Election aftermath: The road ahead

Election aftermath: The road ahead

photo-1445365813209-5ab6d8f397cbWhen I was in law school, a white male student ran for a position in our student body government. In his campaign statement, he said that if elected, he would eliminate funding for the school’s minority organizations and use the money to “blow lines” off the taut stomachs of Southeast Asian boys. At a town hall meeting, this man still did not seem apologetic and told us to lighten up, that it had just been a joke. Many minority students, including yours truly, were outraged. When people ask why I became a civil rights lawyer and involved in progressive causes, I cite that incident as one of several defining moments. Because it was heartbreaking that someone in San Francisco these days would still think that racist jokes were acceptable, and that some people didn’t think it was a big deal.

The election results brought new heartbreak. Whatever theories emerge about the outcome, one thing remains clear – there is still so much to be done to protect our civil rights. If you think we are safe from racism, sexism, homophobia, and xenophobia in this country, think again. If you think that the laws we have in place offer enough protection to prevent unfair treatment, think again. If you think that there are too many complaints about discrimination and harassment, think again.

Our state’s public policy is clear:

“It is hereby declared as the public policy of this state that it is necessary to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgment on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.

It is recognized that the practice of denying employment opportunity and discriminating in the terms of employment for these reasons foments domestic strife and unrest, deprives the state of the fullest utilization of its capacities for development and advancement, and substantially and adversely affects the interests of employees, employers, and the public in general.”

Discrimination in any form adversely affects us all. It’s not a joke, and it’s definitely a big deal. People who come to my office are not litigious by nature – they have suffered real harm and mistreatment in the workplace simply because of who they are. Because their skin is not white. Because they are women. Because they were not born in this country and speak imperfect English. Because of who they pray to. Because they are perceived as too old or too disabled to work. Because they love their same-sex partner. Because of these and other immutable qualities that are supposed to be embraced and protected under our laws and under human decency.

If you think we’ve progressed to be more inclusive, look harder at what this nation has revealed about itself. And look harder at the work that needs to be done. Now more than ever, we need to continue seeking justice, fair treatment, and equal opportunities for all.

Lisa Mak

About Lisa Mak

Lisa Mak is an associate attorney in the Consumer & Employee Rights Group at Minami Tamaki LLP in San Francisco. She is passionate about representing employees and consumers on an individual and class basis to protect their rights. Her practice includes cases involving employment discrimination, harassment, retaliation, wrongful termination, labor violations, and severance negotiations. Ms. Mak is the Co-Chair of the CELA Diversity Committee, Co-Chair of the Asian American Bar Association’s Community Services Committee, and an active volunteer at the Asian Law Caucus Workers’ Rights Clinic. Ms. Mak is a graduate of UC Hastings School of Law and UC San Diego. She is fluent in Cantonese and conversant in French.

On to the next battle — employment equality for LGBT workers

On to the next battle -- employment equality for LGBT workers

By Lisa Mak

 


Last Friday, the Supreme Court legalized same-sex marriage across America.  This historic decision was a momentous step forward in advancing equality for the LGBT community, but the fight for equality is far from over.  What’s next?

The first battleground is to achieve recognition on a national level that the right to work free from discrimination is a fundamental civil right.  According to a report published last month by the Movement Advancement Project, 61 percent of the LGBT population live in states with medium or low legal protections, or that have hostile laws that restrict their rights.  This includes insufficient to non-existent protections in the employment area, as the report specified that 52 percent of the LGBT population live in states that do not prevent employers from firing them based on their sexual orientation.  Imagine: an employee exercises her Constitutional right to marry on a Saturday, and then on Monday gets fired for doing so.  Or for placing a wedding picture on her desk, talking about her spouse, or expressing her sexual identity in any way.  Outrageously, this could be the reality for the majority of LGBT employees in this country.

Employment discrimination against LGBT workers is undeniably still a prevalent problem.  A 2013 survey from the Pew Research Center found that 21 percent of people surveyed said they had been treated unfairly by an employer based on their sexual orientation or gender identity.  The percentages were markedly higher for transgender employees and LGBT people of color.  A 2013 report authored by various organizations found that nearly 50 percent of black LGBT employees reported experiencing discrimination at work due to their sexual orientation.  Between 75 and 82 percent of Asian and Pacific Islander LGBT employees reported workplace discrimination as well.  Such discrimination can include the failure to hire or promote LGBT workers, workplace harassment, unequal wages, and the lack of on-the-job support – the same kinds of employment rights that other minority groups have been advocating for in the workplace for decades.

Despite these realities, according to data from the Human Rights Campaign, only 19 states currently have laws that prohibit workplace discrimination based on both sexual orientation and gender identity.  Another three states prohibit workplace discrimination based on sexual orientation, but not gender identity.  Ten states have employment protections based on sexual orientation and/or gender identity only for public employees, which does nothing for private sector workers.  And in 18 states, LGBT employees still have no employment protections at all.  That lack of protection is just another form of denying equality for employees.

The situation is even bleaker at the federal level, although progress is being made. Yet there is still no federal statute that protects employees based on sexual orientation or gender identity.  The proposed Employment Non-Discrimination Act (ENDA) that would prohibit such discrimination has been introduced in Congress each year since 1994, but has never mustered enough Republican support to make it to the President’s desk.  Last year, House Speaker John Boehner openly expressed his disapproval of ENDA, telling the LGBT Equality Caucus that there was “no way” the legislation would pass that year.  Boehner stated that the bill was “unnecessary” because “people are already protected in the workplace.” Boehner’s statement and others like it demonstrate just how out of touch key members of Congress are with the kind of discrimination LGBT workers face.

Gainful employment instills a sense of purpose and dignity, and increases meaningful contributions to our communities.  Our anti-discrimination laws are in place to correct the traditional exclusion of marginalized groups – such as women, older workers, and racial minorities – and to ensure equal employment opportunities.  It is time to fully add LGBT employees to that list.  Whether single or married, they should not be penalized in their careers or livelihood for exercising their right to work.

It’s time for Congress to pass ENDA at the federal level and for State legislatures to implement or expand laws to protect LGBT employees.  Work must continue in every arena, including in those States where there are already such laws, such as California, where agencies and attorneys should bring critical cases to strengthen enforcement.  Finally, businesses should work to create an inclusive workplace for LGBT employees through policies, practices, and training.  Many companies have already done so, but others continue to flaunt their willingness to discriminate.

As Justice Kennedy wrote in the Obergefell decision, in seeking the right to marriage, same-sex individuals asked “for equal dignity in the eyes of the law.”  We should continue to recognize this dignity by continuing to address the gap in legal employment protections for the LGBT community.

Lisa Mak

About Lisa Mak

Lisa Mak is an associate attorney in the Consumer & Employee Rights Group at Minami Tamaki LLP in San Francisco. She is passionate about representing employees and consumers on an individual and class basis to protect their rights. Her practice includes cases involving employment discrimination, harassment, retaliation, wrongful termination, labor violations, and severance negotiations. Ms. Mak is the Co-Chair of the CELA Diversity Committee, Co-Chair of the Asian American Bar Association’s Community Services Committee, and an active volunteer at the Asian Law Caucus Workers’ Rights Clinic. Ms. Mak is a graduate of UC Hastings School of Law and UC San Diego. She is fluent in Cantonese and conversant in French.

Wedding bells ring at West Point

Wedding bells ring at West Point

Library of Congress, Prints & Photographs Division, HABS, Reproduction number HABS NY-5708-20-2By Elizabeth Kristen

Now that “Don’t Ask Don’t Tell” and the “Defense of Marriage Act” are history, wedding bells are ringing at West Point for same-sex couples. A little over a week ago, Daniel Lennox and Larry Choate III, both West Point graduates, exchanged their vows in the historic West Point Cadet Chapel, following in the footsteps of lesbian couples who married at West Point late last year.

In 2011, the military issued a memo allowing military Chaplains to perform same-sex weddings on and off base.  In August of this year, the military began trying to make it easier for service members to take time off to marry their same-sex partners.  Defense Secretary Chuck Hagel said the goal of the policy was to “help level the playing field” for same-sex couples. Under the new policy, service members in the continental United States who are stationed more than 100 miles from a place that allows same-sex marriages could take up to seven days off to travel to a place to marry.  Service members overseas can take up to 20 days off for the same reason.  Most important to the new “level playing field,” the newlywed spouse of the service member then becomes eligible for a host of important benefits such as health care, tuition assistance and joint assignments.

Some of the service branches have issued guidelines to make it easier for service members to take advantage of this policy.  The Marines led the way and, more recently, the Air Force has issued directives allowing service members to take time away from work to travel to same-sex marriage states to wed.

The work of equality is not done.  Some service members still report difficulty accessing the leaveTransgender men and women still must hide their true identities or face discharge.  Members of the LGBT community still face discrimination and harassment.  But there is also little doubt now that real change is underway, and allowing service members to marry their same-sex partners is an important step towards the freedom and equality those who serve in our military risk their lives to protect.

 

Elizabeth Kristen

About Elizabeth Kristen

Elizabeth Kristen is the Director of the Gender Equity & LGBT Rights Program and a senior staff attorney at Legal Aid at Work.  Ms. Kristen began her public interest career as a Skadden Fellow at Legal Aid.  Ms. Kristen graduated from University of California at Berkeley School of Law in 2001 and served as a law clerk to the Honorable James R. Browning on the Ninth Circuit Court of Appeals in San Francisco.  In 2012-13, she served as a Harvard law School Wasserstein Public Interest Fellow.  She has been a lecturer at Berkeley Law School since 2008. Legal Aid at Work together with the California Women’s Law Center and Equal Rights Advocates make up the California Fair Pay Collaborative dedicated to engaging and informing Californians about fair pay issues.

ENDA: Is there an end to LGBT employment discrimination? 1

ENDA: Is there an end to LGBT employment discrimination?

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By Anne Richardson

At present, employers in 29 states are legally allowed to fire an employee for being lesbian, gay, or bisexual. In 33 states they can fire a transsexual employee based only on gender identity without fear of repercussion. At the same time, 37.7% of ‘out’ LGBT employees report being discriminated against at work, and 9% reported losing a job because of their orientation. Though federal laws forbid workplace discrimination based on race, religion, sex, age, national origin or disability, no such protections exist for LGBT workers nationwide.

The extent of discrimination against LGBT workers was chronicled in A Broken Bargain, a recent report from the Center for American Progress, Human Rights Campaign Fund and Movement Advancement Project.  These organizations, along with many others are calling for Congress to pass the Employment Non-Discrimination Act of 2013 (ENDA – SB 815).

This week, the Senate Health, Education, Labor, and Pensions Committee passed ENDA out of committee.  If it goes on to become law, ENDA will extend to gay, lesbian, bisexual and transgender employees the same workplace protections guaranteed to other groups. Specifically, it would forbid discrimination “because of such individual’s actual or perceived sexual orientation or gender identity.”

A story on the blog Policymic titled 5 People Who Were Fired for Being Gay, and the 29 States Where That is Still Legal, profiles a lesbian soccer coach in Tennessee, a management analyst with the Library of Congress, and others who have faced employment discrimination because of their LGBT status.

Many feel the time has come for Congress to pass ENDA, including groups like the Human Rights Campaign Fund that are calling for public action.  Without ENDA, LGBT workers around the country will continue to endure workplace discrimination and be excluded from the promise of a free and fair workplace for all Americans.

Anne Richardson

About Anne Richardson

Anne Richardson is the Associate Director of Public Counsel Opportunity Under Law, a project aimed at eliminating economic injustice on behalf of underrepresented workers, students, and families throughout California and nationwide. Previously she was a partner at Hadsell Stormer Richardson & Renick representing plaintiffs in all varieties of employment discrimination and civil rights matters for over twenty years. A graduate of Stanford Law School, she has been named to the Top 100 Lawyers in Southern California and has received numerous honors for her work.

“The Pursuit of Happiness” – an Independence Day reflection on San Francisco’s LGBT Pride Parade

“The Pursuit of Happiness” – an Independence Day reflection on San Francisco’s LGBT Pride Parade

By Charlotte Fishman

Over one million people attended the San Francisco Pride Parade last Sunday, and I was one of them.  Having just returned from attending the National Employment Lawyers Association Summit for Worker’s Rights in Denver, I got caught up in the excitement of my daughter and her high school friends as they prepared to leave for their trip to the City.

Four days earlier, the United States Supreme Court had announced two long-awaited decisions affecting same sex marriage – Hollingsworth v. Perry leaving intact the California Supreme Court’s decision to strike down Proposition 8, and United States v. Windsor,  declaring Section 3 of the Orwellian-titled Defense of Marriage Act [“DOMA”]  an unconstitutional denial of equal protection of more than one thousand federal laws affecting marital or spousal status.  Justice Kennedy’s majority opinion in Windsor did not mince words:  “DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.”

After waving goodbye to the kids, we parents rapidly made a decision:  a beautiful day, a historic occasion—how could we miss it?!  As soon as we reached the BART platform, we were surrounded by riders in rainbow-hued tights, tutus, face paint, headgear, and jewelry.  As we rode from station to station, the train filled to bursting with riders of every age, race, and family circumstance – gaggles of glittery teenage girls, two-mom families with preschoolers, heterosexual couples with costumed babies, pierced bike riders, and elderly same-sex couples sporting rainbow beads. It felt like half the population of the East Bay was traveling to the Pride celebration.

Despite my understanding the legal and historical importance of the Windsor decision, I was still unprepared for its emotional impact on the crowd.  Parade participants weren’t just celebrating California’s legal right to marry – they were bearing witness to society’s validation of individual choices and family ties.  Float after float, sponsored by Google, Kaiser and other large mainstream institutions, rode down Market Street accompanied by waving employees who were embraced by the cheering crowd. “All love is equal!” chanted marchers bearing equality signs in all the colors of the rainbow.  Market Street was vibrating with a palpable sense of pride, joy, gratitude – and relief.

The founders of this country wisely named “the pursuit of happiness” as one of the inalienable rights of mankind. My experience at the Pride Parade last Sunday brought me a deeper appreciation for that foundational principle, and for the efforts of those who work every day to extend the blessing of this social contract to the hopes, dreams and pursuits of all our citizens.

Charlotte Fishman

About Charlotte Fishman

Charlotte Fishman is a San Francisco attorney with over 30 years of experience handling employment discrimination cases on the plaintiff side. In 2005 she launched Pick Up the Pace, dedicated to overcoming barriers to women’s advancement in the workplace through legal advocacy and public education. She has authored amicus curiae briefs in major cases before the United States and California Supreme Court and writes and speaks to a wide audience on cutting edge employment issues affecting women.

Marriage cases move nation towards equality

Marriage cases move nation towards equality

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By Guest Blogger:  David Duchrow

The United States Supreme Court issued two landmark civil rights cases which, together, provide the strongest support to date for same-sex marriage.

These cases remind us that the civil rights movement does not travel a linear path.  Historically there have been notable steps forward and back, as well as many missteps.  The United States Supreme Court has issued decisions which, at times, have reflected popular opinion, and at other times it has held contrary to the will of “the people.”

Proponents of civil rights have pressed their cases based on compelling facts and moral imperatives, while those defending against progressive reform seem to utilize every procedural tool available to them (issues of standing, venue, and timeliness to name just a few) to defeat lawsuits against their clients.

This morning’s two marriage equality cases both follow and defy those historic trends.   In United States v. Windsor, the case involving the federal Defense of Marriage Act (“DOMA”), the Court issued a ruling aligned with what polls suggest is an overwhelming “will of the people,” which itself had dramatically changed over the course of the litigation.  Yet, in the case involving California’s Proposition 8, the high court avoided addressing the compelling trial court record that was carefully developed by those challenging Proposition 8.  Instead, the opinion in Hollingsworth v. Perry relies on a procedural maneuver to reinstate the trial court’s opinion invalidating Proposition 8.

In the DOMA case, Justice Kennedy wrote: “The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.” Justice Kennedy’s writing tracks language used in an amicus brief signed by 56 pro-civil rights organizations (including the California Employment Lawyers Association, on whose behalf I was honored to sign).  That brief emphasized the stigma for same-sex unmarried couples and their children.  DOMA “undermines” same-sex marriages in visible ways and “tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition.”  With the new decision, the federal government must now honor “dignity” states confer on same-sex couples if they choose to legalize gay marriage.

After the Court announced its DOMA decision, it issued its decision on Proposition 8.  California voters passed Proposition 8 to ban same-sex marriage in 2008, after 18,000 same-sex couples had already married under a state Supreme Court decision legalizing gay marriage.  A married lesbian couple with children, Kris Perry and Sandy Stier, sued the state of California when their six-month-old marriage was invalidated by the ballot initiative.  They argued that Proposition 8 discriminated against them and their union based only on their sexual orientation, and that the state had no rational reason for denying them the right to marry.  Two lower courts ruled in their favor, and then-Governor Schwarzenegger announced he would no longer defend Proposition 8 in court, leaving a coalition of Proposition 8 supporters led by a former state legislator to take up its defense.

Chief Justice Roberts joined with Justices Scalia, Ginsburg, Breyer and Kagan to rule that the initiative supporters did not have the standing to defend the ban in court.  The unusual coalition of traditionally liberal and conservative justices held that the Proposition 8 supporters could not prove they were directly injured by the lower court’s decision to overturn the ban and allow gay people to marry.

With the Proposition 8 decision, the Supreme Court refused to wade directly into the constitutional issues surrounding the California gay marriage case, side-stepping the pro-Proposition 8 argument on procedural grounds, meaning that a lower court’s ruling making same-sex marriage legal in California will stand and opening the door to marriage for gays and lesbians, without directly ruling on whether there is a constitutional right to same-sex marriage.

Thus, in DOMA the Supreme Court kept pace as public opinion shifted during the litigation, to the point where same-sex marriage is overwhelmingly supported now, even by those who opposed it initially when the litigation began.  And in the Proposition 8 case, procedure, not substance (alone) decided the outcome.  In any event, it is a proud, historic day for those who believe in equality and those who work to ensure civil rights for all.

 

Charlotte Fishman

About Charlotte Fishman

Charlotte Fishman is a San Francisco attorney with over 30 years of experience handling employment discrimination cases on the plaintiff side. In 2005 she launched Pick Up the Pace, dedicated to overcoming barriers to women’s advancement in the workplace through legal advocacy and public education. She has authored amicus curiae briefs in major cases before the United States and California Supreme Court and writes and speaks to a wide audience on cutting edge employment issues affecting women.

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