This anti-Muslim bias is kind of crazy. Rational people can hold such irrational views. Do we really judge a religion of hundreds of millions of followers by the actions of a few hundred? Well, yes, state Rep. Molly White does. A Muslim group recently held its seventh annual Texas Muslim Capitol Day in Austin. Rep. White would be gone for the weekend, but she told her staff to ask any Muslim entering her office to renounce Islam terrorist groups and swear allegiance to the US and our laws. Did she instruct her staff to ask any Christian entering her office to renounce the KKK?

Rep. White did not expect the hullabaloo that followed her instructions. She says now that she chose her words poorly. But, no, she will not let go of her bias toward all Muslims. See Texas Tribune report. Rep. White said if she could do things differently, then she would make it clear her words were directed toward CAIR, not against all Muslims. On Facebook, she reportedly said we should not trust any Muslim, no matter how peaceful they appear.

Rep. White describes the Council on American-Islamic Relations as a terrorist group. She took a statement made by the executive director of CAIR’s office out of context to assert that CAIR believes it is above the law of the land. What the director actually said was, Muslims do not need Sharia law. If they are practicing Muslims, then they are above the law of the land. So, if Sharia was made the law of the land, that would not affect them – because they should already have the law of Islam in their hearts. The director explained on Monday what he actually meant by that phrase. But, Rep. White chose not to respond. Yes, it is hard to confront one’s own internal bias.

Discrimination cases are difficult. They are more difficult than many other types of cases, because there is an intrinsic bias against discrimination claimants. As Judge Kopf (of Hercules and the Umpire blog) said, many judges are simply skeptical about discrimination claims. We see some of the challenges in this article about successful discrimination and retaliation claims in Dallas, Texas. Eliot Shavin took one such case with five plaintiffs, four African-American and one Hispanic, against BAE Systems Land and Armaments. See Texas Lawyer report.

At the conclusion of a two week trial, the plaintiffs lost in a hung jury. The polling of the jury indicated the six person jury leaned toward finding for the employer. The employer moved for a judgment as a matter of law and lost. Trial was held in the Northern District of Texas.

After the trial, the plaintiff’s counsel apparently interviewed some of the jurors and learned there was at least one sleeper member who would not admit during voir dire to innate bias against discrimination claims. The report does not describe the nature of the sleeper jury member, but often, there are one or two jury members will not admit during voir dire that s/he refuses to believe there is still racism in this country, today. “Voir dire” is the process in which lawyers question potential jurors before the trial starts about any innate biases they may hold. The plaintiff’s lawyer, Mr. Shavin, realized he would need to conduct a more thorough voir dire at the next trial. But, after  various continuances of the trial date, the plaintiffs accepted an Offer of Judgment for the five plainiffs for $1,000,000 total.

Voir dire is particularly difficult in federal court, because federal judges allow a very limited time in which to conduct voir dire. Many federal judges will not allow the individual attorneys to ask the voir dire questions. Federal judges generally ask the questions themselves. The process moves along faster, but those “sleeper” members slip through.

 

See Texas Lawyer report.

In a recent decision, the Fifth Circuit cleared up some confusion regarding how to show disability discrimination. In EEOC v. LHC Group, Inc., No. 13-60703 (5th Cir. 12/11/2014), the court noted that Fifth Circuit jurisprudence had three different versions of a prima facie case for showing disability discrimination. All three versions required the plaintiff to show that he 1) has a disability, and 2) he is qualified to do the job he has held. LHC Group, slip opinion, p. 6. But, then the precedent diverges. One line of cases would require the plaintiff to show 3) that he was subject to an adverse employment action on account of his disability. This line of cases started with Zenor v. El Paso Healthcare System, Ltd., 176 F.3d 847 (5th Cir. 1999), which relied on an earlier decision in Chiari v. City of League City, 920 F.3d 311 (5th Cir. 1991).

The second line of cases would require the employee to show 3) he was subject to an adverse employment action, and 4) he was replaced by a non-disabled person or was treated less favorably than non-disabled employees. This line of cases stretched back to Daigle v. Liberty Life Insurance Co., 70 F.3d 394 (5th Cir. 1995). And, a third line of cases would require the plaintiff to show 3) he was subjected to an adverse employment action on account of a disability or the perception of a disability, and 4) he was treated less favorably than non-disabeld employees. The court cited McInnes v. Alamo Community College District, 207 F.3d 276 (5th Cir. 2000). The court noted that the third formulation actually required a plaintiff to show that his adverse action was related to a disability twice.

The court clarified that the court should have been using the first formulation, because that decision came first, after all. Too, the second line of cases was intended for a case in which a disabled person was not hired. While,the first formulation addressed situations regarding continued employment. And, the other circuits have adopted similar versions of the first formulation. So, using the first version of the prima facie case, the court finds the plaintiff must show 1) he has a disability, 2) he was qualified for the job, and 3) he was subject to an adverse employment decision on account of his disability. LHC Group, slip opinion, p. 9. See opinion here.

And, on the merits of the case before it, the Court overruled in part and sustained in part the grant of summary judgment. The lower court erred in a couple of respects. It discounted statements made by managers that the plaintiff was terminated because he had become a liability. The lower court found this statement to be “presumed hearsay.” Yet, as the Fifth Circuit noted, they are statements made by a party opponent. Even though the statements were contained in a charge of discrimination, they would be admissible at summary judgment. The EEOC charge is competent evidence at the summary judgment stage, said the appellate court. It would seem apparent that any charge ought to be admissible. It is a sworn statement, after all.

The court has injected some clarity in disability discrimination law. It has also invested in some sound scholarship. Let us hope the Fifth Circuit continues both trends.