Am I a victim of employment discrimination? – Part 1

I get a lot of calls from people who have lost their job inquiring as to whether something is discrimination or if they were wrongfully fired.  My answer is often you may very well have been discriminated against but not all discrimination is illegal.  Oklahoma is what is known as an “at will employment” state. This means that assuming you do not have an employment contract or some kind of collective bargaining agreement associated with a union, an employee can leave a job at any time for any reason. Likewise your employer may fire you at any time for any reason, as long as it’s not an illegal reason. So what’s a legal reason versus an illegal reason. If you’re a woman and your boss is a woman and she doesn’t like you and maybe even she’s jealous because you’re prettier than she is or nicer than she is, that’s a perfectly legal reason.  However if your boss doesn’t like you based on a protected class, that’s an illegal reason.

The law is an every changing animal which grows as with the changes in our society both good and bad.  The currently recognized protected classes under the Oklahoma Anti Discrimination Act and the Federal law equivalents include race, color, sex, gender, sex, physical or mental disability, national origin, ancestry, religion, creed, age, veteran status, genetics, or citizenship. It is also to retaliate against an employee who takes action to protect another rights or to assert their legal rights.  Sexual orientation is not currently a protected class, however some courts are addressing discrimination based on orientation based on gender and compliance with “societal gender norms” which targets discrimination based on a man or woman’s failure to adhere to certain behaviors society normatively attributes to those groups examples would be a man with feminine mannerisms or a woman with more masculine mannerisms.

So what should you do if you believe you have been discriminated against in your employment? First  familiarize yourself with your employers anti discrimination policies. Does the conduct violate the policy? Second if you feel action has been taken against you speak up and tell someone in charge.  Most employers have a procedure in place to report discrimination. Third, and most importantly document The Who, what, when, where, why and how regarding the discrimination. When you live with a situation you know the ins and outs of it but your employer will not. Having a journal or list of incidents with dates, times, places, people involved etc helps you remember, gives the employer specifics to investigate and helps protect your rights.  When you report to an employer do not just tell someone either. Document your report. If you see your HR Rep in the hallway and tell him or her about the situation, follow up with an email or memo and keep a copy for yourself. If the employer fails to take action, this documentation is key in the last step. Lastly, if the employer fails to address the situation or you are fired, take your documentation and information to the appropriate agency and file your claim.  In Oklahoma an employee who has been discriminated against has 300 days from the last day of discrimination to file a charge with the Equal Employment Opportunity Commission (“EEOC”) or Oklahoma Attorney General’s Office (“AG”) to assert claims under Federal law and 180 days after the last date of discrimination to file a claim under Oklahoma’s anti discrimination law with either the EEOC or the AG. After you file a charge, the EEOC or AG’s Office can  either investigate your claim for up to 180 before issuing a right to sue letter or may immediately issue a right to sue letter. Once the notice of right to sue is issued, you have 90 days to file a lawsuit or the claim is gone forever. There are lots of ins and outs of this process that an experienced attorney can explain. An employee has a right  to contact an attorney at any time in this process and the attorney can guide you about what does and does not rise to the level of discrimination.

 

My girlfriend is pregnant! Now what?

This is a common question we are asked as attorneys practicing family law.  In a perfect world first comes love, then comes marriage, and then comes the baby carriage, but we don’t live in a perfect world and babies are often born to parents outside of marriage.  It is important for a father to assert his parental rights to a child born outside of marriage.  Failure to assert those rights will earn a father an obligation to pay for the child but won’t earn the father a right to visitation to the child.  Affirmative relief must be sought for visitation to be ordered.

I’m often greeted with a surprised and astounded look when I tell a new or expecting father this piece of information something along the line of “you mean I have to pay for him/her but I have no right to see him/her.”  Yes pretty much unless you seek that right out.

Oklahoma follows the Uniform Parentage Act.  It was put in place in 2006 and Oklahoma was the 7th state to adopt this uniform act.  The UPA sets out the process by which mothers and fathers establish parentage over a minor child. The mother/child relationship is established by the physical act of giving birth to the child or by adoption.  The father/child relationship can be established in several ways: a presumption of paternity that becomes final by the passage of time or adjudication; the execution of an Acknowledgment of Paternity; adoption; and/or adjudication of paternity.  So, what does that mean? A presumption of paternity arises when a child is born within a marriage or when the child is born to a mother living with the purported father and the father holds the child out as his own for the first 2 years of the child’s life. A presumption of paternity can only be challenged during the first 2 years of the child’s life. This means the mother, the presumptive father or some other individual must challenge the notion that the husband or man residing with the mother and holding the child out as his own is not in fact the father of the child.

Acknowledgement of paternity occurs when the father and the mother sign an “Acknowledgement of paternity form.” Once this form is signed it cannot be rescinded after 60 days have passed since its entry.  The acknowledgement of paternity is a quasi-judicial adjudication of paternity.  An Acknowledgment of Paternity cannot be used to establish the father-child relationship if the child has a presumed father, unless the presumed father signs a Denial of Paternity form within the first two years of the child’s life or has successfully rebutted the presumption in a court adjudication. After the sixty-day rescission period for all signatories, the Acknowledgment of Paternity may only be challenged on the basis of fraud, duress, and material mistake of fact, and only within two years of the execution.

Adjudication of paternity is the act of filing a lawsuit to establish the paternity of a child and/or for a father to assert his parental rights to visitation with the minor child. If paternity is established already through presumption or an acknowledgment of paternity, the parties can dispense with the formal establishment of paternity and move forward with the assertion of the father’s parental rights to the child. However, if there is any basis to doubt the actual parentage of the child, now is the time to undertake that challenge. Paternity can be filed by the mother, the child, DHS, the purported father an/on another man asserting paternity. If a paternity proceeding is brought the mother or DHS may recover the cost of the pregnancy and the costs of support for back to the child’s beginning or life or up to 2 years whichever is shorter. Once paternity is established then the court determines custody and visitation in accordance with the UCCJEA (Uniform Child Custody Jurisdiction & Enforcement Act”) Once paternity is determined by genetic testing the parties have 14 days from the date of mailing of the parental determination report to challenge paternity. Once paternity is established via time, genetic testing, acknowledgement or adjudication the court will make a decision on custody, visitation and support.

Oklahoma law places custody with the mother by default when the child is born out of wedlock. The father must assert his rights to visitation and custody to get them. Once paternity is established the court will make the custodial determination as to with mother, father or joint custody of the child.  This determination is made on the “best interests of the child test.”  Visitation is also determined at this point. Visitation should be age-appropriate and should make allowance for the relationship between the father and child if the father had little or no contact with the child prior to the determination of paternity.  At this point child support will also be established in accordance with the Oklahoma Guidelines for child support.  Child support is a simple calculation made based upon the parties respective gross incomes and the number of overnights that the child spends with each parent. The court will also award any past due support at this time for up to the first two years of the child’s life or since birth whichever is longer based upon the child support guidelines, order reimbursement of certain costs associated with the birth, and if the child doesn’t bear the father’s last name, the Court can order that the child’s name be changed to reflect the name of the father. After all of this the court will then engage in a balancing of the equities to determine if the mother should be awarded certain attorney’s fees and costs in pursuing the paternity action.

In summation, it is incumbent on the father to assert his right to custody and visitation.  Child support can be ordered through a DHS proceeding for child support based on the presumption of paternity but DHS Child Support Enforcement lacks the authority to enter awards for custody and visitation. If a girlfriend is pregnant the father must take specific affirmative steps to ensure that he has the right and privilege of raising his child otherwise the law will only see that he has the obligation to support the child.  Certainly, the financial support of a child is a noble endeavor, however what we know more than anything is that children need both parents so it is important for dad to assert his rights to be involved in the process of raising the child if the child is born outside the confines of marriage.

Amending the Constitution

No matter where one falls on the political spectrum I believe there are certain universal truths that hold true for all of us. We all want the right to be free in our homes, safe in our property, the right to privacy and the right to worship openly and freely.  Every election cycle it seems that one side claims the other side is trying to take away or infringe on one or more of these rights.  So I thought it would be worthwhile to look at what actually must happen for there to be a change to the US Constitution.  Because one issue that is particularly important Oklahoma is the right to bear arms, I’m going to analyze this in terms of the second amendment.

First let’s look back at history……While the Declaration of Independence ratified on July 4, 1776, might be the shot across the bow that helped establish our great nation as a separate entity from the British Empire, The Constitutional Convention and the resulting Constitution is the guiding document which still rules our country today. The US Constitution was first drafted in in 1787 at the Constitutional Convention and fully ratified by 1789.  Some 13 years after the Declaration of independence was written. The purposes of the Constitutional Convention were to provide a stronger framework of government than what existed under the Article of Confederation. The Articles of Confederation were the US’s first attempt at a constitution and its primary focus was to protect states’ rights. However, it was apparent even then that to truly protect States Rights there must be a strong central form of governance, thus the Constitutional Convention was born and our guiding document for over 225 years was born.

The US Constitution has 7 Articles and 27 Amendments.  Each Article of the Constitution addresses separate rights and powers of the Federal Government.  Further, those rights/powers not granted in the Constitution to the Federal Government are reserved to the States.  The rights/powers addressed in the Constitution in order of the Articles are: Legislative (Congress); Executive (Presidential); Judicial (Federal Courts); States Rights; Amending the Constitution; the Legal Status of the Constitution; and Ratification of the Constitution. The first ten amendments are known as the “Bill of Rights” and are our most known rights.   In their original form those rights were only afforded to citizens under Federal Law meaning that unless the states adopted similar laws in their Constitutions, those rights were not guaranteed by the states. Even today, not all of the rights set forth in the Bill of Rights apply to the states.

The 14th Amendment to the US Constitution, which was ratified on July 9, 1868, provides in relevant part that:

No State shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States no shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.

Prior to 1925, the Bill of Rights did not apply to the States.  It was only after 2 key cases were decided by the Supreme Court that the rights were incorporated to the state level.  The first case was in 1897 for “just compensation” for taking of land by eminent domain under the Fifth Amendment and the second case was in 1925, required states to protect “free speech” under the First Amendment. To apply these rights to the States, the Supreme Court looked to the 14th Amendment’s due process clause and slowly these rights were incorporated from the Federal Government to the State Government.

So now let’s talk about the second amendment which was much debated in the last round of elections.  The Republicans often accuse the Democrats of wanting to repeal the second amendment. But can the second amendment be repealed???? Can any fundamental right be repealed completely? The answer is yes there is a process for amendment to the constitution but the rights given under the second amendment and as incorporated under the 14th amendment have been determined to be so fundamental that they are beyond a vote of the people and the process by which the constitution is amended is so onerous that your second amendment rights, really any fundamental right, is not in jeopardy unless a super majority of congress and a super majority of the citizens of the US suddenly change their minds on what is important.  I don’t believe that is likely to happen.

In the landmark case of West Virginia State Board of Education v. Barnette the US Supreme Court held that “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.””   In 2010, the US Supreme Court in the case of McDonald v. Chicago, 561 US 742 (2010), held that the second amendment is a fundamental right, incorporated against the states and protected from infringement by local governments.

So can a president take away your fundamental right to bear arms with an Executive Order? No. Can congress simply pass a law amending your fundamental right to bear arms? No.  In order to amend or take away the fundamental right to bear arms guaranteed by the US Constitution and incorporated under the due process clause of the 14th Amendment, there must first be either a proposal agreed upon by 2/3 of both the Senate and the House of Representatives in Congress. After that agreement is reached, the proposed Amendment has to be sent to the states where the amendment is ratified by 3/4 of the state Representatives and Senators. I’m sure we can all agree that getting 2/3 of Congress and 3/4 of the State Legislators is next to an impossible task in today’s world.  The last time that the Constitution was amended to take away a right was prohibition which was approved for ratification in 1917 and fully ratified in 1919.  It has been 100 years since Congress has acted to take away American rights in the Constitution. It also took 202 years for the 27th amendment addressing Congressional raises to be ratified.  I believe that the second amendment and all of our fundamental rights are protected from abridgment by this and any other congress.

How do I pay for college if I’m divorced?

It’s the time of year when kids all over the country are receiving acceptance letters and financial aid awards from colleges and universities.  Everywhere we look we see the statistics about how the cost of a secondary education is increasing and how students are saddled with the burden of debt more and more. In a perfect world, we as their parents have carefully saved money every month since they were born to pay for the education but very few of us live in this perfect world.  So, we all face the tough question of paying for college and even more so if you are a single parent.

A good divorce attorney will ask you questions about your children’s educational goals because they should be considered at the time of the divorce.  In Oklahoma, the obligation to support your children ends at the age of 18 or when the child graduates from high school, whichever is later up to the age of 20.  Unless your child is disabled or has a qualifying However, many colleges and universities, particularly the elite ones expect both parents to contribute to the child’s education costs. So, what does that mean?

A divorce degree can either be a consent decree or based on a finding by the court.  If you go to trial and the judge makes decisions about custody, support and visitation, the judge only has the power to order that which is allowed under Oklahoma law, which means the judge cannot order that child support continue past 18 or high school graduation under most circumstances. However, if the parties reach an agreement either through mediation or some other settlement or agreement, the parties can enter any agreement about continued support they wish so long as it does not violate the law.  So, in a consent decree, the parties can agree that the obligation to continue to support the children lasts during a post-secondary education likewise and agreement can be made on medical support and extracurricular activities for phone, car insurance, spending money etc.  While it seems strange that these kinds of matters need to be addressed in a divorced decree, it is better to have them and not need them than need them and not have them.

Additionally, Oklahoma offers the promise program.  Often when parents are married a child will not qualify for the Promise program due to combined income limits.  However, once the separation occurs, even if the divorce is not final, a parent should apply for promise if either individual parent’s income satisfies the income requirements. Documentation can be provided to the Promise Program about the circumstances and the parents separate income even if the joint tax returns show that the parents together exceed the income.  Further, even if there is joint custody if one parent qualifies based on income the student will qualify as well.  Sound financial planning in all aspects of your divorce is important and should be considered when going through these proceedings. If your divorce attorney isn’t talking to you about these things you need to ask, and if they do not understand why this is important you should consider whether this attorney understands the issues that are important to you as an attorney.