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Will Vance v. Ball State Rewrite Harassment Law?

Will Vance v. Ball State Rewrite Harassment Law?


American workers have had the ability to sue for harassment based on race or gender for decades now.  However, questions remain about how much culpability employers can have for the conduct of the employees working for them.  A new court case, Vance v. Ball State University, will put these questions to the test in next year's Supreme Court docket.  If the lower court rulings are affirmed, it could become significantly harder for women and racial minorities to sue their employers for harassment.

Maetta Vance, a black woman, began to work at Ball State University in Indiana in 1989.  She worked in the dining services department as a substitute server, and was the only black person who worked in the department at that time.

Vance started being treated differently from other employees when a new supervisor was employed by the university.  While this was not the person with hiring and firing authority over Vance, the supervisor, Bill Kimes, was in charge of regulating her day to day conduct on the job.  He treated her unfairly, treating other employees to lunch but only when Vance wasn't there, and giving her “the cold shoulder.”

In 2005, this treatment escalated into outright racial harassment.  Racial epithets were hurled at Vance by her co-workers, who also stared at her for extended periods of time.  One co-worker also openly discussed her family's association with the Ku Klux Klan.  She was disciplined by a supervisor with a written warning.

The racial harassment continued for some time, and involved repeated derogatory terms.  Vance sued, also alleging that Ball State had discriminated against her for speaking out by forcing her to do menial kitchen tasks when she was trained to be able to handle significantly more complex tasks.

At the trial court level, the judge ruled that Ball State had taken appropriate corrective action with its employees, and that the university could not be held liable for its employees conduct if the employee was not a direct supervisor.  While Kimes was the supervisor of Vance's day to day activities, the court ruled that under the law, only conduct by a supervisor with hiring and firing authority could be used as justification for a judgment against the school.

The appeals court affirmed this decision, also ruling that there was not sufficient evidence that Ball State had retaliated against Vance when it assigned her different job duties. 

The case will be heard by the Supreme Court during the 2013 season, and it stands to be an interesting one: three other circuit courts have ruled that employees may collect in a harassment action against their employer even if the person responsible for the harassment was not a supervisor with direct hiring and firing authority.

When the Supreme Court rules on this case, judicial onlookers will have a better idea of how this court intends to handle racial and sexual harassment lawsuits.  Due to the sharp ideological divisions in the court currently, opinions are divided as to how the court will likely rule in Vance v. Ball State.

Sources: uscourts.gov, supremecourt.gov

Defense Policy Changes Put Women in Combat

Defense Policy Changes Put Women in Combat

As of 2013, women in all five branches of the United States military will be allowed to officially serve in combat roles and be paid accordingly.  Last year, several women's organizations filed lawsuits over Department of Defense policies that continued to forbid women from being considered combat troops.

In total, approximately 237,000 combat based jobs that were not previously available to women have been opened up to them this February.  The Department of Defense is planning to integrate these combat units using similar tactics to when the United States Navy began allowing women to serve on submarine missions.

According to Defense officials, the department is engaged in a continuing process this year to stop gender discrimination and barriers to women serving in combat roles and other non-traditional gender roles.

Proponents of these changes have pointed to the fact that while women were not previously allowed to be considered combat troops, thousands of female soldiers have already become casualties in the wars in Iraq and Afghanistan.  In contemporary urban warfare, the lines between combat troops and auxiliary or support troops are very blurred.  It was often impossible for women to avoid being in the line of fire, even if they were not considered to be combat troops, yet they did not receive the same pay or benefits as active combat troops.

Because combat roles also tend to have a bigger effect on promotions, women in the military had complained that they felt they were being kept from advancing by the no-women policy for combat troops.  This created something of a glass ceiling in military branches, where it became much easier for men to be promoted than women with similar skills and capabilities.  With the new policy in place, women will be better able to pursue positions in the military that would help them to advance their career in the long term.

The new policy raises a number of interesting legal questions.  Perhaps the biggest is what will become of the Selective Service, or draft, system.  Currently, only males are required to register for Selective Service.  When this policy has been challenged by women's organizations, the Supreme Court has said that it was fair because only men could be combat troops.  

Now that women are allowed in combat, the biggest reason judges have cited for keeping women out of the draft is gone.  No case has yet been filed regarding the Selective Service issue since the Defense decision.

Source: defense.gov, whitehouse.gov

New Contraception Laws for Religious Employers

New Contraception Laws for Religious Employers

One of the most controversial provisions of the new Affordable Care Act legislation (commonly known as Obamacare) is its requirement for insurance companies and employers to provide contraceptive coverage as part of health insurance plans.  According to the rules set forth in the Affordable Care Act, preventative women's health services, including both hormonal and non-hormonal birth control, must be provided to women free from charges including co-pays.

However, one set of employers has rebelled against the new laws.  Employers who have religious objections—both for profit and not for profit employers—have sued in federal court to prevent enforcement of the provisions of the Affordable Care Act requiring contraceptive coverage.

As of January 2013, the White House announced a new way to solve the controversial issue.  Since religious organizations claim that their objection is based in having to actually pay for the contraceptive coverage, the government is now requiring insurers to cover contraceptive coverage separately, and at no cost, for anyone who has an employer paid healthcare plan. 

In order for an organization to qualify for being exempt from paying for contraceptive coverage itself, it must meet a three-part test.  The current law requires that to be considered primarily religious, the organization must have a main purpose of advancing religion, primarily employ people who believe in the religion, and primarily serve people who believe in the religion.  This means that many organizations that are religious—for example, a Catholic hospital—might not be able to seek an exemption from contraception coverage under the new rule.

According to most analyses, insurers find contraception coverage to be cost neutral or even positive.  This is because childbirth, pregnancy, and infancy are extremely expensive, and preventing pregnancy until parents are ready for childbearing and parenthood eventually saves a great deal of money for insurers.

Not all employers are happy with the new proposal.  Some Catholic employers have already expressed a desire to fight the law, saying that the effect is similar to if they had paid for the contraception coverage themselves.

Student health insurance is also impacted by the new policy.  According to new guidelines, religious non profit institutions of higher education may apply for accommodations according to the law in the same way that an employer could.  This will ensure that even students at religious universities—like Georgetown Law student Sandra Fluke, thrust into the spotlight in the 2012 election season—have access to the same contraceptives that women at public schools can access.

Source: cms.gov

Thousands Rally in Paris for Marriage Equality

Thousands Rally in Paris for Marriage Equality


Thousands marched in the streets of Paris on Sunday to show their support for a pending same-sex marriage bill that lawmakers will debate on Tuesday.

Demonstrators were fervent in their support for the bill—they were waving banners with phrases like “Equality of rights is not a threat” and perpetually chanted: “What do want? Equality! When do you want it? Now!”

According to Parisian police, the demonstration attracted nearly 125,000 people or twice the number that participated in a similar demonstration in mid-December. That said, a rally by those opposing the proposal attracted 340,000 people two weeks ago in Paris.

Socialist President, Francois Hollande, promised during his campaign to legalize gay marriage by May of 2013. It is believed, that with majorities in the both houses of Parliament, that the President may just fulfill this promise. Even with the expected legislative delays, the bill could be placed into law as early as May of this year.

The equality demonstration was an eclectic bunch, as thousands traveled from all over France to show their support of the bill. Nicloas Marquart, 37, made the trip with Strasobourg with his partner, whom he shares a “civil solidarity pact” with. Marquart told the New York Times, that he came to the demonstration as a “gay man and because it would be nice to see our morals evolve.”

The prospective law would fundamentally redefine marriage as a union contracted between two individuals of different sex or of the same sex. Moreover, the words “mother” and “father” in the existing legislation would be replaced by “parents.” The pending bill also would permit married same-sex couples to adopt children.

The minister of justice, Christiane Taubira, claims that the law, known as Marriage for All would provide  uniform regardless of sexual orientation. The law would also leave the conditions of marriage unchanged.

The French community, who is taught that every citizen has equal rights, generally supports legalizing gay marriage. According to national polls, roughly 63 percent of French citizens are in favor of same-sex marriage and 40 percent favor the right of adoption among gay married couples.

Opponents to the bill, including senior Roman Catholic, Muslin and Jewish leaders, claim that by replacing mother and father with “parents”, the law unequivocally changes the natural order of procreation. These religious leaders say that this alteration will lead to moral confusion and the eventual erosion of the centuries-old institution of marriage in the name of a minority group. 

The Financial Argument for Gay Marriage

The Financial Argument for Gay Marriage


With several key November wins in Maine, Maryland and Washington State, advocates for gay marriage have been achieving a lot of national success lately. Feeding on this momentum, Delaware, Hawaii, Illinois, Minnesota and Rhode Island are looking to recognize equality for the LGBT community.

Arguments for legalizing gay marriage typically center on justice, but there’s a financial claim to be made for marriage equality. Consider, for instance, the state of Illinois, where dozens of businesses have publicly declared support for the legalization of gay marriage.

In a public letter, signed by business leaders from Groupon, GOOGLE, Hyatt Hotels, Orbitz Worldwide, Navistar International, Morningstar and Excelon among others, key executives stated that to be competitive, Illinois must create equitable and respectful environments for all of its citizens.

The letter makes the case that supporting marriage equality helps businesses attract a wide range of employees, which, in turn, helps companies better connect with a more diversified consumer base. The letter also cited financial numbers that supported the idea of legalizing gay marriage. The letter stated: “According to the UCLA School of Law’s William Institute, allowing same-sex couples to marry would generate between $39 million and $72 million in revenue for Illinois businesses, creating $4.5 million to $8 million in new sales and lodging tax revenues over three years.”

Several companies, such as Macy’s and J.C. Penny, aren’t waiting for lawmakers to pass gay marriage laws. These retail giants have featured same-sex couples in advertisements, while other businesses, such as Nike, Amazon.com, Starbucks and Microsoft, have donated money or issued support statements to marriage advocacy groups.

American companies are catching-on the financial advantages of legalizing gay marriage, as noted by the Human Rights Campaign’s Corporate Equality Index, which measures the nation’s largest company’s on their equal opportunity policies, organizational LGBT competency, employee benefits and public commitment to corporate citizenship. This index only gave 13 companies top marks in its first survey in 2002—a far cry from the 189 companies receiving top marks in last year’s survey.  

As support continues to grow, widespread legalization of gay marriage seems inevitable in the United States. Public opinion polls reflect this growth in support: recent studies by the Paul Simon Public Policy Institute reported a 10 percent gain in support in Illinois in just the past two years. Furthermore, a USA Today poll taken in November shows national support at 53 percent, which is up 13 percentage points from 2009.

Boy Scouts of America to end ban on Gays?

Boy Scouts of America to end ban on Gays?


The Boy Scouts of America may end its longstanding policy of banning homosexual scouts and scout leaders, the organization said in a press release on Monday.

The proposed policy would effectively eliminate the ban on fays from the association’s national charter, subsequently allowing local chapters to decide on the inclusion of gay scouts and scout leaders for themselves.

“Boy Scouts of America is discussing to potentially remove the national membership restriction regarding sexual orientation,” said Deron Smith, a spokesman for the association. The proposed rule change would mean that the association would no longer operate under any national policy concerning sexual orientation. The decision on including gay participation would be overseen and delivered by individual chartered organizations.

The century-old Dallas-based organization represents 290 local charters and in excess of 116,000 local organizations, with a total membership of 2.6 million youth members.

The rule change would allow parents to then decide a local unit which best fits the needs of their families. The policy alteration would allow the civic, religious or educational organizations that deliver and oversee scouting to determine how to address the issue of gay membership.

The new policy, which could be decided-on as early as next week, would represent a public reversal of policy for an organization that recently rejected cries for change. In 2012, following internal investigations on the inclusion of homosexual membership, the association’s executive board issued a statement affirming the ban, claiming it was in the organization’s best interest. This decision ultimately forced the resignation of gay scout leaders and the denial of an Eagle Award to a California high-school senior who had recently come out to his family and friends. The decision also prompted a response from the White House, which said President Barack Obama strongly opposed the association’s ban on gay inclusion.  

The statement issued by the White House said that President Obama “opposes discrimination in all forms and as such opposes this policy that discriminates on the basis of sexual orientation.”

According to various media outlets, some of the association’s board members urged the Boy Scouts of America. This sentiment came swiftly after some sponsoring organizations withdrew financial support of the group solely because of the ban.

In response to the ban, change.org petitions opposing the exclusion have collected over 1.2 million signatures and according to various media outlets, at least 350 Eagle Scouts returned their pins in protest of the stance. 

Rhode Island—the Next Frontier for Gay Rights?

Rhode Island—the Next Frontier for Gay Rights?


As marriage equality signs and posters lined the park fences at the 2012 Providence Pride Festival, many supporters for gay marriage rights grew confident that the passing of a marriage equality referendum would come soon.

Rhode Island—the only state in New England that has yet to legalize same-sex marriage—is seemingly on its way to passing a referendum that would make marriage possible for all. On January 24th of this year, the Rhode Island House of Representatives passed legislation to legalize same-sex marriage in an overwhelming tally of 51 to 19.

Hopes for passing the referendum are bolstered by Gordon Fox, the democratic speaker for the house, who happens to be gay. Moreover, Lincoln Chafee, the independent Governor of the state, is also a strong supporter of gay rights. The dominoes are surely in place, but the passage is seemingly far from affirmation.

Dissimilar to New York, where democrats tirelessly worked for months to fight-off Republican push-back, proponents in Rhode Island must urge the Democratic Party to continue its momentum with the bill.

The biggest problem Rhode Island faces is simple: Teresa Paiva-Weed, the President of the State Senate, Michel McCaffrey, the Chairman of the Senate Judiciary Committee, and Dominick Ruggerio, the Chairman of the Senate Judiciary Committee, are all Democrats who oppose gay marriage.

Paiva-Weed recently appeared on a local news program following the passing of the bill in the house and promised, “A fair debate in the Senate.” So, although the bill is stuck in an odd state of flux, the fact that leading opponents are open for debate is a step forward for supporters, who were stymied in the past by the Senate’s refusal to negotiate or even consider legalization.

Another issue complicating the state’s gay marriage campaign is the looming prospect of Supreme Court involvement. The prospective ruling will involve California’s Proposition 8, which may apply only narrowly to California, but may also end with a broader decision that would affect other state marriage laws. If the court rules that the 14th Amendment prohibits the state of California from defining marriage as a union between a man and woman, then other state laws would be at significant risk.

Rhode Island supporters of the legislation are emphasizing the financial impact of gay marriage and the added effect of standing alone in the region—the lack of gay marriage laws in Rhode Island puts the state at a regional competitive disadvantage.

The bulk of Democratic opposition comes from devout Catholics like McCaffrey and Paiva-Weed. Catholics have exhibited a particularly strong political influence in the state of Rhode Island for generations; however, gay marriage is a matter that seems to carry transcendent evolutionary features.

Paiva-Weed claims that it could take months for the Senate to address the issue, but the inner-debate among the opposition is a constant struggle. 

49ers Football Player Takes Aggressive Stance towards Gay Men

49ers Football Player Takes Aggressive Stance towards Gay Men

San Francisco 49ers cornerback Chris Culliver made inflammatory comments concerning gays in professional football just a few days prior to the biggest game of his life.

Shock jock and former Howard Stern sidekick, Artie Lange, revealed he had interviewed Culliver at media on Tuesday and aired a segment of the talk on his show that night. The clip reveals Culliver taking a strong stance towards gays in the NFL, going as far as saying they are not welcome.

“I don’t do the gay guys man,” said Culliver, whose San Francisco 49ers play the Baltimore Ravens on Sunday “No, we don’t got no gay people on the team, they gotta get up out of here if we do. That sweet stuff can’t be in our locker room man.”

When asked by Lange whether any homosexual athletes would need to conceal their sexuality in football, Culliver stated: “Yeah, come out 10 years after they done playing.”

In the NFL’s storied history, there has never been an openly homosexual active player. That said, the premise of gay football players has recently grabbed the national spotlight as the Manti Te’o girlfriend hoax saga was played-out on every national TV media outlet. Moreover, Baltimore Ravens linebacker Brendon Ayanbadejo is an outspoken supporter of equality for the gay community, going as far as using the reach of the Super Bowl to bring the issue further into the spotlight.

Because the sport is driven by testosterone, the sentiments expressed by Culliver are from novel. Few NFL players have even spoken on the issue of possible gay teammates. The situation is simply unspoken and judging by the few public comments offered by current and former players, this trend is here for the d discernible future.

Update: San Francisco 49ers cornerback Chris Culliver apologized Wednesday night for the aforementioned comments towards the gay community.

Culliver told reporters, “The derogatory comments I made yesterday were a reflection of thoughts in my head, but they are not how I feel. Those discriminating feelings are truly not in my heart and I apologize to those who I have hurt and offended. I pledge to learn and grow from this experience.

The insensitive comments Culliver made have sent shockwaves through San Francisco’s accepting community. The San Francisco 49ers participate in the NFL’s “It Gets Better” campaign—an initiative to educate the dangers of bullying and the mistreatment of the homosexual community.

North Dakota Woman Wins $3.35M in Vaginal Mesh Lawsuit

 North Dakota Woman Wins $3.35M in Vaginal Mesh Lawsuit

Johnson & Johnson, manufacturers of a Gyncare Prolift vaginal mesh that is said to have had significant side effects for large numbers of women, have been ordered to pay $3.35M to a woman who was so badly hurt by the mesh that she required 18 total surgeries.

In spite of having had a large number of surgeries to remove the mesh and repair the damage that it caused, constant pain in the plaintiff's pelvic region made it impossible for her to return to work.  The plaintiff in the case alleges that she was not told by anyone that the mesh could potentially cause significant and disabling side effects.

What's more, according to the plaintiff's attorneys, the transvaginal mesh implants that have caused so many problems for the plaintiff and women like her were not actually more effective statistically than non mesh alternatives.

Generally, vaginal mesh implants have been implanted to reduce complications from POP, or pelvic organ prolapse.  This occurs when weak muscles in the pelvic region allow the uterus and vagina to move downward with gravity and out of the positions that they belong in.  The condition can be very painful and debilitating, as well as embarrassing, causing incontinence and sensitivity as well as vulnerability to infection.

However, meshes have had significant side effects that have sometimes been worse than the pelvic organ prolapse condition they were designed to treat.  In fact, some women have had pain and bleeding associated with their mesh implants, or even increased incontinence.

Johnson & Johnson took the Gynecare implant off the market in 2008, but by then, thousands of women had already had the implant.  In total, over 300,000 women have had mesh implants surgically implanted to decrease the symptoms of POP.

The permanent nerve damage and scarring caused by the Gynecare implant and other transvaginal mesh implants has made these cases a favorite among personal injury attorneys.  The most recent verdict in New Jersey is just the latest in a series of damaging verdicts against major medical device manufacturers.

The FDA has warned several manufacturers of transvaginal mesh implants to take their devices off the market, and several, like Johnson & Johnson, have complied.  The $3.35 million verdict is only the total compensatory damages for the plaintiff.

Earlier this week, the judge in Atlantic City said that she wold also hear arguments for punitive damages against Johnson & Johnson.  This is in part because the company waited 9 months after being told that their product was deficient in several ways before withdrawing it from the market.

Source: www.judiciary.state.nj.us

UPS Driver Wins Six Figure Sex Discrimination Suit

 UPS Driver Wins Six Figure Sex Discrimination Suit

Jurors hugged an Odessa, Texas woman who had been subjected to extensive sex discrimination in her job as a UPS driver after delivering a $600,000 verdict in her favor.  Plaintiff Amber Ibarra was awarded $300,000 in compensatory damages and $300,000 in punitive damages after United Parcel Service failed to prevent sex discrimination in the workplace.

Ibarra's lawsuit under Title VII of the Civil Rights Act of 1964 began after she was fired from her position in 2009.  While the firing occurred after an accident in which Ibarra's vehicle collided with a pole, Ibarra contended that other drivers had actually had more serious accidents without having been fired or otherwise seriously disciplined.  Jurors agreed with this assessment when awarding the verdict in the case.

Since becoming employed by the Fort Stockton UPS facility in 1996 as the facility's only full-time female driver, Ibarra says she was subjected to an atmosphere that was consistently hostile toward women.  For example, one of Ibarra's supervisors made lewd and suggestive comments to Ibarra repeatedly, as well as calling her names.

In 2008, Ibarra and two other female employees made an official complaint against the supervisor who had made their workplace a hostile work environment.  While the supervisor was fired as a result of the UPS investigation, Ibarra claims that the treatment that caused the complaint continued, just with other managers instead.  Managers made crude comments about women's inability to work, including comments that they were unable to perform job duties because of their menstrual periods.

Ibarra says that as a result of her complaint, UPS tried to make her workload significantly more than the loads of male drivers.  When Ibarra became pregnant, one of the male managers remarked that he had been saving some packages for her.  She found that six 100 pound packages had been set aside for her to deliver extremely late at night.  Soon after, she was fired for an accident that she said would never have led to a male driver being fired.

Ibarra says that supervisors at UPS routinely made fun of women in the workplace and said that they preferred not to work around women, claiming that women were inherently weaker and less able to perform their job functions.  Title VII of the Civil Rights Act prohibits discrimination on the basis of sex, and when this discrimination is willful, employers can be subject to civil penalties and significant punitive damages.

Source: uscourts.gov