argument of a religious exemption under the Massachusetts' anti-discrimination law. The school argued that it was justified in not hiring Mr. Barrett because his marriage was inconsistent with the school's religious teachings. Judge Wilkins based his decision on several findings. Noting that the school was entitled to control its message, he said that right is limited to those in a position to shape the message, including teachers, ministers and spokesperson. Justice Wilkins noted that Mr. Barrett's position was not in a message shaping catagory and Mr. Barrett has not been an advocate for same sex marriage. In what is a disappointing ruling for those asking to have sexual identity acknowledged as a protected class, Judge Wilkins noted only that Mr. Barrett was subject to gender discrimination when he was denied employment to which a woman applicant married to a man would have been entitled. As previously discussed in this blog, a protected class analysis has been lacking in the same sex and sexual identity cases that have come before a variety of U. S. courts.
This decision is ripe to wend its way to the U.S. Supreme Court. Advocates for conservative Catholic organizations, such as the Catholic Action League of Massachusetts, are already voicing dismay over the decision. That statement may be said too lightly. The group's website headline says that it "condemns" the decision. I suspect that those advocating for the acknowledgement of sexual identity as a suspect classification would welcome this case being accepted for cert. The facts are favorable for consideration of the protected class argument that was avoided in Obergefell. On the other hand, those who believe that this case is wrongly decided may be cautioned against appeal if the consequence might be a ruling that not only affirms the trial court but expands constitutional protections on sexual identity grounds.