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LEGAL IMMIGRANTS AND NATURALIZED U.S. CITIZENS – BEWARE!

 

The Trump administration is supposed to issue a proposal in coming weeks that may make it more difficult for legal immigrants to become citizens or secure permanent residence (green cards) if they have ever used a range of popular public welfare programs, including Obamacare.

This measure, which would not need Congressional approval, is part of White House senior adviser Stephen Miller’s plan to limit the number of individuals who obtain legal status in the U.S. each year.
The fine points of the rulemaking proposal are still being ironed out.

What we know, is that it could have serious repercussions on immigrants living legally in the U.S. who have ever used or whose household members have ever used Obamacare, children’s health insurance, food stamps and other public benefits. Immigration advocates and public health researchers state this could affect more than 20 million immigrants.

Note that currently, the government may reject immigrants if they are likely to become public charges or primarily dependent on the government. The last time Congress defined the term “public charge” was in 1999, when it excluded from the definition, access to services like health care and nutrition programs.

The Trump administration’s proposal would not make it illegal to use public benefits programs, but it would authorize government officials to deny applications for permanent residence or citizenship if anyone in the applicants’ households has been a recipient of public benefits.

This proposal targets legal immigrants and their families, and plays into stereotypes and biases about immigrants, how they are all on welfare, how they are a burden on the country, and that they play a system, when the research shows otherwise. Apparently, poor immigrants use public benefits at a lower rate than native born U.S. citizens, and they also pay more into Medicare and Social Security than they withdraw.

Forcing immigrants to choose between permanent residence/citizenship, and the well-being of their families is draconian. Children need proper nutrition, and adults and children need access to proper health care. Children who don’t obtain proper nutrition, will function less optimally in school, and children and adults forced to do without healthcare, can endanger those around them with communicable diseases.

Can you rest easy if you are already a naturalized U.S. citizen? Not quite. The Trump administration has announced a denaturalization initiative. The USCIS Director announced the hiring of attorneys to form a task force to review records of those who became U.S. citizens since 1990, in order to identify people who deliberately lied on their citizenship applications. The Director wants to get to the bottom of these cases and start denaturalizing individuals who in his words, should not have been naturalized in the first place.

The last time denaturalization was a priority was during McCarthyism when the Internal Security Act of 1950 added provisions that stripped away citizenship based on political and antigovernment beliefs.

The Office of the Inspector General (OIG) has recommended that the Department of Homeland Security establish a plan for evaluating the denaturalization eligibility of naturalized citizens whose fingerprint records reveal deportation orders under a different identity. It is reported that the USCIS is going beyond the OIG’s recommended parameters and referring thousands of cases to denaturalization.

Revocation cannot just take place ‘automatically.’ The law sets a high standard for denaturalization- for civil revocation of naturalization, the burden of proof is clear, convincing, and unequivocal evidence which does not leave the issue in doubt.

Still, by signaling that it will go beyond the parameters recommended by the OIG, the Trump administration is making it clear to all naturalized citizens that they are under review and they are vulnerable.

If you have any concerns for yourself, your family members, or friends, after reading this blog, it’s crucial to seek legal advice.

CANCELLATION OF REMOVAL FOR NON-PERMANENT RESIDENTS

 

Are you a person without immigration status, who has lived in the U.S. for ten years continuously?

Have you kept out of trouble with law enforcement? (This means you don’t have criminal convictions that could get you deported or not admitted again into the U.S.)

Are you a person of good moral character?

Do you have a U.S. citizen relative (spouse, child or parent) that would experience exceptional and extremely unusual hardship if you were deported or removed from the U.S.?

If you said yes to all of the above questions, you may be eligible for cancellation of removal pursuant to the Immigration and Nationality Act (INA).

Cancellation of removal is a form of relief from being deported or removed from the U.S. You may only apply for cancellation of removal if you have an open case in deportation or removal proceedings in Immigration Court. If you don’t have a scheduled appearance in Immigration Court, you can’t apply for cancellation of removal.

Let’s say you already appeared in Immigration Court and now your case is closed because you have a final order of removal or deportation from an Immigration Judge. You can’t apply for cancellation of removal unless you convince the Immigration Court to grant a motion to reopen your case.

Cancellation of removal is a discretionary form of relief. So even if you can show that you meet all eligibility requirements, the Immigration Court could still decide that you don’t deserve to be granted cancellation of removal.

Numerous cancellation of removal cases have been denied on the grounds that the applicant was unable to show that their deportation or removal would cause “exceptional and extremely unusual hardship” to the U.S. citizen relative.

If you are considering applying for cancellation of removal, schedule a consultation with an experienced immigration lawyer.

PERSONAL EVENTS MUST SOON BE ACCOMMODATED BY NEW YORK CITY EMPLOYERS

 

I had previously blogged that on December 6, 2017, The New York City Council passed the “Fair Workweek Law” which protects employees who seek temporary changes to work schedules for personal events. It went into effect on January 1, 2018. That law provides that New York City employees could request temporary schedule changes twice per calendar year, without retaliation, in certain situations, e.g., caregiver emergency, attendance at a legal proceeding involving subsistence benefits, or safe or sick time under the New York City administrative code. Procedures are established for employees to request temporary work schedule changes and employer responses. Not all employees are protected by the Fair Workweek Law. As of January 1, 2018, if the employees were covered by a collective bargaining agreement; or were employed for fewer than 120 days; or worked less than 80 hours in the city in a calendar year; or work in the theater, film, or television industries, then they could not avail themselves of the protections of Fair Workweek Law.

Come July 18, 2018, when an amendment to the Fair Workweek Law will take effect, all New York City employers with a few exceptions will be required to accommodate “personal events.” Also, New York City employers will be required to grant employees two temporary changes to their work schedule when those requests relate to (1) the need for a caregiver to provide care to a minor child or a care recipient; (2) an employee’s need to attend a legal proceeding or hearing for subsistence benefits to which the employee, a family member or the employee’s care recipient is a party; or (3) any reason that is permitted under the New York Earned Sick and Safe Time Act (ESTA). These three reasons are referred to as a “personal event.”

Employees may receive the temporary schedule change for up to one business day per request. An employer may accommodate an employee’s request for a schedule change through paid time off, working remotely, swapping or changing work hours, and using unpaid leave.

Retribution against employees availing themselves of the law’s protections is strictly prohibited.

It’s too soon to say what problems may arise in enforcing and implementing this law, since there are no agency decisions or court orders adjudicating disputes arising under this new law yet.

Stay tuned.

Asylum cases involving victims of domestic abuse and gang violence have become much more difficult

 

Matter of A-B- involves a case for asylum filed by a woman from El Salvador who entered the United States illegally in 2014. She alleged she was escaping from an ex-husband who had physically and emotionally abused her for years, even after she moved elsewhere in El Salvador. The woman alleged that her ex-husband had raped her and that his brother, a police officer, had threatened her.

In 2015, a Charlotte-based immigration judge denied the woman asylum. She appealed to the Board of Immigration Appeals (BIA). The BIA is an administrative branch of the United States Department of Justice. The BIA accepts appeals, of decisions made by immigration courts throughout the country, filed by either government attorneys or immigrants.

In 2016, the BIA overturned the immigration judge’s 2015 decision and ruled in her favor, saying it was clear that the Salvadoran government was unable to protect her even after she moved to another part of the country. The BIA found the denial of asylum was “clearly erroneous” on the grounds that A-B- had proven she was persecuted based on membership in a “particular social group”; specifically, “El Salvadoran women who are unable to leave their domestic relationships where they have children in common.” Her case was returned to the immigration judge who initially denied her asylum.

Jeff Sessions, as head of the Justice Department, which includes the immigration courts, intervened before A-B-’s asylum status was formally granted by the immigration judge that the BIA returned her case to.

Mr. Sessions’ intervention placed A-B-’s case in limbo. This intervention consisted of referring the BIA’s decision to himself. The practice of intervention gives a political appointee, and the head of a law enforcement agency, absolute power to overturn the decision of an independent and neutral tribunal of administrative judges. Mr. Sessions’ decision on June 11, 2018, vacates the BIA’s grant of asylum as “wrongly decided.” The decision states in relevant part:

“The mere fact that a country may have problems effectively policing certain crimes—such as domestic violence or gang violence—or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim.”

The ruling doesn’t flat-out say that an immigrant can’t be granted asylum on the basis of having faced domestic violence or gang violence in her home country. But it makes it clear that suffering either of those things — or having a credible fear that you might suffer them if you are forced to return to the home country- is not enough to count as persecution and allow you to stay in the United States.

“Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum,” Sessions declared. Immigration judges and asylum officers need to adjust the criteria of qualifying for asylum, because Sessions’ decision is now law.

The attorney general’s ruling said it is still possible that crime victims could win asylum in the United States, but they would have to pass a tougher test in the courts, including showing that their home government is unable or unwilling to protect them, and that they cannot safely relocate to another part of their country.

A.B.-‘s lawyers have stated in the media, they plan to challenge Sessions’ decision in federal court.

Stay tuned.

THE UNITED STATES SUPREME COURT UPHOLDS TRAVEL BAN 3.0

 

Last year, in this space, I blogged about the Trump administration’s Travel Ban 3.0 implemented on September 24, 2017. To recap, Travel Ban 3.0 involved Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen. The Travel Ban 3.0 had been partially blocked by two preliminary injunctions issued by the U.S. District Courts in Hawaii and Maryland, but those injunctions were lifted by the Supreme Court on December 4, 2017. The bars on North Korea and Venezuela were not included in either order, and have been continuously in effect. Since December 4, 2017, the government was fully enforcing Travel Ban 3.0 on all 8 countries while The Trump administration appealed the District Court orders.

On April 10, 2018, by presidential proclamation, Chad was removed from the list of countries subject to Travel Ban 3.0, because “Chad has made improvements and now sufficiently meets the baseline. . . ”

The Supreme Court of the United States agreed to review Travel Ban 3.0, and oral arguments before the Court were held on April 25, 2018.

On June 26, 2018, the U.S. Supreme Court in a 5-4 decision has held that President Donald Trump’s “Travel Ban 3.0,” can stand. Chief Justice John Roberts delivered the opinion for the Court, joined by Justices Anthony Kennedy, Clarence Thomas, Samuel Alito, and Neil Gorsuch. Justices Kennedy and Thomas also filed a concurring opinion. Two dissenting opinions were filed: one by Justices Stephen Breyer and Elena Kagan, and one by Justices Sonia Sotomayor and Ruth Bader Ginsburg. This resulted in a final vote of 5-4. The case is remanded to the U.S. Court of Appeals for the Ninth Circuit.

Writing for the majority, Chief Justice Roberts stated that President Trump had ample statutory authority to make national security judgments in the realm of immigration.

In her dissent, Justice Sotomayor argues that the decision was no better than Korematsu v. United States, the 1944 decision that endorsed the detention of Japanese-Americans during World War II. She praised the court for officially overturning Korematsu in its decision but by upholding the travel ban, Justice Sotomayor said, the court “merely replaces one gravely wrong decision with another.”

As of now, certain individuals from Yemen, Iran, Syria, Libya, North Korea, Somalia, and Venezuela will continue to be subject to the ban. Here are the restrictions that will continue to be upheld:

• Syria and North Korea: Entry as immigrants or nonimmigrants is suspended.

• Iran: Entry as immigrants and nonimmigrants is suspended, except for those in valid student (F and M) or exchange visitor (J) status (although these individuals should be subject to enhanced screening and vetting).

• Libya and Yemen: Entry as immigrants and nonimmigrants in business and tourist status is suspended.

• Somalia: Entry as immigrants is suspended and decisions regarding entry as nonimmigrants will be subject to additional scrutiny.

• Venezuela: Entry in tourist or business visitor status is suspended for officials of certain government agencies involved in screening and vetting practices and their immediate family members. Nationals of Venezuela who hold visas should be subject to additional measures to ensure traveler information remains current.

As of now, the restrictions contained in Travel Ban 3.0 will not be applied to:

• Refugees already admitted to the U.S.
• Individuals granted protection under the Convention Against Torture
• Individuals paroled or admitted to the U.S.
• Current lawful permanent residents (Green Card Holders)
• Current visa holders
• Dual nationals travelling on a passport from an unaffected country
• Those travelling on diplomatic or diplomatic-type visas
• Asylees

If one of the above exemptions does not apply, a Consular Officer should consider whether a waiver might be appropriate. There are no categorical or blanket waivers, but the ban itself provides some examples of when a waiver might be appropriate:

• Applicant is traveling as a U.S. government-sponsored exchange visitor.
• Applicant is traveling at the request of a U.S. governmental department or agency for law enforcement, foreign policy, or national security purposes.
• Applicant has previously been admitted for work, study, or other long-term activity and plans to continue that activity.
• Applicant previously established significant contacts with the U.S. for work, study, or other lawful activity.
• Applicant seeks to enter the U.S. for significant business or professional obligations and denial of entry would impair those obligations.
• Applicant seeks to enter the U.S. to visit or reside with a close family member (e.g., spouse, parent, or child).
• Applicant is an infant, young child, or adoptee, or an individual needing urgent medical care.
• Applicant has been employed by or on behalf of the U.S. government.
• Applicant is traveling for purposes related to an international organization under the International Organization Immunities Act (IOIA), travelling for purposes of conducting meetings or business with the U.S. government, or travelling to conduct business on behalf of an international organization not designated under the IOIA.
• Applicant is a Canadian permanent resident who applies for visa in Canada.

 

SEPARATING KIDS FROM THEIR PARENTS AT THE U.S. BORDERS- THE LATEST DEVELOPMENTS

If you have paid attention to the news with any regularity for the past four years, you are aware that hundreds of thousands of children and families have fled to the United States because of rampant violence and gang activity in Central America. The Central American refugee crisis developed during President Barack Obama’s administration and continues under President Trump’s administration. The two administrations have taken different approaches to address the problem. The Justice Department under President Obama prioritized the deportation of individuals who had committed felonies and were a threat to national security. In January 2017, President Trump, in contrast, issued an executive order which does not include a priority list for deportations, and refers only to “criminal offense,” which is broad enough to encompass felonies and misdemeanors.

 

In April 2018, Attorney General Jeff Sessions rolled out the zero tolerance policy. When families or individuals are apprehended by the Border Patrol, they’re taken into Department of Homeland Security (DHS) custody. Under the zero-tolerance policy, DHS officials refer any adult “believed to have committed any crime, including illegal entry,” to the Justice Department for prosecution. If they’re convicted, they’re usually sentenced to time served. The next step would be deportation proceedings.

 

Illegal entry is a misdemeanor for first-time offenders and a conviction is grounds for deportation. Because of President Trump’s executive order, DHS can deport people for misdemeanors more easily, because the government no longer prioritizes the removal of dangerous criminals, gang members or national-security threats.

 

This means that the Trump administration is splitting up children from their parents when families get apprehended because children go into a process in which they eventually get placed with sponsors in the country while their parents are prosecuted and potentially deported.

 

Though President Trump has said that U.S. laws or court rulings are forcing them to separate families that are caught trying to cross the southern border, these contentions are false. No law or court ruling mandates family separations. Immigrant families are being separated primarily because the Trump administration in April 2018 began to prosecute as many border-crossing offenses as possible. The Justice Department can’t prosecute children along with their parents, so the natural result of the zero-tolerance policy has been a sharp rise in family separations. Nearly 2,000 immigrant children were separated from parents during six weeks in April 2018 and May 2018.

 

The American Academy of Pediatrics Statement (AAP) issued a statement dated May 18, 2018, concerning the issue of separating children and parents. The statement contains quotes from Colleen Kraft, M.D., M.B.A., FAAP, a pediatrician for over thirty years, who has cared for thousands of children, including children pediatric engagement in school and child care for children with special health care needs:

“Separating children from their parents contradicts everything
we stand for as pediatricians – protecting and promoting children’s
health. In fact, highly stressful experiences, like family separation,
can cause irreparable harm, disrupting a child’s brain architecture
and affecting his or her short- and long-term health. This type of
prolonged exposure to serious stress – known as toxic stress –
can carry lifelong consequences for children.”

 

Protests took place around the country in an effort to spur the Trump administration to stop separating children from their parents. Republican senators, who have rarely crossed President Trump head-on, worked to defuse the growing crisis. “All of the members of the Republican conference support a plan that keeps families together,” Majority Leader Mitch McConnell, a Republican senator from Kentucky, said Tuesday, endorsing a plan to keep parents and children together while their cases are going through the court system. House Democrats, including Zoe Lofgren of San Jose and Jimmy Panetta from Monterey, introduced a “Keep Families Together Act” to end family separations at the border.

 

On June 20, 2018, President Trump, facing enormous political pressure, signed an Executive Order to end the separation of families at the border by detaining parents and children together for an indefinite period.

 

Did it resolve this serious humanitarian crisis? How does this impact the families who are already separated from their children? Will they be reunited? How? When?

 

For now, there are more questions than answers. Stay tuned for further developments.

THE NEW YORK CITY COUNCIL AND NEW YORK STATE LEGISLATURE PASS NEW LEGISLATION TO TARGET GENDER DISCRIMINATION AND SEXUAL HARASSMENT IN THE WORKPLACE

 

The #Metoo movement has spurred additional protections to be implemented by the legislatures of New York City—and New York State relating to gender discrimination and sexual harassment.

New York City

On April 11, 2018, the New York City Council passed key legislation pertaining to sexual harassment, which Mayor Bill de Blasio is expected to sign into law in the coming weeks.

Employers of all sizes are bound by the New York City Human Rights Law with respect to sexual harassment claims

Previously, employers with four or more employees could be liable for sexual harassment under the New York City Human Rights Law (City HRL).

Now, employers of all sizes can be held liable for sexual harassment under the City HRL.

Mandatory Sexual Harassment Training

Within 90 days of hiring an employee, employers must provide interactive anti-harassment training, which includes information about the prohibition against retaliation. New York City will create and provide a complimentary online training program that employers may use if they wish. Employers must maintain records of training, including signed employee acknowledgments, which must be maintained for three years.

The mandatory sexual harassment training requirement is supposed take effect on September 1, 2018.

Extended Statute of Limitations

Employees will now have three years to file a claim of “gender-based harassment” with the New York City Commission on Human Rights, under the City HRL. Previously, the statute of limitations to file a claim with the New York City Commission on Human Rights, was a year from the date of the alleged conduct.

Required Handout and Poster

New York City employers will be required to post an “anti-sexual harassment rights and responsibilities” poster in both English and Spanish in a workplace common area. The city will issue an approved poster that employers can post.

Employers will also be required to issue an information sheet to all new hires.

Alternatively, an employer can comply with the City HRL through their handbooks issued to all employees.
New York State

Mandatory Sexual Harassment Training and Policy

Starting October 9, 2018, the New York State Labor Law will require that all New York employers, regardless of their size, provide sexual harassment training every year to all employees and provide them with a written non-harassment policy.

The New York State Department of Labor is charged with developing a model non-harassment policy as well as a model training program, in consultation with the New York State Division of Human Rights, though there is no stated timetable for the publication of these model documents.

Employers may either adopt the state’s forthcoming model policy, once available, or, revise their own policies to meet the specified threshold requirements of the New York State Labor Law.

Protections for Non-Employees

As of April 12, 2018, the New York State Human Rights Law has new protections for non-employees, providing that an employer may be liable for sexual harassment of contractors, subcontractors, vendors and consultants where the employer knows or should know that harassment is occurring in its workplace and fails to take immediate and appropriate corrective action to stop unlawful conduct.

Arbitration Clauses will have carveouts

Starting July 11, 2018, arbitration clauses will not apply to sexual harassment claims. Specifically, the state bill prohibits “any clause or provision in any contract which requires as a condition of the enforcement of the contract or obtaining remedies under the contract that the parties submit to mandatory arbitration to resolve any allegation or claim of an unlawful discriminatory practice of sexual harassment.”

This measure seeks to enable employees to pursue private actions related to sexual harassment, as it both applies to future contracts and purports to declare existing arbitration clauses “null and void,” except where there is a conflict with a collective bargaining agreement or an inconsistency with federal law, i.e. to the extent that it is found to be pre-empted by the Federal Arbitration Act (FAA).

The FAA generally applies to arbitration contracts involving interstate commerce unless the parties have agreed otherwise.

Pre-emption is not self-enforcing. Usually, the party seeking to arbitrate (most often employer) is required to make a motion to compel arbitration on the basis of preemption.

Non-Disclosure Agreements

Settlements of sexual harassment claims often include non-disclosure or confidentiality clauses limiting disclosure of the terms of the agreement, and in certain cases even the fact of the agreement.

The new state budget legislation prohibits non-disclosure agreements (NDAs) within any written settlement agreement of a sexual harassment claim unless it is the expressed preference of the employee.

In order to demonstrate this preference, the employee must be provided with a non-waivable 21-day waiting period as well as a seven-day revocation period. After the 21 days have passed, the employee must specifically affirm a preference for confidentiality.

This section will take effect on July 11, 2018.

UPDATE ON TRAVEL BAN 3.0

 

As you may be aware from the news, the Trump administration’s Travel Ban 3.0 implemented on September 24, 2017, involved Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen. The Travel Ban 3.0 had been partially blocked by two preliminary injunctions issued by the U.S. District Courts in Hawaii and Maryland, but those injunctions were lifted by the Supreme Court on December 4, 2017. The bars on North Korea and Venezuela were not included in either order, and have been continuously in effect.

Since December 4, 2017, the government has been able to fully enforce Travel Ban 3.0 on all 8 countries while The Trump administration appeals the District Court orders.

A new development is that a presidential proclamation of April 10, 2018, removed the nation of Chad, from the list of countries subject to Travel Ban 3.0, effective April 13, 2018, because  “Chad has made improvements and now sufficiently meets the baseline.”

President Trump’s announcement was based on the first of an ongoing series of reports issued on March 30, 2018, by the Secretary of the Department of Homeland Security.

The Secretary’s report set forth that Libya had made progress toward compliance but that lifting of the restriction for that country could not be recommended at this time.

The Supreme Court of the United States has agreed to review Travel Ban 3.0, and oral arguments before the Court were held on April 25, 2018.  A decision from the Court is anticipated to be issued in June 2018.

Until then, Travel Ban 3.0 will remain in effect for Iran, North Korea, Somalia, Syria, Venezuela and Yemen.

Stay tuned.

IN THE SECOND CIRCUIT, SEXUAL ORIENTATION DISCRIMINATION IS PROHIBITED BY TITLE VII OF THE CIVIL RIGHTS ACT OF 1964

 

On February 26, 2018, the Second Circuit Court of Appeals (which covers the states of New York, Connecticut and Vermont) held that Title VII of the Civil Rights Act of 1964 prohibits sexual orientation discrimination See  Zarda v. Altitude ExpressNo. 15-3775 (2d Cir. Feb. 26, 2018).   In a 10-3 decision, the full Second Circuit reversed an April 2017 decision in which a three-judge panel of the Court declined to recognize sexual orientation discrimination under Title VII.

In the Zarda case, a skydiving instructor named Donald Zarda alleged he was fired by his employer, Altitude Express, because he is gay.    In 2010, Zarda filed suit in federal district court in New York arguing, among other things, that the firing violated Title VII.    According to Zarda, Title VII’s prohibition against workplace discrimination on the basis of “sex” also prohibits sexual orientation discrimination.

A district court judge ruled against Mr. Zarda, applying the Second Circuit’s then-current precedent. Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000).   The Second Circuit in Simonton declined to hold that discrimination based on sexual orientation was prohibited under Title VII.

Mr. Zarda brought a motion to reconsider before the district court, when, during the pendency of the district court action, the Equal Employment Opportunity Commission (EEOC) issued a decision in Baldwin v. Foxx, No. 01220133080 (July 16, 2015).   In Baldwin, the EEOC decided that discrimination based on sexual orientation is prohibited by Title VII.

The district court denied Mr. Zarda’s motion, holding Simonton was binding precedent.   Mr. Zarda appealed to the Second Circuit.   Mr.  Zarda passed away in 2014, during the pendency of the appeal.   His estate carried on the action, arguing Simonton should be reversed.

The Second Circuit’s majority opinion in the Zarda case, written by Chief Judge Robert Katzmann and joined either in full or in part by eight other judges, ruled that discrimination on the basis of sexual orientation was illegal for three reasons. The first, is that sexual orientation is partly defined by one’s sex and Title VII explicitly prohibits discrimination on the basis of sex.  The second reason is that the category of sexual orientation discrimination is based on stereotypes about how members of a given gender should behave or, in this case, who they should be attracted to.  This reasoning pulls on a precedent set by the 1989 case Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), which found employers could not discriminate against individuals who do not conform to conventional gender norms.  Third, the court classified discrimination on the basis of sexual orientation as associational discrimination, found to be unlawful in the case Holcomb v. Iona College, 521 F.3d 130 (2008) which stated, “Where an employee is subjected to adverse action because an employer disapproves of interracial association, the employee suffers discrimination because of the employee’s own race.”

In Zarda, three members of the Second Circuit dissented. Four members of the court issued concurring opinions, including José A. Cabranes, who wrote just seven sentences the in the 163-page document, culminating in the following:

“Zarda’s sexual orientation is a function of his sex. Discrimination against Zarda because of his sexual orientation therefore is discrimination because of his sex, and is prohibited by Title VII. That should be the end of the analysis.” 

 Among the circuit courts, the Seventh Circuit of Appeals was the first to rule that sexual orientation discrimination is prohibited by Title VII, as we previously blogged. See Hively v. Ivy Tech Cmty. College of Ind.,853 F.3d 339, 362 (7th Cir. 2017) (en banc).

The Second Circuit has now joined the Seventh Circuit in holding that Title VII prohibits sexual orientation discrimination.

Note that the Eleventh Circuit also recently considered this issue and ruled that Title VII does not expressly protect against sexual orientation discrimination.

This circuit split, could result in the issue being reviewed by the United States Supreme Court.

Stay tuned.

 

DACA – WILL IT END- OR WILL IT CONTINUE? WE MAY FIND OUT SOON

 

We have previously blogged about the Deferred Action For Childhood Arrivals (DACA) program that was implemented in 2012 by an executive order signed by former President Barack Obama.   DACA protects young, undocumented immigrants from deportation, and provides them with corresponding employment authorization.   Around 800,000 individuals were granted deferred action under the program.

Many DACA recipients have lived most of their lives in the U.S., and graduated from college.  Some were high school valedictorians.    Many own homes,  and are the parents of U.S.-born children, who are American citizens.

If you’re keeping up with the news, you must be aware that President Donald Trump, had previously selected March 5, 2018, as the deadline for Congress to work out a solution to prevent DACA recipients from facing deportation.

In the U.S. Congress, there were a series of votes that took place in February 2018, all of which did not come up with a solution acceptable to President Trump.

However, the temporary good news is that two separate federal court injunctions have halted the Trump administration’s rescission of the DACA program with the judges ordering the Department of Justice to maintain the current program as it was before President’s Trump’s announcement to end the program.  In January 2018, the first federal judge, William Alsup in California, granted an application by California, the University of California system, and several California cities to block President Trump’s decision to end the DACA program while their lawsuit challenging the program’s termination plays out in court.   Judge Alsup ruled that those already approved for protection and work permits must be allowed to renew them before they expire.  He found the Trump administration’s decision to end DACA “arbitrary and capricious,” and that the Plaintiffs would be harmed in part through economic disruptions and the loss of revenue caused by their change in status.

In February 2018, a second federal judge, Nicholas Garaufis in New York, also ruled that the Trump Administration’s decision to rescind DACA is arbitrary and capricious.  In his decision, Judge Garaufis noted that more than 100 DACA recipients a day had been losing their protected and all of the DACA recipients could face deportation.      Employers would be hurt as DACA recipients lost their jobs, that could include up to $800 million in lost revenue.

The Trump administration filed a petition on January 18, 2018, with the U.S. Supreme Court to review Judge Alsup’s order, which the Supreme Court denied on February 23, 2018.  The Supreme Court decided to allow the California case to run its normal course through the United States Court of appeals for the Ninth Circuit.    “We tried to get it moved quickly because we’d like to help DACA,” President Trump said. “I think everybody in this room wants to help with DACA, but the Supreme Court just ruled it has to go through the normal channels.”

The Trump administration requested that the 9th Circuit Court of Appeals hold an expedited hearing concerning Judge Alsup’s ruling.  Accordingly, a three-judge panel of the Court will hear arguments in May 2018.

Judge Stephen Reinhardt of the 9th Circuit Court of Appeals (known as a liberal stalwart) passed away recently, at the age of 87, which will enable President Trump to fill yet another vacancy on the 9th Circuit.   (As of today, the vacancy result from Judge Reinhardt’s death is one of eight vacancies on this appeals court).

If President Trump is successful in ‘reshaping’ the 9th Circuit, then DACA recipients have much to fear.

We will keep you posted about additional developments concerning DACA, on this blog.

REPORTING ACTS OF SEXUAL HARASSMENT YOU HAVE WITNESSED

 

In our recent blogs, we have addressed what to do if you’re a victim of sexual harassment, or if you are accused of sexual harassment.

 

What if you are not a victim of sexual harassment, but have personal knowledge of acts of sexual harassment other employees were subjected to?

 

In today’s blog we will address what to do if you are a witness to sexual harassment and wish to report what you have personal knowledge of, to the employer.

 

Perhaps you saw a co-worker sexually assaulted by another co-worker, or a supervisor.

 

Perhaps you are aware that another employee succumbs to a supervisor’s sexual advances in order to keep his or her job.

 

Perhaps you know that an employee is surreptitiously videotaping employees as they change their clothes or use the toilet.

 

You know the conduct that is taking place is wrong, and perhaps even against the law, and  you wish to put an end to what is happening, because you are concerned that if the conduct goes unreported and no corrective action is taken, other employees’ rights will also be violated next.

 

In New York City, the New York City Human Rights Law (City HRL) protects the rights of employees who aid other employees in the exercise or enjoyment of their rights.  In relevant part, the City HRL states, that “It shall be unlawful discriminatory practice for any person to coerce, intimidate, threaten or interfere with, or attempt to coerce, intimidate, threaten or interfere with, any person in the exercise or enjoyment of, or on account of his or her having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected pursuant to this section.”

 

In other words, if you decide to report the sexual harassment to the employer on behalf of the victim of sexual harassment, you should not be subjected to any retribution, and if you are, you would have a cause of action against the employer.

 

If you are going to report the acts of sexual harassment you have personal knowledge of, to your employer, first locate the policies and procedures, or any handbooks and carefully review the sections concerning reporting sexual harassment (or any acts of discrimination) to the employer.

 

In my view, it is best that you report the acts of sexual harassment with specificity, and send it via email or some form or trackable mail (such as priority mail or certified mail).   Make sure you keep a copy for yourself.   If you are in two minds about whether you are reporting this correctly, or fear of retribution is imminent, based on how others who have lodged similar complaints have been treated, it’s in your best interest to consult with an experienced employment lawyer, beforehand.  The nela.org lawyers’ directory is a great resource to locate an employment lawyer and obtain advice on how to protect your rights and interests.

 

Once you have lodged your complaint, you will be called in for meetings with manager and/or Human Resources during which you will be asked additional questions about your knowledge of the sexual harassment you have witnessed.

 

Be truthful and be specific.

 

After that, be very alert to what is happening in the workplace.  If you notice any changes to your working conditions, such as receiving less favorable assignments, a decrease in workload, exclusion from meetings or company events, or any change in how you are treated, then keep a careful record of the same, in a private journal at home, or using your handheld (provided the handheld is not your employer’s property.)

 

You will have to report this to the company as well to place them on notice that your rights under the City HRL (if you work within the five boroughs of New York City) are being violated as a result of you complaining about sexual harassment on behalf of other employees.

 

Before reporting the violations of your own rights, it is best to schedule a consultation with an experienced employment lawyer, so that you have the benefit of sound legal advice and a strategy in place as to what the next steps are, based on how the company may react.  Sometimes it may make sense to have your employment lawyer make an appearance to your employer and lodge the complaint on your behalf.

 

Over the years, I have represented individuals who have demonstrated courage in aiding other employees in the exercise of their rights.     While some of them suffered acts of retribution, all of them were able to successfully resolve their claims.

 

The most rewarding aspect of them coming forward was a change in the workplace culture, and a greater respect for the rights of employees.

YOU HAVE BEEN ACCUSED OF SEXUAL HARASSMENT. NOW WHAT?

 

It can happen to anyone in the workplace. You can be blindsided by allegations against you, lodged by a co-worker or subordinate that you sexually harassed them.

 

You might find out about the allegations during a meeting that you’re called into by Human Resources.

 

You might receive a call before you leave home for work, that you should stay home until further notice, because allegations of sexual harassment lodged against you are being investigated.

 

You might not even find out until you are suspended and/or terminated abruptly, and the reason being given for such an action is that an investigation was conducted (without even speaking with you) and the company found some merit to the allegations of sexual harassment, of an employee at the company.

 

Though the first reaction upon learning of the allegations lodged against you, may be to curse, slam the table, or to start verbally attacking the alleged victim, it’s best to stay calm and collected and LISTEN to what is being said. If you’re in a position to take notes, take careful notes and make sure you do not misplace them. Do not use the employer’s handheld device or computer to take notes.

 

Do not talk to anyone at the company or outside the company, about what you just learned. Keep everything confidential and to yourself, until you have received legal advice concerning your predicament, what information may be disclosed, and at what juncture it may be disclosed.

 

Next, promptly take steps to secure legal representation promptly from an experienced employment lawyer. You can find suitable lawyers through your local bar association’s referral service, or by searching the lawyers’ directory at www.nela.org/ Even if your schedule does not permit you to visit the lawyer’s office in person, it’s imperative that you at least seek counsel over the phone, to protect your rights and interests.

 

Before your first appointment with the employment lawyer (whether it’s in person or over the phone), do your best to create a thorough day by day account of the time frame in question of the alleged sexual harassment, such as where you were, who was with you, what happened, and whether you were even present at work. Also create a separate dossier concerning all the information you have concerning the alleged victim, and the nature of your interactions with him or her, to the best of your recollection.

 

It’s likely that an outside investigator or the company’s Human Resources department will conduct a meeting or a series of meetings with you, during the course of investigating the alleged victim’s allegations. It’s in your best interests to fully cooperate in the company’s investigation.

 

You should, after consulting with your employment lawyer, also put forward your position as to why the allegations are untrue (if they are untrue), and provide names of witnesses that are privy to what actually occurred.

 

It’s possible the company’s lawyer will want to speak with you, after the alleged victim brings his or her allegations to the company’s attention.

 

You should not mistakenly assume that the company’s lawyer represents your interests. It is best that you retain your own counsel, before speaking with the company’s lawyer, and have said counsel be present with you, during your conversation with the company’s lawyer.

 

What rights does an individual accused of sexual harassment have? In New York City, you may have a claim under the New York City Human Rights Law, depending on how you are treated after allegations are made by the alleged victim.

 

For example, in a lower court case, in New York State Supreme Court, a female employee accused a male employee of sexually harassing her in the workplace. The Human Resources department of the company investigated the female employee’s allegations, but failed to investigate the male employee’s defense that the conduct was initiated by the female employee.

 

The Human Resources department interviewed the female employee’s witnesses, but refused to interview the male employee’s witnesses. The male employee was fired. The female employee was not. The male employee filed a lawsuit against the company for gender discrimination, because the company credited a female employee’s account over a male employee’s account, and failed to conduct a fair investigation of the female employee’s sexual harassment complaint. The case survived dismissal.

 

You may also be able to bring other types of discrimination claims under the NYC Human Rights Law, as well. For example, if the accuser is treated more favorably than the accused on the basis of being of a different race, or any other category, and as a result, receives preferential treatment, then the accused may assert a claim of differential treatment.

 

If you oppose gender discrimination (or any other type of discrimination) after you after you learn of the accusations of sexual harassment, that is a protected activity under the New York City Human Rights Law, for which you should not be subjected to any employment actions that disadvantage you, i.e. retaliation. Of course, you must show a causal connection between the protected activity (opposing discrimination) and the employment actions (such as termination), that disadvantaged you.

WHAT SHOULD YOU DO IF YOU ARE SEXUALLY HARASSED AT WORK?

You are aware by now, that sexual harassment in the workplace is a violation that can take numerous forms that may or may not involve touching or even being in the same room as the perpetrator.

In this blog, we will focus on what constitutes sexual harassment, and how to report it. In future blogs, we will address how to report sexual harassment that another employee is being subjected to, and the rights of those wrongly accused of sexual harassment.

The worst forms of sexual harassment might be sexual assault by a co-worker, or a manager, or even a client or vendor.

Other forms of sexual harassment include verbal and written comments about a person’s physical appearance, lewd jokes, viewing pornographic material in another employee’s person’s presence, displaying pornographic photos/images, invading or blocking a person’s physical space and thereby preventing them from moving, without touching the perpetrator, sending sexually inappropriate text messages, voice mails, and emails. This list is not exhaustive, unfortunately- and the problem is as old as the hills.

Men, women, and transgender employees are victims of sexual harassment in the workplace, although women appear to be impacted in larger numbers.
What should you do, if you find yourself subjected to sexual harassment in the workplace?

Express it———– Record it——-Report it right away.

• Express a clear objection to the sexual harassment. Tell the harasser to stop it, immediately and unequivocally.

• Record what happens as it happens, using your own personal notebook that only you have access to, or your own personal handheld device. Don’t use the employer’s computer, or other equipment. If possible, do this during an approved break (such as a lunch break), outside the office.

• Report it, with the help of counsel, so that the employer may investigate the problem, and put an end to it, i.e. take corrective action.

Reporting sexual harassment is a loaded subject. You have probably been told that if you are being sexually harassed, you should immediately report the event to your company’s Human Resources Department.

Even if you are not in a life-threatening situation, it’s best to immediately contact an experienced employment lawyer about your situation, and discuss what happened, before reporting the acts of sexual harassment to Human Resources.

Human Resources staff are often well-spoken, and have received extensive training on resolving disputes in the workplace. Though they may behave like advocates for employees, it’s certainly not their job to advocate for employees. The allegiance of Human Resources lies firmly with your employer, who pays their salaries. Their ultimate goal is to avoid potential litigation and protect the company from any legal trouble. They are not paid to represent you or to protect your interests and rights in the workplace.

In the many cases I have handled, when an employee goes to Human Resources to report sexual harassment, without having obtained legal advice from an experienced employment lawyer, some Human Resources personnel will blame the employee, the victim, for having behavioral or performance problems, and sometimes will cover up the fact that the employee scheduled an appointment to report sexual harassment.

Another reason to obtain legal advice first, is that anything you disclose to Human Resources is not going to be kept confidential, and will be reported to your supervisors, and to other managerial employees. To avoid distortion of the facts disclosed verbally to Human Resources, during a meeting, sometimes (depending on the circumstances), it is best to have your lawyer write to Human Resources about the acts of sexual harassment.

If the employment lawyer senses that the acts of sexual harassment might be criminal in nature, he or she can also advise you on how to timely report it to the police with all accompanying evidence.

If the acts of sexual harassment have made you sick, obtain medical attention right away. If the medical provider recommends time off of work due to your illness, an experienced employment lawyer can assist you in applying for the appropriate type of medical leave, depending on the size of the employer, and the local laws of the jurisdiction you are in.

Under no circumstances should you remain quiet about sexual harassment, even if you are undocumented and worried about retaliation or concerned that people will not believe you. You must take action. Attorneys that concentrate in immigration law and employment law can help you navigate the legal process in a way that is protective of your interests.

Seeing an attorney immediately also means that you are not only protecting your rights, but also possibly preventing the sexual harassment of others in the workplace. If your employer knows you are already consulting with an attorney to protect your rights in the workplace, your employer will be hesitant to threaten you or fire you in response to your coming forward. If you come forward in asserting your rights, the employer will also be more likely to respect the rights of other employees who come forward.

WHY PREVENTION OF SEXUAL HARASSMENT IS SO IMPORTANT TO PRESERVATION OF HUMAN CAPITAL AND THE COMPANY’S FINANCIAL HEALTH

The topic of sexual harassment probably has not received this much media coverage and attention, since the confirmation hearings of Supreme Court Justice Clarence Thomas in the early 1990’s.

It’s the topic that is consuming us during our commutes, during lunch breaks, and during conversations with friends and family.

Still, it seems that despite the spotlight on sexual harassment, (a spotlight that has never shined more brightly on this violation of civil rights in the workplace), the problem seems to be under-reported or not taken as seriously within small businesses in the U.S.

The majority of the workers in the United States private sector, are employed by small businesses. The EEOC estimates that in recent years, roughly 25%-85% of American women have experienced harassment on the job. Even at the low end of 25%, that is a staggering number of women.

The impact on the employees (not just the victim), but those who are also victimized by the fact that other employees are being sexually harassed, and the cost to the businesses show that the damage that sexual harassment can inflict.
Can sexual harassment be prevented or minimized? Yes.

First, companies should provide live training either on-site at the workplace or using video-conferencing. For the training to be effective, it must considered to be realistic to the circumstances of the workplace culture, it should be administered live, and is best if it is interactive, so workers can have their specific questions and concerned responded to. There are laws in place in different jurisdictions that either require training or penalize employers who don’t provide training.

Second, companies should create and distribute handbooks which contain clear written policies on non-tolerance of sexual harassment, provide clear avenues for reporting it, and explain how the company will investigate sexual harassment complaints, and take corrective action.

Third, posters in visible places reflecting the laws of the appropriate jurisdiction, is also very helpful in showing that sexual harassment will not be tolerated, and that the company will do all it can to prevent it, and/or put an end to it.

Companies are more likely to thrive when employees don’t work in an environment of fear, and employers are not liable for something as preventable as sexual harassment.

Our next blogs are going to address how employees should best go about reporting acts of sexual harassment they have been, or are being subjected to, and also about the rights of those employees who are wrongly accused of sexual harassment.

IMPORTANT DEVELOPMENT REGARDING DEFERRED ACTION FOR CHILDHOOD ARRIVALS (DACA)

DACA is the Obama-era program that protects young, undocumented immigrants from deportation.

Many DACA recipients have lived most of their lives in the U.S., and graduated from college. Some were high school valedictorians. Many own homes, and are the parents of U.S.-born children, who are American citizens.

On September 5, 2017. Attorney General Jeff Sessions announced that the Trump administration would terminate the program starting in March 2018. California Attorney General Xavier Becerra brought the San Francisco lawsuit, joined by the attorneys general for Maine, Maryland and Minnesota, as well as the University of California, DACA recipients and others.

California is home to the largest group of DACA recipients — about 200,000 people. On January 9, 2018, U.S. District Judge William Alsup, issued a preliminary injunction, finding that the plaintiffs — a collection of DACA recipients, universities and states — would suffer irreparable harm if the administration moved forward with plans to terminate the program in March 2018 before the case is resolved. In his 49 page order, Judge Alsup did not rule on the merits of the case, but he said that the plaintiffs were likely to succeed on their claims that the decision was “arbitrary and capricious” and would suffer irreparable harm — immigrants could lose their jobs, and companies and universities could lose valuable students and workers — if the Trump administration ended DACA before the legal dispute is resolved.

Judge Alsup opined, “We seem to be in the unusual position wherein the ultimate authority over the agency, the Chief Executive, publicly favors the very program the agency has ended,” the judge wrote. “For the reasons DACA was instituted and for the reasons tweeted by President Trump, this order finds that the public interest will be served by DACA’s continuation.” The tweet from President Donald Trump, that Judge Alsup was referring to, is as follows:

Donald J. Trump ✔@realDonaldTrump Does anybody really want to throw out good, educated and accomplished young people who have jobs, some serving in the military? Really!….. 5:28 AM – Sep 14, 2017

Homeland Security official rescinded DACA in the fall of 2017, stating that it suffered from “constitutional defects” that were similar to problems federal judges had pointed out in rulings blocking a related Obama-era program, Deferred Action for Parents of Americans (DAPA). Based on those decisions, the Trump administration reasoned that DACA was illegal from the outset and that President Obama exceeded his authority when he rolled it out the program 2012. Judge Alsup called that reasoning “flawed,” “post hoc” and “capricious.” The Obama administration hadn’t overreached, he wrote in his 49 page order. In fact, he wrote, the Trump administration’s position wasn’t even based on a policy change but a “mistake of law.” “The main, if not exclusive, rationale for ending DACA was its supposed illegality. But determining illegality is a quintessential role of the courts,” Judge Alsup wrote. In other words, it’s not up to the administration to decide whether one of its predecessor’s policies is illegal. That’s the U.S. Supreme Court’s job, and the high court hasn’t ruled on DACA’s legality.

If the Supreme Court were to rule on DACA and find that it was constitutionally sound, “then a policy supported as high up as our chief executive has been the victim of a colossal blunder,” the judge wrote, again referencing the president’s tweets. If nothing else, Judge Alsup wrote in his ruling, the plaintiffs were entitled to “learn of all flaws, if any more there be, lurking” behind the DACA decision. He noted that the plaintiffs had suggested the administration had terminated the program so it could be used as a bargaining chip to demand funding for a border wall. And again, he cited the president’s Twitter feed as evidence. “A presidential tweet after our hearing gives credence to this claim,” Judge Alsup wrote.

The December 29, 2017 tweet from Trump is: “The Democrats have been told, and fully understand, that there can be no DACA without the desperately needed WALL at the Southern Border and an END to the horrible Chain Migration & ridiculous Lottery System of Immigration etc.”

Finally Judge Alsup ordered that safeguards against deportation must remain in place for the nearly 690,000 people in the DACA program, while a legal challenging to ending the program, proceeds. While while the lawsuit is pending, anyone who had DACA status as of September 5, 2017, can renew it.

The Trump administration, not surprisingly, has indicated that it will challenge Judge Alsup’s ruling. Meanwhile, Massachusetts, New York, Washington and other states are seeking a similar preliminary injunction in federal court in Brooklyn, part of a separate lawsuit on behalf of DACA recipients.