Tuesday, January 26, 2016

The Scope of Workplace Protections For Pregnant Employees In Illinois Under The IHRA

The Illinois Human Rights Act (“IHRA”) protects Illinois employees by prohibiting certain categories of discrimination in the workplace.

Effective January 1, 2015, The Pregnancy Discrimination and Accommodation Amendment (“the Pregnancy Amendment”) added protections against pregnancy discrimination to the IHRA.

As a brief overview, the Pregnancy Amendment requires certain employers to post notices, update their employee handbooks and provide reasonable accommodations to pregnant employees.

What is a pregnant employee?

But what is a “pregnant” employee? This may seem like a silly question, but the Pregnancy Amendment defines pregnancy broadly to mean (1) pregnancy, (2) childbirth, or (3) medical or common conditions related to pregnancy or childbirth. Thus, because the scope of coverage extends to conditions related to pregnancy or childbirth, it stands to reason that in some instances protections will be afforded to women who are no longer "pregnant" (i.e., those experiencing a post-labor condition).

The Legislature Intended To Protect All Pregnant Employees, Not Just Those Employees With High-Risk Pregnancies

The legislative history of the Pregnancy Amendment provides some guidance on the scope of protections afforded by the Pregnancy Amendment. For example, an April 10, 2014 House floor debate transcript clarifies that the legislature intended that the Amendment apply to all pregnancies, not just high-risk pregnancies. A copy of the transcript is linked. (See pages 112-129 for relevant discussion).

Additionally, the May 20, 2014 Senate floor debate further illuminates the intent behind the “common conditions” language:

SENATOR RIGHTER: So I get what a medical condition is, but, in this context, what do you mean by common condition?

SENATOR HUTCHINSON: A common condition are [stet.] those things that are commonly known to be a condition of pregnancy, such as the need to go to the bathroom more frequently or the need to drink water more frequently. (May 20, 2014 Senate Transcript at page 115)

45 out of 50 U.S. States Provide Some Level Of Workplace Protection Against Discrimination To Pregnant Employees

Regarding protections afforded to pregnant employees outside of Illinois, the U.S. Department of Labor provides information on its website.  Per the U.S. DOL, 45 out of 50 states provide some level of workplace protection to pregnant employees. The site is a good source for links to other state legislation and cases on this topic. However, some of the information provided by the U.S. Department of Labor on its website is not accurate and no one should rely on the website for legal advice.

In addition to the Pregnancy Amendment, various federal statutes provide additional protections to Illinois employees under certain circumstances, including Title VII, the Family and Medical Leave Act and the Americans with Disabilities Act. 

Monday, January 11, 2016

My Thoughts on Making a Murderer

     Several people have asked me for my opinion of the Netflix documentary Making a Murderer. Their question boils down to two parts. First: Do you think Steven Avery is guilty? Second: Is this documentary as shocking to a lawyer as it is to the rest of us? Setting aside the first question, the answer to the second is: Yes. Absolutely.

     Dean Strang, one of Avery's defense attorneys, commented on Avery's nephew Brendan Dassey's case in an interview with Madison newspaper The Cap Times as follows: "The longer I'm in [this work], the more I tend to think about or at least focus on and worry about broader systemic failings or weaknesses and Brendan Dassey's case was just a vivid example, I think, of some systemic failings and fault lines that haunts me and provides a lot to think about." His quote sums up the takeaway for me and, I think, for most attorneys who have seen Making a Murderer.

     That aside, there are certain lessons from Making a Murderer which are important for any person, whether facing civil litigation or criminal charges, to keep in mind.

1. Do not talk to lawyers for the other side by yourself: always have your attorney present. 

     One of the most disturbing aspects of Making a Murder is defense attorney Len Kachinsky's handling of Brendan Dassey's case. For those who are unfamiliar with the series, in short, Kachinsky serves Dassey, an intellectually disabled 16-year-old boy charged with first degree intentional homicide (among other things), up on a silver platter to Wisconsin state prosecutors. Kachinsky  allows Dassey to be questioned alone - without Kachinsky present.  Per the documentary, Manitowoc County sheriffs coerce Dassey into a confession. A jury then finds Dassey guilty.

    Never talk to lawyers for the opposing side without an attorney present. Speaking with the other side without an attorney present is potentially damaging to your case. Your attorney should accompany you to negotiations, depositions, etc. Furthermore, once you have retained an attorney, you should not communicate with opposing counsel alone over the phone or by email. Always allow your attorney to communicate with opposing counsel on your behalf.

2.  Details matter and your attorney needs all the facts in order to effectively represent you

     Steven Avery's case is complex but his defense team scorches the earth to provide the best legal representation possible to their client and grapple with facts, both good and bad. They mold the cards they are dealt into their defense strategy and do a thorough, professional and competent job.

     It is better for your attorney to know about bad facts beforehand than for them to come to light during discovery or at trial. The information will most likely come out during discovery, when the court rules allow the other side to go digging for information, or worse - at trial. The more your attorneys know in the beginning, the better they will be able to protect you throughout the case.You should always be honest with your attorney and communicate the full range of facts - both good and bad - which relate to your case.

3. Your attorney should listen to you and should keep you well-informed.

     In Making a Murderer,  Kachinsky does not appear to adequately communicate with or listen to his client.  Eventually, Dassey requests that the court appoint a different public defender to represent him because, he says,  Kachinsky "thinks I'm guilty".

     You should be able to communicate with your attorney and ask questions. Your attorney should return your calls and keep you informed about case strategy. If you feel that your counsel is keeping you in the dark, it may be necessary to terminate your attorney's services and seek alternate legal representation.

     Making a Murderer opens our eyes to flaws in the legal system which particularly affect those with unequal access to legal resources. Regardless of whether I think Avery and Dassey are guilty, I do not think they received a fair trial and I do not think the Manitowoc Sheriff's Department's handling of their cases was proper. I hope that the documentary is the spark that lights the fire for a close examination of flaws in the system and paves the way for reform. In the meantime, people can take steps to protect themselves from falling through the "fault lines" in the legal system by keeping the above tips in mind.