Monday, April 24, 2017

Bankruptcy and Discrimination

Can a person be discriminated against because of a bankruptcy filing.  Section 525(a) states:  [A] governmental unit may not … deny employment to, terminate the employment of, or discriminate with respect to employment against, a person that is or has been a debtor under this title or a bankrupt or a debtor under the Bankruptcy Act, or another person with whom such bankrupt or debtor has been associated ….

Section 525(b) states: No private employer may terminate the employment of, or discriminate with respect to employment against, an individual who is or has been a debtor under this title, a debtor or bankrupt under the Bankruptcy Act, or an individual associated with such debtor or bankrupt ….

So the question to ask is, does the phrase “discriminate with respect to employment” include hiring decisions? The Third, Fifth, and Eleventh Circuits have decided it does not. These Circuits follow reasoning that if Congress desired to bar private employers from discriminating in hiring decisions then it would have included “deny employment to” in section (b) as well. “[w]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Dean v. United States, — U.S. —-, 129 S. Ct. 1849, 1854, 173 L.Ed.2d 785 (2009) (quotation marks omitted); Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 300, 78 L.Ed.2d 17(1983) (same) (quoting United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir.1972)); Delgado v. U.S. Att’y Gen., 487 F.3d 855, 862 (11th Cir.2007) as cited in Myers v. Toojay’s Management Corporation. The 11th Circuit also pointed out that, “[t]he phrase ‘discriminate with respect to employment against’ is in section (a) and (b) therefore, if this phrase included hiring decisions then there would be no reason for section (a) to include the phrase ‘deny employment to.’ If ‘discriminate with respect to employment’ included the denial of employment, the words ‘deny employment’ in § 525(a) would be meaningless, pointless, superfluous.” Id.

Debtors argue that the language “discriminate with respect to employment” is broad enough to include hiring decisions. The Debtors rely on the reasoning outlined in Leary v. Warnaco, Inc., 251 B.R. 656 (S.D.N.Y.2000). In the Leary case the court reasoned that the drafter of § 525(a) was more verbose than the drafter of § 525(b) and that is one reason (b) does not include the exact same language as (a). The Leary court also saw no difference between discriminating in hiring or firing decisions, “[t]he evil being legislated against is no different when an employer fires a debtor simply for seeking refuge in bankruptcy, as contrasted with refusing to hire a person who does so,” and “that to read otherwise would contract the “fresh start” policy underlying the provision.” As cited in Rea v. Federated Investors.
This is an open area for some litigation depending on which circuit you are in.

Wednesday, April 19, 2017

Joint Custody

Some people think that joint custody automatically equals that the parents spending the same amount of time with a child.  A joint physical-custody schedule should provide each parent with “significant periods of physical custody . . . in such a way so as to assure [their] child of frequent and continuing contact with both parents.”  See Miss. Code Ann. § 93-5-24(5)(c) (Rev. 2013).  But that does not necessarily mean that each parent would have to get equal time with their child.  See Collins v. Collins, 20 So. 3d 683, 692 (¶44) (Miss. Ct. App. 2008).

Thursday, April 13, 2017

Case Management Software Comparsion

Here is a link comparing the leading case management software programs that the ABA recently did. 

Tuesday, April 11, 2017

Sexual Misconduct and Divorce

Sexual misconduct no longer dictates which parent receives custody. However, it does play a significant role in that determination. Moral fitness of each of the parents is one of 12 factors the Court considers when evaluating custody. Just because one of the parties has committed adultery does not automatically grant the non-offending parent the children. The Court analyzes the suitability of each parent by looking at the situation from the viewpoint of the child. Does the misconduct of the parent negatively affect the child? If so, to what extent? How does this misconduct compare in relation to that parent’s other attributes as a parent? What about the non-offending spouse - is he or she more suitable taking into account all factors? This analysis is generally the same whether the offense is adultery, cohabitation, or homosexuality.

Adultery - Mississippi courts strongly disfavor the children’s exposure to a parent’s extramarital affair. Overnight visits while the children are home can be the deciding factor in a custody battle when all other factors are equal or even slanted slightly in favor of the offending spouse. Allowing the children to be in the presence of the romantic partner will also bring into question the romantic partner's characteristics. If he or she has a criminal history or is otherwise unstable it will be very difficult for the offending spouse to obtain custody. On the other hand, an affair that is kept from the children and does not affect the parenting skills or devotion to the children is not usually pivotal in a custody determination.

Cohabitation - When one parent resides with someone to whom he or she is not married it can weigh against them in two of the 12 custody factors. First, Mississippi courts consider cohabitation to be a negative example of that parent’s moral character. Additionally, it calls into question the stability of the home environment. A parent who is cohabiting will definitely be at a huge disadvantage in any custody dispute.

Same Sex Relationships - Mississippi courts make no differentiation between heterosexual and homosexual relationships. A homosexual relationship does not guarantee the opposing parent custody of the children. The Court will attempt to determine if the relationship has an adverse effect on the children. However, as with adultery and cohabitation, it is considered immoral and indicative of that parent’s values. It will likely weigh heavily against that parent in the custody evaluation.

Regardless of the sexual misconduct, it is not the sole determining factor in a child custody dispute and will be put into context with the overall parenting abilities of each parent.

Tuesday, April 4, 2017


Last week, the Mississippi Supreme Court decided Cleveland Smith v. Kansas City Southern Railway Company.     Cleveland Smith filed suit against his employer Kansas City R.R. for an on-the-job injury he suffered in Sibley, LA.   He filed suit in Lowndes County where he resided (pursuant to 11-11-3(1)(b) allowing suit to be filed where the plaintiff lives if the defendant is a nonresident and does not have a principal place of business in Mississippi).  Kansas City moved for a change of venue and the trial court granted it holding that, although Kansas City’s  national principal place of business was in Kansas City, Missouri, it also did business in Mississippi and that its principal place of business in Mississippi was Rankin County.  Smith filed an interlocutory appeal which was granted.  The Court reversed finding that:
"We now find that a corporation may have only one principal place of business. Holding that the Legislature intended the venue statute to apply to a corporation’s principal place of business inside Mississippi would require analyzing in each case how much of a presence a foreign business has to have in Mississippi to have a principal place of business both inside Mississippi and nationally. Additionally, if any business with an office in Mississippi can be considered to have a principal place of business inside the state, that interpretation would render Section 11-11-3(1)(b) venue in the county of the plaintiff’s residence or domicile, virtually irrelevant. If the Legislature had intended for a foreign corporation to have a principal place of business inside the state, it easily could have clearly stated that in the statute."