Legal News Federal

Title VII Sex Discrimination 
EEOC Guidance
In 2015, the EEOC publicized a statement regarding its interpretation of federal prohibitions on sex discrimination in the workplace being inclusive of LGBT workers by making the following statement.

“[ . . . ] While Title VII of the Civil Rights Act of 1964 does not explicitly include sexual orientation or gender identity in its list of protected bases, the Commission, consistent with case law from the Supreme Court and other courts, interprets the statute's sex discrimination provision as prohibiting discrimination against employees on the basis of sexual orientation and gender identity.”

The EEOC supported its statement with recent case law and agency rulings supporting the assertion that discrimination on the basis of sexual orientation and gender can be founded in stereotypical norms of and an individual’s failure to conform to those norms and as such amounts to discrimination on the basis of sex contemplated under Title VII’s prohibition.

Title VII Retaliation 
The Equal Employment Opportunity Commission (EEO) issued new guidance for employers in guarding against retaliation. Under Title VII of the 1964 Civil Rights Act of 1964, it is an unlawful employment practice for an employer to take an adverse employment action against an employee for engaging in a protected activity. Examples of a “protected activity” include but are not limited to –

  • complaining or threatening to complain about alleged discrimination against oneself or others;
  • providing information in an employer's internal investigation of an EEO matter;
  • refusing to obey an order reasonably believed to be discriminatory;
  • advising an employer on EEO compliance;
  • resisting sexual advances or intervening to protect others;
  • passive resistance (allowing others to express opposition);
  • requesting reasonable accommodation for disability or religion;
  • complaining to management about EEO-related compensation disparities; or
  • talking to coworkers to gather information or evidence in support of a potential EEO claim.

For ready reference to helpful EEO FAQ’s see here.

Questions? Comments? Complaints (really)? Email or call: ccall@westmont.edu; ext. 6023.

Sexual Orientation Discrimination in Education
OFFICE FOR CIVIL RIGHTS TITLE IX GUIDANCE
In 2015 the Department of Education’s (DOE) Office for Civil Rights issued several Dear Colleague letters clarifying the Title IX requirements that all US K-12 and postsecondary educational institutions in receipt of federal funding must meet. Among the clarifications, the DOE affirmed the applicability of Title IX to LGBT complainants, asserting that schools must investigate sex discrimination complaints made by individuals identifying as LGBT as it would for any other category of complainants.

Sexual Assault
The Office for Civil Rights Department of Education has charged a task force with reviewing the Dear Colleague Letters and the federal regulations upon related to the resolution of campus sexual assault. In a series of “listening sessions,” representatives from both complainant and respondent advocacy groups have voiced concerns about the campus procedures patterned after the regulations and guidance now under review. A growing number of respondents (who remain more often male than female) continue to bring charges of sex discrimination against campuses, complaining their “victim-centered” policies serve to discriminate against males. Survivor advocates continue to cite the statistics of campus incidence and the misunderstanding of the same, most recently citing the Department’s own acting assistant secretary, Candice Jackson as one such person in err in her understanding of the dynamics involved in nonconsensual sex when Jackson indicated her belief that 90% of sexual assaults on campus stem from regret.  In light of the department’s rescission of the 2016 letter re: transgender students, a rollback of other guidance remains a distinct possibility.  Stay tuned.

Questions? Comments? Complaints (really)? Email or call: ccall@westmont.edu; ext. 6023.

As of March 7, 2014 college campuses are now required to report additional violent crimes occurring on their campuses and contiguous properties. The Violence Against Women Reauthorization Act (VAWA) amends the Clery Act to now include a requirement to report offenses of domestic violence, stalking, and dating violence. In addition, VAWA requires colleges to ensure its disciplinary policies involving offenses of this nature include certain procedural safeguards to protect both the alleged victim and alleged offender.

Investigation, Reporting and Disciplinary Proceedings in Sexual Violence Cases
Neither the Reauthorization of the Violence Against Women Act (VAWA) nor the Sexual Assault and Violence Elimination Act (SaVE) modify Title IX. However, one might say that the laws are at least in a collaborative effort to minimize the instances of sexual assault and other forms of what the law refers to as “intimate partner violence” on US campuses. VAWA, a section of the Higher Education Opportunity Act, with it’s SaVe provision amends the Clery Act. The result: a host of campus educational training, reporting and student discipline requirements aimed at prohibiting one form of sex discrimination in American higher education brought to us courtesy of the Department of Justice, Office for Civil Rights.

Questions? Comments? Complaints (really)? Email or call: ccall@westmont.edu; ext. 6023.

Family Educational Rights and Privacy Act of 1974 (Disclosure Education Records)
FERPA now provides for greater release of otherwise private educational records. Among the changes are the following is the now permissible nonconsensual release of information for the purpose of state studies on the effectiveness of educational program within its school districts. Similarly information can be released to “authorized representatives” of certain office of the federal government for the audit, evaluation, enforcement or compliance activity related to federal legal requirements of educational programs. FERPA has also redefined directory information to include a limitation on the ability to “opt-out” of making directory information available. Under the new definition, a student may not use the “opt-out” right to refuse to disclose or use an identification number or photograph assigned by an educational institution.

Questions? Comments? Complaints (really)? Email or call: ccall@westmont.edu; ext. 6023.

Office for Civil Rights and University Resolutions re: Accessible Technology
ADA/SECTION 504
Three Universities entered into resolutions with the Department of Education’s Office for Civil Rights to settle disputes on the availability of accessible technology. The University of Cincinnati, Montana and Youngstown State University all agreed to conform web content availability to the Web Content Accessibility Guideline Standards (WCAGs). However, in its letters the Office for Civil Rights indicated that its reliance on the WCAGs with these guidelines in assessing the named campus’ standards is neither an indication that such compliance is required or that it is sufficient. These resolutions, like case law, are fact specific and though guiding principles are used, outcomes depend on those facts.

Questions? Comments? Complaints (really)? Email or call: ccall@westmont.edu; ext. 6023.

Congress Renews DMCA Exemptions for Educational Institutions
FAIR USE OF DIGITAL MATERIAL
Congress renewed the Digital Millennium Copyright Act’s exemptions for educational institutions permitting the use of technological measures used to protect copyrighted works under certain circumstances, including circumvention to gain otherwise unauthorized access to a work to make a good faith effort to determine whether it wishes to acquire access to the protected work when that work is not available through any other means.

Questions? Comments? Complaints (really)? Email or call: ccall@westmont.edu; ext. 6023.

Immigration
Executive Orders 13767 and 13780 - RECAP
On January 27, 2017 President Trump signed Executive Order 13767 (the Order) suspending issuance of visas to “nationals of countries of particular concern,” ordering a suspension of immigrant and non-immigrant travel of the same individuals for a 90-day period; and imposing a 120-day suspension on the United States Refugee Admissions Program, which upon reinstatement would include a prioritization of applications for those subscribing to minority religions in their home countries.  What happened after that was a legal challenge, seemingly every time someone cleared their throat.  Here’s what happened:

  • Washington University seeks and obtains a temporary restraining order on the enforcement of EO 13767 three days after its institution when the order results in cancelled and/or interrupted travel for a combination of visiting scholars, prospective employees and interns at both Washington State University and the University of Washington.  The court’s ruling is effective nationwide.
  • The US government appeals the Washington court’s decision and loses.

POTUS issues Executive Order 13780 temporarily suspending immigrant and non-immigrant travel and decisions on applications for the US Refugee Admissions Program for six of the seven countries named in Executive Order 13767.  Again, affected parties challenge the suspension as unconstitutional, pointing in large part to assertions POTUS made during the 2016 presidential campaign regarding Muslim immigration to the United States.  The US Supreme Court upholds the Order but narrows its scope as it relates to immigrant and non-immigrant travel.

  • Executive Order 13780 remains in tact.  However, that portion of the Order suspending immigrant and non-immigrant travel may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United states, with the former standard requiring a “close familial relationship.”
  • In its enforcement guidance, the government attempted to disqualify grandparents from the its definition of “close familial relationship.” However, the Supreme Court declined to block a district courts ruling which expanded the definition to include them.
  • The government has petitioned the US Supreme Court for a “global” review of all of these temporary orders. Arguments are scheduled to take place before the Court in October.

Questions? Comments? Complaints (really)? Email or call: ccall@westmont.edu; ext. 6023.