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Nacht Law in the News Archives

#MeToo

You've likely seen the viral hashtag #MeToo in your social media feed. Victims of sexual harassment, sexual assault or sexual violence are sharing their experiences and bonding in a show of bravery and defiance. The phenomenon appears to be a reaction to the widespread allegations against Hollywood producer Harvey Weinstein, with many prominent actresses initially coming forward.
 
The attorneys and staff of NachtLaw applaud these survivors for standing up to be counted. It is never easy to come forward, and victims are often blamed. Yet the law protects you, whether the perpetrator was at a work, school, social, or family setting. In the workplace: It is illegal to sexually harass someone, or to retaliate against someone who has reported harassment. At a K-12 school, college or university: Under Title IX, a public school may be liable for harassment by a staff member or a fellow student if there was a known risk, and is always liable for retaliating against someone who reports. Additionally, the perpetrator may be sanctioned by the school. In a family or social setting: You may directly sue perpetrators and any other person or entity who may be responsible.
 
Coming forward can be an empowering experience. Our law firm is here for a free and confidential consultation for victims of sexual harassment or assault who want help reporting, or otherwise asserting their rights.
 

Sixth Circuit Court of Appeals Expands Accused Rights in College Disciplinary Proceedings

 "Cross-examination is the greatest legal engine ever invented for the discovery of truth." So wrote John Henry Wigmore, legendary judge and legal scholar. However, when a college student is faced with a disciplinary proceeding, cross examination has not been required by the courts, and is generally not allowed. This is true even though a suspension or expulsion can affect a person's ability to continue education or find jobs.
 
No more, says the 6th Circuit Court of Appeals, which has ruled that some form of confrontation may be constitutionally required in certain cases.
 
"John Doe" was a University of Cincinnati student who engaged in a sexual encounter with "Jane Roe," and believed it to be consensual. However, three weeks later, Jane made a complaint to the University that John had violated the Code of Conduct by sexually assaulting her.
 
                A hearing was held, but Jane did not appear. John expressed that he could not properly present his defense without being able to question her account. The hearing panel proceeded anyway, and found John responsible for a sexual assault, and issued a two year suspension.
 
John filed a lawsuit to stop the suspension, and the federal district court granted it. The University appealed, but the 6th Circuit upheld the ruling. The court said that due process is guaranteed in college disciplinary hearings, and that in a "he said/she said" credibility contest, especially where hearsay evidence was used against John, due process may include some form of confrontation. Without it, the proceeding may be "fundamentally unfair."
 
Recognizing that direct cross-examination may be traumatic, especially in a case of sexual assault, the court clarified that confrontation may be indirect - for example, the accused may submit cross examination questions to be asked by a neutral hearing officer. Nonetheless, this case is significant in opening the door to confrontation in a student disciplinary hearing where important rights are at stake, and credibility is a critical issue.
 
The case is Doe v. University of Cincinnati, U.S. Court of Appeals, 6th Circuit, 9/25/17

2017 is on pace to have the second-lowest violent crime rate of any year since 1990

We are becoming safer. The Washington Post article, "2017 is on pace for the second-lowest crime rate since 1990 - and near-record low murders", makes this point clearly.

Victory for a nurse falsely accused

The NachtLaw firm won a victory for a nurse who was falsely accused of changing the prescription for a patient without getting a doctor's approval. David Nacht tried the case in front of a State of Michigan Administrative Law Judge (ALJ) and he won. The State challenged the ruling in an appeal, which Charlotte Croson briefed on behalf of the nurse. In an opinion dated August 7, 2017, the State affirmed the NachtLaw victory for the nurse whose license remains intact.
 
Our firm is seeing an increasing number of false accusations and allegations against healthcare professionals. We think that the State needs to be much more careful in threatening the licenses of dedicated healthcare professionals.

To read the full opinion click here. For more information concerning this post, please contact author David Nacht.  

Ageism in the workplace

Many longtime workers claim that they are being targeted for layoffs because of their age or health status, but federal law is often of little help. We pursue age discrimination lawsuits in Michigan and Ohio and we use both federal and state laws as tools. The article suggests that there is something particularly difficult about proving age discrimination. In fact, all discrimination cases are subject to motions for summary judgment. These are motions brought by the employer before trial to ask the judge to dismiss the case. Nationally, employers win these motions well over half the time. These motions are based on the idea that "no genuine issues of material fact" exist upon which a jury could find liability. But the judge decides such motions without ever hearing testimony. Snippets of deposition testimony are strung together to suggest that the plaintiff has no evidence. We would never allow someone to be found guilty of a crime without live testimony being heard in the courtroom, but that is the norm in employment discrimination lawsuits. Less verbal or clever plaintiffs are particularly vulnerable, so are people struggling with pain or illness. A jury seeing them live would tell that the lawyer was twisting their words. The constitution promises jury trials in civil cases, but that promise is essentially meaningless for most fired employees. It is time for Congress to make a change. 

Why haven't Congress and state legislatures moved to protect Gays and Lesbians?

It may surprise many of our readers but, astonishingly, it is still legal to fire someone because he is gay in much of the United States -- including Ohio and Michigan. 

 A federal appeals court in Chicago recently interpreted the Civil Rights Act of 1964 to state that sex discrimination now includes sexual orientation discrimination.  That ruling applies in Illinois, Indiana and Wisconsin.  Many states on the coasts have state laws that protect Gays and Lesbians from being fired, but no federal law does.  

A New York federal appeals court is considering the same issue as the Chicago court, and, not surprisingly, the Trump Administration has taken the position that if Congress wants to change the law to protect gays, it should do so, but the Administration claims judges should not decide to interpret the law differently.  That position is consistent with the traditional conservative approach to the role of judges in interpreting statutes.  

What is surreal about this is that probably eighty present of the population would support extending employment law protections to gays.  A clear majority of the country now supports the gay marriage ruling by the Supreme Court, which historically was a much more controversial and less popular position than the right of gays not to be fired. 

Why haven't Congress and state legislatures moved to protect Gays and Lesbians?  Ironically, in many states, Democrats have held up legislation because Republicans refuse to extend the laws to apply to transgender people.  And the truth is, Gay Rights in employment is hardly a Republican priority.  So here we are.  The culture has changed:  it is simply socially unacceptable to fire someone for being gay, but the law is stuck in the last century. 

So will the Courts act?  I think so.  If the Supreme Court saw fit to find Gay marriage a constitutional right, then I believe they will find a way to extend sex discrimination laws to Gays and Lesbians.  And that is what judges are paid to do-- to interpret an important historical law consistent with a modern, thoughtful understanding of the words and social concepts in the law. 

NachtLaw wins Disability Discrimination Case in the Michigan Supreme Court

Bettina Winkler was a middle schooler who was denied admission to Notre Dame Prep, a private Catholic high school in Pontiac, Michigan. She was the only student who had attended their middle school denied admission to the high school. Administrators allegedly told Winkler's parents they didn't accept learning disabled students, and that she should attend a public school because "they take anybody."

Why are non-compete agreements popular?

This article "Companies Compete but Won't Let Their Workers Do the Same" is a thoughtful piece and there is much I agree with, especially in regard to lower wage workers and the depressing effect of non-competes on wages. But the author fails to note the real reason why non-competes are popular: companies invest in their employees in developing relationships with customers and in learning technology. Smaller companies that don't have non-competes for key personnel are difficult to sell. And companies take a real risk that employees will simply learn from the experience of a job and hand a customer list on a platter to the competitor. So in the absence of a non-compete, many companies won't invest or trust their employees. That can slow the growth of companies. Moreover, in some states, companies pay employees to sign a non-compete. In the Midwest, companies don't need to do that. That is wrong. Companies should pay a premium for workers limiting post-job options. But California is hardly the panacea the author claims. I have represented many employees who have been threatened with aggressive approaches to trade secrets violations by their former California employer. In other words, when the former employer can't use a non-compete, they find other paths. Are non-competes over-used?  Undoubtedly.

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