Tuesday, August 26, 2014

Richard Attenborogh, In Memoriam

Richard Attenborough died on Sunday, August 24, 2014. I fondly remember him for his patient and wondrous Nature documentaries. But I am moved to write here about his production of the epic lawyer movie, Gandhi (1982).

Attenborough worked for twenty years to produce this film. He researched Gandhi’s professional life as a non-violent activist, and also his personal relationships with Indian leaders during the campaign for independence. He not only captured Gandhi’s key role in guiding his native country’s resistance to British rule, but also the essence of Gandhi’s philosophy for social change.

Attenborough’s story of Gandhi’s career begins on a train in South Africa, 1893. A young lawyer of Indian descent discovers that the first class car is reserved for white people only. He is literally and metaphorically tossed from the elite class onto the sidewalk of a working class racial minority in apartheid South Africa.

Gandhi’s first clients are the Indian businessmen struggling against a new pass law. He files no lawsuits and writes no briefs. He organizes a non-violent protest in which he and his clients will publicly burn their passes in defiance of the law. He is beaten, but his quivering hand still reaches to push his pass into the flames. After larger, but still peaceful, protests garner wider attention, Gandhi and his clients are soon corralled together in an overflowing jail. Then, finally, General Smuts promises to repeal the law, but with a proviso that South Africa will bar the future immigration of Indians. In a sad acceptance that the campaign had not addressed immigration as an issue, Gandhi accepts the compromise. The racist law he targeted is repealed, but a new racist law is adopted in its place. It is a sad foreshadow of the campaign for Indian independence.

My clients are rightfully motivated to win their cases because they have been wronged, and they want their lawful remedies. Some of my clients see their cases as part of a movement to redress historical wrongs and protect future generations from systematic oppression. For these clients, I urge a careful viewing of Gandhi to study his technique for winning independence for India.

Gandhi begins with another train ride. This time he rides in third class to experience India the way most Indians do. British rule is linked to deep and widespread poverty. In Champaran, British landowners have subjugated tens of thousands of peasants with prices so low that their families starve while they work full time growing indigo. They revolt. Gandhi arrives and is immediately arrested. He refused to pay a small bail, and the judge concludes that it is best just to release Gandhi to appease the hoarde of protesters. Soon, the British government intervenes and the landowners have to agree to reforms that allow workers to feed their children. Gandhi’s “satyagraha” method of campaigning is born.

Gandhi looks for ways to press the political and economic causes of Indian people. He writes, speaks, tours and organizes. Our hearts ache for the Jallianwala Bagh massacre in Amritsar, and also for the Britons attacked by mobs spurred by anger before they learned Gandhi’s philosophy of “ahimsa” or non-violence. Gandhi undertakes his first fast to call on Indians to prove to the British that they have no need to fear further violence. The Indian people respond to his suffering with a suspension of the campaign and a period of giving flowers to the British to show their commitment to non-violence.

I urge my clients to think creatively about non-violent actions that can reveal the other side’s injustices. Consider Gandhi’s situation in 1930. He concludes that the Indian Independence Movement is ready for action again. But what action? They protest a British tax with the Great Salt March. The world sees that Britain must resort to violence to preserve its rule in the face of peaceful protest. Britain relents and agrees to host the Round Table Conference in London. Britain reveals its plan to create not one independent country, but two – India and Pakistan. Gandhi is heartbroken. As riots erupt between Hindus and Muslims, Gandhi fasts again. Near death, he wins the hearts of all Indians, but fails to keep his homeland united. He stays home on the day India and Pakistan are granted independence. This moment reveals the need for patience. If Indian and Pakistani leaders had been willing to wait longer to build a unified and diverse nation, we may have saved them from several wars and the development of two nuclear powers taking aim at each other. We, too, have to be mindful of whether our campaigns will yield worthy and lasting results.

Attenborough’s gift to our cultural heritage is more profound compared to recent popular movies. This Summer’s number one box office draw paints practically the opposite picture of Gandhi. The Guardians of the Galaxy can save freedom by using violence more effectively against their adversaries. It is the story of Popeye, told over and over again while justifying the drive to fund bigger and bigger weapons.

Gandhi’s opening and closing scenes feature Gandhi’s funeral. Attenborough amassed 300,000 extras to film this scene – the largest cast of any movie ever. While I mourn the way Gandhi died, my life is richer for the way Richard Attenborough made his message current.

By Richard Renner

Tuesday, August 19, 2014

New EEOC Enforcement Guidance on What to Expect When Your Employee is Expecting

    After Congress passed the Civil Rights Act of 1964, women thought they would have the full legal right to equal treatment at work. However, in 1974, the Supreme Court surprised Civil Rights advocates by holding that discrimination against pregnant women was not sex discrimination, and was actually lawful. Geduldig v. Aiello, 417 U.S. 484 (1974).

    Congress responded by passing the Pregnancy Discrimination Act of 1978 (the PDA). It extends the protections of Title VII of the Civil Rights Act of 1964 to protect pregnant women. In 1991, the Americans with Disabilities Act provided protection to disabled workers (federal employees are similarly protected by the Rehabilitation Act).  In 2008, the National Partnership for Women & Families found that women, especially women of color, have been filing pregnancy discrimination complaints faster than the influx of women into the workplace.  While the volume of complaints have increased, the issues these women raise have remained mostly the same: for example, forced leave based on pregnancy.

    The time is ripe, then, for some higher-level guidance into what these protections mean to employers and employees.  Both the Supreme Court and the EEOC are poised to take the lead: on July 1, 2014, the Supreme Court granted certiorari in Young v. United Parcel Service, a case in which plaintiff-appellant Peggy Young alleged that UPS violated the PDA when it provided benefits for non-occupational sickness or accidents, but not for pregnancy related sickness or restrictions; on its heels, the EEOC published updated guidance on pregnancy discrimination and related issues.
    Ironically, this partnership has raised concerns of less rather than more clarity.  The problem is this: when Ms. Young became pregnant, she requested light duty work from UPS after providing  a note from her midwife stating that she should not lift more than 20 pounds. However, she also informed the health manager that she would rather continue in her normal capacity than be forced to take unpaid leave.  If Ms. Young had requested accommodation for an “injury” or “medical condition,” UPS would have easily granted her request.  Because she was pregnant, the health manager forced Ms. Young to take unpaid leave until “she was no longer pregnant.”  The Fourth Circuit ruled against Ms.Young, disregarding, among other things, EEOC’s prior interpretations of the Act.  The EEOC’s updated guidance disagrees with this decision.  The EEOC believes that Ms. Young should have been given fair consideration for any light duty position that might exist or might arise during her pregnancy, and that UPS must allow her to continue working in her current position if she so chooses.
    EEOC Commissioner Victoria A. Lipnic has questioned the wisdom of publishing guidelines when the upcoming Supreme Court case could make it moot. She dissented from the Guidance, stating that the EEOC is overreaching. Nevertheless, Commissioner Chai Feldblum stressed the importance of the update: “There’s a reason we needed to update the guidelines, and that’s because this problem hasn’t gone away. This is an enduring problem in America’s workplaces – we’re not where we need to be with regard to fair, equal treatment of pregnant workers. We’re just not.”  So, even though it appears that the EEOC has taken an early bite at the apple, we remain at a cliff-hanger until the Supreme Court weighs in.  

Written by Nina Ren.

Friday, August 1, 2014

Executive Order Increases Protections for LGBT Workers

Imagine being called into your boss’s office on a Friday afternoon. She tells you that the company is letting you go. Your boss tells you that your performance and conduct are stellar. Rather, the problem is the type of people you date on your free time.

It may sound unlikely, but the scenario is very real for workers who are LGBT. Just ask Casey Stegall, a gay man in Lubbock, Texas. The children’s home where Mr. Stegall worked terminated his employment, according to a report from the local Fox news station. Mr. Stegall said the employer explained that his “lifestyle was detrimental to the kids’ health.”

Technically, no federal employment statute protects employees because of their sexual orientation or gender identity. But that does not mean LGBT workers are entirely without recourse.

In 1989, the U.S. Supreme Court decided the Price Waterhouse case, holding that employment decisions based on sexual stereotypes violated federal law’s prohibition on gender discrimination. In other words, an employer cannot fire a man because he does not act, dress, or talk like the boss thinks a man should act, dress, or talk.

That decision was buttressed by the Supreme Court case Oncale v. Sundowner, which recognized same-sex sexual harassment, e.g., men harassing men.

These cases laid the foundation for more explicit protections, like the EEOC’s 2012 decision in the case of Mia Macy. That decision explicitly found that the U.S. Department of Justice violated federal law by discriminating against Ms. Macy because of her transgendered status.

This month has seen many special moments for the LGBT community. Laverne Cox became the first transgendered person to receive an Emmy nomination. Supermodel Andreja Pejic disclosed that she is transgendered.  Federal courts have struck repeated blows to state constitutional amendments banning gay marriage.

However, in a month of milestones, among the most important and far reaching are amendments to Executive Orders 11478 and 11246. On July 21, 2014, President Obama signed an Order amending 11478 and 11246 to prohibit certain federal contractors from making employment decisions because of sexual orientation or gender identity.  The federal government can enforce the Order through its purse strings. It expands the federal policy that expressly protects the federal workforce from discrimination based on sexual orientation and gender identity.

The Order applies to contracts with federal agencies, federally-assisted construction contracts, and subcontracts under such contracts. However, to be covered, an employer must have one or more covered contracts that collectively exceed $10,000 during a twelve-month period. If the contract is open-ended, the Order looks to the expected value. The Order also covers contracts with depositories of federal funds or with financial institutions that are issuing and paying agents for U.S. savings bonds and savings notes regardless of the amount of the contract.

Covered employers must add sexual orientation and gender identity to their discrimination policies; include discrimination clauses covering sexual orientation and gender identity in subcontracts with necessary vendors and suppliers; and take affirmative action to ensure that individuals are employed and treated without regard to sexual orientation and gender identity.

Importantly in light of the Hobby Lobby case, the Order contains no new exemptions for religious beliefs.

Though a big step forward, plenty of work remains: The Order applies only to certain federal contractors, and individual employees who are victims of discrimination won’t receive any compensation. The Order is prospective only, meaning existing contracts are not covered. And finally, the Department of Labor has yet to issue implementing regulations. Once new contracts are issued with the new employee protections, victims of discrimination will be able to make complaints to the Department of Labor’s Office of Federal Contract Compliance. The time limit to file a complaint there is currently 180 days.

If you believe that you have suffered employment discrimination, you should contact a qualified employment attorney to help you understand your rights.

Dallas Hammer