To Everything There Is a Season
Jun 17, 2020


All three branches of the federal government are making headlines this week.  We take a closer look at several historic measures across Washington D.C. in this edition of The Way. 



The U.S. Supreme Court ruled that federal law prohibits job discrimination on the basis of sexual orientation and transgender status. In a 6-3 vote, the Court held that Title VII of the Civil Rights Act of 1964, which makes it illegal for employers to discriminate because of a person’s sex, encompasses LGBTQ workers.  Justice Neil Gorsuch, who delivered the majority opinion for the Court, wrote: “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.”  The ruling was based on three consolidated cases on appeal.



In support of the causes of action, advocates for the LGBTQ community expressed that 27 states contain no explicit, statewide protections against discrimination on the basis of sexual orientation or gender identity in employment, housing, and public accommodations.  The Supreme Court’s ruling now assures that federal law extends that protection to the entire country. The decision comes less than a week after the Trump administration announced its intention to adopt a rule that would allow health providers to deny services to transgender people.



Yesterday, President Donald Trump signed an executive order on police reform. The multi-faceted directive creates funding incentives for police departments to improve their practices.  The order seeks to improve officer retention and recruitment practices, including encouraging departments to recruit from within the communities they will patrol.  In addition the order prioritizes “co-respondent services,” which are efforts to more deeply involve social workers in responding to certain nonviolent calls.  These would include instances involving mental health, drug addiction, and homelessness issues.



On Capitol Hill, Republican lawmakers in the Senate, led by Sen. Tim Scott (R-SC), are expected to introduce legislation on police reform later today.  Over in the House of Representatives, sponsors of the newly-introduced JUSTICE Act stated that the House bill would ensure that all police departments provide the Department of Justice information on use of force that leads to "serious bodily injury and death."  Both measures are expected to address officer misconduct and de-escalation training tactics. While there is some disagreement over the extent of reform, both parties are expressing interest on a national ban on chokeholds.   Unlike the House bill, the Senate bill is not expected to challenge "qualified immunity,” which broadly protects officers from civil lawsuits. 


Public Sector Risk Management


In a related move, the Supreme Court this week declined to consider whether to revisit the 50-year-old doctrine of qualified immunity for law enforcement officers in cases where a citizen alleges that their rights were violated.  Several cases on the court’s docket this year presented qualified immunity issues, but the justices declined to take up the issue.  Also this week, the Supreme Court left in place a lower court opinion upholding one of California's “sanctuary city laws” that limits cooperation between state law enforcement and federal immigration authorities.  The Trump administration asked the court to step in and review the law, but the Court declined.



In Albany, Gov. Andrew Cuomo (D-NY) signed into law a measure to repeal section "50-a" of the Empire State’s Civil Rights Act.  Advocates assert that 50-a was used to deny public access to the disciplinary records of not only police officers, but also corrections officers and firefighters.  The New York state Legislature also passed The Eric Garner Anti-Chokehold Act.  Under this measure, if injury or death results from "a chokehold or similar restraint," an offending officer can be charged with a class C felony, punishable by up to 15 years in prison.  In Delaware, Gov. Ned Lamont (D-CT) signed an Executive Order on a series of policing reforms, including a ban on chokeholds, a mandate that officers use body cameras and dashboard cameras, and restrictions on a program that funnels military equipment to local law enforcement.  And in Iowa, Gov. Kim Reynolds (R-IA) signed House File 2647, placing tougher restrictions on the use of chokeholds in arrests and prevents police officers fired for misconduct from being hired in the state.  The Iowa legislature, introduced, debated, and unanimously passed the measure in one day.


Making Our Way Around the Country


California Attorney General Xavier Becerra issued a consumer alert warning consumers about a new fraud scheme involving phony COVID-19 contact tracers. In this new fraud scheme, perpetrators pretend to be contact tracers to deceive Californians into divulging their private personal information such as Social Security numbers, financial information, or health insurance information.  In similar news, the inspector general for the U.S. Labor Department told the House Subcommittee on Government Operations that at least $26 billion in state unemployment benefits have been “wasted,” with the bulk of this amount going to fraudsters.



Staying with COVID-19, Gov. Asa Hutchinson (R-AR) signed three executive orders involving workers’ compensation coverage, medical Immunity, and business liability.  Pursuant to the order, COVID-19 is considered an occupational disease.  In professional negligence matters, the executive order holds health care workers and providers to “crisis standards of care” to treat COVID-19 patients and immunizes emergency workers from civil liability, unless the conduct is reckless. The last aspect the executive order shields businesses and their employees from civil liability as a result of exposure to COVID-19, unless the condition arises from willful, reckless or intentional acts.



In related news, the state Legislature passed the COVID-19 Response and Back-to-Business Limited Liability Act, which covers a broad range of businesses and organizations including restaurants, retail establishments, meatpacking plants, churches, medical providers, and senior care facilities, provided they followed public health guidance. The measure would prohibit individuals from filing a civil lawsuit against a business or health care organization unless it relates to a minimum medical condition, a diagnosis of COVID-19 that requires inpatient hospitalization or results in death, or involves an act that was intended to cause harm or that constitutes actual malice. The provisions of the bill are retroactive to January 1, 2020, and under an amendment passed by the House, total civil damages, regardless of how many parties were involved, would be capped at $750,000.



Friday marks Juneteenth, the oldest national commemoration of the ending of slavery in the United States.  On June 19, 1865, Union soldiers landed at Galveston, Texas, with news that the Civil War ended and that the enslaved were free following President Abraham Lincoln’s Emancipation Proclamation.  This Friday afternoon, we pause in a moment of peace, reflection, and dialogue.  Stay safe, stay well, and stay connected.


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