Civil Rights Litigation

Practice Points

What you need to know in a quick-to-read format. Find all of the Civil Rights Litigation Committee’s practice points in this archive.


SCOTUS Sharply Limits Bivens Claims—and Hints at Further Retrenchment 
By Cassandra Robertson – April 14, 2020
The U.S. Supreme Court’s recent decision in Hernandez v. Mesa raises significant questions about the future of civil-rights remedies against federal officials.


Michigan Court Refuses Arbitration of Sexual Harassment Claim 
By Mitchell L. Marinello – December 4, 2019
What a court views as “unimaginable” is not much of a guiding legal principle.

Protecting Communications with Incarcerated Clients
By Sheena Foye and James R. Wyrsch – December 3, 2019
The recordings of attorney client communications at Corrections Corporation of America in Leavenworth, Kansas and how to protect attorney client communications with clients who are incarcerated.

Employment Law Update: Tread Carefully When Requesting Information about Past Pay
By Ashley C. Brown – October 30, 2019
The purpose of “salary history bans” is to break the cycle of discriminatory pay practices.

Seventh Circuit Upholds Dismissal of Church Organist Discrimination Case
By Sanford Hausler – August 16, 2019
The court found that the Catholic church organist fell within the First Amendment ministerial exception.

Public Officials: Beware Blocking Critics on Social Media
By Jonathan Peters – July 22, 2019
The Second Circuit follows the Fourth in ruling that an official social-media account qualifies as a public forum.

A Look into the Future of Surveillance Technology
By Madison Conkel and Eileen H. Rumfelt – June 26, 2019
San Francisco’s new ordinance banning the use of facial-recognition technology by law enforcement is an important harbinger of legislation (and litigation) to come.

The Third-Party Doctrine in the Wake of a “Seismic Shift”
By Steven Arango – June 13, 2019
The need for data privacy legislation to keep pace with technology.

Employers Beware: Workplace Gossip about Sex May Risk Liability under Title VII
By Emily J. Bordens – May 17, 2019
How to be positive and pro-active in the #MeToo era.

Government-Funded Discrimination in Foster Care Placement Decisions
By Jessalyn Schwartz – April 5, 2019
What practitioners and advocates should know about the South Carolina waiver.

Three Principles to Stop Conflating: Choice of Law, Standing, and Transfer of Venue
By Kathryn Honecker and Mark E. Rooney – February 28, 2019
A refresher on these separate concepts.

Colorado Breast-Baring Ordinance Likely Unconstitutional
By Sanford Hausler – February 20, 2019
The Tenth Circuit upheld an injunction, which prohibits the City of Fort Collins, Colorado from enforcing an ordinance that prohibits women from baring their breasts, but not men.

Will Supreme Court Provide Much-Needed Clarity on Scope of Title VII Protections?
By Kathryn Hinton – January 14, 2019
A significant open question in Title VII jurisprudence may finally be answered once and for all.


SCOTUS Addresses Numerosity under ADEA
By Sanford Hausler – November 9, 2018
The U.S. Supreme Court issued its first decision in the 2018 term in Mount Lebanon Fire District v. Guido.

Are Quotas the Answer to the Gender Gap at the Top?
By Angela A. Turiano – November 5, 2018
Publicly-traded companies in California will be required to have at least one woman on their board of directors by the end of 2019. Is this the right way to break the glass ceiling?

Employment Rights and Obligations in the Era of Sanctuary Jurisdictions
By David Gevertz and Megan Quinn – July 31, 2018
Employers and employment attorneys will need to stay abreast of developments in this area, as the enforceable laws may change from month to month.

Supreme Court Allows Fourth Amendment Malicious-Prosecution Claim
By Cody Valdez – May 15, 2018
Justice Kagan's majority opinion affirmed that an individual’s Fourth Amendment right to be free from unreasonable seizure continues beyond legal process.

Updated ICE Policy on the Detention and Removal of Alien Parents or Legal Guardians
By Jessalyn Schwartz – April 23, 2018
Relevant practice considerations under the newly issued policy.

Pennsylvania Supreme Court Strikes Down Gerrymandered Map That Hurt Black Voters
By Jessica Clarke – March 19, 2018
The court also imposed its own map for the 2018 elections.

Circuits Split on Interpretations of Title VII and Sexual-Orientation-Based Claims
By J. Dalton Courson – March 19, 2018
It seems likely that other appeals courts will be called to address this issue.

Buying Silence in the #MeToo Era
By David Gevertz – March 15, 2018
There are signs that the scrutiny on nondisclosure agreements is not going to simply dissipate without a change to the status quo.

Addressing Discriminatory Discipline in Durham Public Schools
By Jessalyn Schwartz – March 6, 2018
An agreement to allow federal oversight of the North Carolina school system could serve as a framework for improving equity in education.

Tips for Addressing the Bullying of Disabled Students
By Sophie Prown – January 22, 2018
These students are bullied significantly more than their non-disabled peers.


Delaware Supreme Court Hands Down Powerful Defense of Self-Defense Rights Outside the Home
By John Pierce – December 26, 2017
The court's analysis has garnered the great interest from Second Amendment litigators.

How to Inform Parents of Students with Disabilities of Their Rights in Private School Programs
By Sophie Prown – December 18, 2017
Often parents do not know the rights and protections they are forfeiting when enrolling their children in private schools.

Voices of Recovery Podcast Series
By ABA CoLAP – November 10, 2017
The ABA Commission on Lawyer Assistance Programs debuted the first of a series of podcasts that will address substance use disorders, mental health issues, addiction, and recovery issues. Episode 1 features attorney Laurie Besden, the Executive Director of Lawyers Concerned for Lawyers of Pennsylvania, who shares her battles with alcohol and drug addiction.

Old Cases, New Justice
By David Schoen – October 12, 2017
Three recent criminal appeals reward tenacity.

Massachusetts High Court Allows Employee to Sue for Medical-Marijuana Firing
By Adam M. Hamel – July 19, 2017
This decision marks the first time that a court has found for the employee in a medical-marijuana case.

Are There Limits to Free Speech in the Courtroom?
By Florence M. Johnson – May 30, 2017
Think before you speak.

Caetano v. Massachusetts: Does the Second Amendment Protect Bearable Arms That Did Not Exist at the Time of Enactment?
By John Pierce – May 15, 2017
The Supreme Court reverses the Massachusetts Supreme Judicial Court on the subject of stun guns.

Anti-Gay Workplace Discrimination Illegal under Federal Law
By Mark Hamby – April 14, 2017
Sexual orientation is protected under Title VII of the Civil Rights Act.

A Refresher on Organizational Standing
By Sam Shapiro – March 3, 2017
In this era, where controversial new policies are announced in the nation’s capital seemingly daily, standing questions have taken center stage.

What Government Employees Need to Know about Their Speech Rights
By Jonathan Peters – January 30, 2017
A general primer on government speech and the free-speech rights of government employees.

Gun Laws Create Patchwork of Competing Legal Considerations
By David Gevertz – January 9, 2017
Recent shootings have left employers contemplating policies prohibiting firearms in or around the workplace, but the law varies from state to state.


More Women in the Judiciary Means Justice for All
By Tiffany deGruy – September 12, 2016
Critical mass for change begins around 20 percent.

Nationwide Injunctions, Immigration, and Civil Rights Litigation
By Cassandra Robertson – August 5, 2016
May a federal district court issue a nationwide injunction against enforcement of the government's immigration policies?

UCLA Civil Rights Project Publishes Study on Financial Impact of School Exclusion
By Jessalyn Schwartz – June 16, 2016
The focus was on suspensions, dropouts, and consequent costs.

Pre-Suit Mediation of Civilian Complaints Against Police
By Taylor Ruggieri – June 6, 2016
A handful of local governments across the country are experimenting with a new way to resolve citizen complaints about police misconduct.

Does the Second Amendment Protect Commonly Owned Assault Weapons?
By John Pierce – May 16, 2016
The Fourth Circuit addresses this question in Kolbe v. Hogan.

Racial Retaliation Claim Against U.S. Civil Rights Commission Chair Upheld
By Carmen D. Caruso – March 21, 2016
Martin Castro’s responsibility at the time was eradicating employment discrimination in Illinois.

New Historic Developments in Federal Sexual-Orientation-Discrimination Protections
By Nancy Marcus – March 18, 2016
The EEOC recently brought two cases pursuant to the agency’s strategic enforcement plan.

Thinking about Speaking and Doing in the Ninth Circuit: United States v. Swisher
By Aaron P. Brecher – February 25, 2016
A recent decision reminds us of the analysis that courts—and litigants—must undertake to label an activity either expressive conduct or speech.

What Scalia's Death Means for Five Pending Civil Rights Cases
By Nancy Marcus – February 16, 2016
In a number of key civil rights cases pending before the Court, Scalia's vote could have made a substantial difference.


A "Classic Example of a Prior Restraint"
By Jonathan Peters – December 9, 2015
The courts are alive with prior restraints on speech.

Title VII Protections Extended to Victims of Sexual-Orientation Discrimination
By Nancy Marcus – July 21, 2015
While the EEOC's recent ruling came out of a case involving a federal employee, its rationale would seemingly extend to employees of private companies as well.

Texas AG Vows to Protect Officials Refusing to Comply with Marriage Ruling
By Nancy Marcus – June 30, 2015
Religious objection battles over compliance with the Supreme Court decision are not likely to be confined to Texas.

Responsibilities When Arresting a Mentally Ill Suspect
By Stella Kim – May 27, 2015
What do police officers need to take into consideration?

SCOTUS to Decide Whether Congress Can Confer Article III Standing
By Cassandra Robertson – May 27, 2015
Spokeo v. Robins could significantly affect litigation in several areas, including consumer finance, housing discrimination, disability rights, and class-action practice.

Student Conduct and Sexual Assault: How VAWA Is Changing the Landscape
By Andrea Rubin – May 12, 2015
VAWA and Campus SaVE provisions are substantial amendments to the Clery Act.

Indiana Amends RFRA Bill, Marking Potential New Era of Protections
By Nancy Marcus – April 6, 2015
The governor and legislature of Indiana have quickly pulled an about-face.

Indiana Passes RFRA
By Nancy Marcus – March 30, 2015
In reaction to Indiana’s Religious Freedom Restoration Act being signed into law, an unprecedented national outcry has ensued.

SCOTUS Nixes APA Notice-and-Comment Requirement
By Kathryn Hinton and David Gevertz – March 16, 2015
The Paralyzed Veterans doctrine developed by the D.C. Circuit gets struck down.

Small Firm Practice Can Blend Public Service and Profit
By Diana Adams – February 23, 2015
Jumping off of prescribed attorney paths toward risk can bring great success.

Supreme Court Grants Cert to Decide Same-Sex Marriage Case
By Nancy Marcus – January 23, 2015
It is possible that a record number of amicus briefs will be filed in this historic case.

Violence at Rikers Island Lands NYC Right in Court
By Erika L. Glenn – January 12, 2015
The current year is shoring up to be a litigious one for New York City and the state of New York.