Category: Civil Rights

Correcting the Record: Manatt Attorneys & Inner City Law Center Find Legal Remedy to Amend Discharge Record of Navy Veteran

When serving in the military, how you are discharged can have a big impact on how things go for you after you leave the service.  A less than honorable discharge can restrict access to benefits and can force the servicemember to carry a burden that follows him or her through their post-military career.  With “Don’t Ask, Don’t Tell” no longer a part of the military lexicon and sexual orientation no longer a barrier to service, many discharges are ripe for re-examination.  Attorneys with Manatt, Phelps & Phillips; including Craig de Recat, partner, and Cherise Latortue, associate in partnership with the Inner City Law Center worked to correct the discharge record of Rickey Lane, who had been less than honorably discharged from the Navy in the late 70’s, in large part because of assumptions about his sexual orientation. In the process, they have created a path for others looking to do the same thing.

From the Ninth Circuit Back to the Board for the Correction of Naval Records

Because of his discharge status, Mr. Lane had been denied services from the VA, and had felt stigma because of how his discharge from the Navy was labeled.  Latortue says Mr. Lane pursued this process because “he wanted to get the record straight and he wanted the record to reflect the service that he provided his country, that he excelled in bootcamp and that he was happy to be in the Navy.”

Requests to have records amended are handled through the Board for the Correction of Naval Records, or the Board.  Mr. Lane’s case was complicated by the fact that his discharge had been almost thirty years ago, and the standard statute of limitations for corrections is fifteen years.  In seeking a legal remedy for Mr. Lane’s situation, La Tortue and the other attorneys working on the case initiated a lawsuit in the Ninth Circuit Court, in Washington, where Mr. Lane had been when he was discharged.

In order to give Mr. Lane’s application the best chance for success, Latortue says filing in the Ninth Circuit was a strategic decision.   Latortue points out,  “we wanted to be in the Ninth Circuit because they had heard prior cases with similar facts that we thought would help us in our argument. “  After filing a lengthy complaint for summary motion judgment and feeling good about their chances, the government attorney reached out and offered to remand the case back to the Board, to give the board a chance to revisit the case and correct their mistake.

The Board Rules

In looking at Mr. Lane’s case, the biggest challenge was focusing on incidents in Mr. Lane’s record that the Board had initially labeled as aggravating, but upon further reflection and analysis, could not have met that standard.  While serving in the Navy, Mr. Lane had received a NJP–or a non-judicial punishment–for leaving the ship without permission.  Mr. Lane left the ship due to harassment he had received from his shipmates based on their erroneous perception that he was gay.  His punishment in that instance was a fine–which he paid, and he continued to serve.   After the incident, after the harassment, and he even earned positive commendations in his records–again, and importantly, after his NJP.

Initially, the Board had focused on this incident as an aggravating factor for his discharge, however, by providing a closer look at the record and the series of events, Latortue and other attorneys involved were able to demonstrate to the board how the initial explanation simply did not make sense.   While Mr. Lane was outside the 15-year statute of limitations, Latortue says, “the board has the authority to waive the statute of limitations in the interest of justice.“  And in this case, that’s what the board elected to do.  The Board amended the discharge, providing Mr. Lane with peace of mind and providing him with access to the VA’s services.

A Larger Context

This case will have a big impact on Mr. Lane’s life–as with his change in status, he will be eligible for benefits provided by the VA.  In fact, Latortue says, “the board will advise that there be no further litigation, or back and forth with the VA at this point as to whether he’s eligible for benefits.”  So Mr. Lane will have access to the services at the VA, and this decision clears the path for him to get the treatment and services he needs.

Further, Latortue says, this case has provided a sort of roadmap for other veterans in a similar situation.  With the repeal of “Don’t Ask, Don’t Tell” many veterans have an interest in challenging their discharge status.  Through what the Inner City Law Center, Latortue, and other attorneys have learned about how these cases work, Latortue says, “we can explain to our clients that this is the relief we think you’re entitled to, and we know how to get it.”

Copyright ©2018 National Law Forum, LLC

ARTICLE BY: Eilene Spear
The National Law Review / The National Law Forum LLC

Nazi-Looted Art: Cranach Paintings to Remain at Norton Simon Museum

Lucas Cranach the Elder’s Adam[1] and Eve[2] have hung in the Norton Simon Museum at Pasadena for nearly 50 years. Since 2007, though, they have been the subject of a dispute between the museum and Marei von Saher. Von Saher is the daughter-in-law and surviving heir of Jacques Goudstikker, a Jewish art dealer who fled the Nazi-occupied Netherlands with his family in 1940. Goudstikker’s gallery and the family’s other assets were then acquired by members of Nazi leadership through a series of forced sales, with the gallery and the family’s residence being purchased by Alois Meidl, and more than 800 of the Goudstikker paintings – including Adam and Eve – being acquired by Hermann Goering.

The story of the Nazi seizure of artworks from public and private art collections in Europe has by now become a commonplace of popular culture.[3] Scholars have noted that “as many works of art were displaced, transported, and stolen as during the entire Thirty Years War or all the Napoleonic Wars.”[4] It has been estimated that “[o]ne-third of all of the art in private hands had been pillaged by the Nazis.”[5] Nazi looting of art took a number of forms: direct confiscation (seized by government officials and agents); “abandoned” objects (seized after being left behind as their owners fled persecution);[6] forced sales;[7] and what are sometimes called “fluchtgut” or “fluchtkunst”[8] (“flight goods” or “flight art,” which are cultural objects sold, generally at a steep discount, by owners desperate to finance their escape from Nazi-occupied or threatened areas). For background on Nazi-looted art, see my previous discussions here and here.

That the Cranach panels were looted by the Nazis is not disputed. Rather, the question for the court was whether the post-war restitution processes properly vested ownership of the paintings in the Dutch government such that its 1966 sale of those paintings to George Stroganoff-Sherbatoff (Stroganoff) (from whom the museum purchased them in 1971) was a valid governmental action, and so is not reviewable by U.S. courts. With a decision issued by the Court of Appeals for the 9th Circuit on July 30, the case may have reached its conclusion.[9]

In 1931 in Berlin, Goudstikker purchased the panels from the Soviet Union at an auction of objects the Soviets had seized from the Stroganoff family (and others).[10] Although the district court, in its 2016 decision, [11] had found that the Stroganoff family never owned the panels, Stroganoff ownership of the panels is unclear from the evidence presented. The question of Stroganoff ownership of the panels was ultimately not germane to the 9th Circuit’s decision. The panels were recovered by U.S. forces at the end of the war and returned to the Dutch government. Rather, the issue was whether the Dutch government had good title to the panels at the time it sold them to Stroganoff.

When the war was over, and the panels were recovered by U.S. forces., it was U.S. policy to return recovered Nazi-looted objects to the governments of the countries from which they had been taken, for ultimate restitution or other disposition.

The 9th Circuit’s analysis focuses on three aspects of Dutch law relating to Nazi agreements and confiscated property: (1) a wartime law nullifying Nazi agreements; (2) the post-war restitution regime; and (3) a post-war law forfeiting to the Dutch government property owned by enemies during the war.

During the war, the Dutch government (then in exile) enacted a law that nullified wartime agreements with the Nazis. After the war, however, that automatic nullification was revoked. The Dutch government instead put in place a formal restitution and restoration of rights process.[12]Claimants had until 1951 to file a petition for restoration of rights, after which the presiding council “could still order restoration of rights of its own accord, but claimants were no longer entitled to demand restitution.”[13] Finally, to compensate the Netherlands for its losses during the war, the government also enacted Royal Decree E133, which forfeited to the Dutch government all property “belonging to an enemy state or to an enemy national.”[14] Under Royal Decree E133, the paintings owned by Goering were forfeited to the Dutch government.

Goudstikker’s widow, Desi, returned to the Netherlands after the war and took on leadership of the firm. She petitioned for restoration of rights for the assets that had been purchased by Meidl, but, on advice, she decided not to petition for return of the paintings purchased by Goering.

In 1961, however, Stroganoff filed a claim for restitution of a number of artworks then owned by the Dutch government, including the Cranach panels, arguing that they had been expropriated from his family by the Soviet Union. The Dutch government and Stroganoff reached an agreement whereby Stroganoff relinquished his claim to certain of the works, and the government agreed to sell him several pieces, including the Cranach panels.

In the 1990s, von Saher filed a petition with the Dutch government for restitution of those Goudstikker works that had been purchased by Goering, but that petition was denied. However, in 2001, the government reevaluated its prior restitution process and, on the basis of “moral policy” turned over to von Saher those paintings from the Goering collection that were still in the Dutch government’s possession. This did not, of course, include the Cranach panels, which were in the museum’s collection in California. In 2007, von Saher commenced the first of her actions for return of the Cranach panels, arguing that the Dutch government could never have taken ownership of the panels, but merely served as custodian of the paintings until the original owners or their heirs claimed them.

Timeliness: Statute of Limitations

From 2007 until 2015, the question of the Cranach panels’ ownership played out in the context of motions to dismiss – first with respect to whether the suit was barred by the expiration of the statute of limitations, and then with respect to whether it was barred by the act of state doctrine.

Concerned that California’s three-year statute of limitations was presenting an unfair burden on claimants with respect to Holocaust and in Nazi-era looting cases, the California legislature extended that statute of limitations, but only for such Holocaust and Nazi-era looting claims. The museum filed a motion to dismiss, arguing that the California statute extending the limitations period unconstitutionally intruded upon the federal government’s “exclusive power to make and resolve war, including the procedure for resolving war claims.”[15] The district court agreed, and dismissed the case; however, the 9th Circuit reversed, finding the California extension of its statute of limitations unconstitutional. The Circuit Court granted leave for von Saher to amend her complaint.[16] The museum amended its motion to dismiss, arguing that the statute of limitations applicable to the Cranach panels had long since expired, since it had begun to run at the time that Goudstikker’s widow, Desi, had discovered the location of the panels after the war. The district court, in a 2015 decision,[17] disagreed with the museum’s position, holding that, under California law, the statute of limitations for the return of stolen property begins to run anew against each subsequent owner of the property. To review an extended discussion of statutes of limitations as they relate to Nazi-looted art (and to the von Saher case specifically), see my previous discussion here.

Foreign State and Finality: Act of State Doctrine

With respect to von Saher’s amended complaint, the district court granted the museum’s second motion to dismiss, holding that von Saher’s claims were preempted by the act of state doctrine.[18] Quoting the Solicitor General’s brief with approval, the district court found that “[w]hen a foreign nation, like the Netherlands here, has conducted bona fide post-war internal restitution proceedings following the return of Nazi-confiscated art to that nation under the external restitution policy, the United States has a substantial interest in respecting the outcome of that nation’s proceedings.”[19] The 9th Circuit, however, reversed that decision, remanding the case for development of the parties’ factual positions via discovery. The court stated that “[t]he Museum has not yet developed its act of state defense, and von Saher has not had the opportunity to establish the existence of an exception to that doctrine should it apply.”[20]

Summary Judgment: Act of State

After the parties had the opportunity to flesh out their factual arguments, the district court once again considered the question of whether the action was barred by the act of state doctrine. On Aug. 9, 2016, the district court issued a decision granting the museum’s motion for summary judgment,[21] finding that after the Goudstikker firm decided not to file a claim for return of the paintings, title passed to the Dutch government, and the Dutch government had good title to the paintings at the time it transferred the paintings to Stroganoff. Stroganoff, in turn, passed good title to the paintings to the museum.

In affirming the district court’s decision granting the museum’s motion for summary judgment, the 9th Circuit relied upon the act of state doctrine, which is “a ‘rule of decision’ requiring that ‘acts of foreign sovereigns taken within their own jurisdictions shall be deemed valid’” and are not to be overturned by U.S. courts.[22] The court explained that “we apply the doctrine here, because ‘the relief sought’ by von Saher would necessitate our ‘declar[ing] invalid’ at least three ‘official act[s] of’ the Dutch government ‘performed within its own territory.’”[23] Von Saher has petitioned the 9th Circuit for a rehearing of the motion for summary judgment. Such rehearing petitions are rarely granted, and von Saher’s previous petitions for rehearing at earlier stages in the case were unsuccessful. Absent a rehearing, von Saher’s likely recourse would be an appeal to the U.S. Supreme Court. Even if the Supreme Court were to grant certiorari, von Saher faces stiff odds against a reversal of the decision on the act of state doctrine.

[1] Lucas Cranach the Elder, Adam (c. 1530), oil on panel, 75 x 27-1/2 in. (190.5 x 69.9 cm), available at https://www.nortonsimon.org/art/detail/M.1971.1.P.

[2] Lucas Cranach the Elder, Eve (c. 1530), oil on panel, 75 x 27-1/2 in. (190.5 x 69.9 cm), available at https://www.nortonsimon.org/art/detail/M.1991.1.P.

[3] See, e.g., “Woman in Gold” (2015), available at https://www.imdb.com/title/tt2404425/; “Monuments Men” (2014), available at https://www.imdb.com/title/tt2177771/.

[4] Hector Feliciano, “The Lost Museum,” p. 23 (1997).

[5] Id. at 4.

[6] See, e.g., Menzel v. List, 267 N.Y.S.2d 804 (N.Y. 1966) (seeking to recover a painting by Marc Chagall that hung in the Menzel’s Brussels apartment when they fled Belgium before the Nazi occupation).

[7] See, e.g., Vineberg v. Bissonette, 529 F.Supp.2d 300, 307 (D.R.I. 2007) (noting that “the Nazi government forced Dr. Stern to liquidate inventory in his art gallery and controlled the manner of the forced sale,” and concluding that “Dr. Stern’s surrender of the painting to [the auction house] for auction was ordered by the Nazi authorities and therefore the equivalent of an official seizure or a theft.”). But see Orkin v. Swiss Confederation, 770 F.Supp.2d 612, 616 (S.D.N.Y. 2011) (dismissing the action for lack of jurisdiction, because “[p]laintiff does not allege that Reinhart acted in any capacity other than as a private individual.” The court noted that “[i]n 1933, [Plaintiff’s grandmother] sold the drawing to Swiss art collector Oskar Reinhart for 8,000 Reichsmarks to help fund her family’s escape from the Nazis’ persecution of German Jews.”).

[8] See, e.g., Florian Weiland, “Ist Fluchtkunst dasselbewie Raubkunst?” (Is flight art the same as looted art?), Sudkurier, Sept. 3, 2014, available at http://www.suedkurier.de/nachrichten/kultur/themensk/Ist-Fluchtkunst-dasselbe-wie-Raubkunst;art410935,7218364.

[9] von Saher v. Norton Simon Museum of Art at Pasadena, 2018 U.S. App. LEXIS 20989, Case No. 16-56308 (9th Cir. July 30, 2018).

[10] Although the district court found that the Stroganoff family never owned the panels, Stroganoff ownership of the panels is unclear from the evidence presented.

[11] von Saher v. Norton Simon Museum at Pasadena, 2016 U.S. Dist. LEXIS 187490, Case No. CV 07-2866 (C.D. Cal. Aug. 9, 2016).

[12] The Dutch restitution and restoration of rights regime was re-assessed in the 2000s, and that reassessment resulted in the Dutch government turning over to von Saher those Goudstikker works that were at that time still held by the Dutch government.

[13] von Saher v. Norton Simon Museum of Art at Pasadena, 2018 U.S. App. LEXIS 20989 at *9.

[14] Id. at *10.

[15] von Saher v. Norton Simon Museum of Art at Pasadena, Case No. CV-07-2866-JFW, 2007 WL 4302726 (C.D. Cal. Oct. 18, 2007).

[16] von Saher v. Norton Simon Museum of Art at Pasadena, 578 F.3d 1016 (9th Cir. 2009), amended by von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954 (9th Cir. 2010).

[17] von Saher v. Norton Simon Museum of Art at Pasadena, Case No. CV 07-2866-JFW, 2015 U.S. Dist. LEXIS 188627 (C.D. Cal. April 2, 2015).

[18] von Saher v. Norton Simon Museum at Pasadena, 862 F.Supp.2d 1044 (2012).

[19] Id. at 1051.

[20] von Saher v. Norton Simon Museum at Pasadena, 754 F.3d 712, 727 (9th Cir. 2014).

[21] von Saher v. Norton Simon Museum at Pasadena, 2016 U.S. Dist. LEXIS 187490, Case No. CV 07-2866 (C.D. Cal. Aug. 9, 2016).

[22] von Saher v. Norton Simon Museum of Art at Pasadena, 2018 U.S. App. LEXIS 20989, Case No. 16-56308, at *19 (9th Cir. July 30, 2018).

[23] Id.

©2018 Greenberg Traurig, LLP. All rights reserved.

Continue reading Nazi-Looted Art: Cranach Paintings to Remain at Norton Simon Museum

Tackling Evictions: BYU And UA Law Schools Partner On Legal Research Project

The nationwide trends of stagnating wages and increasing housing costs has led to an increased risk of evictions for renters across the country. According to Matthew Desmond’s 2017 book Evicted, “Today, the majority of poor renting families in America spend more than half of their income on housing, and at least one in four dedicates more than 70% to paying the rent and keeping the lights on.”

Most evictions happen informally, and even formal evictions are rarely contested in court. Less than 20 percent of tenants served with an eviction notice come to court, and so viable legal defenses often go unheard. A new initiative is trying to help tenants facing eviction find appropriate legal assistance.

Legal Innovation: LawX & Innovation for Justice

The J. Reuben Clark Law School (BYU Law) at Brigham Young University and the James E. Rogers College of Law at the University of Arizona have joined forces to create a program focused on tackling the legal complexities of eviction law. BYU’s LawX legal design lab, and UA’s Innovation for Justice (I4J) program are working together to reduce the number of evictions in and help tenants find quality legal representation.

“Given the sheer volume of evictions in America, we believe this is the right issue for LawX to tackle in its second year, and we welcome collaboration with the University of Arizona Law School,” said Gordon Smith, Dean of BYU Law School. “This past year, our LawX students uncovered some sobering statistics on hurdles in the legal system that make it extremely difficult for a non-lawyer to respond to lawsuits, particularly in the areas of debt collection, evictions and divorce.”

The program will focus on tackling the eviction crisis in Arizona and Utah, with hopes the collaboration could result in solutions applicable beyond the region. In 2016, Utah averaged 7.61 evictions per day and Pima County, Arizona, where the UA is located, averaged 22.01 evictions per day, according to Eviction Lab.

Kimball Parker, LawX director and president of Parsons Behle Product Lab, will lead the initiative at BYU, while Stacy Butler, director of I4J, will lead the project at UA. With a primary focus on technology, design and system thinking, and collaboration, both classes will focus on resolving the current status of eviction law, especially the lack of legal representation for an underserved community.

Eviction Law: A Focus On Underserved Communities

“The goals of the Innovation for Justice program are to expose students to the fact that not everyone is able to use the civil legal system as it’s designed, and to empower students to close that gap,” Butler said. “LawX’s focus on reaching people who are not engaging with the civil legal system is critical to making the system work the way it should.”

LawX will highlight the difficulties non-lawyers would have in dealing with different areas of law including divorce, debt collection, and eviction laws. One of the particular challenges is the difference in how each state–and municipality–handles evictions. Often the laws are weighted heavily in favor of the landlord. For example, in Utah, a tenant has just three days to respond to an eviction notice, so often landlords give notice on a Friday, further limiting a tenant’s options

“An eviction can be life-changing to an individual or family, and it can result in homelessness; our research determined that evictions have one of the highest rates of default among those who can’t afford an attorney,” said Parker. “I am excited to work with Stacy on this project and believe her extensive experience with expanding the reach of civil legal services to those in need will be incredibly valuable.”

A Tangible Solution For Renters

Parker says the goal is to create a tangible solution for renters, whether that is a product or some other solution, but the students will start by surveying. One of the first questions they hope to answer: why don’t more tenants seek relief in the legal system?

This collaboration project comes on the heels of LawX’s previous project to assist debtors facing debt collections lawsuits who couldn’t afford legal representation. That project resulted in creation of an award-winning software program, SoloSuit, which helps debtors respond to collections notices.

“This past year, our LawX students uncovered some sobering statistics on hurdles in the legal system that make it extremely difficult for a non-lawyer to respond to lawsuits, particularly in the areas of debt collection, evictions and divorce,” said Gordon Smith, Dean of BYU Law School. “With this legal design lab in a classroom, we are committed to identifying the best possible solutions to help close the gap for people who feel overwhelmed by the legal system.

Hands-on Legal Experience for Law Students

“Programs like Innovation for Justice and LawX offer important learning experiences for our undergraduate and graduate students. They represent a movement in legal education to adapt and to be more interdisciplinary in how we approach the world,” said UA Law Dean Marc Miller. “Students get to take a deep dive into a specific project to produce a community deliverable. They engage with the community and in doing so, begin to understand how their learning can be applied outside of the classroom.”

Using a design thinking approach, up to six LawX students and 12 Innovation for Justice students will start work on the project in the fall 2018 semester with three goals:

  • understand why tenants disengage with the civil legal system

  • identify innovative approaches to educating and engaging tenants

  • develop strategies for delivering possible solutions into the hands of those who need help most.

By working in a law school classroom setting, the program strives to help provide answers and solutions to under-represented communities, who find difficulties in understanding the law, or finding appropriate resources to help them tackle impending hurdles.

Findings and shared information will eventually lead to solutions which can extend beyond Utah and Arizona’s borders. Conversely, the program might lead to separate projects addressing regional barriers to help reduce eviction totals.

 

Copyright ©2018 National Law Forum, LLC
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City of Birmingham Passes Nondiscrimination Ordinance, Creates Human Rights Commission

On September 26, 2017, the Birmingham City Council passed an ordinance that makes it a crime for any entity doing business in the city to discriminate based on race, color, national origin, sex, sexual orientation, gender identity, disability, or familial status. The ordinance passed unanimously and is the first of its kind in Alabama. Enforceable through the municipal courts, the local law applies to housing, public accommodations, public education, and employment. It carves out two exceptions: one for religious corporations and one for employers with bona fide affirmative action plans or seniority systems.

In a separate measure passed during the same meeting, the city created a local human rights commission to receive, investigate, and attempt conciliation of complaints. The commission has no enforcement authority. Citizens who believe they have suffered unlawful discrimination must appear before a magistrate and swear out a warrant or summons. The entity or individual will not receive a ticket but will face a trial before a municipal judge in the city’s courts. Ordinance violations are classified as misdemeanor offenses, and those found guilty of discrimination will face fines of up to $500. Alabama municipalities have no authority under state law to create civil remedies for ordinance violations, therefore, an employer would not be required to reinstate an employee or provide back pay if it were found guilty of violating the ordinance in municipal court.

Because the city’s courts, which are courts of criminal jurisdiction, operate much more quickly than federal civil courts do, one would expect that a guilty verdict under the Birmingham ordinance likely could be used as evidence of discrimination in a federal civil claim that is almost sure to follow.

Although the city’s mayor must sign the ordinance for it to become effective, the mayor has announced he will sign it into law immediately. The city also expects that the Alabama Legislature will challenge the ordinance.

This post was written by Samantha K. Smith of Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved. © 2017
For more legal analysis, go to The National Law Review

Revised Travel Ban Coming?

The Trump Administration reportedly may replace the current travel ban with a country-specific set of restrictions.

In June, the Supreme Court allowed the government to begin enforcing the 90-day travel ban against individuals from Iran, Libya, Somalia, Sudan, Syria, and Yemen who had no bona fide relationship to the United States. The 90-day ban will expire on September 24. The 120-day ban on refugees also went into effect in June. The Supreme Court plans to hear the full travel ban case on October 10.

The Department of Homeland Security’s recently finalized classified report on screening foreign travelers may support anticipated changes to the travel ban. Substituting a new ban could change the dynamics, potentially making the case before the Supreme Court moot or leading to a remand of the case for further hearing at the lower court level.

The new restrictions are expected to be open-ended and based upon the DHS review and identification of countries with deficient security standards. More than six countries may have been identified. Additional countries could be added to the banned list, others could be removed, and still others might become subject to certain visa restrictions.

This post was written by Michael H. Neifach of Jackson Lewis P.C. © 2017
For more legal analysis go to The National Law Review

California’s Equal Restroom Access Act: 5 Facts You Need to Know

California’s Equal Restroom Access Act, which requires some establishments with single-occupancy restrooms to display signs indicating that the restroom is gender-neutral, has been in effect since March 1, 2017. Assembly Bill No. 1732 (AB 1732), which Governor Jerry Brown signed on September 29, 2016, requires these restrooms “to be identified as all-gender toilet facilities” and that the signs used to designate these restrooms comply with Title 24 of the California Code of Regulations.

1. Which Restrooms Are Covered?

The new law applies to “[a]ll single-user toilet facilities in any business establishment, place of public accommodation, or state or local government agency.” AB 1732 defines “single-user toilet facility” as “a toilet facility with no more than one water closet and one urinal with a locking mechanism controlled by the user.”

2. What Does the Law Require?

The law simply requires businesses, agencies, and places of public accommodation to use the proper signage—i.e., gender-neutral signage—on any single-user restrooms that they have.

3. What Must the Sign Look Like?

The signs on single-user restrooms must comply with Title 24 of the California Code of Regulations. This means that each covered single-user restroom must, at minimum, have the following signage:

  • A sign with a geometric symbol of a triangle superimposed on a circle
  • A designation tactile (i.e., capable of being read by touch) sign that indicates that the facility is a restroom

4. Does the Law Require That Specific Language Be Used?

The law does not require any specific wording on the signs as long as the wording used is gender neutral. For example, the sign may state “Restroom,” “All-Gender Restroom,” “Gender-Neutral,” “Unisex,” or “All Welcome.” Similarly, language written in raised letters and/or Braille must also be gender-neutral.

Note that the City of San Francisco has more restrictive laws in place regarding the wording and images on restroom signs.

5. How Will the Law Be Enforced?

The law permits inspectors, building officials, and other local officials who are “responsible for code enforcement” to inspect a restroom for compliance with this section during “any inspection of a business or a place of public accommodation.”

Key Takeaways

Affected employers with single-occupancy restrooms on their premises should ensure that the signs on the single-user restrooms are in compliance with Title 24 of the California Code of Regulations. Employers should also take this opportunity to review the Fair Employment and Housing Council’s gender identity regulations that went into effect on July 1, 2017. The regulations’ restroom access provisions require an employer to allow an employee to use the restroom facility that corresponds to the employee’s gender identity or gender expression, regardless of the employee’s sex assigned at birth.

For more analysis check out The National Law Review.

This post was written by Hera S. Arsen  of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Seventh Circuit Breaks New Ground: Sexual Orientation Discrimination Prohibited by Title VII

sex discrimination seventh circuitIn a landmark decision reflecting a potential turning of the tide for the LGBT community, the U.S. Court of Appeals for the Seventh Circuit has become the first federal appeals court in the nation to hold that discrimination on the basis of sexual orientation is a form of sex discrimination prohibited by Title VII. Hively v. Ivy Tech Community College of Indiana, No. 3:14-cv-1791 (7th Cir. April 4, 2017).

Last July, a panel of the Seventh Circuit affirmed dismissal of the sexual orientation discrimination claim of Kim Hively, a lesbian who claimed she was denied promotions and a full-time position due to her sexual orientation. (See Seventh Circuit: Title VII Offers No Protection Against Sexual Orientation Discrimination.) The Seventh Circuit voted to rehear the case en banc. Yesterday’s decision followed.

The Seventh Circuit began by observing that the question is not whether the court can, or should, add a new category of protection to Title VII, as that is beyond its authority.  Instead, the court viewed itself as charged with interpreting the existing language of Title VII, specifically, whether discrimination based on “sex” includes sexual orientation.

The court considered a number of interpretive aids. It cited the U.S. Supreme Court’s blessings on expansion of traditional sex discrimination claims in such cases as Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986), which expanded the law to include sexual harassment, Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998), expanding the law to include same-sex harassment, Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), expanding the law to include discrimination based on gender non-conformity, and Obergefell v. Hodges, 135 S.Ct. 2584 (2015), upholding the right of same-sex couples to marry. The Seventh Circuit noted that the Congress that enacted Title VII in 1964 may not have envisioned the necessity of these protections at the time, but nonetheless, experience has since caused the Supreme Court to recognize them as forms of prohibited sex discrimination.

The court also cited other Supreme Court decisions favoring sexual orientation-based protections, including Romer v. Evans, 517 U.S. 620 (1996), holding that a provision of the Colorado Constitution forbidding state government from taking action designed to protect “homosexual, lesbian, or bisexual” persons, violated the federal Equal Protection Clause; Lawrence v. Texas, 539 U.S. 558 (2003), wherein a Texas statute criminalizing homosexual sex between consenting adults violated the federal Due Process Clause; and United States v. Windsor, 133 S.Ct. 2675 (2013), striking down the Defense of Marriage Act’s exclusion of same-sex partners from the definition of “spouse.”

Ivy Tech argued that Congress has repeatedly considered—and refused—to add “sexual orientation” to the language of Title VII, and that should be interpreted as Congress’ intent to exclude it. This argument has been recited by numerous federal appellate courts in denying Title VII coverage to such claims. However, the Seventh Circuit noted that the legal landscape has changed over the years, and the Supreme Court has shed more light on the scope of the statute through its decisions, and for these reasons, the court was unable to draw any reliable inference from the failed “truncated legislative initiatives” in Congress.

As to the existence of the significant contrary authority, the court stated: “[T]his court sits en banc to consider what the correct rule of law is now in light of the Supreme Court’s authoritative interpretations, not what someone thought it meant one, ten, or twenty years ago.” The court reversed dismissal of Hively’s claim and remanded the case to the district court.

Inevitable Result, Uncertain Future

With the landslide of litigation in the courts seeking protections for the LGBT community, it may have been inevitable that one of the federal circuit courts hearing such a case would eventually rule in favor of Title VII protection from sexual orientation discrimination. Indeed, numerous recent decisions that have refused to recognize such protections have acknowledged the untenable results that have come to pass in so holding. The Seventh Circuit’s decision recognized: “It would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation.’ The effort to do so has led to confusing and contradictory results…”

Indeed, many courts in other jurisdictions continue to find creative ways to allow sexual orientation-based claims to proceed despite the legal roadblock, including most recently, the Second Circuit’s decision last week that allowed a gay advertising executive to proceed with his Title VII claims based on gender non-conformity as opposed to sexual orientation. Christiansen, et. al. v. Omincom Group, Inc., 2017 WL 1130183 (2nd Cir. March 27, 2017).

With yesterday’s ruling, the Seventh Circuit has created a split in the federal circuit courts, making this issue ripe for U.S. Supreme Court determination. The country likely will receive uniform interpretation of Title VII on this issue from the Supreme Court at some point. Until then, the law in this area is truly a mixed bag. Employees in the Seventh Circuit have an additional cause of action to bring under Title VII, and employers in this jurisdiction may see a rise in these claims in the near term. For most employers outside the Seventh Circuit, employees are barred from pursuing sexual orientation bias claims under Title VII.  However, alternate theories may be advanced, such as the plaintiff successfully did in the Second Circuit case. In addition, many state laws include sexual orientation protections.

While the law of the land is unsettled, one thing remains clear: employers that uphold principles of equal opportunity and fairness, and merit-based employment rewards, will fare the best.

ARTICLE BY Julie Furer Stahr of Schiff Hardin LLP

© 2017 Schiff Hardin LLP

Wal-Mart to Pay $75,000 to Settle EEOC Disability Lawsuit

EEOC Wal-mart disability discriminationCHICAGO – Wal-Mart Stores Inc. will pay a former employee $75,000 to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced yesterday.

EEOC’s lawsuit charged Wal-Mart with violating federal discrimination law when the giant retailer failed to accommodate Nancy Stack, a cancer survivor with physical limitations, and subjected her to harassment based on her disability. Stack worked at a Walmart store in Hodgkins, Ill.

As a workplace accommodation, Stack needed a chair and a modified schedule. EEOC alleged that while the store provided Stack with a modified schedule for a period of time, it revoked the accommodation for no stated reason. Further, according to EEOC, the store did not ensure that a chair was in Stack’s work area, telling her that she had to haul a chair from the furniture department to her work area, a task that was difficult, given her disability. Making matters even worse, EEOC alleged that a co-worker harassed Stack by calling her “cripple” and “chemo brain.”

Wal-Mart’s alleged conduct violates the Americans with Disabilities Act (ADA), which prohibits discrimination on the basis of disability, which can include denying reasonable accommodations to employees with disabilities and subjecting them to a hostile work environment. EEOC filed suit in U.S. District Court for the Northern District of Illinois, Eastern Division (Equal Employment Opportunity Commission v. Wal-Mart Stores, Inc.; Civil Action No. 15-cv-5796.)

Wal-Mart will pay $75,000 in monetary relief to Stack as part of a consent decree settling the suit, signed by U.S. District Judge Sharon Coleman on Dec. 6th. The two-year decree also provides additional, non-monetary relief intended to improve the Hodgkins store’s workplace. Under the decree, the store will train employees on disability discrimination and requests for reasonable accommodations under the ADA. The Walmart store will also monitor requests for accommodation and complaints of disability discrimination and report those to EEOC.

“Wal-Mart refused to provide simple, effective and inexpensive accommodations in the form of a chair and modified schedule and failed to protect Stack from mocking because she had cancer,” said John Hendrickson, regional attorney of EEOC’s Chicago District Office. “Both the failure to provide accommodations and to stop the harassment violated federal law, and we are pleased with today’s settlement. Ms. Stack will receive monetary recompense from Wal-Mart, and the company will be required to educate its workforce on employees’ rights and on its own obligations under the law.”

You can review this press release in its entirety on the EEOC website here.

EEOC’s Chicago District Office is responsible for processing charges of employment discrimination, administrative enforcement, and the conduct of agency litigation in Illinois, Wisconsin, Minnesota, Iowa and North and South Dakota, with Area Offices in Milwaukee and Minneapolis.

ARTICLE BY U.S. Equal Employment Opportunity Commission
© Copyright U.S. Equal Employment Opportunity Commission

EEOC Issues Guidance on National Origin Discrimination that Applies to Foreign National Employees

EEOC, National Origin DiscriminationThis week the Equal Employment Opportunity Commission (“EEOC”) released guidance regarding national origin discrimination under Title VII of the Civil Rights Act of 1964 (Title VII).  The guidance replaces Section 13 of the EEOC’s compliance manual, with a view toward further defining “national origin” and helping employers and employees understand their legal rights and responsibilities. The guidance specifically states that Title VII applies to any worker employed in the United States by a covered employer (employer with more than four employees), regardless of immigration status, as well as any foreign national outside the United States when they apply for U.S.-based employment.

The new guidance defines “national origin” as an individual’s, or his or her ancestors’, place of origin, which can be a country (including the United States), a former country, or a geographic region.  In addition, “national origin” refers to an individual’s national origin group or ethnic group, which it defines as “a group of people sharing a common language, culture, ancestry, race, and/or other social characteristics.”  Discrimination based on national origin group includes discrimination because of a person’s ethnicity (e.g., Hispanic) or physical, linguistic, or cultural traits (e.g., accent or style of dress).  Discrimination based on place of origin or national origin group includes discrimination involving a mere perception of where a person is from (e.g., Middle Eastern or Arab), association with someone of a particular national origin, or citizenship status.  Title VII discrimination can take the form of unfavorable employment decisions based on national origin or harassment so pervasive or severe that it creates a hostile work environment.

In addition to clarifying the meaning of “national origin,” the guidance provides examples based on how actual courts have applied Title VII to specific facts.  For example, the guidance gives as an example of “intersectional” discrimination a Mexican-American woman who, without explanation, was denied a promotion at a company where she successfully worked for 10 years, despite two non-Mexican women and a Mexican man being selected for the same position.  The guidance also provides examples where national origin discrimination overlaps with other protected bases, such as discriminating against people with origins in the Middle East due to a perception that they follow certain religious practices.  Further, the guidance gives examples of real cases where employment decisions and harassment constituted Title VII national origin violations, as well as cases where Title VII violations were not found.  Finally, the guidance applies Title VII national origin principles to trafficking cases, where employers use force, fraud, or coercion to compel labor or exploit workers, and such conduct is directed at an individual or a group of individuals based on national origin.

Employers of foreign national workers should note that individuals with Title VII claims may also have claims under other Federal statutes, including the anti-discrimination provision of the Immigration and Nationality Act (INA).  Form I-9 and the E-Verify program are two areas where discrimination claims could arise under both the INA and Title VII.

ARTICLE BY Kristin Aquino-Pham of Greenberg Traurig, LLP

©2016 Greenberg Traurig, LLP. All rights reserved.

Seventh Circuit: Title VII Offers No Protection Against Sexual Orientation Discrimination

sexual orientation discriminationIn the midst of a legal, political and cultural landscape expanding the rights of LGBT individuals, the Seventh Circuit U.S. Court of Appeals has held to prior precedent in reaffirming that Title VII does not prohibit sexual orientation discrimination. Kimberly Hively v. Ivy Tech Community College, __ S.Ct. __, No. 15-720 (July 28, 2016).  According to the court, though “the writing is on the wall” that sexual orientation discrimination should not be tolerated, because the writing is not in a Supreme Court opinion or Title VII, the court’s hands are tied.

In two 2000 opinions, Hamner v. St. Vincent Hosp. & Health Care Ctr., Inc.and Spearman v. Ford Motor Co., the Seventh Circuit had previously held that Title VII offers no protection from sexual orientation discrimination. The court revisited the issue now in order to provide a more detailed analysis in light of recent trends and decisions advancing LGBT rights.

The court recognized the merits of many of Ms. Hively’s arguments, and acknowledged that in light of the recognition of other rights of LGBT individuals the current legal landscape does not make sense. In recent years, the U.S. Supreme Court struck down the Defense of Marriage Act as unlawful (U.S. v. Windsor) and legalized gay marriage (Obergefell v. Hodges). In 2015, the EEOC held that sexual orientation discrimination is a form of sex discrimination under Title VII. Baldwin v. Foxx (July 16, 2015). Many judicial decisions at the district court level have repeatedly recognized that sexual orientation discrimination cannot be tolerated. Yet, Congress has repeatedly rejected new legislation that would extend Title VII to cover sexual orientation discrimination, and it has not amended the language of Title VII to include sexual orientation.

This creates “a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act.” The court observed, “From an employee’s perspective, the right to marriage might not feel like a real right if she can be fired for exercising it.”

Nonetheless, the court stated that Congress’ failure to amend Title VII to include sexual orientation cannot be due to its unawareness of the issue. Thus, Congress must have intended a very narrow reading of the term “sex” when it passed Title VII.

In excluding sexual orientation discrimination from the coverage of Title VII, the Seventh Circuit conveyed its apparent reluctance in doing so:

“Perhaps the writing is on the wall. It seems unlikely that  our  society  can  continue  to  condone  a  legal  structure  in  which employees can be fired, harassed, demeaned, singled  out  for  undesirable  tasks,  paid  lower  wages,  demoted,  passed  over  for  promotions,  and  otherwise  discriminated  against solely based on who they date, love, or marry. The agency tasked with enforcing Title VII does not condone it, … many of the federal  courts to consider the matter have stated that they do not  condone it …; and this court undoubtedly  does not condone it… . But writing  on the wall is not enough. Until the writing comes in the  form of a Supreme Court opinion or new legislation, we  must adhere to the writing of our prior precedent[.]”

The Seventh Circuit went on to offer its further observations:

“Many citizens would be surprised to learn that under federal law any private employer can summon an employee into his office and state, “You are a hard‐working employee and have added much value to my company, but I am firing you because you are gay.” And the employee would have no recourse whatsoever—unless she happens to live in a state or locality with an anti‐discrimination statute that includes sexual orientation.”

Those states are currently California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Utah, Vermont, Washington and Wisconsin. Other states apply the prohibition to public employment only: Alaska, Arizona, Indiana, Kentucky, Louisiana, Michigan, Montana, North Carolina, Ohio; Pennsylvania, and Virginia. Some local city and county ordinances contain similar anti-discrimination provisions.

The bottom line for both employers and LGBT individuals, in the Seventh Circuit and elsewhere, is that the employment protections afforded to individuals based on sexual orientation remains determined, for now, at the state and local level.

ARTICLE BY Julie Furer Stahr of Schiff Hardin LLP

© 2016 Schiff Hardin LLP