Trump Wants to Dismantle Discrimination Protections

Pandering to his racist (and hate motivated base) and, I suspect indulging his own bigotry, Donald Trump, a/k/a Der Trumpenführer, wants to dismantle civil rights and thereby (i) strengthen the license of Christofascists to discriminate and (ii) make it more difficult for targets of discrimination to seek recourse.  It is all  part of Trump's effort to "Make America White Again," the real meaning of Trump's MAGA slogan.  Meanwhile, the Trump/Pence regime has been actively working to undermine LGBT discrimination protections and have argued that its perfectly legal for employers to fire LGBT employees due to their sexual orientation. A piece in Think Progress looks at this insidious agenda.  Here are highlights:

The Trump administration is looking to either eliminate or severely restrict regulations designed to protect people from discrimination in a number of categories, the Washington Post reported Thursday.

The Department of Justice is asking federal agencies to assess ways to scale back regulations that allow for “disparate impact” legal challenges to discrimination.

Disparate impact refers to discrimination that occurs against a group even when there is no clear evidence of an intent to discriminate. . . . . Disparate impact litigation would be a vehicle for challenging that policy as racial discriminatory, even if there’s no evidence that the employer put the policy in place in an attempt to give white candidates an advantage.

The approach is not new; in fact, it’s been a practice dating back a half-century to when civil rights laws were first put on the books. And litigation based on showing a disparate impact has been used to combat discrimination in just about every way, including employment, housing, education, and credit.

The administration has already demonstrated a willingness to gut this important tool for combating discrimination.  Last month, the Federal Commission on School Safety recommended rolling back disparate impact policies in education. These policies sought to minimize the amount of punitive discipline for minor infractions, because such discipline was disproportionately applied to students of color and students with disabilities — fueling the so-called “school-to-prison pipeline.” The commission claimed without a clear explanation that allowing such discipline would somehow protect students from gun violence.

Tom Silverstein, associate counsel at the Lawyers’ Committee for Civil Rights, explained to ThinkProgress that where the Supreme Court has not resolved the issue, the administration will try to prohibit bringing disparate impact claims at all. Where the Supreme Court has said such claims are viable, the administration could place many limitations on them that make it far harder for them to succeed.

New regulations could heighten the standard for showing a causal relationship between a company’s policy and its disparate impact, or they could burden plaintiffs with having to prove that a less discriminatory policy would still serve the company’s interests. These would shift the advantage more to the company discriminating and make it harder to bring successful claims against them.

The Department of Housing and Urban Development already has indicated that it is seeking to undo its disparate impact rule, which would make it easier for insurance companies to implement policies that discriminate against minorities.

Sasha Samberg-Champion, a civil rights lawyer at Relman, Dane & Colfax, told ThinkProgress that the proposed changes are “harmful” because they will make it far harder to prove discrimination is taking place. An insurance company, for example, might be relying on a certain automated algorithm that ends up making it harder for people of color to obtain coverage, but it might not be possible to trace that algorithm back to specific individuals or any intent to discriminate.

“There may be some bad intent going on as well,” he said, “but it’s virtually unknowable when you begin investigating and begin litigation. You know there’s a bad practice that has a severe disparate impact on minority populations, and you know it’s irrational and has no justification. But you don’t know why unless they’re stupid enough to announce that they’re bigots.”

The administration’s restrictions could lead to a situation where plaintiffs basically have to find some clear evidence that a company was trying to discriminate, not just show that they happened to be discriminating. “If you make it a requirement that you prove intent, you’re making it impossible to bring litigation for practical purposes, even if in the real world there is bad intent,” he said.

“This is a major attack on civil rights enforcement,” said Joe Rich, who recently retired from the Lawyers’ Committee for Civil Rights.

Trump DOJ Continues Attacks on LGBT Americans

While Der Trumpenführer's diktat against transgender members of the military is receiving the most media attention, another sinister effort is being pushed by Trump's Department of Justice that would declare that Title VII of the Civil Rights Act of 1964 does not afford any protections to LGBT individuals targeted for discrimination.  Specifically, Attorney General Jeff Sessions - a man with a long history of both racism and anti-LGBT animus - filed an amicus brief filed in Zarda v. Altitude Express, Inc., pending in the U.S. Court of Appeals for the Second Circuit.  The case involves an employee, Donald Zarda, a skydiving instructor, who filed suit against his employer in federal court in New York, alleging that the company terminated him for his sexual orientation in violation of Title VII.   The Equal Employment Opportunity Commission ("EEOC")  supported Zarda last month in its own court filing.  BuzzFeed looks at the case and Trump/Sessions' effort to leave LGBT with no non-discrimination protections (something that would thrill Christofascists and evangelical Christians). Here are highlights:

The U.S. Justice Department on Wednesday argued in a major federal lawsuit that a 1964 civil rights law doesn’t protect gay workers from discrimination, thereby diverging from a separate, autonomous federal agency that had supported the gay plaintiff’s case.

The Trump administration’s filing is unusual in part because the Justice Department isn’t a party in the case, and the department doesn’t typically weigh in on private employment lawsuits.

But in an amicus brief filed at the US Court of Appeals for the Second Circuit, lawyers under Attorney General Jeff Sessions contend that Title VII of the Civil Rights Act of 1964, which bans sex discrimination, does not cover sexual orientation.

The Justice Department also contends that Title VII only applies if men and women are treated unequally.

"The essential element of sex discrimination under Title VII is that employees of one sex must be treated worse than similarly situated employees of the other sex, and sexual orientation discrimination simply does not have that effect," the brief says.

After a lower court ruled and the case was appealed, the 2nd Circuit invited outside parties to weigh in. Zarda v. Altitude Express is now before before a full panel of judges at the court.

Among Zarda’s boosters is the Equal Employment Opportunity Commission, a largely autonomous federal agency that handles civil rights disputes in the workplace, which supported Zarda last month in its own court filing.

For several years, the EEOC has declared in federal court that Title VII bans anti-gay discrimination, saying it is based on sex stereotyping, and therefor discrimination on the basis of sex.

If Zarda’s argument were to prevail — despite his death in base-jumping accident in 2014 — it would set new precedent in the circuit by overturning two cases from the 2000s.

Further, it would give momentum to the argument as a general matter, given that the 7th Circuit ruled in favor of lesbian in April who made the same claim.

Earlier on Wednesday, Trump announced he would end all transgender military service.

“On the day that will go down in history as Anti-LGBT Day, comes one more gratuitous and extraordinary attack on LGBT people’s civil rights," said a statement from James Esseks, director of the American Civil Liberties Union's LGBT & HIV Project. "The Sessions-led Justice Department and the Trump administration are actively working to expose people to discrimination."

Let it not be forgotten that every friend, family member or neighbor of an LGBT American voted for this attack on our basic civil rights when they voted for Donald Trump. Do NOT give them a pass or forgive them for the harm that they set in motion and will be continuing to support as long as they continue to support Trump and the GOP more generally.  With "friends" like these Trump supporters, one doesn't need an enemy.   

North Carolina Reaps the Economic Whirlwind for Anti-LGBT Bigotry

The anger being unleashed by corporate America in the wake of that state's passage of a bill that repeals all LGBT non-discrimination protections statewide is truly epic.  What is almost laughable is how unprepared the Republican nitwits who rammed this bill through have been to deal with the fury that they have unleashed.  A small amount of research and consideration of the Supreme Court ruling in Romer v. Evans would have suggested to remotely sentient individuals that HB 2 was a very, very bad idea - at least outside of spittle flecked, knuckle dragging Christofascist circles.  One can only hope that Virginia Governor Terry McAuliffe is burning up the telephone lines contacting the businesses that are announcing plans to cancel expansion in North Carolina and soliciting them to move to Virginia.  The opportunities would seem to be numerous between the corporate announcements and conventions being cancelled and/or relocated.   Fist, here are highlights from Paypal's announcement that it is cancelling plans for a global operation in Charlotte:

Two weeks ago, PayPal announced plans to open a new global operations center in Charlotte and employ over 400 people in skilled jobs.  In the short time since then, legislation has been abruptly enacted by the State of North Carolina that invalidates protections of the rights of lesbian, gay, bisexual, and transgender citizens and denies these members of our community equal rights under the law.
 The new law perpetuates discrimination and it violates the values and principles that are at the core of PayPal’s mission and culture.  As a result, PayPal will not move forward with our planned expansion into Charlotte.
 This decision reflects PayPal’s deepest values and our strong belief that every person has the right to be treated equally, and with dignity and respect. These principles of fairness, inclusion and equality are at the heart of everything we seek to achieve and stand for as a company. And they compel us to take action to oppose discrimination.    

But Paypal is not alone in rethinking expansion in North Carolina.   Marketing concern Red Ventures is rethinking a 500 person expansion as well.  Here are highlights from Fox 46 News: 

Red Ventures is also considering pulling out of their 500 person expansion in 2016 after HB2 was passed.

"HB2 does not reflect the values of our people, our state or our democratic process. The speed with which it was passed and lack of constituent input enabled a select group of North Carolina representatives to ignore their responsibility to represent the whole state and, instead, eviscerate the civil rights of North Carolinians," The CEO of Red Ventures, Ric Elias said.

Elias said as a CEO who is committed to expanding our Charlotte presence by 500 people in 2016 and thousands after that, I am forced to seriously reconsider adding more jobs in a state that tolerates discrimination. 

The largest threat to North Carolina's economy, however, comes from the specter of lost federal funding.  Here are excerpts from the Washington Post:

At least five federal agencies are weighing whether to withhold funds from North Carolina in response to a recently enacted state law that blocks protections for gay, lesbians and bisexuals, and prohibits transgender individuals from using bathrooms that are not the same as the gender they were assigned at birth.

The ongoing reviews at the Education, Transportation, Labor, Housing and Urban Development, and Health and Human Services departments are not yet complete, and it is unclear how much federal money might be involved. But the Obama administration’s decision to scrutinize what White House press secretary Josh Earnest described as “both policy and legal questions that are raised by the passage of this law” suggests that the measure signed by Gov. Pat McCrory (R) last month could have major implications for his state.

Earnest said that “individual agencies are undertaking” the review, and the White House had not issued specific guidance on how to proceed. But he emphasized that President Obama said that “ensuring that individual Americans are not discriminated against because of who they love is something that the president feels strongly about,” and he was not surprised that North Carolina officials “are feeling some pressure” on the issue.

David Stacy, government affairs director for the Human Rights Campaign, noted that a host of federal laws — from Title IX in the Education Amendments of 1972 to the Affordable Care Act and Violence Against Women Act — have anti-discrimination language that suggests North Carolina could stand to lose funding on a range of fronts.

Personally, I want to see North Carolina crucified.  Ditto for Mississippi which just enacted an even more heinous and expansive law granting special rights to Christofascists.

Justice Department Moves Toward Protecting Gays Under Existing Law

Faced with the refusal of Republican lawmakers to allow passage of any bills that would protect LGBT individuals from discrimination, Justice Department lawyers are moving toward finding that  claims of discrimination based on sexual orientation is a type of sex discrimination banned by the Civil Rights Act of 1964. The trend is welcomed in states like Virginia where household pets have more protections against mistreatment than LGBT Virginians.  However, it could unravel if a Republican wins the White House in November and panders to Christofascist demands that be placed above the laws that bar discrimination.  BuzzFeed looks at this development.  Here are highlights:

On Thursday, the Justice Department took the first step toward backing the view of a federal commission that sexual orientation is a type of sex discrimination barred under existing civil rights law.

In response to a lawsuit filed by a former Federal Aviation Administration employee claiming that he was illegally discriminated against on the basis of his sexual orientation, Justice Department attorneys on Thursday chose to answer his complaint rather than seeking to have it dismissed outright.

In his complaint, filed this past October, David Baldwin alleged that he was discriminated against because of his sexual orientation and that such discrimination was illegal because it is a type of sex discrimination barred by Title VII of the Civil Rights Act of 1964.

Although such claims used to regularly fail, advocates — supported by a growing body of law and the Equal Employment Opportunity Commission — have pressed in recent years for the claims to be revisited and for courts to find that sexual orientation discrimination should be barred as a type of sex discrimination.

“The Justice Department made the correct call by defending this case on the facts rather than making the outdated and conservative legal argument that the Civil Rights Act does not protect gays and lesbians from workplace discrimination,” Tico Almeida, the civil rights attorney who founded Freedom to Work, told BuzzFeed News.

This past July, the EEOC — in response to a complaint filed by Baldwin — issued a decision in his favor. The EEOC found that “allegations of discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex” that are barred by Title VII.

From there, Baldwin chose to file suit against the FAA in October. In December, the parties agreed to an extension through Thursday for the Justice Department to respond to the lawsuit.

The move comes in the midst of a significant and growing effort from advocates, the EEOC, and others to provide federal protections for LGBT people under existing laws, as new legislative efforts have stalled in Congress.

On Wednesday, the 4th Circuit Court of Appeals in Richmond, Virginia, heard arguments over the issue of transgender coverage in the context of Title IX’s education protections. The Justice Department backed the transgender student, Gavin Grimm, who is suing his school district for alleged sex discrimination.