Author: Barry Roseman

Insane or “Merely” Deceitful?

For the record, my Quote of the Day today is meant to be ironic.  Apparently Dr. Ben Carson doesn’t know or doesn’t care about the difference between working “even harder for less” and chattel slavery.

Also, today’s post is a rant that has nothing to do with employment law.

Last Saturday morning, Pres. Trump sent out six tweets in which he made this extraordinary and totally unsubstantiated claim: “Terrible! Just found out that Obama had my ‘wires tapped’ in Trump Tower just before the victory. Nothing found. This is McCarthyism!”  He then claimed that Pres. Obama had been “turned down by court earlier.”  He asserted that Pres. Obama was “bad (or sick).”

FBI Director James Comey asked the Department of Justice to publicly refute that claim. James Clapper, the Director of National Intelligence between 2010 and January 2017, flatly denied that the FBI received any court order for any such wiretapping.  A spokesman for Pres. Obama called the accusation “simply false.”

More than 48 hours later, the White House still has not provided any support for this wiretapping claim.  Sarah Huckabee Sanders, daughter of former Arkansas Gov. Mike Huckabee, engaged in a bizarre semantic dance on Sunday morning talk shows.  To take one example, she refused to say whether in fact Pres. Obama ever wiretapped Donald J. Trump, either before or after the Presidential election on Nov. 8, 2016.  Instead, she said that “there certainly could have been” wiretapping” and that “it sounds like there’s something that we should look into and verify.”  Yesterday, the White House called for a Congressional investigation to determine whether this alleged wiretapping ever took place.

Let us not mince words here.  This wiretapping accusation is insane.  Pres. Trump and his allies have not presented a shred of evidence to support it.  They have not explained why Pres. Trump has not even asked Mr. Comey, his attorney general, Jeffrey Sessions, or any other Executive Branch official to verify whether a bug was placed in Mr. Trump’s New York offices or on any of his telephone lines.  He has not explained why he did not ask whether any other Executive Branch official whether there was any eavesdropping or wiretap order.  He has not explained why he made an extremely serious accusation — one he claimed to be a “Nixon/Watergate” plot — without any evidence to support it.

Notwithstanding that absence of any evidence, it appears that Pres. Trump believes that Pres. Obama surveilled him electronically.  That raises another question, one which has arisen before.  That question is whether the President of the United States is clinically insane.  He has made similar, unsubstantiated and demonstrably false claims before.  Among other things, he grossly exaggerated the number of spectators during his inaugural address.  He claimed he received more Electoral College votes of any President since Ronald Reagan, when the opposite is true.  He has made so many false statements that it’s difficult to count them all.

It is possible, as some have written, that Mr. Trump is using these false statements for strategic reasons.  I cannot rule out that possibility.  However, it is also possible, if not probable, that Mr. Trump believes that these statements are true, even though those statements are, to use a delicate phrase, “detached from reality.”

A person who is detached from reality is usually delusional.  Such a person will latch onto conspiracy theories to explain his or her understanding of reality, rather than to determine what actually is true.  That description fits Mr. Trump to a “T,” to use a bad pun.  It appears to be the way he views the world.  That would not be a problem were it not for the obvious fact that he is the President of the United States.  He has the power to destroy human civilization.  And he does not know the difference between his fevered imagination and the real world.

There is a way to end this nightmare.  If enough Republicans in Congress were willing to stand up to the President, if they were willing to force him to resign and were willing to impeach him if he were to refuse, we might be able to avoid disasters, up to and including nuclear annihilation, that could result because Pres. Trump does not recognize the difference between truth and reality.

Unfortunately, the President’s enablers in Congress will not try to remove Mr. Trump from office.  But that is another story for another day.

Quote of the Day, March 6, 2017

     “That’s what America is about. A land of dreams and opportunity. There were other immigrants who came here in the bottom of slave ships, worked even longer, even harder for less. But they too had a dream that one day their sons, daughters, grandsons, granddaughters, great grandsons, great granddaughters might pursue prosperity and happiness in this land.”
— Benjamin Solomon “Ben” Carson Sr., M.D., Secretary of Housing and Urban Development, March 6, 2017

Transgender Rights and Trump

Yesterday the Trump Administration announced that it was withdrawing a “Dear Colleague” letter, prepared by the Department of Justice’s Civil Rights Division and the Department of Education’s Office of Civil Rights (“OCR”) on May 13, 2016.  That letter informed educators that Title IX of the Education Amendments of 1972 requires schools receiving federal funds to provide transgender students access to restrooms that match their gender identity, not their gender at birth.

At least that is what I think the Trump Administration did.  For some reason, information about that decision does not appear on the White House Web site.

It does not appear that the Trump Administration has changed any of the Department of Education’s previous pronouncements about the application of Title IX to transgender students.  That includes the OCR’s 2014 Questions and Answers on Title IX and Sexual Violence, which specifically covers transgender students; or its opinion letter of January 7, 2015, which states that when a “school elects to separate or treat students differently on the basis of sex” with respect to sex-segregated restrooms, locker rooms, shower facilities, housing, athletic teams or single-sex classes, “a school generally must treat transgender students consistent with their gender identity.”

The news reports about yesterday’s announcement states that the Administration wants these issues to be handled by the states.  That statement is bizarre.  We are talking about the interpretation of a federal statute.  Any lawyer knows that only the federal courts can authoritatively interpret federal statutes.  Not state governments or state courts.

The federal courts have long held that discrimination against transgender people can constitute sex discrimination.  Those cases are based on the Supreme Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), which holds that an employer commits sex discrimination by taking an adverse action against an employee based on a sexual stereotype.  In that case, the stereotype concerned how aggressively women could, or should, behave in the workplace.  But stereotypes can also include the way that an employee who was assigned a particular gender at birth looks or acts.

Gender stereotyping of transgender persons can violate the Gender Motivated Violence Act, Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000); the Equal Credit Opportunity Act, Rosa v. Park West Bank & Trust Co., 214 F.3d 213 (1st Cir. 2000); Title VII of the Civil Rights Act of 1964, Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004); and the Equal Protection Clause of the Fourteenth Amendment, Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011) (sex discrimination).

Two federal appellate courts have issued rulings on transgender rights under Title IX.  One case, G.G. v. Gloucester Cnty. Sch. Bd., 822 F.3d 709 (4th Cir. 2016), granted deference to the OCR’s opinion letter of Jan. 7, 2015, in deciding that the lower court had used the wrong evidentiary standard in assessing a transgender student’s motion for a preliminary injunction.  Another court, in Dodds v. United States Dept. of Educ., 845 F.3d 217 (6th Cir. 2016), affirmed a lower court’s denial of a stay of a preliminary injunction, in which that court ordered a school district to treat an 11-year-old transgender girl as a girl and to use the girls’ bathroom.

The G.G. case will be heard by the Supreme Court.  Oral arguments are scheduled for March 28.  If the court doesn’t deadlock on a 4-4 vote, that case could provide definitive guidance as to how Title IX should be interpreted.

The Trump Administration’s announcement yesterday appears to be a gift to the religious right, which helped get Mr. Trump elected.  To the extent that it was based on the view that Title IX does not protect transgender students, the Administration has failed to explain whether it also feels that violence against such students violates Title IX, or why the legal principles adopted for other statutes do not apply to Title IX.  Nor did the Administration explain why it believes that forcing children to use a bathroom that does not match their gender identity in any way advances any legitimate educational purpose, or explain how it plans to address the staggeringly high suicide rates among transgender teenagers.

Perhaps the Administration has a good reason for this action.  If so, it should explain it.  And it should explain what it will do to protect the safety and well-being of students, not the prejudices of non-students.

Quote of the Day, Feb. 23, 2017

” One of the best answers I heard was from a commentator yesterday, saying, ‘Leave it the way it is right now.’ There have been very few problems. Leave it the way it is. People go, they use the bathroom that they feel is appropriate. There has been so little trouble.”
— Donald J. Trump, April 21, 2016, discussing transgender rights

Musings on Employment at Will (Part 1)

This is the first post in what I expect to be an occasional series on the doctrine of employment at will.  At this point in time, I have no idea how many posts I may write on this subject.

Employment at will is the most important concept in employment law that most people do not understand.  Most lawyers in the U.S. are familiar with the concept.  Some laypeople have a general idea that their state (if it’s not Montana) is an “employment at will” state.  But they often do not know what that means, and almost certainly do not know how this legal doctrine originated.

Many laypeople in the U.S. do not understand that they are employed at will.  They believe that their employers must have a good reason to fire them.  If they were employed in almost any other country, that belief would be accurate.  The United States is one of the few countries in the world in which an employer can fire an employee without having to have a reason for that decision.

What is employment at will?  I like to define it as the legal presumption that a person who is employed for an indefinite period of time can be fired for a good reason, a bad reason or no reason at all, as long as it’s not an unlawful reason.

There are several situations in which this legal doctrine does not apply:

  1. Persons who have a contract for employment for a specific term, or length of time.  Not surprisingly in 21st century America, there is a class divide between the few who have such contracts and those who do not.  Highly compensated executives, professional athletes and media employees (e.g., television news anchors) often have such contracts, given their market power.  Such contracts are rare outside those employee groups.
  2. Employees who are covered by a collective bargaining agreement — a contract between a labor union and an employer — generally can be fired only for a good reason.
  3. Public employees often can be fired only for cause.  That generally applies only after the employee has satisfactorily completed a probationary period of employment.  And some government employers, usually local governments, maintain employment at will policies.

Outside those situations, employment at will is the default rule in the United States.  Plaintiffs’ lawyers try to identify claims that could provide relief for their clients.  The most common are statutory claims, such as those based on anti-discrimination laws; contract claims; and tort claims, such as fraud or wrongful discharge.  But employment at will is the background to all of those claims.  It is what many judges feel to be the state of nature, the way they understand the world of employment works.

In reality, employment at will arose from obscure origins, is justified by questionable assumptions, and often leads to unjust results.  Many people in the U.S. accept it because they too believe that that is how the world works.  The fact that employment at will can be used to facilitate sexual harassment, or to punish whistleblowers, or to prevent unionization is viewed as an unfortunate by-product of a rule they believe to be universal.

In fact, that is not how most of the world works. But that will require more posts to explain.

Pregnancy Accommodations

Last week, I wrote a blog post about a new statute, enacted in 2016, which requires Colorado employers to allow employees and ex-employees to inspect and obtain copies of documents in their personnel files.  In this post, I will discuss another 2016 Colorado statute.

That statue, which added a new sec. 24-34-402.3 to the Colorado Anti-Discrimination Act (“CADA“), requires all Colorado employers to provide reasonable accommodations for health conditions related to pregnancy or the physical recovery from childbirth.  It also provides:

  • Any accommodation must be requested in writing.
  • An accommodation cannot impose an undue hardship on the employer. The courts could and should use the definition of “undue hardship” adopted under CADA and the federal Americans with Disabilities Act (“ADA”).
  • An employer cannot take an adverse employment action, or deny employment opportunities, to an employee who has requested a reasonable accommodation or based on the need to make a reasonable accommodation.
  • An employer cannot require an employee to accept an accommodation that the employee has not requested or that is not necessary for the employee to perform the essential functions of the job.
  • An employer cannot require that the employee take leave if the employer can make another reasonable accommodation.

The definitions make it clear that this new statute uses retaliation and ADA concepts.  The definition of “adverse action” is based on the “materially adverse” concept that the Supreme Court has applied to retaliation cases. The definition of “reasonable accommodation” is also broad, and specifically includes “more frequent or longer break periods” and “more frequent restroom, food, and water breaks.”  The term “undue hardship” is defined to mean “significant difficulty or expense to the employer.”  That definition includes factors that may be considered in determining whether an accommodation would impose an undue hardship.

An employer cannot be required to do any of the following:

  • Hire new employees that the employer otherwise would not have hired;
  • Discharge an employee, transfer an employee who has less seniority, or promote an unqualified employee;
  • Create a new position, including a light-duty position, “unless a light duty position would be provided for another equivalent employee”; or
  • Provide paid leave beyond that which is provided to similar situated employees.

This new statute is far from perfect.  It includes many compromises that were necessary to get it passed.  Still, it represents a major legal advance for pregnant employees in Colorado.  It requires employers to provide accommodations, including leave time, that frequently have been denied to pregnant employees.  While it is not certain that the courts will interpret this statute correctly, its enactment should make it easier for pregnant employee and new mothers to continue to work.  In short, it made Colorado a more family-friendly state, without imposing significant hardships on employers.



Quote of the Day, Feb. 17, 2017

Q    “We have no doubt that your latest story is (inaudible).  But for those who believe that there is something to it, is there anything that you have learned over these last few weeks that you might be able to reveal that might ease their concerns that this isn’t fake news?  And secondly — ”

THE PRESIDENT:  “I think they don’t believe it.  I don’t think the public would.  That’s why the Rasmussen poll just has me through the roof.  I don’t think they believe it.  Well, I guess one of the reasons I’m here today is to tell you the whole Russian thing — that’s a ruse.  That’s a ruse.  And, by the way, it would be great if we could get along with Russia, just so you understand that.  Now, tomorrow you’ll say, Donald Trump wants to get along with Russia, this is terrible.  It’s not terrible — it’s good.

“We had Hillary Clinton try and do a reset.  We had Hillary Clinton give Russia 20 percent of the uranium in our country.  You know what uranium is, right?  It’s this thing called nuclear weapons and other things.  Like, lots of things are done with uranium, including some bad things.  Nobody talks about that.  I didn’t do anything for Russia.  I’ve done nothing for Russia.  Hillary Clinton gave them 20 percent of our uranium.  Hillary Clinton did a reset, remember, with the stupid plastic button that made us all look like a bunch of jerks?  Here, take a look.  He looked at her like, what the hell is she doing with that cheap plastic button?  Hillary Clinton — that was a reset.  Remember?  It said ‘reset.’

“Now, if I do that, oh, I’m a bad guy.  If we could get along with Russia, that’s a positive thing.  We have a very talented man, Rex Tillerson, who is going to be meeting with them shortly.  And I told him, I said, I know politically it’s probably not good for me.  Hey, the greatest thing I could do is shoot that ship that’s 30 miles offshore right out of the water.  Everyone in this country is going to say, oh, it’s so great.  That’s not great.  That’s not great.  I would love to be able to get along with Russia.”
Press conference with Pres. Donald J. Trump, Feb. 17, 2017

Getting a Copy of Your Personnel File

One relatively recent change in Colorado employment law is a personnel file access law enacted by the Colorado General Assembly in 2016.  That law became effective on Jan. 1, 2017.

This law added a new section 8-2-129 to the Colorado Revised Statutes.  Some highlights of this new law are:

  • It covers most employees and employers in Colorado, OTHER THAN those covered by the Colorado Open Records Act.  That exemption covers public employees.  The new statute applies to all non-exempted private employers, regardless of the number of employees who work for an employer.
  • It does not cover any financial institution chartered and supervised under state or federal law, including banks, trust companies, savings institutions and credit unions.
  • Its definition of the term “personnel file” is broad.  That term includes all personnel records “that are used or have been used to determine the employee’s qualifications for employment, promotion, additional compensation, or employment termination or other disciplinary action.”  There are four exceptions:
    • Documents (such as medical or FLMA documents) that federal or state law requires to be kept in a separate file from the personnel file;
    • Documents or records pertaining to previous employers’ confidential reports;
    • An active criminal investigation, active disciplinary investigation by the employer, or active investigation by a regulatory agency; and
    • Any information that identifies any person who made a confidential accusation.
  • There are limits to requests to inspect and copy personnel files.  They are:
    • An employee or ex-employee can request copies of personnel files at least annually; except that an ex-employee can request inspection once, and presumably only once, after termination of employment.
    • The inspection and copying shall occur at the employer’s office.
    • The inspection must be at a time that is convenient to both the employee and employer.
    • The employer can require the inspection to occur in the presence of another person designated by the employer.
    • The employer may require the employee to pay the reasonable costs of duplication of documents.
  • The law does not require an employer to maintain personnel file or any particular documents in a personnel file.  However, those requirements might be imposed by other laws.
  • The law does not create a new cause of action — that is, a right to file a lawsuit to compel compliance or to seek damages for an employer’s failure to comply.

A request to inspect and copy a personnel file should be fairly easy to prepare. According to the statute, it does not have to be on a particular form or in any particular format.  However, nothing in this statute prohibits any employer from requiring that an employee use a particular form.  Inspection and copying should be a relatively simple, straightforward process.

An employer that fails to produce personnel documents under this statute could face judicial and/or jurors’ skepticism if it claims to have “discovered” missing documents later.  Specifically, a judge or jury would be free to conclude that these “recently discovered” documents are fakes, created after the fact to justify an earlier employment action.

Employees, ex-employees and their representatives should use this new statute routinely.  Employees’ lawyers know that it is better to discover a negative document before filing a lawsuit, rather than to learn about it after spending hundreds of hours and many thousands of dollars in litigation.  In some cases, learning what documents are in a person’s personnel file might cause that person not to file a lawsuit.  Early inspection can avoid nasty surprises later.

Colorado and about 19 other states have enacted personnel file access laws.  This new law will help shed a light on employment practices that, until now, too often have occurred in the dark.