Will Debt Panel's 180-Years Experience Be Enough? [Star Tribune]
Polygamist Gets Life Sentence; Likely To Remain In Charge [Wall Street Journal]
Prominent Lawyer Pleads Guilty in Baby-Selling Ring [ABA Journal]
PAPER: Punitive Damages vs. The Death Penalty: In Search of a Unified Approach to Jury Discretion and Due Process of Law [SSRN]
Should There be a ‘Right to be Forgotten’ on the Web? [ABA Journal]
US Military To Launch Fastest-Ever Plane [Guardian]
Study Says Drudge Report Drives More Traffic Than Facebook & Twitter Combined [Mashable]
Wednesday, August 10, 2011
Practice Con Law MBE Question Arises From 7th Circuit Transgender Case
The 7th Circuit Court of Appeals recently decided the case of Fields v. Smith. This is the right to hormone treatment for transgendered inmates case. Amazingly Wisconsin, since 2005, has had on the books The Inmate Sex Change Prevention Act codified at Wis. Stat. § 302.386(5m) (2010). This Act, according to the court, essentially prohibited "the Wisconsin Department of Corrections from providing transgender inmates" with certain medical treatments, namely hormones. The court struck down the statute declaring it unconstitutional. Instead of telling you the rationale for why the court decided to strike down the Act now, I'll do that later in the form of an MBE-style multiple choice question.
In the meantime feast on these interesting tidbits gleaned from Fields. First, plaintiffs had been diagnosed with Gender Identity Disorder ("GID"). The court noted that GID is classified as "a psychiatric disorder in the DSM-IV-TR, the current edition of the American Psychiatric Association's ["APA"] Diagnostic and Statistical Manual of Mental Disorders." It really surprised me to learn that GID even exists due to our society's increasingly tolerant attitude toward sexual freedom and expression. Some may remember that the APA originally classified homosexuality as a mental disorder but later removed it from the DSM in 1973. I do not have any expertise in psychiatry but it does not seem like much of a stretch to predict that GID could eventually, due to advances in medicine and technology, the "weight of empirical data", "changing social norms and development of a politically active" transgender community in the U.S. lead the APA, like in the case of homosexuality, to remove GID from the DSM sometime in the future.
Second, the court noted that the "cost of providing hormone therapy is between $300 and $1,000 per inmate per year." The court also noted that "[s]ex reassignment surgery is significantly more expensive, costing approximately $20,000." These are, arguably, important figures to know if you are interested in identifying as a transgendered individual.
Third, at the district court level defendants made an interesting argument that banning hormone treatment to transgender prisoners is key to maintaining prison security. The defendants explained that "[b]ecause hormone therapy alters a person’s secondary sex characteristics such as breast size and body hair...hormones feminize inmates and make them more susceptible to inciting prison violence. But the district court rejected this argument, noting that the evidence showed transgender inmates may be targets for violence even without hormones." The appellate court agreed with the district court.
Now it is time for the Constitutional Law MBE-style multiple choice question based on Fields written by yours truly. I've taken some liberty with the facts but the Fields court's rationale is represented in the correct answer choice. Without checking the opinion for the answer, try your hand at this question. Enjoy:
Prisoner committed voluntary manslaughter and was properly tried and convicted. At sentencing, Prisoner made known to the trial judge that he self-identifies as a transgender individual. The sentencing judge correctly understood Prisoner to mean that he was born with male sexual characteristics but, later in life, had sex reassignment surgery to enable him to perform his “true” feminine identity. The trial judge asked Prisoner whether he had been diagnosed with GID and Prisoner truthfully answered affirmatively. The trial judge sentenced Prisoner to serve 20 years in the male state prison. After serving a week in the male state prison, Prisoner requested hormones as part of his treatment for his diagnosed condition of GID. The state prison denied Prisoner’s request and cited a state statute that banned the prison from distributing hormones to transgendered individuals for medical treatment to justify its action. Prisoner has contacted you, a licensed attorney, told you his story, and seeks your advice. What argument would be most likely to succeed to, on appeal in federal court, overturn the state’s statute?
In the meantime feast on these interesting tidbits gleaned from Fields. First, plaintiffs had been diagnosed with Gender Identity Disorder ("GID"). The court noted that GID is classified as "a psychiatric disorder in the DSM-IV-TR, the current edition of the American Psychiatric Association's ["APA"] Diagnostic and Statistical Manual of Mental Disorders." It really surprised me to learn that GID even exists due to our society's increasingly tolerant attitude toward sexual freedom and expression. Some may remember that the APA originally classified homosexuality as a mental disorder but later removed it from the DSM in 1973. I do not have any expertise in psychiatry but it does not seem like much of a stretch to predict that GID could eventually, due to advances in medicine and technology, the "weight of empirical data", "changing social norms and development of a politically active" transgender community in the U.S. lead the APA, like in the case of homosexuality, to remove GID from the DSM sometime in the future.
Second, the court noted that the "cost of providing hormone therapy is between $300 and $1,000 per inmate per year." The court also noted that "[s]ex reassignment surgery is significantly more expensive, costing approximately $20,000." These are, arguably, important figures to know if you are interested in identifying as a transgendered individual.
Third, at the district court level defendants made an interesting argument that banning hormone treatment to transgender prisoners is key to maintaining prison security. The defendants explained that "[b]ecause hormone therapy alters a person’s secondary sex characteristics such as breast size and body hair...hormones feminize inmates and make them more susceptible to inciting prison violence. But the district court rejected this argument, noting that the evidence showed transgender inmates may be targets for violence even without hormones." The appellate court agreed with the district court.
Now it is time for the Constitutional Law MBE-style multiple choice question based on Fields written by yours truly. I've taken some liberty with the facts but the Fields court's rationale is represented in the correct answer choice. Without checking the opinion for the answer, try your hand at this question. Enjoy:
Prisoner committed voluntary manslaughter and was properly tried and convicted. At sentencing, Prisoner made known to the trial judge that he self-identifies as a transgender individual. The sentencing judge correctly understood Prisoner to mean that he was born with male sexual characteristics but, later in life, had sex reassignment surgery to enable him to perform his “true” feminine identity. The trial judge asked Prisoner whether he had been diagnosed with GID and Prisoner truthfully answered affirmatively. The trial judge sentenced Prisoner to serve 20 years in the male state prison. After serving a week in the male state prison, Prisoner requested hormones as part of his treatment for his diagnosed condition of GID. The state prison denied Prisoner’s request and cited a state statute that banned the prison from distributing hormones to transgendered individuals for medical treatment to justify its action. Prisoner has contacted you, a licensed attorney, told you his story, and seeks your advice. What argument would be most likely to succeed to, on appeal in federal court, overturn the state’s statute?
A) The state statute violates the Life, Liberty and Pursuit of Happiness Clause of the Declaration of Independence.
B) The state statute violates the Equal Protection Clause of the Fourteenth Amendment
C) The state statute violates the Privileges and Immunities Clause of the Fourteenth Amendment
D) The state statute violates the Cruel and Unusual Punishment Clause of the Eighth Amendment
Answer: D. The Fields court held that “[p]rison officials violate the Eighth Amendment’s proscription against cruel and unusual punishment when they display ‘deliberate indifference to serious medical needs of prisoners.’” Greeno v. Daley, 414 F.3d 645, 652-53 (7th Cir. 2005). The Fields court was not persuaded by defendants’ argument that hormone therapy was not necessary to treat prisoner’s GID. The Fields court concluded, along with the U.S. Supreme Court in Estelle v. Gamble, that the U.S. Constitution's ban on "cruel and unusual punishment does not permit a state to deny effective treatment for the serious medical needs of prisoners.” According to the Fields court, since hormone therapy is considered effective treatment for prisoners’ diagnosed GID it cannot be withheld and must be administered by prison officials. Answer B, according to the Field’s court, would have been the second best choice. The Fields court simple decided to prioritize the Eighth Amendment claim over the Fourteenth. Answer choices A and C are distracters and plainly wrong choices.
Tuesday, August 9, 2011
Links Roundup - Catch What You Missed Today
Barry Bond's Lawyers Push Judge To Overturn Obstruction Of Justice Conviction [Wall Street Journal]
Fatal Mountain Goat Attack Sparks $10 Million In Wrongful Death Claims [Wall Street Journal]
7th Circuit Holds Wisconsin Transgender Inmates Must Be Given Hormones [Findlaw]
Honey-Soaked Naked Girls Allegedly Filmed By Pastor [thesmokinggun]
China's First Aircraft Carrier Starts Sea Trial [AFP]
Four Reasons S&P Got it Right [Hoover Institution]
Reid Picks Kerry, Murray And Baucus For Deficit Super Panel [NPR]
Fatal Mountain Goat Attack Sparks $10 Million In Wrongful Death Claims [Wall Street Journal]
7th Circuit Holds Wisconsin Transgender Inmates Must Be Given Hormones [Findlaw]
Honey-Soaked Naked Girls Allegedly Filmed By Pastor [thesmokinggun]
China's First Aircraft Carrier Starts Sea Trial [AFP]
Four Reasons S&P Got it Right [Hoover Institution]
Reid Picks Kerry, Murray And Baucus For Deficit Super Panel [NPR]
Monday, August 8, 2011
Staub's Lessons For Avoiding Military-Member Employment Discrimination Liability
As I was flipping through the latest edition of ABA's Litigation News (Volume 36, Number 4, Summer 2011) I came across an article, "High Court Complicates Corporate Decision Making" written by Teresa R. Bult that very briefly reviewed the 2011 Supreme Court case Staub v. Proctor Hosp. Intrigued by the case, I decided to review it and then compare it to President Obama's push for firms to hire vets.
Staub is an employment discrimination case brought under the Uniformed Services Employment and Reemployment Rights Act ("USERRA"). Justice Scalia, who wrote the majority opinion, reminds us that USERRA "provides in relevant part" that:
"A person who is a member of . . . or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, . . . or obligation." 38 U. S. C. §4311(a)
Bult synopsizes the facts in Staub by stating that "[t]he plaintiff...a member of the military, was fired for failing to remain at his work station after receiving prior disciplinary action for the same offense." More specifically, the plaintiff/petitioner was Vincent Staub an angiography technician for defendant/respondent Proctor Hospital. While employed by Proctor, Staub was a member of the U.S. Army Reserve and was required to attend drill one weekend per month and train full time for two to three weeks a year. Staub's supervisors were hostile to his military obligations and one of them issued a "Corrective Action" when he purportedly violated a company rule. When Staub purportedly violated the company rule a second time he was fired. Staub argued that the original "Corrective Action" that was issued by his supervisors was fabricated "out of hostility toward his military obligations." Thus his cause of action under USERRA.
Later in the opinion, Scalia cites another important section of USERRA which states:
“An employer shall be considered to have engaged in actions prohibited . . . under subsection (a), if the person’s membership . . . is a motivating factor in the employer’s action, unless the employer can prove that the action would have been taken in the absence of such membership.” §4311(c).
The Court wrestled with the meaning of the phrase "motivating factor" under USERRA and ultimately held that "if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA."
While Staub arguably gives employers better guidance how to properly terminate military members' employment, President Obama, in his effort to aid economic recovery, is pushing for firms to hire "the '9/11 generation' of veterans." Obama proposed issuing "tax credits for companies that hire returning service members" so as to encourage the employers that have balked at hiring veterans, due to a fear that these veterans will be called back to duty or that they suffer from PTSD, to change their mind. Obama challenged the private sector to hire 100,000 unemployed post-9/11 veterans or their spouses by 2013.
Bult argues that Staub does not "answer the question of whether and how an employer may insulate a decision" to terminate a military member from a prior discriminatory intent. Bult believes that Staub makes it difficult "for an employer to figure out how they can possibly conduct a thorough enough investigation to avoid liability in a discriminatory case."
The most important thing, from an employer's perspective, very well may be to realize that the risk of a discriminatory lawsuit from a military member upon termination may not be reduced to zero. Heightened and more stringent procedures for termination may yet need to be explored and implemented to test the uncharted waters of employee discrimination based on military participation. At the very least the lessons of Staub teach that a supervisor ought to thoroughly investigate any allegation made by the employee that the reason for firing was "fabricated" and should be able to provide two substantiated reasons why the employee, who happens to be a military member, is being fired, both of which must not be military related whatsoever.
Staub is an employment discrimination case brought under the Uniformed Services Employment and Reemployment Rights Act ("USERRA"). Justice Scalia, who wrote the majority opinion, reminds us that USERRA "provides in relevant part" that:
"A person who is a member of . . . or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, . . . or obligation." 38 U. S. C. §4311(a)
Bult synopsizes the facts in Staub by stating that "[t]he plaintiff...a member of the military, was fired for failing to remain at his work station after receiving prior disciplinary action for the same offense." More specifically, the plaintiff/petitioner was Vincent Staub an angiography technician for defendant/respondent Proctor Hospital. While employed by Proctor, Staub was a member of the U.S. Army Reserve and was required to attend drill one weekend per month and train full time for two to three weeks a year. Staub's supervisors were hostile to his military obligations and one of them issued a "Corrective Action" when he purportedly violated a company rule. When Staub purportedly violated the company rule a second time he was fired. Staub argued that the original "Corrective Action" that was issued by his supervisors was fabricated "out of hostility toward his military obligations." Thus his cause of action under USERRA.
Later in the opinion, Scalia cites another important section of USERRA which states:
“An employer shall be considered to have engaged in actions prohibited . . . under subsection (a), if the person’s membership . . . is a motivating factor in the employer’s action, unless the employer can prove that the action would have been taken in the absence of such membership.” §4311(c).
The Court wrestled with the meaning of the phrase "motivating factor" under USERRA and ultimately held that "if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA."
While Staub arguably gives employers better guidance how to properly terminate military members' employment, President Obama, in his effort to aid economic recovery, is pushing for firms to hire "the '9/11 generation' of veterans." Obama proposed issuing "tax credits for companies that hire returning service members" so as to encourage the employers that have balked at hiring veterans, due to a fear that these veterans will be called back to duty or that they suffer from PTSD, to change their mind. Obama challenged the private sector to hire 100,000 unemployed post-9/11 veterans or their spouses by 2013.
Bult argues that Staub does not "answer the question of whether and how an employer may insulate a decision" to terminate a military member from a prior discriminatory intent. Bult believes that Staub makes it difficult "for an employer to figure out how they can possibly conduct a thorough enough investigation to avoid liability in a discriminatory case."
The most important thing, from an employer's perspective, very well may be to realize that the risk of a discriminatory lawsuit from a military member upon termination may not be reduced to zero. Heightened and more stringent procedures for termination may yet need to be explored and implemented to test the uncharted waters of employee discrimination based on military participation. At the very least the lessons of Staub teach that a supervisor ought to thoroughly investigate any allegation made by the employee that the reason for firing was "fabricated" and should be able to provide two substantiated reasons why the employee, who happens to be a military member, is being fired, both of which must not be military related whatsoever.
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