January 2015

Main Articles:


Five Things Attorneys Should Know About Employment Discrimination under Title VI

By Howard Cole, Esq.

© 2015 This article was originally published in the printed magazine COMMUNIQUÉ, the official publication of the Clark County Bar Association. (January 1, Vol. 36, No. 1). All rights reserved. For permission to reprint this article, contact the publisher Clark County Bar Association, Attn: COMMUNIQUÉ Editor-in-Chief, PO Box, Las Vegas, NV 89101. Phone: (702) 387-6011.

1. What is Title VII?

Title VII of the Civil Rights Act of 1964 (Title VII) protects employees and job applicants against employment discrimination on the basis of race, color, religion, national origin, and sex. The statute also makes it illegal to retaliate against an individual because the individual complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. Title VII applies to employers with 15 or more employees, including federal, state, and local governments; employment agencies; and labor organizations.

2. Does an employee or job applicant have to exhaust administrative remedies before filing suit?

Title VII requires individuals to exhaust available administrative remedies as a condition precedent to filing a civil action for damages. The employee or job applicant alleging discrimination must file a timely charge with the Equal Employment Opportunity Commission (or, in Nevada, the Nevada Equal Rights Commission) and obtain a “right to sue” letter from that agency. The “right to sue” letter notifies the individual that he has 90 days after receiving notice of the right to sue to file a civil action.

3. How long does an individual have to file an administrative charge of discrimination?

In general, the employee or applicant must file a charge within 180 calendar days from the day the discrimination took place. In Nevada, the 180 calendar day filing deadline is extended to 300 calendar days. Federal employees and job applicants undergo a different complaint process and generally must contact the employer’s Equal Employment Opportunity counselor within 45 days of the discrimination.

4. What types of discrimination are prohibited by Title VII?

There are several types of discrimination prohibited under Title VII, including disparate treatment, disparate impact, and hostile work environment.
Disparate treatment occurs when the employer treats some employees or applicants less favorably than others or intentionally discriminates against them based upon a protected characteristic.
Disparate impact occurs when an employer uses employment practices or selection procedures that are facially neutral in their treatment of different groups but have the effect of disproportionately excluding persons based upon a protected characteristic that cannot be justified by business necessity.
A hostile work environment exists when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the employee’s employment and create an abusive working environment.

5. What is the McDonnell Douglas burden shifting analysis utilized by courts?

If an employee makes out a prima facie case of discrimination, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for its adverse employment action.
If the employer satisfies its burden, the employee must then prove that the reason advanced by the employer constitutes mere pretext for unlawful discrimination. To show pretext, the employee must show that either a discriminatory reason more likely motivated the employer or that the employer’s proffered explanation is not credible. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

Howard Cole, Esq. is a Partner at Lewis Roca Rothgerber, LLP. His practice includes both traditional labor law, employment law, and litigation. His practice is limited to exclusive representation of employers in both the private and public sectors, including gaming, health care, public agencies, construction companies, and dozens of other industries.


Five Things Attorneys Should Know About Discovery in Family Law Cases

By Jack W. Fleeman, Esq.

© 2015 This article was originally published in the printed magazine COMMUNIQUÉ, the official publication of the Clark County Bar Association. (January 1, Vol. 36, No. 1). All rights reserved. For permission to reprint this article, contact the publisher Clark County Bar Association, Attn: COMMUNIQUÉ Editor-in-Chief, PO Box, Las Vegas, NV 89101. Phone: (702) 387-6011.

While every civil litigator must know, or quickly learn, the discovery rules set forth in the Nevada Rules of Civil Procedure (NRCP), many are unaware that there are specific discovery rules that apply to most family law cases. This article sets forth the five things those lawyers should know about these rules.

The rules: NRCP 16.2, 16.205, and 16.21

Over the past six years, the Supreme Court of Nevada has adopted, and several times revised, these rules. Currently, NRCP Rule 16.2 applies to pre-judgment divorce, annulment, separate maintenance, and dissolution of domestic partnership matters; Rule 16.205 applies to prejudgment proceedings in paternity cases and prejudgment custody matters between unmarried parties; and Rule 16.21 provides that the court may open discovery in post-judgment domestic relations matters.

Purpose of the rules

Given the high volume of family law cases in our state district courts, the Supreme Court of Nevada, working with proposals from the Nevada State Bar Family Law Section, implemented these rules in the hope that they would promote fairness, speed up litigation, increase transparency, and reduce costs. In furtherance of these goals, the rules are focused on front-end loading discovery by requiring each party make mandatory disclosures regardless of whether the other party issues formal discovery requests.

Financial disclosure form (FDF)

As part of the effort to speed up litigation and promote transparency between the parties, who are often spouses or parents in a custody dispute, the rule requires each party to file an FDF within 30 days of the service of an answer to the complaint. The FDF also provides the judge, who often must make temporary orders on financial issues, with a breakdown of a party’s income, expenses, property, and debts.

Mandatory disclosures

Under NRCP Rule 16.2, each party is obligated to provide a significant number of initial disclosures to the other party at the beginning of each contested case. These disclosures include, but are not limited to, documents to support each expense, property, and debt listed on the party’s FDF. Rule 16.205 has a similar, albeit smaller, list of required disclosures. Under both rules, the disclosures are due at the same time as the FDF.

Potential pitfalls

There are many potential pitfalls within the rules. For example, the rules require a party state his or her objection to authenticity within 21 days of a disclosure. Failure to make a timely object on this ground waives the right to make the objection at a later date. Another example is that parties are required to make most objections to proposed exhibits no later than five days before a trial, with a presumptive waiver for untimely objections. Of course, these are just two of the possible pitfalls. The brevity of this article does not permit a full discussion on the intricacies of these rules. Thus, it is incumbent upon any lawyer venturing into family court to review these rules, follow them, and avoid the pitfalls they present.

Jack W. Fleeman, Esq. is an attorney at the Pecos Law Group. His practice includes representing clients in a wide range of domestic relations matters, including complex divorce, custody, child support, paternity, relocation, adoption, and termination of parental rights matters.


Five Things Attorneys Should Know About Attorney Sessions in Las Vegas Justice Court

By Erin Houston, Esq.

© 2015 This article was originally published in the printed magazine COMMUNIQUÉ, the official publication of the Clark County Bar Association. (January 1, Vol. 36, No. 1). All rights reserved. For permission to reprint this article, contact the publisher Clark County Bar Association, Attn: COMMUNIQUÉ Editor-in-Chief, PO Box, Las Vegas, NV 89101. Phone: (702) 387-6011.
Las Vegas Justice Court has a provision whereby licensed attorneys can schedule “attorney sessions” to reduce the overall fine or point penalty for friends or clients. This process has recently changed. Here are five things each attorney should know about the revamped attorney session process.

Jurisdiction

Under NRS 5.050, local municipal courts have jurisdiction over all misdemeanors committed within their city limits. Therefore, Las Vegas Justice Court has jurisdiction only where a citation is issued outside of Las Vegas, Henderson, or North Las Vegas city limits. A citation issued within any of those city limits must be handled through the relevant municipal court.

Appointments

Attorney sessions were previously handled on a first-come-first-serve basis during certain hours of the week. However, attorney sessions must now be scheduled with at least one day advance notice. If scheduling an appointment for fifteen or less traffic citations, attorneys must email TrafficAttySession@clarkcountycourts.us to designate the date they would like to appear, and state whether they are requesting a morning or afternoon session.

Bulk Sessions

To schedule a time for a “bulk” attorney session, attorneys must email TrafficBulkAttySession@clarkcountycourts.us. The email must contain the attorney’s name, bar number, the defendant’s names, and the specific citation numbers to be scheduled for the particular session.

Attorney Remedies

At the attorney session, the attorney will have the option of entering a guilty plea and choosing between attending five hours of traffic school or skipping traffic school for an additional fee of $100.00. Either of these two options allows the defendant to avoid receiving a “point” from the Department of Motor Vehicles. That means the defendant is less likely to be charged higher insurance rates. If one enters a not guilty plea, the attorney must then attend a pre-trial hearing with a deputy district attorney. If the matter is not resolved at the pre-trial hearing, it will then be heard at trial with a Justice of the Peace.

Notable Changes

Unfortunately, traffic citations can no longer easily be reduced to non-moving violations simply by making an appearance for a client, friend, or loved one. Gone are the days of traffic tickets effectively reduced to a parking ticket. The process described above limits the remedies available through so-called attorney sessions.

Erin Houston, Esq. is an associate attorney at Goldsmith & Guymon, P.C., where she practices primarily in the areas of bankruptcy, domestic relations, guardianship proceedings, estate planning, and probate litigation. She was formerly a staff attorney at Nevada Legal Services.


Five Things Attorneys Should Know About Representing Unaccompanied Children in Removal Proceedings

By Sarah I. Perez, Esq.

© 2015 This article was originally published in the printed magazine COMMUNIQUÉ, the official publication of the Clark County Bar Association. (January 1, Vol. 36, No. 1). All rights reserved. For permission to reprint this article, contact the publisher Clark County Bar Association, Attn: COMMUNIQUÉ Editor-in-Chief, PO Box, Las Vegas, NV 89101. Phone: (702) 387-6011.

Dangerous conditions in Central America have driven thousands of unaccompanied children to seek refuge in the United States. Many of these children turn themselves in to border patrol, or are apprehended while attempting to cross the border. Once in immigration custody, these children are often matched with family members residing in the U.S. while their immigration statuses are resolved.

Many children have already been matched to families in Nevada, and many more are expected. If one of them comes knocking on your door, here are five things you should know about representing an unaccompanied child in removal proceedings:

Defining “unaccompanied alien child” (UAC)

The Homeland Security Act of 2002 defines a UAC as a person under 18 years of age, with no lawful immigration status, and no parent or legal guardian in the U.S. An UAC designation is important because the Trafficking Victims Protection Reauthorization Act of 2008 provides certain protections for children designated as UACs. These protections include, inter alia, eligibility for voluntary departure; adjudication of asylum applications by an USCIS asylum office; and exemption from the one-year filing deadline for asylum claims.
Forms of relief available include:

Asylum
Asylum is a viable form of relief because most are fleeing forced gang recruitment or domestic violence. Any alien may seek asylum based on having suffered past persecution or fear of suffering future persecution on account of their race, nationality, religious beliefs, political opinion, or membership in a particular social group. For this particular population of asylum applicants, it is important to consider domestic violence (e.g., lack of parental protection, orphan status) and gang related asylum claims.

Special Immigrant Juvenile Status (SIJS)

A Special Immigrant Juvenile is an immigrant present in the United States who (1) has been declared a dependent of a juvenile court, or who has been placed under the custody or care of an individual or agency (e.g., a guardianship), and whose reunification with one or both parents is not viable due to abuse, abandonment, or neglect; (2) for whom the court has determined that returning to his last place of residence is not in his best interest; and (3) for whom the Secretary of Homeland Security consents to grant SIJS. Once approved, the alien child becomes immediately eligible for lawful permanent residency.

U.S. Citizenship and Family Petitions

Although it is a rare form of relief for this particular group, it is still important to screen these children for possible U.S. citizenship. It may be that, unbeknownst to the child, he was born in the United States, or he is the child of an U.S. citizen. After all, citizenship is the ultimate form of protection from removal.

T and U Visas

T and U visas are humanitarian-based visas for children and adults. T visas are designated for victims of human trafficking, including sex and labor trafficking. U visas are designated for victims of certain serious crimes inside the United States. Recent UAC arrivals will most likely not qualify for this type of relief, but it is always worth looking into.

Sarah I. Perez, Esq. is an immigration attorney at Hamilton Law. She is a graduate of William S. Boyd School of Law. Questions can be directed at sarah@hamlegal.com.