Posts Tagged ‘discrimination’
Tuesday, June 2nd, 2015
Last fall, Samantha Elauf, a young Muslim who was denied employment at Abercrombie and Fitch because her headscarf violated the company’s dress code, took her case all the way to the Supreme Court. On Monday, SCOTUS ruled against Abercrombie, 8-1, declaring that A&F’s refusal to accommodate a hijab-wearing applicant was a violation of civil rights law.
Elauf didn’t know about Abercrombie’s policy against headscarves; the Supreme Court needed to determine if it was Elauf’s responsibility to inquire for an accommodation or if the burden was on Abercrombie to provide an accommodation without waiting for Elauf to ask. The final call: it was on Abercrombie to provide for Elauf, not the other way around, and failing to do so constituted religious discrimination.
In a statement, Abercrombie said the case will go on and pointed out that the justices did not specifically say discrimination had occured: “We will determine our next steps in the litigation.”
So Abercrombie lost a battle. But could this loss help the chain win a retail war? If so, it wouldn’t be the first time Abercrombie rebounded from irrelevance.
As we noted on this site last year, the “cool” look once exemplified by Abercrombie’s preppy offerings and its blonde, white and athletic aesthetic is no longer cool among young shoppers. At its modern peak (which is to say, the second era of Abercrombie, after then-CEO Mike Jeffries revived the long-dormant brand in 1992), Abercrombie was raking in almost $2 billion in annual sales, with 22,000 conventionally hot employees populating 700 stores. Abercrombie thrived on a narrow definition of beauty.
As Jeffries put it in a now-infamous interview with Salon in 2006, “We hire good-looking people in our stores. Because good-looking people attract other good-looking people, and we want to market to cool, good-looking people. We don’t market to anyone other than that… In every school there are the cool and popular kids, and then there are the not-so-cool kids. Candidly, we go after the cool kids. We go after the attractive all-American kid with a great attitude and a lot of friends… Are we exclusionary? Absolutely.”
Repulsive as this modus operandi may be, there was a time, not too long ago, when it was smart marketing: when everyone was watching The O.C., when Mean Girls in their nearly-identical pink-on-Wednesdays attire reigned supreme, when sameness was the order of the day.
But 2006, in fashion years, is ancient history. Today’s teenagers are drawn to the cheap, trendy stuff on the shelves of H&M, Forever 21, and Zara (though the human cost of such inexpensive, wear-it-then-toss-it clothes is devastatingly high). Looking like everyone else is so five years ago. And Abercrombie’s idea of utopia as, basically, an Aryan, Logan’s Run-like game of touch football that never ends doesn’t jive with the taste of the most racially diverse generation in history.
Sales at A&F have been on the decline for years; stores have been shuttering across the nation. So before Elauf’s case was decided, Abercrombie was in the midst of some soul-searching. (Assuming corporations are people, why can’t brands have souls?) They killed the logo. They brought light into the stores and black clothing to the shelves. The nausea-inducing amounts of perfume amid the racks was taken down by a quarter. A&F even tried to go in a hipster direction; this did not sit well with the preppy populace, Abercrombie’s core demographic. Besides, these are not the kind of seismic changes that rescue a dying brand.
Maybe, just maybe, this SCOTUS case will be a watershed moment for Abercrombie. Not only is their old mode of cool no longer cool; it is so uncool that it’s literally unconstitutional. Imagine a brave new Abercrombie where the employees — ahem, “brand representatives” — actually represent a huge swath of America’s teenage population. Imagine it being totally ordinary to stroll into an A&F at the mall and be greeted by a girl in a hijab and a guy in a yarmulke.
Or maybe Abercrombie will continue its speedy, steady fall from power. But if you happen to be personally invested in the resurgence of Abercrombie as a cultural force, consider this SCOTUS ruling cause for cautious optimism.
This blog was originally posted on Think Progress on June 2, 2015. Reprinted with permission.
About the Author: The author’s name is Jessica Goldstein. Jessica Goldstein is the Culture Editor for ThinkProgress. She also writes recaps for Vulture, New York Magazine’s culture blog. Before coming to ThinkProgress, Jessica was a feature writer and theater columnist at the Washington Post. Jessica holds a B.A. in English and Creative Writing from the University of Pennsylvania. While at Penn, she wrote for Seventeen and Her Campus. Jessica is originally from New Jersey.
Monday, March 30th, 2015
Discrimination is in the news every day in one form or another, and its effect in the workplace can be devastating to employees and their livelihood. We’ve updated our pages in areas of discrimination law that have been front and center in the news and in the workplace. Updates have been made to our pages on Pregnancy Discrimination, Family Responsibilities Discrimination, and Gender Identity Discrimination. We’ve also added a new page with information about the rapidly growing body of State and Local Paid Sick Leave laws.
The case of brought pregnancy discrimination into the lime light last year. The case, argued before the Supreme Court in December 2014, asks to what extent the requires that employers give accommodations to pregnant employees. In Ms. Young’s case, UPS refused to limit the amount of weight she was required to carry during her pregnancy. As a result she was forced to take unpaid leave and ultimately lost her health insurance. This type of predicament is all too common for pregnant women in the workforce. Our updated Pregnancy Discrimination page explains the scope and level of protection that various federal laws might offer to pregnant women. It also explains what employers can and cannot do with respect to the many pregnancy related issues that women in the workplace face. It covers pregnancy-related medical leave, work accommodations, parental leave after pregnancy, recovery from terminated pregnancies, paid or unpaid time off, and health insurance.
Transgender and Gender Identity rights are another issue on the forefront of the news these days. While acceptance and understanding of the rights of transgender people seem to be increasing in the public, employers and companies don’t always keep up with the times. Gender identity issues can be most difficult to deal with in the workplace, especially if your employer doesn’t acknowledge or properly deal with problems. We’ve made extensive updates to our page on Gender Identity Discrimination to provide as much information as possible for transgender workers, as well as for companies looking to develop policies and procedures to effectively address gender identity issues. This area of law is quickly changing and developing on the state and local level, and somewhat more slowly at the federal level. The Gender Identity Discrimination page will help fill you in on the current state of the law, and also direct you to more information on this important issue.
The definition of Family Responsibilities has certainly changed over the decades. Employers in the U.S. have continued to place more importance on work/life balance, but workers continue to face significant obstacles in this area. Our new updated page on Family Responsibilities Discrimination provides information about how existing laws may protect you against discrimination based on your status as a parent, spouse, or caregiver. It is important for employees and employers to understand what personal information can and cannot be the basis for employment decisions.
This year, President Obama has of paid sick leave laws. As the President and others urge Congress to pass federal laws providing for paid sick leave to employees, states and localities have also begun to heed the call and pass their own laws. See our NEW page on State and Local Paid Sick Leave Laws for information on which jurisdictions are leading the charge, and see what different approaches each jurisdiction is taking.
About the Author: Shannon Rusz is a general practice litigation attorney in Annapolis, Maryland. She currently serves as the content manager for WorkplaceFairness.org. Shannon received her law degree from George Washington University Law School in 2012
Tuesday, January 6th, 2015
According to a recent study by MTV, the majority of millennials believe that they live in a “post-racial” society. They cite Barack Obama’s presidency as a great achievement for race relations. Having a black President even influenced a majority of the study participants to believe that people of color have the same opportunities as white people. Unfortunately, employment statistics say otherwise. Since 1972 –when the Federal Reserve began collecting separate unemployment data for African-Americans — the black unemployment rate has stubbornly remained at least 60% higher than the white unemployment rate. The gender pay gap has barely budged in a decade, with full-time women employees being paid 78% of what men were paid. And the gap is worse for women of color, with Hispanic women laboring at the bottom, with only 54% of white men’s earnings. 70% of Google employees are male, with only 2% Black, 3% Latino, and 30% Asian. This from the company whose motto is “Do no Evil.” How can this be? While overt racism or sexism is rarer today in corporate America, implicit biases linger.
Imagine that you are supervisor, with two virtually identical resumes on your desk. Both candidates are equally qualified. Do you gravitate toward the one with a white Anglo-Saxon name (think “Emily” or “Brendan”), or a name more likely to belong to an African-American (think “Lakisha” or “Jamal”)? Aware of their bias or not, hiring managers are 50% more likely to call the applicant with the white-sounding name in for an interview. There is a growing body of research like this that proves that implicit bias is real and is having real-life consequences for people who are considered “other” in terms of race, disability, sexual orientation and other characteristics. (There are even on-line tests you can take to find out about your own implicit biases.) But even as our understanding of how implicit bias leads to discrimination grows, judges often fail to recognize that discrimination can result from unconscious stereotypes or subtle preferences for people similar to oneself—perhaps today even more than overt bigotry. To truly provide equal opportunity for all, social science research into how people actually behave in the workplace must inform the enforcement of anti-discrimination laws.
This article originally appeared in celavoice.org on December 4, 2014. Reprinted with permission.
About the author: Amy Semmel devotes her practice to eradicating discrimination and retaliation in the workplace. She advocates for employees seeking remedies for retaliation for whistleblowing, discrimination and wage theft. Ms. Semmel is frequently invited to speak at conferences and seminars throughout the state. Subjects on which she has spoken include discovery issues in employment litigation; liability of successor, electronic discovery, alter ego and joint employers; the Private Attorney General Act, and developments in wage and hour law.
Wednesday, December 31st, 2014
To wrap up 2014 Workplace Fairness has added 105 new pages to keep you informed about the latest developments in employment law.
We now offer detailed information, by state, on the processes for filing a workers compensation claim, and for filing an unemployment claim. Find out how to file a claim in your state, what deadlines you might face, and what benefits you may be eligible for.
In our Discrimination section we’ve added a new page on genetic information discrimination, including the Genetic Information Nondiscrimination Act (“GINA”). As technology progresses by leaps and bounds, new issues of privacy and discrimination can come up in the workplace. This page answers questions that many workers may have about how accessible their genetic information is to employers.
In our Harassment section our new page on the effects of domestic violence in the workplace helps victims of domestic violence to understand how their situation at home may affect their work and what rights they have when they are treated negatively because of it.
Finally, in our Unions and Collective Action section we’ve added information about the 24 states that currently have right-to-work laws, and what that means for workers. This page provides an explanation of what right-to-work laws are, and what they mean for workers in states that have instituted them.
Tuesday, October 14th, 2014
The Civil Rights Act of 1964 guaranteed equal treatment in the workplace, in public facilities, and in public accommodations, regardless of race, religion, ethnicity or sex. Equality was not the norm in 1964. Remembering where we started may provide hope and inspiration for the next fifty years.
This is the first of a two part posting: first, a history we have lived, second, imagining and planning for the future.
Looking Back – Part 1
By beginning with a look at the United States of the late 1950’s and early 1960’s, we can better appreciate the magnitude of the changes we have experienced. There and then were the conditions which the Civil Rights Act was meant to address. The United States Supreme Court struck down segregated schools and the doctrine of “separate but equal” public facilities, only in 1954. A year later, the Court called for dismantling segregated public schools with “all deliberate speed.” In practice, communities and states intent on resisting the required changes made much of “deliberate” at the expense of “speed.”
In 1960, as part of the Wilmington, Delaware school district’s long delayed preparation for desegregation, I, with a few classmates, had a chance to visit the black school about six blocks from our own. The only apparent equal part was the architectural plan. The two schools had the same floor plans. Even as an eleven year old, I could see that the black school had almost no books, that the sandstone bricks were crumbling, the toilets broken and foul. By contrast, my own school had well maintained granite, a fully stocked library, plenty of classroom supplies and materials, clean and functioning lavatories.
The lack of adequate facilities and the open lie of “separate but equal” were but the tip of the iceberg of de jure segregation. Our country had opportunities only for a select few. We did not tolerate differences. We murdered those who challenged the assigned order. State sponsored and state enforced racial separation — combined with political disenfranchisement, and an economic and social caste system — was violent, brutal, and unremitting. In the Summer of 1964, the world witnessed the terrorism supporting American segregation in the murders of James Earl Chaney, Andrew Goodman, and Michael Schwerner.
Lynchings, counted in the thousands, were carried out over generations, not only in the South, but throughout the country. “Race riots”, actually pogroms and massacres of entire communities, terrorized people of color. The ferocity of racial as well as ethnic violence characterized and defined American society in the first half of the twentieth century.
Pervasive discrimination was not limited to African Americans. Universities had quotas for Jews, Catholics, and other minorities. Large corporations, law firms, hospitals would not consider ethnic minorities for hire. Women had limited rights to own property. Gays were invisible. In quantitative terms, almost two-thirds of our country’s people suffered discrimination. Freedom and opportunity were reserved for members of a small and privileged class consisting almost exclusively of economically fortunate, white, Anglo-Saxon, Protestant men. The norm, the life experienced by most people, included closed doors, hatred, persecution, and violence.
When we hear the stories of individuals we can begin to understand the extent and severity of discrimination in the mid-twentieth century United States. From my own family stories: a young woman limited to secretarial work for men who were far less talented than she, a high school girl learning from her admired father that his field of work was closed to all women, a man who died unable to tell his family of his love for another human being, a woman hospitalized for “hysteria” as she came to terms with her love of another woman, an entire family whose parents, grandparents, aunts and uncles, and cousins were slaughtered after the United States refused them safe haven from Nazi genocide.
There are few in my generation, coming of age in the 1960’s, who do not know such stories. The details may vary. The story tellers may be Asian, Hispanic, African American, Irish, Native American. Regardless of one’s origins, America of the early and middle twentieth century held up the torch of liberty and opportunity while unapologetically shutting doors and crushing hopes.
Discrimination and violence strike deeply. At its core, discrimination is a disregard and disrespect of another person’s humanity. It is an expression of contempt and hatred. When we suffer discrimination, the pain stays with us for years. It is felt for generations. When we engage in discrimination, when we tolerate contempt and hatred, and when we acquiesce in violence, we rend the fabric of our communities. We corrupt our souls.
The Civil Rights Act of 1964, at the time of its passage, represented our country’s highest aspirations in the face of social and political realities far different than our Constitution’s promises. The ongoing success of that legislation is all around us. Women and minorities have entered the workplace. Many have risen to positions of prominence. People with physical and emotional challenges are emerging from the shadows of dependence and isolation. We are beginning to understand the waste of human potential and the pain we inflict in denying and demonizing love and sexuality. We have made room for a true diversity of spiritual beliefs and practices.
But we can’t take our progress for granted. As we try to imagine the challenges and opportunities of the next fifty years, an appreciation of how far we have come may help us choose compassion over misplaced caution and progress over the next iteration of “all deliberate speed.”
We now have a chance to be on the right side of history. In my next post, I will discuss how we might get there.
This blog originally appeared in CELAvoice.org on October 7,2014. Reprinted with permission. http://celavoice.org/author/marvin-krakow/
About the author: Marvin Krakow (B.A., Yale, 1970, J.D. Yale, 1974), a founding partner of Alexander Krakow + Glick LLP, focuses on discrimination based on race, age, religion, disability, gender, sexual orientation, national origin, and ethnicity, wrongful termination of employment, civil rights, and class actions. He has won seven, and eight figure results. He helps victims of sexual harassment and rape, and represents whistle blowers. He argued landmark cases before the California Supreme Court, Loder v. City of Glendale and Superior Court v. Department of Health Services (McGinnis).
Friday, October 3rd, 2014
Low-wage workers—regardless of immigration status—shoulder more than their fair share of workplace violations, including unpaid wages, unsafe working conditions, and discrimination and harassment. Immigrant low-wage workers are particularly vulnerable—working under constant fear that if they exercise basic workplace rights, they will suffer retaliation that could result in the separation of their families; loss of homes and property; or return to violence or extreme poverty in their home countries.
This fear of retaliation is based in fact. We as advocates have seen it happen time and time again—and it overwhelmingly leads to workers staying silent, leaving employers without even a slap on the wrist when they break the law.
Scofflaw employers do not and will not stop violating the law if they are not held accountable for their violations to all workers. Any other type of piecemeal enforcement, or lack of enforcement, encourages employers to hire vulnerable undocumented workers, disregard labor laws as basic as the minimum wage, and then fire them when they complain – all to the economic disadvantage of employers who do follow the law.
Earlier this summer, the California Supreme Court in the Salas v. Sierra Chemical Company case agreed, deciding that companies that hire undocumented workers (knowingly or not) do not get a free pass to discriminate against them.
In that case, Mr. Salas sued his former employer, Sierra Chemical Company, for failing to bring him back to work after he injured himself and claimed workers’ compensation benefits. Mr. Salas alleged the company retaliated against him for filing his claim and discriminated against him because of his injury. But a jury never got the chance to decide whether he was right. The company claimed that because Mr. Salas was not authorized to work in the U.S. in the first place, the company shouldn’t be liable for failing to hire him back. A lower court agreed and dismissed the case (giving the company a free pass to discriminate in the bargain).
The California Supreme Court said not so fast. On the one hand, the law says that people without work authorization shouldn’t be working. But on the other hand, the law says that all workers should be protected from discrimination.
In a careful decision, the California Supreme court balanced these two concerns. It allowed Mr. Salas to take his case to a jury, finding that a company can be liable for discrimination even against undocumented employees. At the same time, the court held that undocumented employees cannot seek a court to be hired back by the company that has discriminated against them.
This decision demonstrates an understanding of the reality of the California workplace, which is increasingly made up of workers of all immigration statuses, including green card holders and naturalized U.S. citizens. It also includes 1.85 million undocumented workers, who constitute nearly 10% of the total workforce.
Against this backdrop, the Supreme Court confirmed that employers cannot violate the law—by discriminating or otherwise—and then later be immunized from liability for those violations. The court recognized that leaving undocumented workers without the protection of the law would actually give employers a strong incentive to “look the other way” when hiring and then turn around and use their immigration status to ultimately exploit them. That would be bad news for employers who actually honor their obligations to treat workers fairly and legally when it comes to hiring, pay, and non-discrimination in the workforce.
Mr. Salas will now have the chance to take his case to a jury, who will decide whether he wins or loses. But the Salas decision is a solid win for all law-abiding Californians – employees and employers alike.
This article originally appeared in CELA Voice on October 2, 2014. Reprinted with permission. http://celavoice.org/
About the Author: Megan Beaman is a community-based attorney who roots her work in the notion that all people deserve access to justice, and who understands the larger struggles for immigrant and worker justice in California and nationwide. Beaman’s practice is founded on her years of advocacy and activism in working class and immigrant communities, and tends to reflect the predominate needs of those communities, including many cases of discrimination, harassment, unpaid wages, immigration, substandard housing, and other civil rights violations. The client communities Beaman most often represents are overwhelmingly Latino and Spanish-speaking. Beaman also works and volunteers in a number of other community capacities, including as a coordinator for the Eastern Coachella Valley Neighborhoods Action Team.
About the Author: Kevin Kish is the Director of the Employment Rights Project at Bet Tzedek Legal Services in Los Angeles. He leads Bet Tzedek’s employment litigation, policy and outreach initiatives, focusing on combating illegal retaliation against low-wage workers and litigating cases involving human trafficking for forced labor.
Monday, February 24th, 2014
Last week in Arizona, the tea party-dominated legislature passed a bill that will allow businesses to slam their doors shut on anyone they say doing business with would violate their religious beliefs. While the bill was aimed primarily at the LGBTQ community, in effect, it could allow business owners to discriminate against anyone.
Gov. Jan Brewer (R) has until Friday to sign or veto the bill. Call 888-968-2464 and urge Brewer to veto the bill.
When the bill passed, Anna Tovar, the state Senate Democratic minority leader, said:
With the express consent of Republicans in this Legislature, many Arizonans will find themselves members of a separate and unequal class under this law because of their sexual orientation. This bill may also open the door to discriminate based on race, familial status, religion, sex, national origin, age or disability.
Sate Rep. Chad Campbell (D) told CNN Friday:
Let there be no doubt about what this bill does. It’s going to allow people to discriminate against the gay community in Arizona. It goes after unprotected classes of people and we all know that the biggest unprotected class of people in the state is the LBGT community. If we were having this conversation in regard to African Americans or women, there would be outrage across the country right now.
Aside from the outrageousness of virtually legalizing discrimination, if signed into law, the bill is likely to have a serious negative economic impact on the state. Arizona AFL-CIO Secretary-Treasurer Rebekah Friend says it “could prompt an economic backlash against the state, similar to what occurred when the state passed the controversial immigration law, Senate Bill 1070, in 2010.”
It’s estimated those boycotts cost the state tens of millions of dollars in lost tax revenue and hundreds of millions in spending that would have gone to local businesses.
U.S. Sens. John McCain (R) and Jeff Flake (R) of Arizona have urged Brewer to veto the bill, and a large part of the business community has lined up against the bill. In a letter to Brewer urging her to veto the legislation, the Greater Phoenix Economic Council said:
The legislation will likely have profound, negative effects on our business community for years to come….The legislation places businesses currently in Arizona, as well as those looking to locate here, in potentially damaging risk of litigation, and costly, needless legal disputes.
It also warned Brewer that four unidentified companies have vowed to locate elsewhere if the legislation is signed.
Other businesses have spoken out against the measure. In Tucson, Anthony Rocco DiGrazia, owner ofRocco’s Little Chicago Pizzeria, posted a sign (see above) that reads, “We Reserve the Right to Refuse Service to Arizona Legislators.” He told The Huffington Post:
I just want to serve dinner and own and work in a place I’m proud of. Opening the door to government-sanctioned discrimination, regardless of why, is a huge step in the wrong direction.
Shannon Austin Zouzoulas, co-owner of a brewery and winery call Arizona Hops & Vines, called the bill “pro-hate” and posted the picture below of a rainbow liquid swirling in a wine glass on their Facebook pageFriday with the caption:
Arizona Hops and Vines Loves ALL our customers!
Apparently some other Arizona businesses hate certain types of their customers and will be able to discriminate against them if Brewer signs the bill into law. Call 888-968-2464 and urge her to veto the bill.
This article was originally printed on AFL-CIO on February 24, 2014. Reprinted with permission.
About the Author: Mike Hall is a former West Virginia newspaper reporter, staff writer for the United Mine Workers Journaland managing editor of the Seafarers Log. He came to the AFL- CIO in 1989 and has written for several federation publications, focusing on legislation and politics, especially grassroots mobilization and workplace safety.
Wednesday, December 18th, 2013
The memory of Nelson Mandela is being honored for his courageous and deeply dignified stance while imprisoned, and for his astute and successful efforts at reconciliation and nation building when he was finally released in his 70s.
Very few people remember that the man who helped lead a revolution was not always ready to die for his cause. Sixty years ago, Nelson Mandela was a civil rights lawyer in the only African-run law firm in South Africa. He represented victims of police brutality and the overbearing racial authority in his country. The white-run government could not tolerate these challenges and used the apartheid laws to force the firm to move out of downtown Johannesburg and into a remote area. Mandela could not get to the courts, and his clients could not get to him. Unable to practice under these conditions, Mandela and his partner had to close their practice.
Blocked in his efforts at peaceful reform and appalled by the government’s wanton demolition of an all-Black Johannesburg suburb, Mandela took up the path of armed resistance. This was the beginning of an armed struggle that went on for over thirty years, taking tens of thousands of lives. Mandela spent twenty-seven of those years in prison, much of it in solitary confinement.
It is no accident that a smart and determined leader would seek justice under the law. And it is no surprise that after being thwarted at every turn, he sought that justice through other means.
After years as an organizer I went to law school to help get justice in this country. I was confident that unlike South Africa, I lived in a country with a rich history of democratic feistiness and a strong commitment to fair enforcement of the laws. I now wonder if I was wrong.
In the United States we are witnessing an unprecedented attack on legal rights. One courthouse door after another is slammed – on workers, on women, on people of color, and even on everyday consumers. Instead of club-swinging southern sheriffs or snarling lynch mobs, the new weapon of choice is a judicially enforced, secret system of private judging called arbitration. Arbitration strips away Americans’ constitutional right to a jury trial and drops them into the murky world of closed-door judging. It’s a rigged game where one side hires, fires, and pays for the referees. Arbitrators at one top private judging firm ruled for employers and against employees, for big business and against consumers 93.8% of the time. And these decisions are made in secret, instead of an open courtroom.
Time after time the U.S. Supreme Court has twisted federal law to strip away these constitutional rights. It Walmart v Dukes it ruled that over a million women working at Walmart could not band together to sue for sex discrimination that stole wages from them. Rights to equal pay, a safe workplace, and equal treatment have been stripped away by secret tribunals. Now that same Supreme Court, in ATT Mobility v Concepcion, has also ruled that fine print language buried in 30-page user agreements can be used to keep millions consumers from banding together in class action suits or workers from demanding that they be repaid for meal and break time stolen from them.
As we honor Mandela, it bears remembering that his broad vision for his country, and his skills as an orator bring to mind an American leader with those same traits, John Fitzgerald Kennedy. President Kennedy may have had Mandela in mind when he prophetically warned that “those who make peaceful change impossible make violent revolution inevitable.”
The engineers of current attacks on access to justice in America would do well to reflect on JFK’s cautionary words, and on the fiery trajectory of Nelson Mandela. If the life of the man being honored this week proves anything, it proves that without justice, restoring security for America’s working people will require a lot more than lawsuits.
This article was originally printed on CELA Voice on December 14, 2013. Reprinted with permission.
About the Author: Mark Kleiman is A long-time human rights and consumer activist. He has filed cases that have led to over $500 million being recovered for U.S. taxpayers. He has won multimillion dollar verdicts in consumer fraud and medical malpractice trials.
Wednesday, December 11th, 2013
Just when we are rightly celebrating the fiftieth anniversary of the March on Washington and the passage of the Civil Rights Act of 1964 — what historians call the “signature achievement” of the Kennedy-Johnson administrations — that law has been gutted. Federal judges from trial courts to the Supreme Court have interpreted the Civil Rights Act virtually, although not entirely, out of existence. This is so across judicial philosophies, across the political spectrum and even across presidential appointments.
Consider the case of the Todds, African Americans who sued the Whortons, the white owners of the club where they worked for creating a racially hostile environment. The defendants moved for summary judgment — a dismissal without a jury trial. Obliged by law to consider the facts in the light most favorable to the plaintiffs, the judge found the following: Mr. Whorton directed the N-word at the plaintiffs on multiple occasions. He called a staff meeting about his use of the N-word, explaining he was too old to change the way he spoke and inviting anyone who did not like it to quit. He made other comments such as:
What do your people want? When this was a white club, my customers used ashtrays. Ever since the n—–s have been in the club, the cigarettes have been put out on the floor. The difference between blacks and n—–s is that n—–s put their cigarettes out on the floor.
He complained to Mr. Todd that he could not trust African Americans, saying, “Look at me! I know you don’t like this–n—–s don’t appreciate s–t.”
But to a federal court in Georgia, this wasn’t enough. No reasonable jury, the court held, could find a hostile work environment. Case dismissed. And in language that the marchers on the Mall fifty years ago would have found shocking, the court added, “The facts simply show that the Whortons are racist, bigoted, and/or offensive people,” but not that they created a workplace hostile to their African American employees. “In fact, none of these incidents went beyond the ‘ordinary tribulations of the workplace.'”
Racist comments in the workplace had been “ordinary” and “commonplace” when the Civil Rights Act was enacted. That’s why the law was passed. Perhaps social norms have changed in the decades since 1964; perhaps language once wholly unacceptable has become regular currency. But that is why the Act requires a representative jury to hear these claims, not a judge whose last employment in the private sector may have been decades ago and who — in looking at the federal bench’s composition — was likely to be white, male and either a former partner in a big firm or a former prosecutor.
It is not just racist speech that is acceptable; so is sexist speech. Courts trivialize sexist comments as “stray remarks” and dismiss the cases. Comments from one defendant, who said, “F—–g women. I hate having f—–g women in this office,” were held not to be direct evidence of discriminatory intent. Another defendant supervisor repeatedly referred to a plaintiff as, among other things, a “dumb shit,” “whore,” “stupid bitch” and “hooker,” yet the court dismissed the case as “general vulgarity that [the law] does not regulate.”
Aberrant decisions, you might say? Not so. Amanda Farahany from the Atlanta law firm Barrett & Farahany commissioned a study of 2011 and 2012 summary judgment orders in employment discrimination cases in the Northern District of Georgia, containing Martin Luther King Jr.’s birthplace. Of the 181 cases where the plaintiff had counsel, the Court dismissed 94 percent of them at least in part, and 81 percent in full. Racial hostile work environment claims were dismissed 100 percent of the time.
The Georgia results mirror the results nationwide. 60 percent of motions for summary judgment are granted in general, but in employment discrimination cases, the court dismisses from 70 to 95 percent of the cases.
Women, minorities, people over forty and the disabled bring discrimination cases only to lose in overwhelming numbers. So little do the judges think of discrimination claims that they rarely allow them to get to a jury at all. Federal courts have legitimized practices that would have horrified the early supporters of the Act.
Perhaps the answer is that discrimination is over and we are in the dawn of the post-racial, post-sexist society. The 1964 Civil Rights Act is unnecessary. Or perhaps it’s that, as one former colleague reported, these cases are “often trivial.” The gap between men’s and women’s wages persists, as do the income disparities between men and women, blacks and whites. And the facts of the reported cases — if proved — hardly suggest the claims are trivial.
The federal courts have largely interpreted this important legislation out of existence. Racist speech or sexist comments were not supposed to be part of the “ordinary tribulations” of the workplace. Not now. Not ever.
This article was originally printed on The Huffington Post Blog on November 20, 2013. Reprinted with permission.
About the Author: Judge Nancy Gertner (Ret.) is a former U.S. federal judge who built her career around standing up for women’s rights, civil liberties and justice for all. Named one of “The Most Influential Lawyers of the Past 25 Years” by Massachusetts Lawyers Weekly, Gertner was appointed to the federal bench of the U.S. District Court of Massachusetts by President Bill Clinton in 1994. She retired from the bench in 2011 and now is a professor of practice at Harvard Law School.
Wednesday, August 21st, 2013
When it dismissed a federal lawsuit last week, the U.S. District Court for Maryland made it even harder for workers with poor credit histories and past criminal convictions to find a job. Civil rights advocates hope the decision is not a bellwether for similar cases pending around the country.
The lawsuit, brought by the federal Equal Employment Opportunity Commission, charged Freeman, a privately-held event-management company, with violating Title VII of the Civil Rights Act through its use of credit and criminal background checks. According to the EEOC’s complaint, the employer’s decision to use background checks to screen out job applicants amounted to discrimination because it disproportionately impacted African-American and male job applicants.
Freeman’s hiring process involved detailed inquiries into both the applicant’s credit histories and criminal backgrounds. Freeman “regularly ran credit checks for 44 job titles,” and excluded all applicants from certain positions who met any of 12 different categories of purported credit-unworthiness. Even common credit blemishes, such as credit card charge-offs, medical liens, unpaid student loans, or foreclosures would result in the applicant being rejected.
The Freeman court joined the chorus of employers extolling what some consider the “common sense” of performing credit and criminal background checks. These proponents also ignore the studies demonstrating that credit problems do not predict employee performance, as well as those that document atrocious error rates on credit checks. A report released by the Federal Trade Commission earlier this year found that a quarter of consumers identified errors on their credit report that might affect their credit scores.
In 2011, California limited the use of credit checks in employment. After three prior attempts were vetoed by Governor Schwarzenegger, the bill was itself an object lesson in persistence. However, the law also established broad exceptions to the “prohibition” on employment-related credit checks, effectively blessing their use across jobs and industries where the need or utility has never been demonstrated.
In addition to the credit-check hurdle, Freeman’s standard employment application form asked, “Have you ever pleaded guilty to, or been convicted of, a criminal offense?” Applicants were told certain convictions would not be considered in the hiring process (yeah, right), but the company acknowledged a “bright-line rule” that disqualified any applicant who “failed to disclose a conviction, seriously misrepresented the circumstances of a criminal offense, or made any other materially dishonest statement on the application.”
In June, the EEOC filed two similar complaints against Dollar General Corp and BMW, alleging that the companies’ use of criminal background checks resulted in a disparate impact against African-American job applicants. Referred to as “disparate impact” cases, these types of challenges stand or fall on the persuasiveness of the parties’ statistical evidence. In the EEOC v. Freeman case, the court let loose on the EEOC’s expert, excoriating his methodology and ultimately calling his findings “an egregious example of scientific dishonesty.” (Ouch.) Though it may be possible to blunt the impact of Freeman simply by putting on better statistical evidence, the decision nonetheless entrenches practical misconceptions and legal standards that are hostile to workers.
These cases are being watched closely by consumer and civil rights advocates, who still hold out hope that the EEOC’s oversight of these employment policies will curtail the increasing use of background checks to screen out applicants. Advocates hope Freeman doesn’t signal that more bad news lies ahead.
This article originally appeared on CELA Voice on August 19, 2013. Re-posted with permission.
About the Author: Christian Schreiber is an active member of the California Employment Lawyers Association, where he serves on CELA’s Legislative Committee and Wage and Hour Committee. He is also a member of the American Constitution Society, the Public Justice Foundation, and the Consumer Attorneys of California. Mr. Schreiber received his B.A. from UCLA in 1996.