Kator, Parks, Weiser & Harris, PLLC

A Washington, D.C. based law firm with a civil practice in employment law

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KPWH Attorney Cathy Harris Interviewed about Mental Health and the Legal System

KPWH Attorney Cathy Harris was interviewed on the subject of mental health and the legal system. Ms. Harris discussed the strain that sexual harassment places on victims, whether in the workplace or on a college campus. You can watch the interview with Jennifer Mann, LCSW by clicking here.

If you have been a victim of sexual harassment, please consider contacting KPWH for a free consultation to discuss your legal options.

Proving a claim for compensatory damages at the EEOC

Proving you were subjected to discrimination or retaliation is only the first step in obtaining relief. Once you have proven your case, it is critical to present evidence of your non-pecuniary damages for your mental pain and suffering. Non-pecuniary compensatory damages are one of the main ways that the EEOC can compensate you for an agency’s discriminatory actions. While having a doctor or other expert testify about your damages can be helpful, it is not necessary. The EEOC has stated that it focuses on three main factors in determining an award of non-pecuniary compensatory damages: (1) duration of harm; (2) extent of harm; and (3) consistency with amounts awarded in similar cases.

With respect to the duration of the harm, the focus is on the length of time that a complainant suffered from the harm, and not the duration of an agency’s discriminatory or retaliatory actions. The EEOC has explicitly noted that a complainant who has suffered from severe depression for one year has obviously endured more damage than a complainant who has suffered severe depression for two months. EEOC Notice No. N915.002 (July 14, 1992). Indeed, if you have subjected to a discriminatory action, for example sexual harassment, the impact of that will likely last long after the sexual harassment has ceased. In evaluating a claim for compensatory damages, the EEOC looks at the length of the period that a complaint has suffered and/or is likely to continue suffering harm as a result of an agency’s discriminatory actions. A doctor’s prognosis that the harm is likely to a certain amount of time into the future can be considered as evidence of the ongoing harm. It is also helpful to establish the time periods you have experienced different symptoms as a result of the discrimination or retaliation as not all symptoms are experienced for the same duration.

The severity or extent of the harm suffered by a complainant also impacts the award of compensatory damages. The EEOC has explained that the extent, nature, and severity of harm must be considered when determining an award for non-pecuniary damages. See Glockner v. Dep’t of Veterans Aff., EEOC No. 07A30105 (Sept. 23, 2004). EEOC cases explore how severe the harm was, and whether the harm was persistent and long-lasting, or transitory or intermittent. As the EEOC’s “Enforcement Guidance” puts it, when determining extent of harm, “consider, for example, whether the harm consisted of occasional sleeplessness, or a nervous breakdown resulting in years of psychotherapy.” This factor focuses on the individual symptoms experienced and the severity of each of those symptoms.

A diagnosis of anxiety or depression or other similar condition, or a exacerbation of a pre-existing diagnosis, would support an award of damages. But with or without a medical diagnosis, other types of harm also support an award of compensatory damages. Frequently observed symptoms of stress and/or anxiety in these types of cases are stress related physical ailments (such as headaches or stomach ailments), weight gain/loss, shortened tempers, frequent tearfulness or crying, panic attacks, distancing oneself from friends and family, sleeplessness, nightmares, and decreased energy. The details of how often you experience such symptoms or how severe the symptoms are can also impact an award. Testimony by friends and family about the observable changes in behavior can bolster a complainant’s testimony and further support an award for damages.

KPWH’s attorneys are experienced at developing cases in support of compensatory damages and helping you articulate the full extent of harm you have experienced as a result of discrimination, retaliation, and/or harassment. For a free consultation about your case, please contact us.

KPWH Government Shutdown Lawsuit Dismissed Under Expanding ‘Political Question Doctrine’

The “political question doctrine” traditionally provided that courts should not get involved in certain kinds of matters that are more appropriately decided by the elected branches of government. The U.S. District Court decisions in a case about the 2018/2019 government shutdown, brought by Kator, Parks, Weiser & Harris, PLLC, demonstrate an expanding definition of the doctrine. The lawsuit about the shutdown was dismissed under an expanding political question doctrine, which seeks to avoid any matter that might have any implications for matters of partisan politics.

Kator, Parks, Weiser & Harris, PLLC, filed a lawsuit in U.S. District Court on behalf of four federal employees who were required to work without pay during the 35-day government shutdown during December 2018 to January 2019. The suit alleged, among other things, that the government requiring employees to work without pay under threat of discipline or removal violated the Thirteenth Amendment prohibition against involuntary servitude, and that limiting employees’ rights to seek outside work unconstitutionally violated their Fifth Amendment protections for individual liberty and property.

The Federal District Court denied a motion for an emergency temporary restraining order, making clear in its Order that “the Judiciary is not just another source of leverage to be tapped in the ongoing internal squabble between the political branches.” When the Government moved to dismiss the claims as moot after funding was restored and the government re-opened, it argued that if the Court decided the claims, “it would require this Court to effectively place itself in the middle of a political dispute—namely, a dispute over the federal budgetary process, and how the government should operate when that budgetary process fails.”  The Court agreed, holding that judicial restraint is advised “where the underlying dispute arises from a budgetary dispute involving ‘complex political choices.’”  The Court sought to avoid involvement in a matter that might affect the politics of decision making between the Congress and the President.

Throughout the litigation of the shutdown case, the Government warned the Court against intervening in a “squabble” between the two political branches. Despite the constitutional harms alleged, the Court agreed, and shied away from claims that sought resolution of constitutional questions that resulted in real harm to the claimants. The questions before the Court were not about who should win in a budget battle between the two ends of Pennsylvania Avenue—the questions were about what constitutional rights are afforded federal employees and how those rights should be respected during a lapse in appropriations.

This may happen again in the three cases before the United State Supreme Court regarding President Trump’s financial records.  In the cases of Trump v. Mazars, Trump v. Deutsche Bank, and Trump v. Vance, President Trump has fought tooth and nail to immunize himself from congressional oversight seeking financial records, and prevent a New York prosecutor’s investigation into alleged criminal activity by the Trump Organization. The defendants in the Mazars and Deutsche Bank cases are set to produce Trump financial records in response to Congressional subpoenas. In Vance, President Trump seeks to avoid prosecution, and the attendant subpoenas seeking financial documents.

These cases present very important foundational questions about the presidency, certainly requiring a constitutional interpretation: should the presidency come with nearly total legal immunity from prosecution or oversight for the incumbent?

In this instance, if the Supreme Court decides to defer to lower court decisions, it would mean President Trump loses, because the Mazars and Deutsche Bank defendants would then be required to produce Trump’s financial records. Likewise, the New York state prosecution could continue with its efforts to secure his financial records. This would mean the Trump Administration’s broad assertions of total immunity from prosecution and oversight are not to be ratified at this point.

COVID-19 and telework as an accommodation: is this narrow legal right applicable to you?

The COVID-19 pandemic has accelerated the general workplace trend toward greater use of telework (also known as telecommuting, work from home, tele-work, or remote working).  After the expiration of social distancing mandates, some employers may choose to extend the availability of telecommuting for their workers.  After all, there are many valid business reasons for employers to expand telework as an option.  But workers need to be aware that telecommuting is not a legal right, except in very limited circumstances.

In the field of employment law, it always a good idea to remember that worker rights are limited.  Employers are very much aware of this fact.  The bottom line is this: if an employer does not want to provide telework as an option, then the law generally supports the employer’s decision.

But there may be a legal right to telework if an employee with a disability needs telework as a reasonable accommodation.  As explained by the EEOC, “Changing the location where work is performed may fall under the ADA’s reasonable accommodation requirement of modifying workplace policies, even if the employer does not allow other employees to telework.”  (EEOC Guidance, “Work at Home/Telework as a Reasonable Accommodation,” Feb. 3, 2003.)

But what about requesting telework as an accommodation in connection with COVID-19?  If an employee has a documented medical condition making the employee particularly susceptible to infection, and if the job in question can be successfully performed remotely, many employers are likely to provide telework as a temporary accommodation during the pandemic, especially if the request is supported by a note from the employee’s doctor.  There are likely to be other medical situations where telework provides a reasonable accommodation during the pandemic.

Telework as a reasonable accommodation is well established legally, but not all employers will quickly agree to such a request.  For example, the employer may express doubt that the employee has a disability.  Or the employer may claim that the essential functions of job in question cannot be performed remotely.  And it is very common for employers to require medical documentation to support a requested disability accommodation.

Workers with a medical issue may want to explore with their doctor and their employer the possibility of telework as an accommodation.  An additional resource for employees and employers is the Job Accommodation Network (JAN), which provides free consultations to assist with accommodation issues.  JAN provides a specific webpage with discussion of telework issues.

For a free consultation to discuss whether you may be eligible to use telework as a reasonable accommodation, contact us.

KPWH Secures Hold on Suspension of Whistleblower

KPWH attorney Cathy Harris secured a hold on a proposed suspension of a federal whistleblower at the Department of Education. Our client had blown the whistle to the Washington Post regarding the Trump administration’s 2018 budget proposal. KPWH was assisted by the U.S. Office of Special Counsel, which agreed to our request to the Department of Education that the suspension be placed on hold. The matter is now under review to determine if there has been whistleblower retaliation.

To read an article in the Washington Post about the decision, click here..

To contact Kator, Parks, Weiser & Harris, click here.

KPWH Named to List of “Best Law Firms” for 2020

U.S. News and World Report included Kator, Parks, Weiser & Harris in its 2020 list of the best law firms in the nation. Both of the firms’ Washington, DC and Austin, TX offices were recognized in the rankings for Employment Law. The rankings are based in part on surveys sent to lawyers around the country. We are proud that our hard work and success on behalf of employees is recognized in the legal community.

If you wish to seek legal advice or inquire about becoming a client of the firm, please contact us.

EEOC Issues Decision in SSA Class Action

The EEOC issued an appellate decision in the Jefferson v. SSA Class Action. Find out more about the decision by clicking here.

KPWH Files Suit to End Forced Unpaid Labor During Government Shutdown

KPWH attorneys filed a lawsuit on January 9, 2019 to end the practice of forcing certain federal employees to work while in unpaid status during the government shutdown. The suit alleges that this practice violates the Thirteenth Amendment’s prohibition of involuntary servitude. The suit also claims that the government is in violation of the Fifth Amendment by prohibiting federal employees from obtaining outside employment during a government shutdown, and that the government’s practice of compelling some federal employees to provide unpaid work violates the Constitution’s separation of powers and other federal statutes.

A copy of the lawsuit is available by clicking here.

KPWH is honored to have filed suit on behalf of federal employees standing up for their rights. For more information about our law firm, or for contact information, click here.

Federal employees must know their rights under whistleblower laws

The New York Times published opinion article by a member of the Trump Administration describing efforts by federal employees to prevent and oppose misconduct by the Administration.  The Administration has since launched an inquiry to find and intimidate employees that may be whistleblowers.  These actions demonstrate how important it is that federal employees know their rights under federal whistleblower laws.  These protections are broad, covering a wide range of disclosures related to government misconduct. Even federal employees who did not blow the whistle, but are perceived to have done so, are protected by the Whistleblower Protection Act.

Whether a federal employee is actually protected under whistleblower laws depends heavily on the circumstances.  Those that feel they have been targeted as actual or perceived whistleblowers should consider the options available to them, including contacting the U.S. Office of Special Counsel.  Federal employees looking to determine their particular rights under federal whistleblower protections should consult an attorney, and can contact Kator, Parks, Weiser & Harris, PLLC.

KPWH Successfully Resolves Transgender Claim Against DC Restaurant

Kator, Parks, Weiser & Harris is proud to announce that Cathy Harris and David Hart represented Charlotte Clymer in the just resolution of her charge of discrimination regarding an incident at a DC-based restaurant.  The District of Columbia is one of only a few jurisdictions that protect transgender persons in public accommodations.  This matter demonstrates not only the strength of the District’s protections, but also the need for further legal reforms to protect gender minorities.

More information about this resolution and the parties’ joint statement is available here.

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