Tag Archives: LGBT

Disability Rights Take Center Stage at Democratic Convention

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Demi Lovato at the DNCFormer Sen.Tom Harkin, D-Iowa, called for the elimination of the subminimum wage for certain disabled workers Tuesday afternoon at the Democratic National Convention. Harkin’s remarks followed two speeches about coping with disabilities on Monday night by disability advocate Anastasia Somoza and recording artist Demi Lovato as Democrats chose to highlight the 26th anniversary of the Americans with Disability Act.

The ADA isn’t normally a hot topic of discussion during political campaigns, but that law, state disability discrimination laws and other related laws will surely be affected by the fall’s federal and state elections. The presidential race will garner the most media attention. The presidential race is important because agencies like the U.S. Department of Labor and commissions like the Equal Employment Opportunity Commission will affect how the ADA is interpreted and enforced. Federal judicial appointments also impact how the ADA and parallel state laws are interpreted.

But disability discrimination laws are also affected by congressional and state races. Here are at four points to keep in mind when thinking about disability discrimination laws during this campaign season:

1. Disability rights have traditionally been a bipartisan issue. Both the Americans with Disabilities Act and the ADA Amendments Act of 2008 were passed by a Democratic Congress and signed by Republican presidents. A reader could assume that because of toxic partisanship that little progress will be made on disability rights, but that you could also infer that disability rights are so important that they could transcend partisanship even in a toxic political environment. This more optimistic view is bolstered by a study done by the Census Bureau, showing one in five Americans has a disability, so there is strong potential support for laws that help that the disabled.

2. Disability discrimination laws are a budget issue. In his speech, Sen. Harkin pointed out that 70 percent of disabled Americans are not working.Part of the reason that Republicans support disability anti-discrimination laws is that they help people maintain employment. Furthermore, the public accommodation sections of the ADA allow for disabled people to access employment through accessing transportation. The expansion of the Social Security Disability Insurance program has been a controversial issue. This increase in SSDI applications has partially been driven by the decline of workers’ compensation protections (see below). However, the purpose of the ADA was undercut in the 1990s and 2000s by the federal judiciary, which necessitated the ADAAA of 2008. It would be reasonable to assume that this misinterpretation of the ADA also helped drive the increase of SSDI applications.

3. Disability discrimination laws impact workers’ compensation laws. The Labor Department has indicated that 80 percent of the costs of work injuries are born either by government programs, private insurance or by taxpayers. In part, this is the result of a bipartisan and sustained attack on workers’ compensation laws in many state legislatures. One benefit that is routinely stripped or attacked is vocational rehabilitation, which allows workers to be retrained if they are unable to do their jobs.

In many workers’ compensation cases, a worker’s injury will give protections to that person under the ADA. This often means state workers’ compensation courts can decide questions of whether an employer could accommodate an injury and/or what duty the employer would have to reassign or retrain an injured worker who would be covered under the ADA. Recently, the 7th Circuit Court of Appeals held that employers have an affirmative duty to reassign disabled workers. It’s still an open question whether that law would obligate an employer to reassign an injured employee under a vocational rehabilitation program. But seeing that the ADA and workers’ compensation statutes have the same general beneficial purpose of allowing disabled people to maintain employment, such case law could be persuasive.

4. The ADA may affect state disability discrimination laws. States have their own laws prohibiting disability discrimination. States like Nebraska have laws that are more expansive than the ADA when it comes to pregnancy, but provide fewer protections to disabled workers in general. In Marshall v. Eyecare Specialties, the Nebraska Supreme Court held that since Nebraska did not amend its disability discrimination statute like the ADA was amended in 2008, that Nebraska courts should be applying pre-2008 decisions interpreting the ADA to Nebraska’s anti-discrimination laws. State courts generally look to how federal courts interpret discrimination laws when they interpret state fair-employment laws, so federal elections can affect how state laws are interpreted. But state legislatures can enact laws that offer more protections than federal laws. This is the case when it comes to extending fair employment protections to the LGBT community and is increasingly true as more states are starting to view pregnancy like a disability that needs to be accommodated.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in Disability, discrimination, employment law and tagged , , , , , , .

How Gays and Lesbians Can Protect Their Civil Rights in the Workplace, Part 1

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The recent Supreme Court decision legalizing same-sex marriage marks a major expansion of civil rights in this country. The decision will also give some additional legal protections to gay, lesbian and transgender individuals in the workplace. In the wake of the decision, the Equal Employment Opportunity Commission ruled that sexual orientation is covered by federal anti-discrimination laws. So what do these developments mean, and how can gay and lesbian individuals protect their newly won civil rights?

What does the EEOC ruling mean to gays and lesbians in the workplace?

The EEOC ruling means that the EEOC will investigate charges of sexual-orientation discrimination. This is important because filing a charge with the EEOC or a fair-employment agency is a requirement for filing a lawsuit. To file with the EEOC, an employee must file within 180 days of the last act of discrimination. They may have longer if a state or local law recognizes that type of discrimination and has a longer time for filing. In a state like Nebraska, where sexual orientation isn’t recognized by our anti-discrimination laws, it is a much safer route to file with the EEOC within 180 days. Check with your state or local equal-opportunity commission to see if they will also file your charge with the EEOC, even if they don’t recognize sexual orientation as a class. Again, beware of deadlines. Nebraska normally allows 300 days for a charge of discrimination, but it is safer to assume you only have 180 days to file a charge based on sexual orientation. Remember that filing a charge means that an investigator has written out your charge and that you have signed and notarized the charge. This takes time, so if you want to file a discrimination charge, you need to move quickly.

What does the same-sex marriage decision mean for gays and lesbians in the workplace?

The decision should grant anti-discrimination protections in the workplace to gays and lesbians in same-sex marriages based on the family status under Title VII and likely under similar state and local laws. The decision doesn’t change the fact that many federal courts hold that discrimination against gay, lesbian and transgender individuals is a form of unlawful sex discrimination. If your sexual-orientation discrimination decision involves your marital status, be sure to add that into your charge. If you are past the 180-day EEOC deadline, you may be able to still meet a longer state deadline. The same could also be said of filing a sexual-orientation discrimination complaint as a sex- or gender-discrimination complaint.

What the Supreme Court and EEOC decisions don’t mean

Ultimately gays, lesbians and transgender individuals will only get the full protections of anti-discrimination laws in the workplace when either courts and or legislative bodies explicitly expand those protections to them. The Obergefell decision didn’t do that. The EEOC doesn’t make law, and its interpretations of the law aren’t binding like those of a court decision. Furthermore, federal courts are giving increasingly less deference to the opinions of agencies like the EEOC and increasingly willing to second guess how the EEOC operates. Unless you live in the District of Columbia or one of the 22 states, such as Iowa, or a city such as Omaha that prohibit sexual orientation discrimination in the workplace, then your road to the courthouse in a discrimination claim is unclear. However, in states like Nebraska that don’t explicitly ban sexual-orientation discrimination under state law, the road to workplace justice for gays and lesbians has gotten easier in the last few weeks.

In addition, the Equality Act was recently introduced in Congress. “The law, whose language was provided to the Advocate, would amend the 1964 Civil Rights Act and other federal law to protect LGBT people from discrimination in employment, housing, public accommodations and other arenas,” according to an article in Politico.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in employment law, United States Supreme Court and tagged , , , , .

Overturning DOMA Will Increase LGBT Rights in the Workplace

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The impact of the U.S. Supreme Court decision overturning the Defense of Marriage Act will be felt in the workplace.

First of all, overturning DOMA will expand anti-discrimination protections and partner benefits to lesbian, gay, bisexual and transgender employees who are employed by the federal government.

Overturning DOMA will also probably benefit LGBT employees not working for the federal government. One argument is that banning LGBT discrimination in federal employment will ease acceptance of extending anti-discrimination protections to lesbian, gay, bisexual and transgender workers in the workforce as a whole. Legislation has been introduced that would explicitly extend protections of federal and state fair-employment statutes to LGBT workers.

From a political point of view, explicitly extending fair-employment statutes to cover LGBT workers probably won’t be feasible until at least 2015, depending on the outcome of the 2014 elections. Politicians in “red states” in both parties may be wary of conservative backlash if they support extending fair-employment practices. That same reticence will probably be displayed by Senate Majority Leader Harry Reid who needs to Democrats to win in several conservative states in order to hold on to the majority.

But the recent decision overturning DOMA may further open the door to judicially expanding employment statutes to lesbian, gay, bisexual and transgender employees. Justice Anthony Kennedy and the liberal bloc struck down DOMA on Fifth/14th Amendment equal-protection grounds. If states can’t discriminate against gays in marriage on equal-protection grounds, it doesn’t make logical sense that the Fifth/14th Amendment allows employment discrimination against LGBT workers.

It is arguable that LGBT people already have the protections of our fair-employment laws under the theory of sex-plus discrimination that prohibits discrimination based on sexual stereotypes. In Smith v. City of Salem, Ohio, the Sixth Circuit Court of Appeals extended protections under the sex-plus theory to a male firefighter who started identifying as a woman. In Lewis v. Heartland Inns of America, the conservative Eighth Circuit Court of Appeals upheld a finding of possible finding of sex discrimination for a woman who was described by her boss as having “an Ellen DeGeneres kind of look.” Though the Eighth Circuit didn’t make any reference to sexual orientation in the decision, it is obvious that “Ellen DeGeneres” is a code word for “lesbian.” It makes sense to me that opposite-sex attraction is a stereotype for each gender and that discrimination against LGBT people should be covered under the theory of sex-plus discrimination. I think courts will be increasingly be forced to rule that way in the wake of the decision on DOMA stating that discrimination against gays and lesbians runs afoul of the Fifth/14th Amendments. Another possible factor working in favor of expanding fair-employment protections to LGBT workers are recent Supreme Court decisions interpreting federal fair-employment law favorably for employers. It’s easy to conceive of a moderately conservative judge in the mode of Justice Kennedy judicially extending fair-employment law to gays and lesbians with the understanding that it will likely be more difficult employees to win fair-employment suits.

Until Congress and/or our state legislatures act, LGBT employees are not guaranteed equal rights at work. But thanks to the decision overturning DOMA, I think courts will be more open to extending workplace rights to the LGBT community, regardless of what is done in the legislative branch.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in Supreme Court, Unfair employment practices, Workers' Compensation and tagged , , , , , , , .