Feds enter HB2 case against North Carolina with solid record of victories | McClatchy Washington Bureau

The Justice Department has a solid track record of success in civil rights lawsuits similar to the one filed against the state of North Carolina over its new transgender law.

But the record also shows that many billable hours, government-style, will precede the final result. The unique facts and fervent politics of the North Carolina case, moreover, might complicate the end game and confound comparisons.

“The level of intensity around this will demand clear judicial resolution,” Mark Dorosin, managing attorney for the University of North Carolina’s Center for Civil Rights, said in an interview Wednesday, but “whichever side is unhappy with the outcome will appeal.”

Other Justice Department lawsuits filed under Title VII of the Civil Rights Act, a key component of the department’s new legal action against North Carolina over the state’s House Bill 2, provide only a partial road map for what’s ahead.

In December 2014, for instance, the department’s Civil Rights Division sued the Chicago Board of Education under Title VII for alleged sex discrimination against pregnant employees. The Chicago board initially denied all charges, raising 11 different defenses.

It took a year, but the following December the board agreed to a settlement that included changing personnel policies and paying eight women a total of $280,000.

Other Title VII cases have taken much longer.

In July 2014, the Justice Department filed a Title VII sex discrimination case against the Pennsylvania State Police, alleging problems with physical fitness tests. The case is still chugging along, with a judge on Wednesday granting attorneys more time for discovery.

Jury selection in the Pennsylvania case will start in March 2017, court records show.

Dorosin, of the Center for Civil Rights, noted that the various competing North Carolina lawsuits – including those filed by the state and the American Civil Liberties Union – involve legal questions that a judge will answer; perhaps, he suggested, more quickly than a jury trial would require.

“Everyone is interested in getting to a resolution,” Dorosin said.

The Justice Department has filed at least 22 Title VII lawsuits revolving around allegations of sex discrimination since January 2012, according to filings made available on the Civil Rights Division’s website.

Some lawsuits are filed with consent decrees, in essence, prearranged settlements that avoid further litigation and amount to Justice Department wins. A July 2012 sex discrimination lawsuit involving pregnant firefighters in the town of Davie, Florida, for instance, was almost immediately resolved with a consent decree.

But when state and local governments resist, even simple-seeming cases must labor through some hoops. In April 2014, for instance, the Justice Department sued Clark County, Nevada, over the treatment of a lone female worker.

Forty-five legal filings later, federal and Clark County officials agreed to a settlement approved by a judge in February 2015 that included a payment of more than $150,000 to the employee and the adoption of new anti-discrimination training by the county.

The lawsuit filed May 9 challenging North Carolina’s House Bill 2 is far more complicated, legally and politically.

Unlike a fire department’s physical fitness test or a county’s handling of one employee, HB2 represents a statewide policy decision adopted by legislators and signed by the governor. Politically, this could make it much harder for Republican state officials to back down in the face of a Democratic-led Justice Department.

Legally, the Justice Department’s case could be trickier, and hence more vulnerable to extensive litigation, because of its effort to fold the transgender population under the existing federal civil rights umbrella.

“It’s our position that federal law has been clear for some time now, that discrimination against sex includes discrimination based on gender identity,” Attorney General Loretta Lynch said this week.

A Virginia-based federal appellate court recently agreed in a case involving a transgender high school student. But the decision came on a divided 2-1 vote that underscored how strong competing arguments might ensure a fight that keeps on going all the way to the Supreme Court.

“Any new definition of sex that excludes reference to physiological differences, as the majority now attempts to introduce, is simply an unsupported reach to rationalize a desired outcome,” Judge Paul Niemeyer of the 4th U.S. Circuit Court of Appeals wrote in his dissenting opinion.

In addition to Title VII, the Justice Department’s suit makes claims under Title IX of a 1972 education law as well as the Violence Against Women Act.