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DOD Can Implement ‘Transgender Ban’ After DC Circ. Ruling – Law360
DOD Can Implement ‘Transgender Ban’ After DC Circ. Ruling
By Daniel Wilson
Law360 (March 27, 2019, 4:17 PM EDT) The D.C. Circuit on Tuesday issued a formal mandate for its January judgment dissolving an injunction against a Trump administration policy heavily restricting military service by transgender people, clearing the way for the contentious policy to go into effect in April. A three-judge panel ordered the clerk of the court to issue the mandate in response to an emergency motion for clarification filed by the government on March 20, after a district court ruled its injunction against the disputed transgender policy would remain in effect until that mandate was issued.
The panel did not specify why it had chosen to issue the mandate now, having previously said it would wait until after a pending deadline for requesting rehearing, but noted that it came after reading the government’s motion and a reply from challengers to the policy. The government said continuing to keep the preliminary injunction in place was “irreconcilable” with the circuit court’s January judgment and associated denial of a request to stay the injunction as moot, as well as the U.S. Supreme Court’s decision later that month staying “materially indistinguishable” injunctions from two similar cases. The government claimed it should not be put in a “worse position” compared to other similar cases when it had prevailed on its appeal. The challengers, however, said the circuit court set a “clear timetable” for resolving the case and that the government should have respected that timetable rather than pushing forward with a plan to put the disputed policy into effect on Apr. 12.
The issuance of the mandate clears the last legal hurdle in the way of implementing the policy, and Shannon Minter of the National Center for Lesbian Rights, co-counsel for challengers to the policy, said in a statement Tuesday that “the courts have failed to do their job, to the detriment of the military and the country, and allowed a blatantly unconstitutional policy to take effect.” “We will keep fighting, and the courts may yet do the right thing, but this is a shameful day,” he said. A representative for the U.S. Department of Defense, which is responsible for implementing the policy, said only that “the department will continue with the new policy as scheduled with an implementation date of April 12.”
The disputed policy, introduced in March 2018, allows transgender people to join or serve in the military only if they don’t have gender dysphoria — a disconnect between one’s biological sex and the gender with which one identifies, resulting in distress — and have not already undergone a gender transition, with limited exceptions for those currently serving. Legal challengers, civil rights groups and Democratic lawmakers have all criticized the policy, saying it effectively amounts to a “transgender ban,” similar to an earlier version of the policy issued in August 2017. That earlier policy would have imposed a blanket ban on military service by openly transgender people, based on President Donald Trump’s stated concerns about military readiness, unit cohesion and allegedly “tremendous” associated medical costs. It was a reversal of a 2016 policy issued under the Obama administration, seeking to allow transgender troops to openly serve for the first time.
Four district court judges issued preliminary injunctions against the blanket ban, and kept them in place as the administration issued its newer policy, prompting the government to appeal. Subsequently, the D.C. Circuit vacated one of the injunctions, ruling that U.S. District Judge Colleen Kollar-Kotelly had erroneously found that there had been no significant change between the initial version of the transgender policy and the overhauled version. Later that month, the Supreme Court stayed two more of the injunctions while a Ninth Circuit appeal moves forward, and a Maryland district judge on March 7 also lifted his injunction, ruling that he was bound by the high court’s stay order, after which the DOD announced its plans to implement the transgender policy in April. But challengers to the policy said Judge Kollar-Kotelly’s injunction was still effective until the D.C. Circuit issued a formal mandate, and the district court judge agreed, ruling on March 19 that the circuit court’s decision wasn’t yet final. The circuit court delayed the mandate to allow for a pair of concurring opinions to follow its judgment in March and to give the parties time to ask for rehearing — with those requests due on Mar. 29 — and initially said the mandate would not go into effect until a week after any petition for rehearing was resolved.
Judges Thomas B. Griffith, Robert L. Wilkins and Stephen F. Williams sat on the panel for the D.C. Circuit. The government is represented by Mark R. Freeman, Marleigh D. Dover and Tara S. Morrissey of the U.S. Department of Justice’s Civil Division. The challengers are represented by Paul R.Q. Wolfson, John T. Byrnes, Kevin M. Lamb, Jack Starcher, Alan E. Schoenfeld and Adam M. Cambier of WilmerHale, Jennifer Levi and Mary L. Bonauto of GLBTQ Legal Advocates and Defenders, Shannon P. Minter, Amy Whelan, Christopher F. Stoll and Alexander Chen of the National Center for Lesbian Rights, and Matthew E. Miller and Theresa M. Roosevelt of Foley Hoag LLP. The case is Jane Doe 2 et al. v. Shanahan et al., case number 185257, in the U.S. Court of Appeals for the District of Columbia Circuit. Editing by Stephen Berg. https://ift.tt/2FBBlws?
DOD Still Can’t Implement ‘Transgender Ban,’ Judge Rules – Law360
DOD Still Can’t Implement ‘Transgender Ban,’ Judge Rules By Dave Simpson Share us on: Law360
(March 19, 2019, 11:15 PM EDT) — A D.C. federal judge told the government Tuesday that it can’t implement its contentious military transgender policy even though other courts have lifted an injunction against it, because the plaintiffs that challenged the ban in Washington, D.C., still have time to ask for a rehearing. While the D.C. Circuit did issue an order in January vacating the D.C. district court’s preliminary injunction against the policy banning certain transgender people from serving in the military, it specifically told the court clerk not to issue a mandate until seven days after a resolution of a petition to rehear its decision, U.S. District Judge Colleen Kollar-Kotelly said Tuesday. The challengers have until March 29 to file for a rehearing or a rehearing en banc, she said. She also shot down the notion that rulings on other injunctions across the country should nix the one before the D.C. federal courts.
“The fact that the three other nationwide preliminary injunctions which had been in place are now stayed has no impact on the continued effectiveness of this court’s preliminary injunction,” Judge Kollar-Kotelly said Tuesday. The disputed policy, issued in March 2018, allows transgender people to join or serve in the military only if they don’t have gender dysphoria — a disconnect between biological sex and the gender with which they identify that causes distress — and have not already transitioned between genders, with limited exceptions for current troops.
In its January ruling vacating the injunction, the D.C. Circuit found that the district court hadn’t given given sufficient credit to the DOD’s efforts to address issues with an earlier version of the policy, issued in August 2017 — a blanket ban on military service by openly transgender people — or to military considerations when the judge refused to lift her injunction, originally imposed against the earlier policy.
Last week, the federal government said that the “only logical reading” of the judgment is that it was immediately effective, despite what challengers to the policy have argued. “The D.C. Circuit’s decision to deny the stay motion as moot necessarily presumes that this court’s injunction does not remain in effect,” it said. “Plaintiffs’ arguments to the contrary are meritless.” Challengers to the policy have argued that the D.C. Circuit’s judgment — and therefore the injunction being lifted — will only be finalized once the circuit court’s formal mandate is issued. The challengers are a group of current and prospective transgender troops who claim the new policy still amounts to an effective “transgender ban” that violates their constitutional equal protection rights.
The circuit court issued two concurring opinions on March 8 fleshing out its earlier judgment, and has allowed the parties 21 days to ask for a rehearing following those concurrences. The distinction between a judgment and mandate is a technical one that matters only for some purposes, the government argued last week, citing a 1980 Third Circuit opinion — Finberg v. Sullivan — in which that court had noted that “the entry of judgment, rather than the issuance of mandate, marks the effective end of a controversy on appeal” and that issuing a mandate “is largely a ministerial function.” In this case, the D.C. Circuit withholding the mandate was simply to allow extra time to ask for rehearing, the government said. With the understanding that concurring opinions would follow the judgment, its judgment still had immediate effect, as demonstrated by the ruling mooting the stay motion, the government claimed. Judge Kollar-Kotelly disagreed Tuesday in her three-page order, noting simply that “absent a mandate, the D.C. Circuit’s January 4, 2019 Judgment vacating this court’s preliminary injunction is not final.” In January, shortly after the D.C. Circuit’s ruling, the U.S. Supreme Court agreed in a 5-4 vote to stay two preliminary injunctions against the U.S. Department of Defense’s policy.
Earlier this month, the DOD sent a memorandum setting an April 12 effective date for the disputed policy — issued after a Maryland federal court lifted the last remaining injunction against the policy. Counsel for the parties did not immediately respond to request for comment Tuesday.
The plaintiffs are represented by Paul R.Q. Wolfson, Kevin M. Lamb, Alan E. Schoenfeld and Adam M. Cambier of WilmerHale, Jennifer Levi and Mary L. Bonauto of LGBTQ Legal Advocates and Defenders, Shannon P. Minter, Amy Whelan and Christopher F. Stoll of the National Center for Lesbian Rights, and Matthew E. Miller, Kathleen M. Brill, Michael J. Licker, Rachel C. Hutchinson and Theresa M. Roosevelt of Foley Hoag LLP. The government is represented by Joseph H. Hunt, Brett A. Shumate, John R. Griffiths, Anthony J. Coppolino and Andrew E. Carmichael of the U.S. Department of Justice’s Civil Division.
The case is Doe 2 et al. v. Trump et al., case number 1:17-cv-01597, in the U.S. District Court for the District of Columbia. –Additional reporting by Daniel Wilson. Editing by Emily Kokoll. https://ift.tt/2UKk9ve
Law360’s Employment Editorial Advisory Board – Law360
Law360’s Employment Editorial Advisory Board Law360 (March 15, 2019, 3:00 PM EDT) —
Law360 is pleased to announce the formation of its 2019 Employment Editorial Advisory Board. The purpose of the editorial advisory board is to get feedback on Law360’s coverage and gain insight from experts in the field on how best to shape future coverage.
The members of Law360’s 2019 Employment Editorial Advisory Board are: Fred Alvarez, Coblentz Patch Duffy & Bass LLP Elena Baca, Paul Hastings LLP Anne Clark, Vladeck Raskin & Clark PC Dennis Duffy, BakerHostetler Gerald L. Maatman Jr., Seyfarth Shaw LLP Tammy McCutchen, Littler Mendelson PC Kate Mueting, Sanford Heisler Sharp LLP Yoora Pak, Wilson Elser Moskowitz Edelman & Dicker LLP Peter Romer-Friedman, Outten & Golden LLP Jillian Weiss, Jillian T. Weiss PC
See this link: https://www.law360.com/employment/articles/1137765
DOD ‘Transgender Ban’ Set To Take Effect In April – Law360
DOD ‘Transgender Ban’ Set To Take Effect In April Law360 (March 13, 2019, 5:20 PM EDT) — The
U.S. Department of Defense announced it will implement its contentious policy heavily restricting the service and recruitment of transgender troops on April 12, despite the D.C. Circuit having yet to rule on whether it will rehear a dispute related to the policy. The DOD confirmed Tuesday that it intends to put its March 2018 transgender policy into effect on April 12, following the leak of a related memorandum, drawing sharp criticism from challengers to the policy. Those challengers argued that the move to implement the policy — which they claim is effectively a “transgender ban” — defies a court order. The disputed policy allows transgender people to join or serve in the military only if they don’t have gender dysphoria — a disconnect between biological sex and the gender with which they identify that causes distress — and have not already transitioned between genders, with limited exceptions for current troops.
While the D.C. Circuit had vacated a preliminary injunction that had prevented the policy going into effect after finding that a district judge had not given sufficient credit to the DOD’s efforts to address issues with an earlier version of the disputed policy, the appeals court has not yet issued a formal mandate for that January judgment, giving the parties time to potentially seek a rehearing.
“With brazen disregard for the judicial process, the Pentagon is prematurely and illegally rolling out a plan to implement the ban when a court injunction remains in place prohibiting them from doing so,” Jennifer Levi, director of GLBTQ Legal Advocates & Defenders’ Transgender Rights project, said in a statement Wednesday. Levi is co-counsel for the challengers in the circuit court case.
The DOD’s move to implement the transgender policy comes after a Maryland federal judge on March 7 stayed the last of four preliminary injunctions against the policy going into effect, saying he was bound by a similar stay issued by the U.S. Supreme Court in January. But the D.C. Circuit, as mentioned by the challengers, is still yet to formally lift its injunction after having issued two concurring opinions on March 8 fleshing out its earlier judgment, which effectively argue over the level of deference that courts are required to give military decisions. The circuit court panel had given the parties 21 days to ask for a rehearing or en banc rehearing following those concurrences and its mandate will only go into effect a week after any petition for rehearing is resolved.
Legal challengers to the DOD’s policy were not the only ones to slam the department’s plan to implement the policy, with other LGBTQ advocacy and civil rights groups and Democratic lawmakers also criticizing the move. House Majority Leader Nancy Pelosi, D-Calif., said in a statement Tuesday that “the revival of [this] bigoted, disgusting ban on transgender servicemembers is a stunning attack on the patriots who keep us safe and on the most fundamental ideals of our nation.”
The disputed policy stems back to a directive issued by then-Defense Secretary Ashton Carter in June 2016, allowing transgender servicemembers to serve openly for the first time. Carter said that the department had studied the issue and found that it would not affect military readiness, and that “Americans who want to serve and can meet our standards should be afforded the opportunity to compete to do so.” President Donald Trump, however, claimed in a series of July 2017 tweets — later formalized in a presidential memo in August that year — that he would reimplement the ban on open service, citing purported negative effects on military readiness and unit cohesion, as well as allegedly “tremendous” related medical costs.
That prompted a series of lawsuits from current and prospective transgender servicemembers challenging the ban, arguing it violated their constitutional equal protection rights, and several district judges subsequently issued preliminary injunctions against the policy going into effect. In response, the administration issued its updated policy in March 2018, supported by the “Mattis plan,” named after then-Defense Secretary James Mattis. The plan cites the opinions of a panel of military officials regarding how best to protect “lethality and readiness,” and criticizes the RAND Corp. report that had underpinned the 2016 policy. District courts remained unmoved, however, finding the new policy to be substantially similar to the previous blanket ban, prompting the administration to appeal to the Ninth Circuit, D.C. Circuit and — in an unusual move — the Supreme Court, arguing that the district judges had not given sufficient respect to military decisions and that the injunctions should not apply nationwide.
The Ninth Circuit is still yet to rule on the injunctions stayed by the Supreme Court, with district courts also yet to make any merits rulings regarding the disputed policy. There is also legislation pending in Congress to effectively overturn the policy, although it has limited Republican support, meaning it is unlikely to gain traction in the Senate. Read more at: https://ift.tt/2TR6m8I
Seven Lawyers from Outten & Golden LLP Named to Lawdragon’s 500 Leading Lawyers in America
Seven Lawyers from Outten & Golden LLP Named to Lawdragon’s 500 Leading Lawyers in America
Lawdragon’s elite list honors attorneys from preeminent full-service employee-rights law firm —
Lawdragon has published the 2019 edition of its 500 Leading Lawyers in America, featuring seven lawyers from Outten & Golden LLP among its distinguished honorees. The attorneys named to the list are:
- Adam T. Klein – Managing Partner and Co-Chair, Class & Collective Actions Practice Group
- Wendi S. Lazar – Co-Chair, Individual Practice Area and Executives & Professionals Practice Group
- Tammy Marzigliano – Co-Chair, Whistleblower Retaliation and Financial Services Industry Practice Groups
- Laurence Moy – Deputy Managing Partner, Co-Chair, Individual Practice Area and Financial Services Industry Practice Group
- Wayne N. Outten – Firm Chair and Co-Chair, Executives & Professionals and Whistleblower Retaliation Practice Groups
- Justin M. Swartz – Co-Chair, Class & Collective Actions Practice Group
- Jillian Weiss, Ph.D. – Of Counsel, Member, Lesbian, Gay, Bisexual, Transgender & Queer (LGBTQ) Workplace Rights Practice Group
“We are delighted that the firm once again ranks prominently on the Lawdragon 500,” said Mr. Klein, a multiple award winner who the magazine previously spotlighted in a Lawyer Limelight, “and we are especially proud that so many of our practice areas are reflected.” From offices in New York, Chicago, San Francisco, and Washington, D.C., Outten & Golden’s attorneys represent employees in a wide array of matters, from discrimination, sexual harassment, wage-and-hour, and WARN Act cases to employment, separation, compensation, and expat agreements.
According to Lawdragon, the 500 Leading Lawyers for 2019 were selected through editorial research, submissions from law firms, and peer nominations. This year’s guide features a record 40 percent women and is 20 percent inclusive – a mix consistent with Outten & Golden’s honorees.
Outten & Golden LLP focuses on advising and representing individuals in employment, partnership, and related workplace matters both domestically and internationally. The firm counsels individuals on employment and severance agreements; handles complex compensation and benefits issues (including bonuses, commissions, and stock/option agreements); and advises professionals (including doctors and lawyers) on contractual issues. It also represents employees with a wide variety of claims, including discrimination and harassment based on sex, sexual orientation, gender identity and expression, race, disability, national origin, religion, and age, as well as retaliation, whistleblower, and contract claims. The firm handles class actions involving a wide range of employment issues, including economic exploitation, gender- and race-based discrimination, wage-and-hour violations, violations of the WARN Act and of USERRA, and other systemic workers’ rights issues.
Outten & Golden has nine practice groups: Executives & Professionals, Financial Services, Sexual Harassment & Sex Discrimination, Family Responsibilities & Disability Discrimination, Lesbian, Gay, Bisexual, Transgender & Queer (LGBTQ) Workplace Rights, Discrimination & Retaliation, Whistleblower Retaliation, Class & Collective Actions, and WARN Act. Outten & Golden has offices in New York, Chicago, San Francisco, and Washington, DC. https://ift.tt/2VZMr5f
Ex-Secretaries Say DOD Lied About Transgender Policy – Law360
Ex-Secretaries Say DOD Lied About Transgender Policy Law360 (March 5, 2019, 9:40 PM EST) —
Three Obama-era service secretaries have accused U.S. Department of Defense officials of misleading Congress about the DOD’s “transgender ban” to try to justify that policy, saying transgender troops must meet the same standards as every other service member and are not given “special accommodations.”
DOD officials made “misleading claims” in a Feb. 27 hearing before the House Armed Services Military Personnel Subcommittee regarding military service by transgender people in an effort to justify the Trump administration’s “wrong-headed ban,” Ray Mabus, Deborah Lee James and Eric Fanning said in a statement issued through policy research institute the Palm Center. The statement, dated Sunday, was released Monday.
“Under inclusive policy that is currently in effect, transgender service members must meet exactly the same fitness and deployability standards as everybody else, but the witnesses ignored data confirming the success of that policy while making the untrue assertion that holding all service members to the same standards affords ‘special accommodations’ to transgender troops,” the former service secretaries said. Mabus was Navy Secretary, James the Air Force Secretary, and Fanning the Army Secretary when then-Defense Secretary Ashton Carter announced in 2016 that the DOD would change its personnel policies to allow transgender troops to serve openly for the first time — a policy President Donald Trump moved to walk back in 2017.
“There is no defensible rationale for imposing ‘don’t ask, don’t tell’ on honorably serving transgender troops,” the trio said Monday. A representative for the DOD was not immediately available for comment late on Tuesday.
The former service secretaries’ statement followed a Feb. 26 letter signed by 41 retired high-ranking military officers arguing that the service of transgender troops has no negative effect on military readiness, and came alongside a similar report issued by the Palm Center on Monday, authored by several current and former military institute professors. The professors accused the military officials who appeared at the congressional hearing — James Stewart, acting as the Undersecretary of Defense for Personnel and Readiness, and Vice Adm. Raquel Bono, the director of the Defense Health Agency — of making a range of deceptive claims to Congress about military service by transgender people. Those alleged deceptions were related to military readiness, deployability and mental health issues faced by transgender people, the professors said. And the officials’ attempts to try to justify the Trump administration’s transgender policy as being based on a medical diagnosis rather than gender identity were also misleading, according to the report.
Stewart and Bono’s claims — which also faced pushback from several committee Democrats during the hearing — went against “global medical consensus” and the DOD’s own data to instead effectively echo the “Mattis Report” underlying the new transgender policy, they claimed. That report, named after former Defense Secretary James Mattis, has been accused by challengers of being an after-the-fact justification for effectively banning transgender troops. Under the Trump administration’s policy, issued in March 2018, transgender people may join or serve in the military only if they don’t have gender dysphoria — a disconnect between biological sex and the gender with which they identify, which causes distress — and have not already transitioned between genders, with limited exceptions for current troops.
That policy was a revision of an August 2017 presidential memorandum issued by Trump, which would have imposed a blanket ban on military service by transgender people. The president had cited alleged negative effects on military readiness and unit cohesion stemming from the Obama-era open service policy, as well as purportedly “tremendous” related medical costs. The Trump administration’s policy, however, has yet to go into effect amid a series of lawsuits.
Although the U.S. Supreme Court has stayed one set of preliminary injunctions blocking the policy, pending a circuit court appeal, and the D.C. Circuit has dissolved another injunction, there is still one remaining injunction in place in Maryland federal court. The government asked the Maryland court to lift its injunction following the Supreme Court’s stay order, but it has yet to do so, prompting the government to file a writ of mandamus on Friday asking the Fourth Circuit to make the district court comply with its request. https://ift.tt/2XD9FzA
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Redefining Gender at Work: How Companies Are Evolving – Knowledge@Wharton
“Redefining Gender at Work: How Companies Are Evolving”
Knowledge@Wharton, the online business analysis journal of the Wharton School of the University of Pennsylvania, has published an article on transgender issues in the workplace.
I spoke with the author. Here is an excerpt.
Many employers responded to awareness of transgender workers by developing new policies aimed at accommodations, in part because of complaints and lawsuits claiming discrimination. But even though awareness has increased, the reality today for many transgender workers is that the path to getting a job, keeping it, and achieving the same career success as their cisgender counterparts remains fraught with obstacles.
“We are seeing a big rise in employers who say they are supportive — there is a lot more in terms of policies. But what happens on the shop floor is often different from the policy set by the C suite,”
says Jillian T. Weiss, a lawyer who specializes in transgender discrimination and is of counsel to Outten & Golden.
“When people are having problems, those they turn to for help are the HR staff, and [the latter] often have no idea what to do. They don’t understand what the issues are.”
See this link: http://knowledge.wharton.upenn.edu/article/redefining-gender-at-work/
Ex-EEOC Member Feldblum Lands At Morgan Lewis – Law360
This is a stunner.
Chai Feldblum, who until recently was a member of the US Equal Employment Opportunity Commission, and a well known champion of LGBTQ rights, has joined the employer defense group of management-side law firm Morgan Lewis & Bockius.
Chai played important roles in crafting the Americans With Disabilities Act, and the EEOC’s opinions in Macy v Holder, clarifying protections for gender identity under the Federal Civil Rights Act, and Baldwin v Foxx, clarifying protections for sexual orientation.
This is a surprise move for a high official with Democratic credentials. She has said she intends to provide training and policy revision services to large employers. That could be very helpful to employees, particularly if she can convince them to investigate complaints more seriously than the cursory glance and “unsubstantiated” finding that is now often the case. Also, please train them on what discrimination against LGBTQ people looks like. It’s more often ostracism and hidden demotions more than the f word. Also, misgendering is a problem for trans employees. We all also know it take time to adapt for some people, but a month should be enough time for people in frequent workplace contact.
As I am currently representing LGBTQ employees who are opposing employers represented by her firm, my feelings are mixed. As the Talmud says, the defense attorney cannot also be the prosecutor.
I wish her well in her new role.
Venable Next For Students Pushing To End Forced Arbitration – Law360
Harvard law students are advocating job candidate boycotts of law firms requiring forced arbitration of disputes. They have been successful in doing so. The same should be done in other industries as well.
Forced arbitration basically means that employers can force you to a kangaroo court that favors their enormous resources and leaves you with zero leverage. This removes all the brakes on their bad behavior, which happens with surprising regularity, Law360, Boston (February 4, 2019, 2:42 PM EST) — Following successful campaigns to convince Kirkland & Ellis LLP and Sidley Austin LLP to end mandatory arbitration at their firms, a group of Harvard law students is now urging peers to boycott Venable LLP, calling the firm’s “jaw-dropping” policy “among the most egregious examples of forced arbitration” in a social media campaign Monday.
The Pipeline Parity Project wants law school students to #DumpVenable due to the arbitration policy, asking them not to interview with the Washington-based firm and asking student groups at law schools throughout the country to refuse Venable sponsorships. In addition to slamming the policy itself, the Harvard students accuse Venable of lying to incoming summer associates last year. When 50 law schools sent out a survey last June asking firms about their arbitration practices, Venable said incoming associates would not be subject to mandatory arbitration, according to the group. “But just weeks later, on July 17, 2018, Venable partner G. Stewart Webb Jr. announced in a firmwide email:
‘The firm has adopted a mandatory arbitration provision that will be applicable to all Venable personnel,’” Pipeline Parity said in a statement. One of the group’s organizers, second-year law student Molly Coleman, told Law360 Monday “deceitful is a nice word” to describe the abrupt about-face. “It’s quite problematic, they are using forced arbitration to impede justice,” Coleman said. “There are limitations on discovery explicitly listed in the policy … We have read a lot of these policies. Venable’s was jaw-dropping.” Coleman noted that disputes stemming from allegations of harassment, retaliation, age discrimination and wages and rows under the Employee Retirement Income Security Act of 1974 and the Fair Labor Standards Act are pressed into arbitration, among others. “There is essentially no claim you can bring that would not fall under this policy,” she said. The limitations on discovery include allowing a maximum of 20 interrogatories and three depositions lasting no longer than seven hours. “Maybe there are claims you can prove with that,” Coleman said, “but that makes it a lot more difficult.”
The Venable email asked that the arbitration policy remain confidential and that the documents not be released outside of the firm, according to Pipeline Parity’s statement, which added “we don’t think the fact that Venable forces its employees into arbitration should be a secret. (Nice try, though.)” A representative for Venable did not respond to a request for comment Monday morning. The firm is the latest in a series of Pipeline Parity social media campaigns, some of which have proved successful in achieving the group’s objectives. The online push began in mid-November with Kirkland & Ellis, which dropped forced arbitration for associates just before Thanksgiving and expanded the new policy to all employees and staff in early December. Sidley Austin told Law360 in late November it would change its own forced arbitration policy.
Other firms, such as DLA Piper, have resisted the online pressure. In a November statement, DLA Piper told Law360 it would continue to use arbitration, which it called “a fair and efficient way to resolve internal disputes and one that benefits all parties in what are often sensitive matters for everyone involved.” A DLA Piper representative said Monday the firm’s earlier statements on the issue remain current. Using social media pressure to encourage change in the legal industry has been a relatively successful phenomenon in recent years. Munger Tolles & Olsen LLP released its employees from forced arbitration contracts last March and issued an apology less than 48 hours after a Harvard Law School lecturer posted part of a summer associates agreement on Twitter. Around the same time, Orrick Herrington & Sutcliffe LLP announced it would no longer require forced arbitration agreements.
Coleman said Pipeline Parity has been getting an overwhelmingly positive response from law students and from some firms, including one she said called her last week to let her know they would drop forced arbitration for associates and look into expanding the change to all employees. “It feels like there is this growing movement in the legal community to say ‘there is a problem with forced arbitration,’” Coleman said, stressing that Pipeline Parity also wants firms to stop enforcing these so-called coercive contracts on behalf of their clients. “That’s what makes firms like Venable and DLA Piper seem like such outliers when everyone is moving in one direction,” she said. In addition to the law school survey, Law360 carried out its own survey last year asking the top 100 U.S. law firms about their sexual harassment policies. Of the 18 firms that responded, seven said they have not required any of their employees to sign arbitration or nondisclosure agreements that would apply to sexual harassment allegations.
–Editing by John Campbell.
See this link: https://www.law360.com/employment/articles/1125070
Remembering Babs Siperstein, Pioneering Trailblazer of Trans Rights
Babs Siperstein, a friend, mentor and giant of trans equality for the past 20 years, passed on yesterday.
Babs started Gender Rights Advocacy Association of New Jersey in 2000, was one of the founding members of Garden State Equality in 2004, and the first trans member of the Democratic National Committee.
She made it her business to know every member of the New Jersey political establishment in her pursuit of trans equality.
Her legal and political accomplishments are unparalleled. Her memory is a blessing to us all.