Wednesday, April 26, 2017

Working in Cuba

[Photo by Laura Yeomans]
I had the privilege of traveling to Cuba last month as part of the U.S. delegation to the IX Conference of Labor Lawyers and Trade Unionists. Our delegation of 17 lawyers, legal workers, and trade unionists visited a variety of workplaces in Cuba, met with jurists, trade union leaders, and environmentalists, and ate in a variety of fine and very reasonably priced restaurants.

What we learned is that Cuban workers are cash poor, health-care rich, well-educated, egalitarian, participatory, and eager to exchange ideas. Cuba remains a Third-World developing country with a thriving Latin American culture of music and dance.

Long exploited for sugar, coffee and tobacco production, Cuban workers rose from slavery to poverty in the 19th and 20th centuries. Our delegation saw the remains of a 19th century tobacco plantation that relied on slave labor. Urban labor often came from slaves who “bought” their freedom. In 1875, Spain outlawed slavery, but the process took until 1886 to free Cuba’s last slaves. A series of revolutionary movements challenged both the Spanish and, after its 1898 victory over Spain, American domination of Cuba. These culminated in the 1959 revolution, followed by a U.S. trade embargo that remains in force to this day.

About 27% of Cubans belong to unions affiliated with the CTC (Central de Trabajadores de Cuba). That compares with 4.5% of Americans who belong to unions. In Cuba, a job is guaranteed. Workers do not always like the work available to them, and they have the option to start their own business, or form a coop.

During our conference, we heard a presentation written by Muriel Castro, Fidel Castro’s daughter, about how transgender Cubans could use a new non-agricultural coop law to form businesses that would give them an alternative to the discrimination they face in more traditional workplaces.

Since employment is guaranteed, and salaries have very little variation, employment lawyers in Cuba are rarely asked to handle wrongful termination cases. Most labor law disputes involve discipline. Lawyers in private practice belong to collective firms, called “bufetes,” although clients would be represented by the individual lawyer and not by the firm. The fee for hiring a lawyer for a typical labor dispute would be in the range of $1 to $5. The bufete can approve a higher fee in difficult cases.

Cuba passed a labor law in 2014 that protects lesbians, gays, bisexuals and transgender workers from discrimination on the job. The law was considered at local and provincial levels, with feedback to the national legislature before its final adoption. In the U.S., Congress still has not passed a law explicitly protecting members of the LGBT community from employment discrimination, although some courts have determined that Title VII’s prohibition of sex discrimination applies. Cuba is now considering a new family law that would legalize same-sex marriages, but it is not yet adopted. We met a lesbian anthropologist who could not get on the waiting list for IVF services because her marriage to her wife is not yet recognized in Cuba. In this respect, the U.S. Supreme Court accomplished an advancement in legal equality that the national legislatures have not yet done in either the U.S. or in Cuba.

For those who do qualify for IFV or other health care procedures, it would be entirely free to Cubans. There is no need for health insurance, claim forms, co-pays or deductibles. Similarly, college education is also free for all Cubans accepted to be students at the universities.

During our conference, we heard that Cuba is debating a modification to the labor law that would allow managers to award bonuses of up to 2.5% of annual wages for superior performance. Progress in advancing the law is stalled by the details of assuring that performance would be determined objectively rather than subjectively. Meanwhile, in the U.S., the top 1% earns 23% of all earnings. That represents an income inequality in the U.S. of 2,300% compared to the 2.5% that Cuba is considering. Cuban labor lawyers expressed how some increase in wage flexibility might encourage additional foreign investment.

Speaking of investment, it is not coming from the U.S. due to the trade embargo. European, Canadian and Asian interests dominate the investments in hotels, industry and transportation.

Delegates from other Latin American countries had mostly depressing news about governmental plans to scale back on labor protections. One bright spot was Ontario, Canada, which has decided to improve its labor law to encourage unionization. Under the new law, workers can establish a union just by getting a majority of the workers to sign an authorization card. It also expands the opportunities for unionization for domestic workers and the employees of franchises.

I presented a paper called The Uneven Web of Whistleblower Protection. After explaining how being fired can be a serious blow for an American worker, and how the fear of getting fired can deter workers from challenging management, I described the array of whistleblower laws that protect some speech for some American workers. I called attention to the number of areas where Congress has and has not passed any whistleblower protection. We protect food safety whistleblowers, but not pharmaceutical safety whistleblowers. The Affordable Care Act protects health insurance coverage whistleblowers, but not patient protection whistleblowers. We have no federal whistleblower protections specifically for tax compliance whistleblowers or for employees misclassified as independent contractors. My main point was that we can learn about which sectors of our economy have influence over legislation by looking at the holes in our protections for worker free speech.

We saw many other Americans staying at the hotels with us. The U.S. embargo permits U.S. citizens to travel for professional or research purposes. Signing the required declaration about this purpose was easy for us given the conference and other educational activities we attended. Individuals can plan their own trip, get their own visa and schedule air travel to Cuba on American or Jet Blue airlines.

Both American and Cuban workers can learn from their dialogue with each other. Lifting the U.S. trade embargo will go a long way toward increasing that dialogue.

By Richard Renner.

This blog is provided to our readers for informational purposes only. It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at http://www.kcnlaw.com/Contact.shtml.

Thursday, April 6, 2017

Competing Holdings on Sexual Orientation Discrimination in 7th and 11th Circuits

In the past month, two different Courts of Appeals issued decisions about Title VII and sexual orientation discrimination in the workplace and they came to opposite conclusions. The disagreement between the Seventh and Eleventh Circuits virtually guarantees that the Supreme Court (and its newest Justice, Neil Gorsuch, should he survive the confirmation process) will decide the outcome eventually. However, the appeal will not be coming from the defendant in the Seventh Circuit decision, will not be coming from the defendant in the Seventh Circuit decision accepts the holding that Title VII covers sexual orientation discrimination, but still asserts that it did not discriminate against the plaintiff.

In early March, the Court of Appeals for the Eleventh Circuit held that, while a claim of discrimination based on gender non-conformity is actionable under Title VII of the Civil Rights Act of 1974, sexual orientation discrimination is not.

In Evans v. Georgia Regional Hospital, Jameka Evans began working for the hospital as a security guard in August 2012. She wore her hair short and dressed in a male guard’s uniform. Although she is a lesbian, she did not “broadcast” her sexual orientation in the workplace. The head of Evan’s department continually harassed her because Evans did not carry herself in a “traditional woman[ly] manner.” After being passed over for a promotion for which she was more qualified, Evans went to the hospital’s Human Resource’s office and lodged a complaint. The harassment continued until Evans voluntarily left her job in October 2013 due to the hostile working environment.

Evans filed first at the EEOC and then in federal court. However, she asked the court to allow her to proceed in forma pauperis and appoint her counsel, as she did not have the assets to pay the filing fee. The case was assigned to a magistrate judge who reviewed Evans’ petition and determined that, per 28 U.S.C. § 1915(e)(2)(B)(ii), Evans had “fail[ed] to state a claim on which relief may be granted.” Specifically, the magistrate found that Title VII “was not intended to cover discrimination against homosexuals” and that claims of discrimination based on gender non-conformity were “just another way to claim discrimination based on sexual orientation.” The magistrate judge recommended that the case be entirely dismissed. The district court adopted the magistrate’s Report & Recommendation and appointed counsel from the Lambda Legal Defense and Education Fund to represent Evans on appeal.

Evans appealed to the Court of Appeals for the Eleventh Circuit and argued that the district court was wrong to dismiss her sexual orientation discrimination claim. On this point, the Court of Appeals agreed with the lower court and held that there is no sexual orientation action under Title VII. To support its holding, the court relied on a Fifth Circuit case from 1979, Blum v. Gulf Oil Corp.: “Discharge for homosexuality is not prohibited by Title VII”. The court was dismissive of Evans’ reliance on two Supreme Court cases to support her claim: “Price Waterhouse [v. Hopkins] and Oncale [v. Sundower Offshore Services, Inc.] are neither clearly on point nor contrary to Blum. These Supreme Court decisions do not squarely address whether sexual orientation discrimination is prohibited by Title VII.” The court, additionally, found holdings from nine other circuit courts of appeals extremely persuasive that sexual orientation discrimination is not actionable under Title VII.

Curiously, Evans also argued that the district court was wrong to dismiss her gender non-conformity discrimination claim, and on this the Court of Appeals partially agreed. The court pointed to its earlier cases which held that discrimination based on a failure to conform to a gender stereotype is sex-based discrimination and constitutes an avenue for relief under Title VII. However, the court concluded that Evans had not “provided enough factual matter to plausibly suggest that her decision to present herself in a masculine manner led to the adverse employment actions.” Even so, the court held that the district court should have given Evans a chance to amend her complaint and plead more facts to support her claim.

Thus, while the Fifth Circuit ordered the district court to give her an opportunity to amend her complaint in order to include more facts about her gender non-conformity discrimination, it barred her from pursuing her claims of sexual orientation discrimination in this litigation.

Despite the Eleventh Circuit’s decision in Evans, the Court of Appeals for the Seventh Circuit came to a contrary holding less than one month later.

In Hively v. Ivy Tech Community College of Indiana, Hively, a lesbian, taught as an adjunct professor from 2000 until 2014, when her contract was not renewed. During her tenure at the College, she had unsuccessfully applied for at least six full-time teaching positions. Like Evans in the Eleventh Circuit, Hively first filed pro se at the EEOC and then in federal court. The College moved to dismiss Hively’s complaint, and the district court agreed, based on Seventh Circuit precedent that held that sexual orientation is not a protected class under Title VII.

Again, as in Evans, the Lambda Legal Defense and Education Fund represented Hively on appeal to the Seventh Circuit. The three judge panel assigned to the case affirmed the district court’s dismissal of the matter. Hively then requested en banc review (i.e., by the entire court). In an eight to three decision, the Court of Appeals overruled its prior decisions and held that discrimination on the basis of sexual orientation is a form of sex discrimination and, therefore, prohibited under Title VII.

Here, the Court of Appeals approached the issue from two directions. First, the court explained that “[a]ny discomfort, disapproval, or job decision based on the fact that the complainant – woman or man – dresses differently, speaks differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex” and, therefore, any adverse actions taken against complainant based on that discomfort is illegal under Title VII. Second, the court explored the associational discrimination theory propounded by Hively. Hively argued that Loving v. Virginia struck down miscegenation laws and, therefore, paved the way for a line of employment cases holding that an employee can make a claim of associational race discrimination if his employer treats him adversely on the basis that he is married to a spouse of a different race. The court accepted that argument: “No matter which [protected] category [under Title VII] is involved, the essence of the claim is that the plaintiff would not be suffering the adverse action had his or her sex, race, color, national origin, or religion been different.” The Court of Appeals remanded Hively to the district court to continue litigation.

Moreover, while the Eleventh Circuit totally rejected Evans’ reliance on the Supreme Court’s Oncale decision as “not on point”, the Seventh Circuit embraced the decision as support for its holding. While Oncale did not specifically involve sexual orientation, the decision (which did involve harassment of a man by a group of men) said this:

Title VII prohibits “discriminat[ion] . . . because of . . . sex” in the “terms” or “conditions” of employment. Our holding that this includes sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements.

The Seventh Circuit interpreted that language as holding that “the fact that the enacting Congress may not have anticipated a particular application of the law cannot stand in the way of the provisions of the law that are on the books.” That holding is totally opposite the Eleventh Circuit’s holding in Evans.

Based on decisions like these, it is becoming increasingly apparent that we will not have a nationwide understanding of what protections Title VII offers LGBTQ workers until the Supreme Court decides the issue. However, Ivy Tech Community College has already announced that it will not seek Supreme Court review of the decision. In the meantime, local laws protect LGBTQ people from employment discrimination in approximately 20 states and the District of Columbia.


Written by Sarah Martin


This blog is provided to our readers for informational purposes only. It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at http://www.kcnlaw.com/Contact.shtml.