Category: Discrimination

Remember that scene in Lean on Me, when Mr. Clark chains the doors of the high school after an expelled student attacks another student? He faces a fight from the parents and the Fire Marshall, because chaining students inside the school is illegal.

Fast-forward to 2016, and you will find an eerily similar situation happening at the Watkins Memorial High School in Pataskala, Ohio. The principal in this real-world case is not chaining the doors; he is instituting the use of a barricade system to be put in place in the event of an active shooter. Ohio is not the only state to take such measures. According to Tuscon.com, Arkansas, Michigan, Kansas and New Jersey also have laws allowing these barricade systems.

But here is the rub: under the Americans with Disabilities Act, the locks have to be usable by people with disabilities, and the law does not make exceptions for barricade devices. Michael Kirkman, the Executive Director of the Ohio Disability Rights Law and Policy Center, has said that using barricades “has the potential to create an environment where they are discriminated against because of their inability to operate this device.” The Ohio building standards board has objected to the use of these devices in the past, but lawmakers pushed the legislation through.

Safety vs. civil rights

This is a particularly touchy area of the law. On the one hand, our schools must now prepare for a world where active shooters are a real threat. On the other, we cannot protect only one portion of a school community, and many of these barricade systems are not ADA compliant. Having to choose between safe practices and civil rights is unconscionable, and yet here we are.

The Department of Homeland Security understands these risks, but offers no real guidance when it comes to barricades. In a November 2015 publication, the DHS reminds us that “In order for information to be actionable, it must be accessible” – it reminds us that visual aids and announcements are of no real use to those with vision or hearing impairments – but its primary focus seems to be on adaptive coping strategies, not ADA compliance. Other than recommending that schools partner “with local disability entities such as Americans with Disabilities Act (ADA) Centers, governor’s disability councils, mayoral task forces, independent living centers, etc., for assistance with tools, methods, resources and protocols,” it offers no further assistance.

There could be a strong case for a discrimination lawsuit against the school the board or even Ohio’s legislators, but only if these barricades prove to be an impediment. What we hope will happen is that the schools in these states will find ways to comply with the ADA regulations, or to refuse to use them altogether. Otherwise, they face legal actions against them.

At the Gilbert Firm, we champion the rights of our clients with disabilities. With offices in Nashville, Chattanooga, Memphis and Jackson, we are always nearby when you need an advocate the most. Please contact Justin Gilbert or Jonathan Bobbitt about your needs, or contact the firm to reserve a consultation with an experienced Tennessee anti-discrimination attorney.

Over the last few months, more and more states have begun to enact legislation that defends “religious freedoms” by allowing discrimination against certain groups of people. Here in Tennessee, that legislation is twofold:

Senate Bill 2387/House Bill 2414 requires that “Public schools shall require that a student use student restroom and locker room facilities that are assigned for use by persons of the same sex as the sex indicated on the student’s original birth certificate.”

House Bill 1840 “declares that no person providing counseling or therapy services shall be required to counsel or serve a client as to goals, outcomes, or behaviors that conflict with a sincerely held religious belief of the counselor or therapist.”

HB 2414 was tabled by Governor Haslam on April 18 for another year, thought it could find its way back in 2017. HB 1840 is heading to the Governor now, having passed in the House and Senate.

The response has been divided

There has been considerable backlash against other states which have signed similar statutes into law – North Carolina in particular lost 400 jobs when PayPal pulled out, and found themselves with an open venue after Bruce Springsteen cancelled a concert there – and Georgia governor Nathan Deal vetoed a religious liberty bill, saying that he did “not think that we have to discriminate against anyone to protect the faith-based community,” of which he considers himself a member. Bills have been successfully passed in Kansas and Mississippi; in Missouri, Virginia and Kentucky, the legislation remains up in the air.

But is it discrimination?

Of course it is. “Discriminate” simply means to treat differently—to differentiate. By definition, these laws allow different treatment of LGBTQ persons than non-LGBTQ persons. The basis for the differentiation (the discrimination) is said to be one’s religious beliefs. So, it would be more accurate for lawmakers to state that the bill allows discrimination against LGBTQ persons based upon sincerely held religious beliefs.

Opponents of this type of legislation have an even stronger case now, as “a federal appeals court in Richmond has ruled that a transgender high school student who was born as a female can sue his school board on discrimination grounds because it banned him from the boys’ bathroom.” This decision could set the precedent for the rest of the country. At the very least, it will lend credence to other arguments that this is discrimination.

Why are restrooms such a big issue?

Women’s restrooms must, of course, be a place of safety. And, historically, this has been a place of legal discrimination—that men are not permitted. A transgender person, however, presents a new territory. Consider the transgender person who does not identify with his/her birth-assigned gender. If that person internally identifies as female, and expresses herself in voice, clothing, pronouns, haircut, behavior, or other cues as female, should she be forced to use the men’s room based upon birth-assigned anatomy? The Tennessee bill cruelly answers that question “yes,” without exception.

But consider that transgender persons face bullying and harassment at alarming rates—50% have been abused or harassed according to Department of Justice estimates. A government which forces an identifying and outwardly appearing female child to use a men’s bathroom is guaranteeing harassment and abuse for that child.

Presumably, the bill has a basis beyond ignorance and homophobia. Perhaps it is a fear that a female using the women’s restroom could be abused by a transgender person because of a male birth- assignment. If so, those chances are so staggeringly low in comparison to the experience of transgender persons being bullied that it does not make for good law.

Ultimately, these bills fail to grapple with the fundamental question of what does it mean to be transgender—and what do the rights of a transgender person look like? In this sensitive area, lawmakers should educate themselves more rather than playing to ignorance and stereotypes that can lead to bullying and harassment of the LGBTQ community.

To learn more about your rights, to speak with an experienced Tennessee discrimination attorney, we invite you to contact the Gilbert Firm. We maintain offices in Nashville, Chattanooga, Memphis, and Jackson for your convenience.

Last December, Cargill Meat Solutions Plant fired 150 workers. Depending on which news source you read, they were fired for walking off the job, for failing to report to work, or for wanting to pray. The details change from source to source (Was it 150 workers? 190 workers? No one seems to know for sure), but certain salient points are being repeated by almost every source: every worker who was fired was a practicing Muslim, and the Council on American-Islamic Relations (CAIR) is representing about 100 people who believe they were fired because of religious discrimination.

A quick recap of the events

Cargill employs hundreds of Somali refugees at its Fort Morgan plant. To accommodate the workers, Cargill has set “aside two cubicles for prayer and grant[fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][ed] a ‘vast majority’ of break requests” to pray, according to the New York Times. However, because of the nature of the assembly line work, a company spokesperson told the Times “occasionally, there are times when staffing limitation does not allow granting of prayer requests.”

According to the Daily Kos, there has been a “long standing policy” that observant workers could take 5-10 minutes of their own break time to use the reflection room for their prayers. The Denver Post, however, reports that the accommodation requests depended on the “changing factors of the plant,” and that this had been clearly communicated to the workers. The spokesperson, Michael Martin, also told the Denver Post “We know that some of our employees would like a guaranteed prayer time every day….That is not the legal requirement, and it would be impractical to accommodate this without shutting down the production line.” The company would allow two workers from each section to pray at a time to keep things moving in the plant.

The trouble arose when a new shift supervisor told the workers to go home if they wanted to pray. (Eleven workers did.) This is reflective, says CAIR representative Jaylani Hussein, of Cargill’s inconsistent policy application.

But is it discrimination?

Title VII of the Civil Rights Act of 1964 says “The term ‘religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business” (emphasis ours).

At first glance, it looks as though Cargill did its best to accommodate the religious observances of its workers in a way that allowed the company to continue its steady production. Obviously, the assembly line could not shut down entirely at any given time, so allowing break requests for a couple of employees at a time worked well, since the other employees (who might request their breaks next) picked up the slack during those minutes. Even the Teamsters Local 455, which represents the workers, agrees that Cargill accommodated the workers.

However, the employees say (as does CAIR) that there was a shift in attitude and policy this past December: “Maybe Cargill never changed its policy, but to these employees, they feel whatever the policy is, or how it is implemented, there was a change put in place,” Hussein said (emphasis ours).

The issue might hinge on whether or not the new supervisor simply did not understand the policy well enough, leading him or her to deny requests. It might also be that Cargill is trying to play fast and loose with the rules. Cargill did put out a press release about its policies on January 8, 2016:

“Cargill Beef’s religious accommodation policy remains unchanged… Accommodation requests are made to work area supervision and granted based on production line staffing and other factors that may vary day-to-day. Although not guaranteed, and not part of the meal and break periods that are part of the plant’s union agreement with Teamsters local 455, the vast majority of religious accommodation requests are routinely granted during each of the plant’s two weekday work shifts.”

In that same release, the company announced that it “has updated its policy related to the time interval between the date when an employee is terminated and the date when that person may become eligible to reapply for a position with the company,” so that the workers who left do not have to wait six months before applying again.

It looks as though Cargill is trying to do the right thing, but it could be a case of “too little, too late.” After all, this is not the first time the company has been accused of discrimination. Cargill believes the walkout was the result of a miscommunication; the former employees may feel differently.

At the Gilbert Firm, we advocate on behalf of employees facing discrimination at their jobs. Please contact us to speak Jonathan Bobbitt or Justin Gilbert, or to schedule an appointment with an experienced Tennessee discrimination lawyer. We maintain offices in Nashville, Chattanooga, Memphis and Jackson for your convenience.

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