NPR Morning Edition reports on my clients’ suits against computer company Dell. From NPR Morning Edition:

Helen Harris doesn’t wear makeup or feminine jewelry. She mostly dresses in men’s tailored suits and men’s shoes. She’s gender nonconforming and identifies as a woman. And, she says, that’s nobody’s business. Which is why in late 2015, when she started taking hormones to become more masculine looking, she did it quietly. Harris, 37, is a systems engineer who worked at Dell, selling technology to major companies and helping them set it up. But she says she had a tough time moving up at the computer company and was assigned to a lengthy training period, while colleagues were promoted. She says she got heckled by co-workers when she gave presentations. And, Harris says, one of her instructors kept telling her “people have to like you for you to be able to do this job. He kept saying stuff like that to me.”

NPR spoke to four colleagues with whom Harris has worked. They described a talented young woman whose career was completely derailed a few years ago. And they, like Harris, suspect she had a tough time because of the way she looks. Article continues after sponsor message Her struggle at Dell led Harris to file a complaint with New York City’s Commission on Human Rights, alleging the company didn’t want to put her in front of customers because of her appearance. Dell says Harris’ situation was resolved amicably. But there are at least two other cases against the company from LGBTQ workers alleging discrimination. Dell, which is an NPR sponsor, denied liability in one case. The other is ongoing.

After Harris’ company merged with Dell, she and other employees were assigned to training. Harris says she was heckled by co-workers when she gave presentations. She says her colleagues who attended the training started moving up the corporate ladder, but Harris didn’t. Elias Williams for NPR Harris says her problems happened around the same time her employer, EMC, was merging with Dell. In her complaint, Harris detailed how she kept being told she needed to keep on training. So she did — for three years. During that time, she says, she’d speak with managers, executives, colleagues and human resources. “What is the problem? Like, if there is a problem with me, like [with] what I’m doing, can someone please speak up?” she says she asked them.

The rights of trans and gender-nonconforming people in the U.S. are starting to get more attention. Activists say limited job opportunities and lack of clear protection from workplace discrimination have helped marginalize transgender people and hurt them financially. Over 200 companies — including Amazon, Google and Uber — have urged the U.S. Supreme Court to rule that federal civil rights law prohibits discrimination against gay and transgender workers. The Justice Department has argued that it does not. ‘

 And there’s this idea that the tech industry is a place where stuff like this doesn’t happen: Scooter in to work and have piercings and tattoos? No problem. As long as you work hard, it doesn’t matter who you are or what you look like. The diversity numbers at big tech companies like Google, Facebook and Apple tell a different story. Take Facebook: Less than a quarter of tech roles there are held by women; African Americans make up only about 1%. And when you look at Dell, you get a complicated picture. Cicilia Gilbert, who was also a systems engineer at Dell, was let go in 2018, during the middle of her transition.

The company has repeatedly been ranked among the 50 best for diversity. But several current and former Dell employees, who requested anonymity for fear of retaliation, said the company’s New York office has the reputation of being a “boys club.” Cicilia Gilbert, who was also a systems engineer at Dell, says it’s especially bad in the tech sales division. Gilbert, 58, is suing Dell for, among other things, allegedly discriminating against her for her gender transition. The case is ongoing. She told NPR that when she decided to transition from male to female, a trans co-worker advised her: “Don’t tell these people that you’re transgender. It’s a career ender.” In her lawsuit, Gilbert said that in late 2018, right in the middle of her transition, she was let go. “They said, ‘We’re laying you off because your transgender transition is impeding your ability to travel,’ ” she told NPR. It’s not unusual for a company as large as Dell to have discrimination lawsuits.

Jennifer Davis, a spokeswoman for Dell, told NPR that Gilbert’s layoff had nothing to do with her gender — it was part of a restructuring in which hundreds lost their jobs. Gilbert and her wife, Alexandra, stand in their yard in upstate New York. Gilbert is suing Dell for, among other things, allegedly discriminating against her for her gender transition. The case is ongoing. And Davis pointed to the company’s support network for trans employees. NPR spoke to two workers who say the extensive medical coverage and support Dell offers made their gender transition possible. They said they consider themselves very fortunate to work for a company that’s so inclusive. But in 2017, the Massachusetts attorney general investigated the case of a former intern who is trans and who had complained about discrimination. Dell denied wrongdoing but paid a $110,000 settlement.

Harris says she always saw the tech industry as a place where, no matter what you look like, “if you put your head down and you learn the stuff and you do the work, you can change your circumstances.” Earlier this summer, Harris told NPR she was still on Dell’s payroll, but she wasn’t going into the office on a regular basis anymore. In her complaint to New York City’s Commission on Human Rights, she detailed her problems using Dell’s bathrooms. “That’s the truth,” she told NPR. She added that after being harassed a second time about which restroom she was using, she decided to stop going to work. Harris said she was exhausted. A few weeks later, she left the company. Harris quit working at Dell but plans on staying in a career in tech. Elias Williams for NPR Davis, Dell’s spokeswoman, wouldn’t provide details about Harris’ time at the company, saying she wishes to respect Harris’ privacy. But Davis said, “The matter was resolved amicably.” Despite her experience at Dell, Harris said she wants to keep working in the tech industry. “I want my money. I don’t want to be poor,” she said. “My father, he picked cotton. My grandfather was a sharecropper. I’m a systems engineer. So, I’d rather stay.” https://ift.tt/2Y36d4s

See this link: https://www.npr.org/2019/07/15/740726966/it-s-a-career-ender-2-lgbtq-former-dell-workers-share-their-stories

I spoke to Eric Lesh of LeGal about my work in LGBTQ employment discrimination, how I got into this line, the history of court involvement in these issues, and where the courts may be going with this. https://ift.tt/2YJTdxM tw: legal jargon

See this link: https://legal.podbean.com/e/lgbtq-workplace-fairness-from-the-litigators-pov/

Trans and ostracized on campus “Six months after I came out as trans at work by requesting a name and pronoun change and sharing that I was getting top surgery, Kingsborough’s administration announced that it was defunding my concentration. Its rationale cited constrained resources, higher education regulations, financial aid and transfer issues. None of these rationales stand up to scrutiny.”

See this link: https://www.nydailynews.com/opinion/ny-oped-transgender-and-ostracized-on-campus-20190613-sryzi7exyjdele6wrhr4hbzgau-story.html

11th Circ. Upholds NetJets Win In Muslim Pilot’s Bias Suit

By Danielle Nichole Smith

“Law360 (May 31, 2019, 7:01 PM EDT) — The Eleventh Circuit on Friday refused to revive a former NetJets pilot’s suit alleging he was placed on administrative leave and ultimately fired because he was Pakistani and Muslim, finding the pilot didn’t show his firing stemmed from discrimination.”

I find this case very interesting, as it is a reminder of the kind of evidence needed to win an employment discrimination lawsuit. Of course, the 11th Circuit US Court of Appeals (covering Alabama, Georgia and Florida) is very conservative when it comes to this, but so are some others. Essentially, the Court said that showing other people who were treated differently isn’t enough to show bias. Showing retaliation for complaining requires a very close connection in time between the complaint and the termination or other allegedly retaliatory action — closer than 3 months.

Here’s how Law 360 summarized the case: “But Siddiqui does not point to any evidence in the record, apart from his proffered comparators, that would support an inference that the real reason for either the initial investigation or the ensuing delay was discrimination on the basis of his race, religion or national origin.” The panel also held that the lower court properly dismissed Siddiqui’s retaliation claims, finding the pilot hadn’t shown there was a causal connection between a letter from his attorney raising concerns of discrimination and the decision to extend his administrative leave. Nor could he claim retaliation based on the company’s decision to fire him 90 days after he received a right to sue letter from the U.S. Equal Employment Opportunity Commission, the panel said, since receiving the letter wasn’t protected activity.

“And even if it were protected activity, temporal proximity must be very close — absent other evidence — to indicate causation,” the panel wrote. “The three-month delay here, without more, is not enough.” Read more at: http://bit.ly/2HU0yEZ

See this link: https://www.law360.com/employment/articles/1164861/11th-circ-upholds-netjets-win-in-muslim-pilot-s-bias-suit?nl_pk=8a8ce1fc-75c7-4ce5-917e-8a07a0ec3dcd&utm_source=newsletter&utm_medium=email&utm_campaign=employment%3Fcopied%3D1

“Today the ACLU of Iowa and national ACLU LGBT and HIV Project filed a lawsuit to block implementation of a recently passed Iowa law that specifically allows denial of coverage under Medicaid of essential, gender-affirming surgery to transgender Iowans.”

“In April, Iowa lawmakers passed legislation that amended the Iowa Civil Rights Act’s protections against discrimination for transgender people in public accommodations that were put into place in 2007. The new law created a new exception to those nondiscrimination protections, specifically allowing Medicaid to deny coverage to transgender Iowans for their medically necessary gender-affirming surgery.”

“The new law was passed in response to an Iowa Supreme Court unanimous decision in March that found that an Iowa Medicaid regulation which excluded coverage for medically necessary gender-affirming surgery while providing coverage for all other medically necessary surgery violated the Iowa Civil Rights Act by discriminating on the basis of gender identity. That ruling required that Medicaid must indeed cover such medically necessary surgery for transgender people. The March Supreme Court ruling also determined that public accommodations include Medicaid, which is the government-funded health insurance available to low-income Iowans.”

We have links to today’s filings.

• Petition for Injunctive and Declaratory Relief: http://bit.ly/2JMxvFz
• Motion for Temporary Injunction: http://bit.ly/2JRYvn1
• Brief in Support of Motion: http://bit.ly/2QBh8w1

See this link: https://www.aclu-ia.org/en/press-releases/aclu-iowa-files-lawsuit-block-iowa-law-preventing-transgender-iowans-accessing

Transgender Women Challenge Pa. Name-Change Rules

By Matt Fair Law360 (May 29, 2019, 8:29 PM EDT) —

A trio of transgender women filed suit in Pennsylvania court on Wednesday alleging that state rules regarding name changes for ex-felons created unfair complications in seeking health care and employment opportunities. The women said the state’s so-called irrebuttable conviction bar, which precludes people convicted of felonies from changing their names, forced them to continue using their male birth names when visiting doctors or applying for jobs and violated due process and free speech rights.

“The right to control one’s name and self-identity is a fundamental right, as is the right to avoid disclosure of sensitive personal matters,” said Luke Debevec, an attorney with Reed Smith LLP representing the three women. “A person ought to be able to obtain a name change to match their gender.”

The complaint filed in Commonwealth Court by Chauntey Porter, Alonda Talley and Priscylla Von Noaker said the bar was adopted by the General Assembly in the late 1990s to prevent fraud that might be committed as a result of allowing people to change their legal name after being convicted of certain crimes, including murder, rape and aggravated assault. The law required courts on the receiving end of a name-change petition to submit the request to the Pennsylvania State Police to ensure compliance. Since this step takes place before a hearing over a possible name change can take place, the complaint said that individuals like Porter, Talley and Von Noaker had been deprived of an opportunity to make arguments. Unable to obtain a name change, the women said they had each faced serious challenges as they continued to use legal documents, including driver’s licenses, that identified them as male. Porter said doctors told her that she did not qualify for sex reassignment surgery because her continued use of her legal name meant she was not “living as a woman.” Talley said she had faced questions when appearing to vote and when trying to pay bills over the telephone.

“As a result, Ms. Talley is forced to inform strangers that she is transgender or forced to come to an office in person to complete tasks that others can do quickly over the phone,” the complaint said. Von Noaker said she was forced to use her legal name during recent hospital stays after suffering two heart attacks.

The women claim that the bar violates their due process rights under the Pennsylvania Constitution, including their right to privacy and to protect their own reputation. “The bar’s irrebuttable presumption that individuals previously convicted of felonies are engaging in fraud when they seek a name change unconstitutionally infringes upon the right to control one’s name,” the complaint said. The complaint also claims that the bar violates the Pennsylvania Constitution’s guarantee against compelled speech by requiring them to use a name they do not want and do not identify with. They asked the court to change the law to allow them and other transgender individuals to have a chance to present evidence that their desire to change their names was based on an earnest expression of their gender identity.

A spokesperson for the Pennsylvania Department of State did not immediately return a message seeking comment on Wednesday.

The petitioners are represented by James Martin, Gregory Vose, Zachary Roman, M. Patrick Yingling, Luke Debevec, Matthew Rosso, Christian Saucedo and Todd Kim of Reed Smith LLP, and Noah Lewis of the Transgender Legal Defense & Education Fund. Counsel information for the state was not immediately available.

The case is Scott Porter AKA Chauntey Mo’nique Porter et al. v. Commonwealth of Pennsylvania, case number 303 MD 2019, before the Pennsylvania Commonwealth Court. –Editing by Haylee Pearl. http://bit.ly/2WEuPjm

See this link: https://www.law360.com/employment/articles/1164074/transgender-women-challenge-pa-name-change-rules?nl_pk=8a8ce1fc-75c7-4ce5-917e-8a07a0ec3dcd&utm_source=newsletter&utm_medium=email&utm_campaign=employment

See this link: https://bit.ly/2VxkV2i

Federal Court Issues Statewide Injunction Against Wisconsin’s Categorical Medicaid Exclusion on Transgender Healthcare

On April 23, 2019, a federal court issued a preliminary injunction invalidating Wisconsin’s categorical exclusion on coverage for medically-necessary gender-confirming treatments for transgender Medicaid beneficiaries. The injunction bars enforcement of the discriminatory exclusion, which has been in effect since 1997, to deny coverage for treatments for gender dysphoria. The court also certified the case as a class action on behalf of all transgender Wisconsin Medicaid beneficiaries seeking treatments for gender dysphoria.

In April 2018, Relman, Dane & Colfax and its co-counsel filed the lawsuit, Flack v. Wisconsin Department of Health Services, on behalf of Cody Flack of Green Bay and Sara Ann Makenzie of Baraboo, who had been denied medically necessary gender-confirming surgeries under the blanket exclusion. In July 2018—finding that they were likely to prevail on their sex discrimination claims under Section 1557 of the Affordable Care Act and the federal Constitution and recognizing the significant harm of being denied care—U.S. District Judge William Conley entered an injunction on behalf of Mr. Flack and Ms. Makenzie. Following that decision, two additional named plaintiffs, Marie Kelly of Milwaukee and Courtney Sherwin of Janesville, were added to the case.

The firm then moved to certify the case as a class action and to expand the July 2018 injunction to cover every member of the class. In the 27-page decision, Judge Conley granted both motions. He certified the case as a class action on behalf of “all transgender individuals who are or will be enrolled in Wisconsin Medicaid, have or will have a diagnosis of gender dysphoria, and who are seeking or will seek surgical or medical treatments or services to treat gender dysphoria,” and expanded the injunction to cover all members of the class. In the decision, Judge Conley found that “plaintiffs have provided overwhelming evidence that gender-confirming surgical treatments can be medically necessary” and that “the larger medical community considers gender-confirming treatments – including surgery – to be valid aspects of medical care.” The court credited the opinion of plaintiffs’ expert witnesses in concluding that members of the class faced irreparable harm if they remained unable to obtain treatments for gender dysphoria deemed medically necessary by their medical providers.

Under the expanded injunction, Wisconsin Medicaid is required to evaluate transgender beneficiaries’ requests for gender-confirming care based on their individual medical need. Plaintiffs recently filed an affirmative motion for summary judgment on all claims. A trial is set for September 2019. The Relman, Dane & Colfax case team is led by Joe Wardenski, Jennifer Klar, Orly May, and Alexa Milton. The firm is co-counseling with Robert Theine (Rock) Pledl of Davis & Pledl, S.C. in Milwaukee, and Abigail Coursolle and Catherine McKee of the National Health Law Program.

See this link: https://bit.ly/2VxkV2i