The Great Showdown: The Supreme Court, Arizona, and Immigration

On June 25th, the Supreme Court issued its decision in what will prove to be one of the most important cases in our country’s immigration history. Arizona v. United States considered the Constitutionality of SB1070, an Arizona state law granting state police unprecedented authority to identify and arrest illegal immigrants within its borders.

The law was championed by (now former) Arizona State Senator Russell Pearce, who is known as one of the nation’s most vocal adversaries of illegal immigration. Pearce and his followers cite to two primary concerns about illegal immigration: (1) they believe that illegal Mexican immigrants are stealing jobs from U.S. citizens living in Arizona, and (2) that the Mexican drug war, which by all accounts is violently out of control, is spilling into the United States and, specifically, across Arizona’s borders.
On April 23, 2010, SB1070 was passed into law. However, after a contentious battle, challengers of the novel new law convinced the Supreme Court to get involved. On Monday, the Court struck down several provisions of SB1070 law. Now, with the recently failed election bid of the law’s creator, former Senator Pearce, the political crusade against Arizona’s illegal immigration has been tempered.
What the High Court Struck Down
Three extremely contentious provisions of SB1070 were struck down by the high court. Section 6 allowed police, in certain cases, to make warrantless arrest of individuals suspected of being illegal immigrants. Section 3 made it a crime for legal immigrants to be present in the state of Arizona without valid immigration papers. Finally,  Section 5(c) imposed criminal penalties on illegal immigrants who seek or accept work in the United States without authorization. All three of these provisions of the law were preempted by federal immigration laws, and therefore struck down by the Court.
What the High Court Upheld
The Supreme Court did, however, maintain what Arizona Governor Jan Brewer called the “heart” of the law: Section 2(b) allows Arizona state police are permitted to investigate the legality of individuals if they do so while enforcing other laws.
State vs. Federal Sovereignty
In several cases throughout American history, civil rights law has boiled down to states’ policing power v. the powers that the Constitution expressly grants to the federal government. In Arizona v. United States, the U.S. Supreme Court has attempted to clarify the circumstances in which immigration enforcement – which has traditionally been a federal power – can justifiably be carried out by states as part of their policing powers. One way or another this decision will have far reaching implications in the world of civil rights law.
If you feel your civil rights as an immigrant have been violated, call the Law Offices of Valli, Kane & Vagnini for a free consultation.

Gay Workers Rights in New York State since the Passage of the Marriage Equality Act of 2011

The Gay Marriage Equality Act was signed on June 24th 2011

With the passage of same-sex marriage in New York, many individuals are wondering what if any effect it will have on employers and their obligations to their employees.  While there is currently no federal law in place to protect the rights of gay and lesbian workers, New York State has such a law.  In 2003, the New York legislature introduced the Sexual Orientation Non-Discrimination Act (SONDA), to combat discrimination against gay individuals in the workplace.
SONDA was passed on January 16, 2003.  The act “prohibits discrimination on the basis of actual or perceived sexual orientation in employment, housing, public accommodations, education, credit, and the exercise of civil rights.”  Employees are protected against an employer’s discrimination whether or not the employer’s beliefs of the employee’s sexual orientation are true or false.  For instance, if an employer in New York State discriminates against their employee because they believe they are gay, even if the employee is not, they are still granted protection under SONDA.  SONDA specifically added “sexual orientation” to the already protected classes in New York, such as race, sex, and religion.  Because of SONDA, sexual orientation has become a protected class under State law, Human Rights law, Civil Rights Law, and Education Law.
The GMEA will take action on July 24th 2011

A New York employer cannot fire or withhold a hiring of an employee simply because of their sexual orientation.   If an employee was terminated, discriminated against or harassed in any way at their employment based on their sexual orientation, they should contact the New York State Division of Human Rights or an attorney.  Wronged employees can collect lost wages and benefits, as well as compensatory damages for their pain and suffering.
The one exemption under SONDA is when the discrimination comes from a “religious or denominational institution or an organization operated for charitable or educational purposes that is operated, supervised, or controlled by or in connection with a religious organization.”  In these limited circumstances, if the employee has been wrongfully terminated or not given a job opportunity based on their sexual orientation, the employer is not liable if the action taken was based on religious principles.  This exemption will not apply to public sector jobs or private for-profit companies.
On the federal level, the only protection against discrimination based on a person’s sexual orientation is given to employees who work for the government.  Aside from these circumstances, there is no federal law currently in place protecting employees based on their sexual orientation.  Being currently considered is the Employment Non-Discrimination Act (ENDA) of 2009.  With ENDA’s passage, employers would be prohibited from discriminating against an employee based on their sexual orientation and gender identity.  Additionally, ENDA would prohibit an employer from using a person’s sexual orientation or gender identity as a basis for hiring, firing, promotions, or compensation.  Unfortunately, ENDA is still only being discussed and is not yet on the books.  At this current time, there is still no federal level protection for employees who have been discriminated based on their sexual orientation in the workplace.
Although there is no federal level protection, employees who have been wronged based on their sexual orientation should still consider other avenues to pursue if such discrimination occurs.  For example, employers can be liable for other employment and labor law theories such as defamation, wrongful termination, invasion of privacy, negligent infliction of emotional distress and sexual harassment.  An employee who has been discriminated against based on their sexual orientation should not be discouraged with the lack of federal protection, but should rather contact an attorney and see what tools they do have at their disposal.
With the passage of the Marriage Equality Act in New York State, many of these discriminatory issues may come to light and have more presence in the future.  Employees who have lacked the right to marry in the past now can, and should, be free to exercise that right without caveat and repercussion.  If you have been discriminated against because of your sexual orientation, contact Valli Kane & Vagnini to see what your legal options and remedies are.