March 19, 2012

Gender Discrimination

On December 5, 2011, Howard County's Council passed a bill protecting individuals from discrimination based on gender identity. Similar legislation was passed in Baltimore County, as well as Baltimore City and Montgomery County. Baltimore Outloud reported that:

"The four council members who voted for the bill were Democrats Mary Kay Sigaty, Jen Terrasa, Calvin Ball (Council Chair) and Courtney Watson. Greg Fox, a Republican from Western Howard County, voted against the measure saying that the federal and state governments should pass a single law that clarifies the definition of public accommodations. The county law, as written, is vague on the definition."
Maryland Senate Bill 212 is designed to provide a comprehensive law protecting gender identity throughout Maryland. The bill prohibits discrimination in public accommodations, housing, and employment and by specified licensed or regulated persons. The bill is not without it's opponents, and at a recent committee hearing, Metro Weekly reported that number of legislators left the room.

Earlier this month, Metro Weekly wrote about the impetus for the Maryland bill:

"Some advocates cited the case of Chrissy Lee Polis, a transgender woman who was savagely beaten after using a restroom in a Baltimore-area McDonald's in Rosedale, Md. in April 2011, as evidence of hostility facing transgender women. Polis's attack was recorded on a cell phone camera and later posted on the Internet, where she was subjected to verbal attacks from online viewers, including the employee who posted the video."

March 12, 2012

Employment Law -- Discrimination and Administrative Appeals

Taylor Legal recently represented a client in an administrative appeal of a negative employment action imposed by the Howard County Public School System.  Through a careful review of the client’s personnel record and detailed meetings with the client to review the facts of the case, a considered, respectful argument was presented to the Superintendent’s designee explaining why the employment action was unfair – it was retaliatory and a potential violation of the Americans with Disabilities Act (ADA).  The action against the employee was rescinded.

Employment discrimination cases can be difficult to argue and even more difficult to win.  The facts need to support that the employer’s motivation was legally improper.  Unfortunately, employers often can articulate non-discriminatory reasons for a negative employment action (poor review, suspension, termination, or other discipline), so it can be complicated to parse out and prove an illegal motivation.  However, following in-depth discussion and review with a client, an attorney can hopefully get to the heart of the matter and establish a narrative that shows that an employer was acting in a harassing, retaliatory, and/or discriminatory manner.

The legal requirements for employment cases cannot be generalized because they depend in large part on the particular contractual rights of the employee.  Some employer behaviors, however, are simply not permitted, for example racial, gender or age discrimination or violations of the ADA.  When claiming discrimination, a current or former employee typically has the burden of proof and, as an initial matter, must make a basic showing that there is reason to believe that an illegal act has occurred.  For example, the employee may be a member of a racial minority and was terminated or may be over the age of 50 and was not hired for a job he or she was qualified for.  The employer can counter the employee's claims by establishing that the employer had a non-discriminatory reason for making the contested employment decision – the terminated employee was incompetent; the non-hired applicant was competing against individuals with more impressive credentials.  The employee then has the opportunity to show that the employer’s defense is pretextual, a rouse to cover a truly illegal motive – the terminated employee was consistently evaluated as superior; the person hired instead of the older applicant did not have more extensive credentials.

When dealing with harassment or retaliation, it may be critical to show a pattern of behavior or a suspect motive to undermine any argument that an employer may make about the validity of a negative action.

All cases are very fact-specific and very much depend on a detailed development of events and behaviors.

Typically, when a government agency is the employer, after an initial review by the supervisor of the employee or prospective employee, the next step is an appeal to an agency representative, for example the University President or the COO of a school system.  If that appeal is unsuccessful, there may be additional levels within the agency to appeal to or an outside appeal to the State Office of Administrative Hearings or the Circuit Court may be appropriate.  It depends on the specifics of the employer's contract and the agency's rules and regulations.  EEOC or local watchdog agency involvement (like the Howard County Office for Human Rights) are also possible, sometimes necessary steps.  When feasible, attorney assistance at the earliest stage is preferable, to ensure that no deadlines are missed and that the fullest record is created for appeal.

March 7, 2012

U.S. House passes bill on Eminent Domain

In 2005, the U.S. Supreme Court ruled in Kelo v. City of New London that local government could take over private property of several homeowners for the purpose of converting the property commercial use. The case was unique in that eminent domain had traditionally been used for public works projects - such as highways or public facilities. The Court held that "The city’s determination that the area at issue was sufficiently distressed to justify a program of economic rejuvenation is entitled to deference"; essentially, local governments were best suited to determine what public use was locally under the takings clause of the Fifth Amendment. Kelo drew much backfire, and in response many state governments enacted laws limiting eminent domains takings to very specific uses.

On February 28, 2012, the US House of Representatives passed a bill seeking to limit the Kelo ruling. The bill, H.R. 1433 (known as the Private Property Rights Protection Act) is co-sponsored by James Sensenbrenner, R-Wisconsin, and Maxine Waters, D-California. According to the Washington Post, the
"legislation would withhold for two years all federal development aid to states or locales that take private property for economic development. It also bars the federal government from using eminent domain for economic development purposes and gives private property owners the right to take legal action if provisions of the legislation are violated."
The Private Property Rights Protection Act was opposed by John Conyers, D-Michigan, who was concerned that the bill exempted the Keystone XL pipeline from the eminent domain restrictions. The Keystone XL pipeline is a project by a Canadian company which proposes to build a gas pipeline from Canada to Texas. Additionally, Rep. Conyers noted that over 40 states have already enacted legislation in response to Kelo.

It is interesting to note that the property in question in Kelo was taken initially for Pfizer to develop a new location. In 2009, Pfizer abandoned the plans. For more information, see this CBS news article from November, 2009.