U.S. Supreme Court: Employers can’t discriminate against gay, transgender employees

The U.S. Supreme Court ruled this morning that existing federal laws prohibit employers from job discrimination on the basis of sexual orientation, a resounding win for LGBTQ advocates from the conservative-leaning bench.

Justice Neil Gorsuch, a President Donald Trump appointee, wrote the opinion with Justices John Roberts, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan concurring. Justices Samuel Alito wrote a dissent, in which Justice Clarence Thomas joined, and Justice Brett Kavanaugh wrote a separate dissent.

“Today, we must decide whether an employer can fire someone simply for being homosexual or transgender,” Gorsuch writes. “The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

He wrote that those who adopted the Civil Rights Act might not have anticipated this result, “but the limits of the drafters’ imagination supply no reason to ignore the law’s demands.”

Before this opinion, nearly every Southern state lacked comprehensive state-level nondiscrimination protections for LGBTQ people; notably, Virginia adopted LGBTQ-inclusive nondiscrimination protections just this month.

“Today is a historic day: The U.S. Supreme Court has recognized the fundamental equality of LGBTQ Americans, including the more than 5 million who live in Southern states,” said the Rev. Jasmine Beach-Ferrara, Executive Director of the Campaign for Southern Equality. “The ruling ensures a blanket of employment protections for LGBTQ people rather than the inadequate patchwork that has all but stopped at the borders of Southern states. For LGBTQ Southerners, the decision shows yet again that that no one should face discrimination because of who they are or who they love.”

Beach-Ferrara added that the decision comes at a time when millions of people are facing unemployment or reduced employment because of the COVID-19 pandemic. She said that as LGBTQ individuals venture back out to the job market, they are grateful for the high court’s relief.

“While we’re grateful for this step forward, we all must remain committed to this month’s deepened and long overdue conversation around racial injustice,” she added. “We lift up the reality that Southerners with multiple marginalized identities face multiple layers of oppression. Black LGBTQ Southerners, for example, not only confront employment discrimination but also police brutality, anti-Black racism, and disproportionate rates of living with HIV. As we celebrate today’s ruling, we must continue to push for dignity, respect, and justice for all LGBTQ people in every sphere of life.”

Equality North Carolina Executive Director Kendra R. Johnson described the opinion as a watershed moment for LGBTQ communities all across the nation.

“For decades, LGBTQ people have fought to secure basic protections from discrimination within every arena of their lives,” Johnson said. “The Court’s decision will directly impact millions of people across the country and allow them to both live authentically in the workplace and care for their families with respect and dignity.”

Even with the landmark ruling, though, there is still more work to be done for the LGBTQ community.

“HB 142 is still on the books in North Carolina,” Johnson said, of the “compromise” statute that replaced the discriminatory House Bill 2. “There are still shocking and critical gaps in our nondiscrimination laws, particularly in housing, public places, federal programs and more. LGBTQ people face harassment and mistreatment in their daily lives and black and brown LGBTQ trans people face even higher rates of discrimination and, oftentimes, violence.

“Recent data shows a majority of Americans across ideologies, age, and religious affiliation in all 50 states support passage of LGBTQ nondiscrimination protections to ensure all LGBTQ Americans can live with respect, dignity, and safety in all areas of life. With the Supreme Court leading the way, Congress must pass the Equality Act into law and the North Carolina General Assembly must immediately repeal House Bill 142 and pass the Equality for All Act into law.”

North Carolina Attorney General Josh Stein called the opinion a “wonderful” development.

“People, when they are hired or they are fired, it should be because of how well they do their job and not based on who they love, their sexuality or their gender identity,” he told NC Policy Watch during a radio interview. “In fact, every term I was in the legislature, I always introduced a bill on employment nondiscrimination by the state, and to see the Supreme Court with a clarion call, with a clear voice, say that people may not be discriminated against under federal law in their employment is wonderful. It is a wonderful day for America.”

In his dissent, Alito disagrees with Gorsuch’s textualist argument and states that the Civil Rights Act doesn’t go as far as protecting sexual orientation or gender identity.

“If ‘sex’ in Title VII means biologically male or female, then discrimination because of sex means discrimination because the person in question is biologically male or biologically female, not because that person is sexually attracted to members of the same sex or identifies as a member of a particular gender,” Alito wrote. “How then does the Court claim to avoid that conclusion?”

Kavanaugh writes in his dissent that it is up to legislators to expand Title VII of the Civil Rights Act to prohibit discrimination on the basis of sexual orientation or gender identity, not the courts.

“In the face of the unsuccessful legislative efforts (so far) to prohibit sexual orientation discrimination, judges may not rewrite the law simply because of their own policy views,” he wrote.

Gorsuch disagreed in his opinion for the court. He wrote that judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations.

“In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee,” the opinion states. “We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.”

Read the full opinion and dissents below.

Bostock v Clayton County (Text)

Free virtual screening aims to tell complete story about immigration

Two North Carolina organizations will host a free virtual screening next week about the attacks on immigrants in the U.S. to tell a complete story about the harms perpetuated by immigration enforcement practices and policies that extend beyond the crisis at the border.

Whether it’s through raids, people being picked up at courthouses or being forced to live in churches – families are being separated and attacked across America. Stories Beyond Boarders will feature five short films that show a comprehensive picture of the attacks on immigrants across the country, according to a news release from Women AdvaNCe and Working Films.

The films build empathy but they also lift up real stories of resilience and strength while illustrating some of the ways people can give their time, energy, and resources to support immigrant-led organizing for safety and justice.

“Immigrant communities in North Carolina are on the frontlines during this COVID-19 pandemic,” said Stefania Arteaga, the Acting Regional Immigrants’ Rights Strategist for the ACLU of North Carolina. “Not only are they putting their bodies on the line, but they are receiving little to no inclusion in government relief efforts despite facing great economic and health concerns.”

The event will include a discussion with those who are working for immigrant justice during the COVID-19 crisis in North Carolina, including with Arteaga; Juana Luz Tobar Ortega who has been in sanctuary at St. Barnabas Episcopal Church in Greensboro since May 31, 2017; Stephany Mejia of Women AdvaNCe, a clinical social worker working in early childhood mental health; and Pilar Timpane, the Co-Director, Co-Producer, and Cinematographer of Santuario, one of the five featured films.

“A year ago, Santuario was broadcast and made widely available to the public,” Timpane said. “Juana remains in sanctuary and has not seen much change on her case. Today, as the world locks down in sanctuary around her, not much changes for her day-to-day. We are hopeful that people will look at the situation of those taking sanctuary differently after having to face isolation to keep their families safe.”

The Stories Beyond Borders screening will be hosted by Women AdvaNCe, a state-wide non-profit organization uniting women to share their stories to help shift policy, public knowledge and create a fair chance for every woman and every family. Stories Beyond Borders is a project of Working Films, a national nonprofit organization based in Wilmington.

The free virtual screening will take place from 7 to 8:30 p.m. Thursday, June 18. RSVP here.

Supreme Court Justice, Attorney General to lead new Task Force for Racial Equity in Criminal Justice

North Carolina Supreme Court Justice Anita Earls and Attorney General Josh Stein will co-chair a new Governor’s Task Force for Racial Equity in Criminal Justice.

The two joined Gov. Roy Cooper at a press conference Tuesday afternoon afternoon to announce a new executive order creating the task force, which will recommend solutions to stop discriminatory law enforcement and criminal justice practices and to hold public safety officers accountable.

“We can stop the use of excessive force by police and we know what is needed to achieve racial equity, now is the time to put that knowledge to work,” Earls said. “I am grateful to the Governor and the Attorney General for recognizing that the Judicial Branch has a crucial role to play in eliminating racial disparities in the criminal justice system, and I am committed to a collaborative process with meaningful community involvement to achieve those goals in short order.”

Earls authored an opinion last week deeming it unconstitutional to retroactively apply the repeal of the Racial Justice Act to death row defendants who already had pending cases seeking relief under the law. The RJA was specifically written to address racial inequities in the criminal justice process regarding death penalty sentencing.

Ironically, Stein’s office argued against RJA relief at the Supreme Court for those defendants who could prove racial bias or discrimination played a factor in their death sentencing. Stein’s office has also argued many times before the Supreme Court against defendants getting relief for claims of Batson violations, or racial discrimination in jury selection.

Earls also authored a historic opinion in May giving lower courts guidance for the first time about how to dig deeper and better assess Batson claims of racial discrimination in jury selection. Last week, Justice Sam Ervin wrote another opinion overturning the denial of a Batson claim.

Until that pair of decisions from the high court, North Carolina appellate courts had never acknowledged race discrimination against jurors of color, and the state stood alone in that regard among southern states.

“We must eliminate the glaring racial disparities that continue to exist,” Earls said at the press conference. “And we must begin to live up to our most highly cherished value of equal justice under the law. After all, we’re the state that espouses the creed, ‘To be, rather than to seem.'”

When asked after the press conference Tuesday whether Stein’s office would continue to oppose relief under the RJA, spokesperson Laura Brewer said they were reviewing the decision from the court and expected to have more information about it soon.

Stein said at the press conference that that inequities that African Americans experience — in the economy, healthcare, schools and the criminal justice system — are pervasive just as they are wrong.

“Even today, African Americans are suffering death at greatly disproportionate rates from COVID-19,” he said. “My heart aches for the families of George Floyd and Breonna Taylor and so many other people who have been killed or mistreated by their own government. Any senseless act of violence is tragic, but especially so when perpetrated by those sworn to protect and defend us. It represents such a fundamental violation of the authority we grant law enforcement and the trust we place in them.”

The task force will develop and help implement policy solutions to address systemic racial bias in criminal justice and submit legislative and municipal recommendations on or before Dec. 1.

The executive order also creates a Center for the Prevention of Law Enforcement Use of Deadly Force within the State Bureau of Investigation to track statistics and improve training related to the use of force.

This week, Secretary of the Department of Public Safety Erik Hooks directed law enforcement agencies under his purview to ensure each division has a duty-to-intervene policy in place. He also directed that divisions conduct policy reviews on use of force, de-escalation techniques, arrest procedures, cultural sensitivity training and internal investigation processes. Cooper’s Tuesday directs cabinet agencies and encourages non-cabinet state agencies with sworn law enforcement officers to do the same.

Cooper pointed out during the press conference and in a subsequent news release that communities of color are disproportionately affected at each stage of the criminal justice system, with national data showing the following:

• Black adults are 5.9 times as likely to be incarcerated than white adults;
• Latinx adults are 3.1 times as likely to be incarcerated than white adults;
• Black drivers are approximately twice as likely as white drivers to be pulled over by law enforcement for a traffic stop;
• Black defendants are more likely to be jailed before trial than white defendants;
• The murders of white people are more likely to be solved than the murders of Black people;
• When Black men and white men are convicted of the same crime, Black men receive a prison sentence that is 20 percent longer;
• Black women are imprisoned at twice the rate as white women; and
• Black men are 2.5 times more likely to be killed by law enforcement than are white men, and Black women are 1.4 times more likely to be killed by law enforcement than are white women

“For Black people, the past several weeks have again ripped open scars created by generations of historical trauma,” Cooper said. “Too often that trauma was inflicted by a justice system that should protect them, but instead treats them unfairly. … It’s important for us to recognize these telling numbers and identify the disparities, but it’s even more important and challenging to actually do something about it.”

The task force will be comprised of no more than 25 members, including co-chairs Earls and Stein. Members will be appointed by Cooper and shall serve “at the Governor’s pleasure.” It will include representatives from the state Departments of Justice and Public Safety and the judicial branch, as well as district attorneys, public defenders, victim advocates, chiefs of police, sheriffs, justice-involved individuals and more.

Read the full order below.

EO145 Criminal Justice Reform (Text)

Judge rules for incarcerated people in lawsuit over DPS response to COVID-19

Judge Vince Rozier announced his ruling Monday afternoon in a case about the protection of incarcerated people in North Carolina prisons from COVID-19, though the particulars of his decision have not been made publicly available.

He used a “bench memo” to announce the ruling and read some of it aloud at a public virtual court hearing. But the court order, which will be written by the plaintiffs, won’t be ready for several days until they confer with the defendants in the case, the state and the Department of Public Safety.

The court did not respond to a request Monday for a copy of the bench memo. Most of the plaintiffs also did not respond to a request for a copy of the memo; the NC NAACP did not have a copy.

Leah Kang, a staff attorney at the ACLU of North Carolina who represents the plaintiffs, said in an email response Monday night that the memo is addressed only to “counsel,” and “does not really look like the court intended it to be a public document.”

At the hearing, Rozier ruled in favor of the plaintiffs in the case. He addressed three issues in particular in his oral ruling: overcrowding and cohort-based social distancing, transfers and disparate levels of COVID-19 protection in different facilities. He ordered the defendants to reopen the application process to homes, facilities and programs who are willing to participate as early-release partners to improve an incarcerated person’s candidacy for release.

He also authorized DPS to identify new factors that could be used to calculate time for release for those who have met minimum sentence requirements but who are not yet available for release. The new factors may be deemed a necessary measure for population management to achieve safety and protection for all in custody while COVID-19 is still a substantial risk or concern. The factors can include, but are not limited to, those who are vulnerable to COVID-19 complications.

“That’s authorizing, that’s not ordering, but it needs to also be clear, because upon any modification of the factors that are already in existence, any modification of these factors for the early release of an inmate upon meeting the minimum sentence requirements, then DPS shall take the affirmative steps to effectuate some changes and provide a process for making eligible inmates aware of their new status due to those changes,” Rozier said.

He also said that DPS was to stop transferring incarcerated people between prisons, unless there was a medical reason or other immediate risk, unless the person being transferred is given a test to confirm whether they had contracted COVID-19. In lieu of a test, an incarcerated person could be placed in medical isolation for 14 days.

“But, isolation must not be effectuated with actions or in a manner that would have been deemed punitive or utilized as a means of punishment before all of this happened,” he added. “And so prior to COVID medical isolation, if there is a means of punishing someone such as solitary confinement, just for an example … I’m ordering that someone not be put in solitary confinement.”

Finally, Rozier ordered both the plaintiffs and the defendants to come up with a plan to test every incarcerated person in North Carolina prisons and to address any disparities in how each facility treats the threat of the virus. The plan is due by noon June 22.

“To summarize, an inmate should not be less likely to avoid or contract COVID based on the proactivity of different wardens,” he said. “Put another way, the inmate’s chances of contracting COVID-19 should not depend upon a facility in which the inmate is housed. It shouldn’t be based upon the inmate’s perceived luck of the draw in where they end up and whether they are less likely just because they luckily or to their detriment ended up at the wrong place.”

It’s not yet clear if the defendants will appeal. John Bull, a DPS spokesman, said the agency had just heard the judge’s order, received his bench memo and was consulting with the North Carolina Department of Justice to determine next steps.

The ruling is in response to a lawsuit from the ACLU of North Carolina, Disability Rights North Carolina, Emancipate NC, Forward Justice and the National Juvenile Justice Network asserting that the state’s failure to protect people in state custody from mass outbreaks of COVID-19 amounted to cruel and unusual punishment under the Constitution.

“This ruling affirms that state officials have a constitutional obligation to protect the health and safety of the people in their custody and combat the spread of this deadly disease,” said Kang in a news release. “The deadly outbreaks in our state prisons have already claimed six lives and continue to threaten all North Carolinians, especially communities of color which have been disproportionately impacted by this pandemic. We’re hopeful this ruling will help prevent further loss of life by forcing state officials to implement safety measures and release people from these dangerous conditions.”

Lauren Brinkley-Rubinstein, an assistant professor of social medicine at UNC Chapel Hill, said the ruling was good news. She is a public health expert who consulted on the case for the plaintiffs. “My understanding is that Rozier emphasized the need for release, to engage in universal testing, and to limit the use of solitary confinement units for medical isolation,” she said. “If that is correct, then this is a good first step to preventing further spread of COVID-19 in the prison system.”

As of Monday, five incarcerated people in state prisons and one prison staff person have died of COVID-19. Since the groups filed their initial lawsuit with the NC Supreme Court, state officials have announced the release of approximately 750 people, approximately 2 percent of the 34,000 people who were in their custody in mid-April.

“The NC NAACP is gratified that the court took a critical step toward bringing about more safety and justice today,” said the Rev. Dr. T. Anthony Spearman, President of the NC NAACP. “We will not stop our fight to ensure that the state of North Carolina upholds its constitutional obligations to those most vulnerable during this unprecedented pandemic.”

NC Supreme Court: Racial Justice Act repeal cannot be applied retroactively

Over 100 people incarcerated on death row who sought relief from the now-repealed Racial Justice Act (RJA) for racial discrimination during their trials can have their day in court, the North Carolina Supreme Court ruled Friday.

In an 80-page 6-1 opinion released Friday, with lone Republican Justice Paul Newby dissenting, the high court ruled that the repeal of the RJA cannot be applied retroactively to the cases that were pending.

The law, for a brief time, allowed individuals sentenced to death to seek sentences of life without parole if they could prove racial bias or discrimination was a significant factor in the decision to seek or impose the death penalty in their case.

At the time of the repeal in 2013, about 130 petitions were pending for relief under the RJA — roughly 90% of death row cases at that time. After the repeal, those individuals with pending motions were no longer permitted to move forward with their discrimination claims, including Andrew Darrin Ramseur, whose case is now the basis for the Supreme Court’s landmark opinion.

A Black man, Ramseur was found guilty by an all-white jury in Iredell County on two counts of first-degree murder of two white people and one count of robbery with a dangerous weapon. He alleged in his appeal to the high court that the likelihood of a death sentence in his case was greater because of substantial pre-trial publicity and public comments. These include the distribution to media outlets of surveillance footage of the crime, inflammatory media coverage of the case, and the prevalence of overtly racist comments and discussion on community internet blogs and websites.

A trial court rendered Ramseur’s pending claims void after the repeal of the Racial Justice Act. It and dismissed his claims without hearing evidence of the racial bias and discrimination present at his trial.

Justice Anita Earls wrote the opinion in the case, which holds that applying the repeal retroactively violates the constitutional prohibition on ex post facto laws, or laws that change the legal consequences of actions that were committed before the enactment of the law.

Earls writes that she and concurring justices express no opinion on the ultimate merits of Ramseur’s RJA claims, nor those of any other capital defendant, and leaves those issues to the trial courts to adjudicate. “We note that our analysis under the Ex Post Facto Clauses of the U.S. and North Carolina Constitutions addresses a question purely of law and applies equally to anyone in the same circumstances as defendant — specifically, any capital defendant who filed a motion for appropriate relief under the Original RJA,” the opinion states. “With respect to this class of individuals, the RJA Repeal cannot, consistent with constitutional guarantees, retroactively apply to void their pending RJA claims.”

The opinion does state that the trial court in Ramseur “at a minimum erred as a threshold matter in not conducting an evidentiary hearing on defendant’s claims.” Ramseur’s claims are sufficient under the RJA to trigger an evidentiary hearing, it states.

Earls also authored a similar opinion Friday in another pending RJA case, State v. Rayford Lewis Burke. That was a 5-1 opinion, with Justice Sam Ervin recused and Newby dissenting.

Burke was convicted in Iredell County of one count of first-degree murder and sentenced to death in 1993. A trial court also denied his RJA claims without an evidentiary hearing — an error, according to the high court’s opinion. Newby, in his dissent in Ramseur, which he also cites in Burke, stated the repeal plainly does not qualify as an ex post facto law because it left the defendant in “precisely the same legal situation” as the one he occupied at the time of his trial.

“When properly viewed, the General Assembly intended the RJA to provide a procedural mechanism by which a defendant could collaterally attack a capital sentence,” the Ramseur dissent states. “The General Assembly did not intend to make a substantive change to the death penalty sentencing law. As such, the General Assembly had the constitutional authority subsequently to amend it and repeal it.”

There are four RJA cases still pending at the high court that involve individuals who received relief under the RJA — they were granted life without parole but then sent back to death row after the repeal of the law. Read the full opinions from the high court below.

This is a breaking news story and could be updated throughout the day.

Disclosure: Rick Glazier, executive director of the North Carolina Justice Center, the parent organization of NC Policy Watch, was involved in legislative efforts to resist the repeal of the RJA while a member of the state House and the successful litigation described in this story.

State v Ramseur Opinion (Text)

State v Burke opinion (Text)