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LGBTT: It's Raining DOMA Rulings! (It's for Thread)

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Posts

  • Edith UpwardsEdith Upwards Registered User regular
    How does being a member of a "protected" class protect a person from being fired again?

  • Clown ShoesClown Shoes Give me hay or give me death. Registered User regular
    Shivahn wrote: »
    Height/weight doesn't work well because the ratio of fat to muscle and muscle distribution is one of the biggest effects that sex hormones modulate.

    But while we're talking about averages, it's also important to realize that the average man is going to have some very feminine features and the average woman is going to have some very masculine traits. Being trans shifts the averages to one side or the other, but it's still fundamentally a bunch of different traits, where (as is often said), the variance within a gender is greater than the average variance between genders.

    Is there a variance in the fat/muscle ratio within genders as well? I mean, if being trans effectively weights an average one way or another, won't there be cross-over between cis-female, trans-female, trans-male and cis-male? (I have no idea if that's in the right order or if there is a right order).

    Shouldn't it be possible to devise a system of rankings that allows people to compete based on physical ability without regards to gender?

  • Sweeney TomSweeney Tom Registered User regular
    Uruguay's House of Representatives passed the gay marriage bill overwhelmingly, with 71 of 92 representatives voting yes, making Uruguay the 2nd country in Latin America and the 12th country overall to legalize marriage equality. The president has promised to sign it, and it will become law within 2 weeks, with marriages taking effect either before or during summer. Congratulations, Uruguay.

    Great news should never be BOTPed.

    ShivahnCindersShadowfireEdith UpwardsHacksawlonelyahavaFyndirSCREECH OF THE FARGMan in the Mists
  • CindersCinders Whose sails were black when it was windy Registered User regular
    Erich Zahn wrote: »
    How does being a member of a "protected" class protect a person from being fired again?

    If you get fired for being a member of a protected class, you sue the company and are awarded large quantities of money.

    QuidKwoaru
  • Edith UpwardsEdith Upwards Registered User regular
    edited April 2013
    So, you sue a company, and if you can get a lawyer and it goes to trial and he doesn't fuck you and the jury isn't filled with assholes you get money, probably at the cost of significant exposure and/or harassment?

    Seems like a hell of a lot more trouble than it's worth.

    Edith Upwards on
    Harry Dresden
  • So It GoesSo It Goes We keep moving...Registered User regular
    Erich Zahn wrote: »
    So, you sue a company, and if you can get a lawyer and it goes to trial and he doesn't fuck you and the jury isn't filled with antihuman scum you get money, probably at the cost of significant exposure and/or harassment?

    Seems like a hell of a lot more trouble than it's worth.

    you have real leverage to make them settle. most cases end in settlement.

    SammyFCaptain CarrotElldren
  • MortiousMortious The Nightmare Begins Move to New ZealandRegistered User regular
    So It Goes wrote: »
    Erich Zahn wrote: »
    So, you sue a company, and if you can get a lawyer and it goes to trial and he doesn't fuck you and the jury isn't filled with antihuman scum you get money, probably at the cost of significant exposure and/or harassment?

    Seems like a hell of a lot more trouble than it's worth.

    you have real leverage to make them settle. most cases end in settlement.

    And having a difficult recourse for discrimination is still better than having none.

    Move to New Zealand
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    JayKaos
  • DevoutlyApatheticDevoutlyApathetic Registered User regular
    So It Goes wrote: »
    Erich Zahn wrote: »
    So, you sue a company, and if you can get a lawyer and it goes to trial and he doesn't fuck you and the jury isn't filled with antihuman scum you get money, probably at the cost of significant exposure and/or harassment?

    Seems like a hell of a lot more trouble than it's worth.

    you have real leverage to make them settle. most cases end in settlement.

    I'm curious about this. How sure are you it's just not most cases you see (because you see cases that don't get immediately squashed) that end in settlement? This is a completely honest question, btw.

    In my experience "Protected Class" just means they have to be more careful to document "acceptable" reasons they fired your ass. Well, that and while making sure there aren't horribly anti-"class" statements made all the damn time.

    Edith UpwardsGennenalyse RuebenJayKaos
  • SammyFSammyF Registered User regular
    A few of my best friends does employment law, and they almost never run into protected class cases primarily because every employer knows they'll get bent over a barrel.

    So It GoesTiger Burning
  • So It GoesSo It Goes We keep moving...Registered User regular
    SammyF wrote: »
    A few of my best friends does employment law, and they almost never run into protected class cases primarily because every employer knows they'll get bent over a barrel.

    dis

  • joshofalltradesjoshofalltrades 地獄のようにかわいい あなたは嫉妬深いかRegistered User regular
    Blackjack wrote: »
    Back to LGBT issues, George Takei posted a map on Facebook filled in with a bunch of red states where you can supposedly be fired for being gay -- but the map is simply showing at-will employment states. That makes me sad. I normally love George Takei, but that's a fairly misleading post.

    There are plenty of ways to argue for gay rights without making arguments in a similar fashion to the DEA.

    No. Bad. Wrong.

    It's a list of at-will states where sexual orientation and gender identity/expression are not protected classes.

    You're right, of course, but that's not what the map says. It doesn't say "these states don't list sexual orientation or gender identity as a protected class".

    At-will employment states aren't going to say they fired you for being gay. They either won't give a reason or they'll cite something else. No company (except maybe Chick-Fil-A) wants to be known as the company that fires people because they're gay.

    Yes, it's largely a semantic distinction, but nobody is going to look up what the actual problem (failing to list them as a protected class) is because the map fails to state it. And in any other state, even with protected classes, if someone wants to fire you for being gay, they will find a way. All they have to do is wait; someday you will screw up because you're human and they'll have their reason.

    We should absolutely make sexual orientation and gender identity protected classes to prevent discrimination, and I wish the map noted that or at least gave a link to an article explaining the phrasing. As it is, every single person I know who is right-wing (and I unfortunately know several; I do live in Texas) and has seen the map is making dumb arguments that moronic people on the fence will listen to like, "Yeah, but you can also be fired for being straight in those states!" Being accurate would at least nip that in the bud.

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    Edith Upwards
  • DevoutlyApatheticDevoutlyApathetic Registered User regular
    SammyF wrote: »
    A few of my best friends does employment law, and they almost never run into protected class cases primarily because every employer knows they'll get bent over a barrel.

    Yea, but is the substitute behavior "Don't fire the guy" or is it "Have our not illegal ducks in a row then fire the guy"?

    joshofalltradesEdith Upwards
  • ArbitraryDescriptorArbitraryDescriptor Registered User regular
    SammyF wrote: »
    A few of my best friends does employment law, and they almost never run into protected class cases primarily because every employer knows they'll get bent over a barrel.

    Yea, but is the substitute behavior "Don't fire the guy" or is it "Have our not illegal ducks in a row then fire the guy"?

    The smart substitute behavior would seem to be "Don't get sued". You don't have to break the law to hauled into court, and ongoing lawsuits are a pain in the ass even if you can technically (or justly) win. So if it's still clear to the ex-employee why they were really fired, then they can still make trouble for you.

  • DoctorArchDoctorArch Curmudgeon Registered User regular
    Ooooh ooooh. Legal question! I know the answer to this!

    A "protected class" is the legal term for a group of people who cannot be fired because they belong to that group. For example, you cannot fire a woman from a position because she is a woman. You can, however, fire that woman from a position because she stole from the company, never showed up to work on time, etc.

    When someone files a suit alleging employment discrimination and that they were fired because they are a member of a protected class, the suit can be filed in federal court (usually a Title VII claim) or a state court (usually under state anti-discrimination law). Often people go to the federal courts because that's where the big money is and they can hear the state claim as well.

    So you've brought your employment discrimination suit in federal court, what now? Well the lawyers bitch back and forth at each other, file all sorts of motions, and what inevitably happens is that the employer files a motion for summary judgment.

    What's summary judgment? It's a way of deciding the case before it actually gets to trial and is almost always used at some point in a civil case because if you win on summary judgment, then you usually don't go to trial unless there are extra issues involved. The way summary judgment typically goes is that the moving party argues that there is no factual question before the court, there is no need for a jury, and the judge can decide the issue then and there as a matter of law. The other side argues that there is a factual question, there is a need for a jury, and the judge cannot decide the issue then and there.

    It's a little more complicated in an employment discrimination case because the U.S. Supreme Court, in a case called McDonnell Douglas v Green, laid down the law for how summary judgment goes for a Title VII discrimination claim.

    First, the plaintiff must demonstrate that they have an obvious case (also known as a prima facie case) of employment discrimination. The plaintiff does this by showing 1) that they are a member of a protected class, 2) that they suffered an adverse employment action, 3) that they were qualified for the position in question, and 4) they were treated differently from similarly situated individuals.

    Second, if the plaintiff establishes a prima facie case (which legally has a low bar of proof in most circuits, but if they fail it's usually because they couldn't prove that they were treated differently from similarly situated individuals), the burden shifts to the employer who has to articulate a valid, nondiscriminatory reason for the firing (e.g., they were stealing from the cash register).

    Third, after the employer gives their valid, nondiscriminatory reason, the plaintiff must show that it is possible that the employer's proffered reason is pretextual and not worthy of credence. For example, if the employer says they fired the plaintiff for stealing, but no record of ever having disciplined the plaintiff for stealing exists, then the plaintiff has shown that the reason is potentially pretextual.

    If the plaintiff wins, and the judge doesn't grant summary judgment, this is where (as other people have mentioned) settlement usually occurs, because losing one of these cases is expensive.

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    MortiousArbitraryDescriptorEdith UpwardslonelyahavaElldrenArchForarAntimatterShadowfireExtreaminatus
  • ArbitraryDescriptorArbitraryDescriptor Registered User regular
    edited April 2013
    DoctorArch wrote: »
    Second, if the plaintiff establishes a prima facie case (which legally has a low bar of proof in most circuits, but if they fail it's usually because they couldn't prove that they were treated differently from similarly situated individuals), the burden shifts to the employer who has to articulate a valid, nondiscriminatory reason for the firing (e.g., they were stealing from the cash register).

    So if they fire you for 'not filing your TPS reports' (while being *protected class*), but you can show that 30% of their (not *protected class*) employees do not file their TPS reports, then their paper trail of discipline for not filing your TPS reports can be discarded as a ruse?

    Or can they still cite "Bad at TPS reports and... um... kind of a jerk?", or something else undocumented and hard to disprove?

    ArbitraryDescriptor on
  • DoctorArchDoctorArch Curmudgeon Registered User regular
    DoctorArch wrote: »
    Second, if the plaintiff establishes a prima facie case (which legally has a low bar of proof in most circuits, but if they fail it's usually because they couldn't prove that they were treated differently from similarly situated individuals), the burden shifts to the employer who has to articulate a valid, nondiscriminatory reason for the firing (e.g., they were stealing from the cash register).

    So if they fire you for 'not filing your TPS reports' (while being *protected class*), but you can show that 30% of their (not *protected class*) employees do not file their TPS reports, then their paper trail of discipline for not filing your TPS reports can be discarded as a ruse?

    Or can they still cite "Bad at TPS reports and... um... kind of a jerk?", or something else undocumented and hard to disprove?

    Good question. It all depends on the evidence and there are several ways a plaintiff can tank their prima facie showing. For example, there was a 9th Circuit discrimination case where an employee claimed she was fired because she was a woman. Her employer claimed they fired her because she did not perform proper maintenance and was dishonest. The former employee called them liars to discredit their reason. The court said the plaintiff failed the prima facie showing because aside from her uncorroborated testimony, she could provide no other proof that there were men who did the same thing she did and were not fired for it. In fact, the evidence showed that she and another man who had the same position as her was fired as well for not performing proper maintenance. The court also said that even if she did have a prima facie case, calling the employer liars without offering any other proof was insufficient to suggest that the employee's reason was pretextual.

    In your example, say you were old (a protected class) and fired because you didn't file your TPS reports. "But judge" you say "30% of people who are not old also don't file TPS reports, and they weren't fired." That's probably enough to justify your case. Now the employer will still say, "as a policy, we fire people who don't file X TPS reports, and plaintiff didn't file X TPS reports." That's a good enough reason to fire someone, and now the burden shifts back to you.

    Now what you can do, in order to survive summary judgment, is point out that "of those 30% of people who don't file TPS reports and are not old, 15% of them had X+10 more unfiled TPS reports than me." Well, as long as it's not just you claiming that and you have a paper trail to back it up, that's a good way to show that the employer is being inconsistent and there might have been discrimination, and it should go to the jury.

    Admittedly, the employer could destroy any incriminating documents, but that kind of destruction tends to come out, and judges look very, very poorly on this sort of contempt. Like default the employer, plaintiff wins the claim, and plaintiff gets attorney's fees kind of very poorly.

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  • DevoutlyApatheticDevoutlyApathetic Registered User regular
  • ArbitraryDescriptorArbitraryDescriptor Registered User regular
    Very interesting, and very cool of you for sharing!

    lonelyahavaMild Confusion
  • Gnome-InterruptusGnome-Interruptus Registered User regular
    I'm surprised no one else made the juvenile Uruguay pun joke about them finally legalizing same sex marriage. Please consider the pun as having been made now.

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  • KanaKana Registered User regular
    Oh god I didn't know the L in LGBT stood for lawyer!

    A trap is for fish: when you've got the fish, you can forget the trap. A snare is for rabbits: when you've got the rabbit, you can forget the snare. Words are for meaning: when you've got the meaning, you can forget the words.
  • Edith UpwardsEdith Upwards Registered User regular
    edited April 2013
    Thanks for the explanation DoctorArch.

    Edith Upwards on
  • MuddBuddMuddBudd Registered User regular
    Kana wrote: »
    Oh god I didn't know the L in LGBT stood for lawyer!

    It stands for many things.

    steam_sig.png
  • Edith UpwardsEdith Upwards Registered User regular
    edited April 2013
    Including Truth, Justice, and the American Way!

    Edith Upwards on
  • MillMill Registered User regular
    It's both safer and easier for a bigoted employer to break themselves of hiring and firing people in a way that could get them sued into oblivion. Sure they could try to be sneaky about it and lie about why they fired someone. The problem is if they get in the habit of firing people for being gay, they'll eventually fire enough gay employees that someone figures it out because all of a sudden it's "Hey wait a minute! Company X has fired at least 5 people who are gay and maybe 1-2 non-gay people recently."

  • DoctorArchDoctorArch Curmudgeon Registered User regular
    Mill wrote: »
    It's both safer and easier for a bigoted employer to break themselves of hiring and firing people in a way that could get them sued into oblivion. Sure they could try to be sneaky about it and lie about why they fired someone. The problem is if they get in the habit of firing people for being gay, they'll eventually fire enough gay employees that someone figures it out because all of a sudden it's "Hey wait a minute! Company X has fired at least 5 people who are gay and maybe 1-2 non-gay people recently."

    Unfortunately homosexuality is not a protected class at the federal level. Nor at most state levels either.

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  • MillMill Registered User regular
    Not yet, but someone asked how it being a protected class would help in a state with at will employment, where a bigoted employer could just give no reason at all.

  • Mild ConfusionMild Confusion Smash All Things Registered User regular
    I would support competition between sexes in a heartbeat if I knew there was a way to do so without decreasing male or female involvement and/or pay.

    What about weight divisions? A flyweight boxer might be technically brilliant, but would get destroyed if you put them up against a heavyweight with less technical skill. Couldn't a similar system be used for mixed-gender competition?

    It could work for individual sports, but team games would be a bit more awkward as you'd have to have a light, medium, and heavyweight leagues.

    This is how it works in military MMA fights. Though, we give women the weight advantage.

    Meaning, that a 140lbs woman would not fight a 140lbs man. I believe females get a 3-5% advantage. So a 140lbs woman would fight a 135lbs man.

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  • ElldrenElldren Is a woman dammit I'm a good person yes it's trueRegistered User regular
    Mill wrote: »
    Not yet, but someone asked how it being a protected class would help in a state with at will employment, where a bigoted employer could just give no reason at all.

    I'm not familiar with the case law, but I can't imagine a claim of pretext being countered by "there was no reason at all" to be productive for the employer

    fuck gendered marketing
  • MillMill Registered User regular
    Well we're talking about at will employment here. I could see the hypothetical where someone from a protected class gets fired, no explanation is given and the employee doesn't press the matter because it's at will employment. The thing is, if an employer is going to fire people because he is a bigot, I don't see it being a one off thing and such an employer would probably end up making it a habit. So I could see the hypothetical situation, where LGBT is a protected class, and some bigot employer ends up getting caught for unfairly firing her LGBT employees. For the record, at will employment is a fucking stupid concept, a employer should be legally required to state why they are firing someone, but I'll save that rant for a different thread.

    When LGBT becomes a protected class. Smart bigot employers won't do it because they know they'll spend too much time trying to catch their LGBT employees doing something that merits firing and that something may never happen. The smart ones would also know that if they fire one LGBT employee for being LGBT, they are likely to fall into the trap of going "well what could go wrong firing one more," and then they find they just opened themselves up to a class action suit when someone catches on. Then of course, they could always wrong into the one LGBT employee, who always challenges the legality of being fired, when not given a reason for why. Probably will get a string of dumbass employers that will get slammed for being asshats. I get the feeling, based on some of the stuff I'm seeing in thread, they won't go for the subtle route of "you're fired" with no explanation. The dumb bigots are more likely to say "you're fired [insert appropriate insensitive slur of choice here]!" and then bitch about their rights being violated when they get fined for discriminatory practices.

  • ElldrenElldren Is a woman dammit I'm a good person yes it's trueRegistered User regular
    It's not a fine, it's damages

    fuck gendered marketing
    Cinders
  • DelzhandDelzhand Venitah, Satariel! Registered User regular
    I'm surprised no one else made the juvenile Uruguay pun joke about them finally legalizing same sex marriage. Please consider the pun as having been made now.

    If it make you feel better, one was sitting in my drafts window. I just couldn't make it funny enough.

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  • ViskodViskod Registered User regular
    Artereis wrote: »
    It's not your fault, Viskod. 1 out of every 10 people just happens to be a monster.
  • Dizzy DDizzy D NetherlandsRegistered User regular
    Viskod wrote: »

    I know that it later became Vertigo, but Sandman had a transgender character ages ago while it was still published under DC itself.

    Steam/Origin: davydizzy
  • ViskodViskod Registered User regular
    edited April 2013
    Viskod on
    Artereis wrote: »
    It's not your fault, Viskod. 1 out of every 10 people just happens to be a monster.
  • durandal4532durandal4532 Registered User regular
    I was going to say something, but DoctorArch said it better.

    But yeah establishing protected classes helps even if you have other shitty employee-unfriendly practices in your state.

    Take a moment to donate what you can to the International Rescue Committee, the National Immigration Law Center, the Southern Poverty Law Center, and the American Civil Liberties Union. There has never been a more urgent moment to do so.
  • ViskodViskod Registered User regular
    That couple that was turned away by that florist is filing a lawsuit with the ACLU after all. They are wanting her to either A) Write an apology that will be submitted to the local paper, pledge to never discriminate like that again, and give 5K to an LGBT charity or B) Just end up going to court over violating the Washington state Civil Rights Act.

    Artereis wrote: »
    It's not your fault, Viskod. 1 out of every 10 people just happens to be a monster.
  • Sweeney TomSweeney Tom Registered User regular
    The French senate passed the adoption clause of the gay marriage bill, which means it's almost guaranteed the bill will become law soon.

    AtomikaTheBlackWindlonelyahavaLadyM
  • Gandalf_the_CrazedGandalf_the_Crazed Vigilo ConfidoRegistered User regular
    Wait, so it's sufficient to prove that the proffered reason might be pretextual? That's all? Because that seems...counter to our usual legal philosophy in this country. Am I misunderstanding you?

    PEUsig_zps56da03ec.jpg
  • Tiger BurningTiger Burning Dig if you will, the pictureRegistered User, SolidSaints Tube regular
    Wait, so it's sufficient to prove that the proffered reason might be pretextual? That's all? Because that seems...counter to our usual legal philosophy in this country. Am I misunderstanding you?

    To avoid summary judgment, yes. That it was a pretext would need to be shown by a preponderance of the evidence to prevail at trial.

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  • Gandalf_the_CrazedGandalf_the_Crazed Vigilo ConfidoRegistered User regular
    Wait, so it's sufficient to prove that the proffered reason might be pretextual? That's all? Because that seems...counter to our usual legal philosophy in this country. Am I misunderstanding you?

    To avoid summary judgment, yes. That it was a pretext would need to be shown by a preponderance of the evidence to prevail at trial.

    Ah, that makes more sense. Carry on.

    PEUsig_zps56da03ec.jpg
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