EEOC Files First Lawsuits for Sexual Orientation Discrimination Under Title VII

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Earlier this month, the Equal Employment Opportunity Commission (EEOC) filed its first two lawsuits against a Pennsylvania employer and a Maryland employer for sexual orientation discrimination. The EEOC’s actions are not too surprising, given its recent decision in July of 2015, in which it held that discrimination against employees based on sexual orientation was illegal sex discrimination under Title VII of the Civil Rights Act.

The EEOC’s decision is seen as controversial by some, as federal courts have historically found that sexual orientation is not a protected class under Title VII (unlike “sex” or gender, which is protected). However, over the years, some courts have offered limited protection to LGBT employees under Title VII—primarily by holding that it is illegal to discriminate against employees for not living up to gender stereotypes. For example, a federal circuit court held that a gay male employee who was harassed by coworkers for being too “effeminate” could proceed with a Title VII claim of sex discrimination. In light of these decisions, and the Supreme Court’s recent decision to legalize same-sex marriage, the EEOC might be hopeful that courts will similarly step in to protect LGBT employees from employment discrimination.

Federal courts are not bound by the EEOC’s interpretation of Title VII and will decide the issue independently. However, until the issue is decided by the courts, employers should be aware that the EEOC is processing charges of sexual orientation discrimination filed by employees (and in rare cases, filing suit against employers on behalf of employees).

About half of the states—including California, Illinois, and New York—already have laws that prohibit private employers from discriminating based on sexual orientation. However, a ruling that sexual orientation is a protected class under Title VII would mean that private employers in all states will be prohibited from discriminating against LGBT employees.

Widespread Outrage Over Suggestion That Children Represent Self in Immigration Court

bordermapCount me in as another voice within the chorus of shocked responses to senior immigration court judge Jack. H. Weil, who said during a deposition that three- and four-year olds can learn immigration law well enough to represent themselves in court.

This wasn’t just a casual comment; Judge Weil was addressing the issue of whether children facing deportation are entitled to attorneys at taxpayer expense. And let’s not forget that he trains other immigration judges nationwide, many of whom are hearing cases of immigrant children by the thousands.

Here are Weil’s words, as reported by the Washington Post: “I’ve taught immigration law literally to 3-year-olds and 4-year-olds . . . You can do a fair hearing. It’s going to take you a lot of time.”

Darn right it’s going to take a lot of time. More time than immigration judges have these days, from all I’ve heard about their backlogged and overcrowded court dockets. And that’s not all it’s going to take.

How does one even begin to explain the reasons? Plenty of people have expressed doubt over Weil’s assertions, from experts like Laurence Steinberg, psychology professor at Temple University, who told the Washington Post, “I nearly fell off my chair when I read that deposition” to Harry Shearer, as part of his political commentary on the March 6 version of “Le Show.” (Even my mother called me after reading the headlines!)

The first thing to bear in mind is that the United States has, under international and national law, an obligation to treat refugees differently (i.e. better) than other immigrants. And make no mistake, these children are mostly refugees, or people afraid to return to their home countries due to past persecution or the possibility of future persecution.

According to an American Immigration Council Report by Elizabeth Kennedy, NO CHILDHOOD HERE: Why central american children are fleeing their homes, non-economic factors such as organized crime, gang threats, and violence appear to be the strongest determinants for children’s decision to emigrate. Many try moving within their home countries first, and flee to the United States only as a last resort. They’re afraid.

video prepared for the Center for American Progress by Tom Jawetz, Philip E. WolginAndrew Satter, and Kulsum Ebrahim called “Why We Must Protect Central American Mothers and Children Fleeing Violence” points out that, as potential refugees, the Central American migrant children and families are legally entitled to due process. Yet they are receiving the very opposite: in many cases, a quick trip out the door.

The next key point is that asylum law is not only complicated, but fact-based and ever-evolving. I’ve represented many applicants in court whose cases seemed marginal at first.  It was only after spending hours (often over the course of many meetings) that I was able to understand the true basis of their fear of returning home and then analyze whether that fit into a ground for U.S. asylum.

Sometimes the answer was no. A child who, for example, is simply afraid of random street violence, is going to have trouble proving that he or she would be singled out for persecution. (See Asylum or Refugee Status: Who Is Eligible?)

But what if that child is a boy who is particularly effeminate, and who is commonly picked on by anti-gay gangs who are beyond the government’s control?  That could be a ground of asylum.  But do we really expect a small child to understand that distinction? Or to admit, in front of a judge and an attorney for the U.S. government, that people make fun of him for possibly being gay?

I doubt it. And that’s just one of many possible fact patterns. Every case is unique, just as every child is unique, and deserves to be heard individually rather than pushed through an overloaded system.

Buyer Desperation a Major Factor in Current Real Estate Market

buying-home-selling-your-houseI recently asked a Bay Area real estate agent about trends she’s observing in the current market. The first thing out of her mouth was the new need for her to understand buyer psychology as they learn the consequences of low housing inventory (fewer homes on the market than interested buyers).

No longer is it a simple matter of buyers figuring out how much money they have saved up and how much house they can thereby afford, doing a bit of shopping, and then closing on a home. Buyers must now often go through stages, an evolution driven by desperation as the weeks or months of shopping go on, and by experiencing flat-out “No” answers in response to their purchase offers.

The prospective homebuyer may start out telling the real estate agent, “I want a two-bedroom in this neighborhood and won’t pay a penny more than $X,” move on to saying, “Hmm, maybe we’d better bid higher given all the competition for this one-bedroom in a marginal neighborhood,” and end up at “Never mind the home inspection! Let’s double the asking price! We can’t wait any longer, we have to have that (tiny) house!”

This isn’t just a Bay Area phenomenon, either. The December projection from the National Association of Realtors says it all “Alas, Inventory Shortages Likely to Stay in 2016.” Relief isn’t reportedly in sight until the end of 2017, when Capital Economics researchers predict an inventory rise of around 50%.

According to economists at Zillow, this is even having an impact on the best time to sell a home. Zillow recently found that, nationally, homes that are put on the market in late spring (May 1 through May 15), sell around 18.5 days faster and for 1% more than the average listing. The explanation?

“The housing market today is heavily influenced by low inventory,” says Zillow chief economist Dr. Svenja Gudell. “Faced with increasingly competitive markets, many buyers are forced to consider several homes and make multiple offers, elongating the home shopping experience.”

That’s good news if you are a home seller just starting to think about putting your home on the market for this spring! Not only has time not yet run out, but you might be just in time to pick up on the desperate buyers who’ve been out there for weeks and who just want a home, at any price.

Kansas Supreme Court: Law Making It a Crime to Refuse DUI Chemical Testing Is Unconstitutional

By John McCurley

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Like all other states, Kansas has an “implied consent” law for drivers suspected of DUI (driving under the influence). These laws generally require that drivers arrested for driving under the influence submit to chemical testing for the purpose of determining whether and how much alcohol or drugs are in their bodies. (These tests typically involve the analysis of blood, breath, or urine.)

In most states, the consequences of refusing a chemical test are administrative—the driver’s license will often be suspended for a period of time and the driver might need to pay a fine or install an ignition interlock device. These administrative penalties for refusing testing are often in addition to any punishment for driving drunk, which is its own crime.

Kansas, however, is one of a handful of states that make it a separate crime–under at least some circumstances—to refuse a chemical test. So, until quite recently, some drivers in Kansas who drove drunk and refused testing could be convicted of both a DUI and test refusal.

Refusal Statute Struck Down

Generally, Kansas law makes refusing a chemical test a crime if the driver has at least one prior DUI conviction or instance of refusing a chemical test. A conviction carries mandatory jail time and can be a felony. (Kan. Stat. Ann. § 8-1025 (2015).)

But on February 26, 2016, in State v. Ryce, the Kansas Supreme Court decided that the law making it a crime to refuse a chemical test violates federal constitutional rights of drivers. The court explained that, under the Fourth Amendment’s prohibition against unreasonable searches and seizures, drivers have a right to refuse chemical testing. The law making refusal a crime violated that right, according to the court.

The decision means that Kansas drivers who refuse to submit to chemical testing can no longer be convicted of refusal as its own offense. (Refusal will, however, still likely lead to administrative consequences such as a suspended license.) It’s unclear how the decision will affect drivers already convicted of refusing a chemical test. (State v. Ryce, No. 111, 698, slip opinion.)

DUI Testing After Ryce

The Ryce decision has important implications for law enforcement. The case naturally led to another decision that was issued by the Kansas Supreme Court on the same day it decided Ryce. In the second case, the court found that an officer violated a DUI suspect’s Fourth Amendment rights by coercing him into submitting to a chemical test.

In the second case, the officer told the suspect that if he refused to take a chemical test, he would face criminal penalties equal to or worse than those resulting from a DUI conviction. The suspect consented to the testing, but later argued that it constituted an illegal search and seizure on the theory that he consented only after being threatened with criminal penalties. The court agreed that the suspect’s consent wasn’t freely given because the officer’s advisement to the suspect—that criminal penalties could be imposed—wasn’t true. (See State v. Nece, No. 111, 401, slip opinion.)

Now, in Kansas, refusing to submit to a chemical test isn’t a crime. Not only that, but officers can’t threaten criminal prosecution to get drivers to agree to testing. It remains to be seen whether other states that have laws criminalizing chemical test refusals will follow the Kansas Supreme Court’s lead.

New Home Sales Down as 2016 Begins; Could Word Be Getting Out About Risks of Poor Construction?

According to data gathered by Trading Economics, January of 2016 was a lousy month for sales of new single-family homes in the United States. Purchases were down 9.2% from December; the lowest figure in three months and well below predictions.

Meanwhile, Nolo just wrapped up an online survey of viewers, asking about their satisfaction with their newly purchased homes. Among those who responded, 74% had bought from a developer, and 25% had hired their own contractor.

But only 22% were satisfied with the quality of the construction. An overwhelming number–91%–have found home defects since buying, and 96% are contemplating legal action.

Uh oh. Now, it should be said that this was a small survey (fewer than 100 respondents), and anyone searching for information on Nolo is likely to have an existing reason for doing so, perhaps dissatisfaction with their home and questions about filing a lawsuit.

But it does fit a long-observed pattern within the real estate industry. “New” does not equal “risk-free” when it comes to a structure as complex as a home. In fact, with shortages of skilled labor, new homes can come with major defects.

To find out how to protect yourself as a buyer, see Newly Built Houses: Pros and Cons of Buying. And if you’ve already bought and are encountering defects, you’ll want to check out Nolo’s series of articles on Suing Your Home Builder: Legal Rights in Selected States.