Friday, January 25, 2008

Senator Kennedy introduces "The Civil Rights Act of 2008": Further action still needed to address Racial Discrimination and Summary Judgements

Senators Kennedy and a host of co-sponsors introduced a bill being called the Civil Rights act of 2008. The bills co-sponsors include Senators Kennedy, Leahy, Dodd, Bingaman, Kerry, Harkin, Mikulski, Akaka, Boxer, Feingold, Murray, Durbin, Schumer, Cantwell, Clinton, Lautenburg, Obama, Menedez, Cardin, & Brown, along with 26 members of the House of Representatives including Congressmen John Lewis and John Conyers. The intent of this piece of legislation is to restore key enforcement provisions of existing Civil Rights laws that have been eroded or eliminated by recent court decisions and legislative actions. The bill seeks to:
Ensure that Federal Funds are not Used to Subsidize Discrimination
It allows individuals to seek relief when federal funds subsidize practices that have an unjustified discriminatory effect. Federal laws prohibit discrimination by recipients of federal funds based on race, national origin, disability, age, or gender. In 2001, however, the Supreme Court held that individuals may no longer challenge federally-funded programs that have an unjustified discriminatory effect, unless they also can meet the heavy burden of proving discriminatory intent. Thus, currently, only the federal government can bring such suits. This bill restores the individual right to challenge practices that have an unjustified discriminatory effect based on race, color, national origin, disability, age or gender.

It would protect students from harassment in schools that receive federal funds. It gives students the same protection from unlawful harassment in our schools as adults have on the job. Currently, schools that receive federal funds cannot be held accountable if a teacher or classmate harasses a child unless the school had actual notice of the abuse and did virtually nothing to correct the problem. This is true even if the school has turned a blind eye to clear signs of harassment.

Hold Employers Accountable for Age Discrimination
It seeks to make state employers fully accountable for age discrimination.
Under a recent Supreme Court decision, state employers do not have to provide back pay or other monetary damages when they discriminate against workers based on age in violation of the Age Discrimination in Employment Act. The bill would require state employers to give workers full relief for age discrimination, including backpay.

It would clarify the standard for challenging employment practices that have a discriminatory effect based on age. It makes clear that the standard of proof in cases alleging an unjustified discriminatory effect based on age is the same as in cases alleging an unjustified discriminatory effect based on race, color, gender, national origin, or religion.

Improve Accountability for Other Violations of Civil Rights and Workers' Rights by:

  • Prohibiting employers from requiring workers to give up the right to enforce employment laws in court in order to get a job or keep a job.
  • Providing attorney's fees and expert fees in major civil rights and labor cases.
  • Providing full, effective remedies for victims of discrimination based on gender and religion paralleling those available for race and national origin discrimination claims.
  • Providing relief for undocumented workers who are victims of labor and employment law violations.


The bill would clearly strengthen and restore remedies for various forms of discrimination to meet the original intent of the Civil Rights Act of 1964. And while I believe this proposed act is a very positive step forward, I hope that our Legislators will go one step further to deal with recent court decisions in cases of Racial Discrimination and how the burden of proof in such cases has been raised to an almost unattainable standard.

Racial Discrimination cases throughout the nation have become increasingly unwinnable due to the courts widespread dismissal of claims via Summary Judgement. When facing a possible Summary Judgement, plaintiffs have to present a prima facie case of discrimination to the courts. This means, the plaintiff must demonstrate that: (1) they are a member of a protected class; (2) they met the legitimate expectations of their employer; (3) they suffered an adverse employment action; and (4) similarly situated employees that were not members of the protected class were treated differently. The first three postulates are self-explanatory, however the fourth is a point of contention.

Courts currently may arbitrarily apply one of a multitude of divergent legal interpretations in defining the term "similarly situated" and can thereby include or exclude evidence or testimony germane to a racial discrimination claim. The exclusion of such evidence results in a finding that the plaintiff has failed to show a prima facie case of discrimination thereby allowing dismissal via summary judgement.

An example of two differing Standards in determining which employees are 'similarly situated' are:

(1) The Wheeler Articulation: Wheeler, 360 F.3d at 857 (8th Cir) which states the standard to be employees 'who are involved in . . . the same or similar conduct and are disciplined in different ways. '

(2) The Clark v. Runyon Standard: Clark v. Runyon, 218 F.3d 915, 918 (8th Cir. 2000) which states the standard to be employees who “have dealt with the same supervisor, have been subject to the same standards, and engaged in the same conduct.”

By shifting definitions to the more stringent Clark v. Runyon Standard, courts can rule that disparate treatment and workplace inequities do not meet the legal burden of 'Racial Discrimination' if the witnesses who may testify to the material facts of the claim are not similarly situated in ALL respects.

A perfect example of this is the case of George D. Phillip v. Ford Motor Company (8th Cir
No. 04-1735). In granting Summary Judgement in favor of Ford Motor company, thereby dismissing Mr. Phillp's claim, Circuit Judge Melloy penned their decision which stated:

After careful review of the record in this case, we conclude that Philip failed to establish a prima facie case of racial discrimination because he did not prove that employees similarly situated to him were treated differently. Philip cites the affidavits by the plant physician, Dr. Zubieda Kahn, and by a Committeeperson for the United Auto Workers at the Twin Cities Assembly plant from 1996 through 1999, Nancy Schillinger, as evidence that employees received disparate treatment. It is unnecessary to reach any conclusions regarding the admissibility of these affidavits because, even if they are admissible, they only show that disparate treatment may have occurred at the plant. They do not demonstrate that individuals who received disparate treatment were similarly situated to Philip.

Kahn testified as to a number of instances of possible disparate treatment by Ford. For example, Kahn testified that Human Resources Manager Jack Halverson would interfere with the medical placement of black employees and that the workers’ compensation representative used derogatory language towards a black employee. Kahn also testified that Ford personnel failed to follow her medical recommendations regarding the placement of black employees. However, Kahn’s affidavit does not provide any evidence as to whether those who were treated differently were similarly situated. It does not connect what Kahn observed to Philip’s situation.

Ms. Schillinger’s affidavit also suggests that black employees were treated differently. For example, she testified that two Caucasian employees were treated differently based on race when they sought reclassification to driver-inspector positions. The district court correctly concluded, however, that Schillinger’s affidavit offers no proof regarding the “comparability of the positions” into which the two Caucasians were place. It also did not offer proof regarding the comparability of the qualifications or seniority of the two Caucasians who received driver-inspector positions. Schillinger’s affidavit does not show how the grandfathering of the two Caucasians and the treatment of Philip by Ford are connected.

Although the Schillinger and Kahn affidavits may offer evidence of disparate treatment, they do not, on their face, establish the requisite showing of sufficient specific, tangible evidence that employees who were “similarly situated in all respects” to Philip received disparate treatment from Ford to sustain Philip’s claim. Gilmore, 319 F.3d at 1046. Accordingly, Philip failed to meet his burden, thus summary judgment was appropriately granted.

Judge Heaney dissented and wrote:

The positions of Philip and the white employees offered for comparison were reclassified, and should have been opened for bid and awarded on the basis of seniority. These employees are therefore similarly situated in all relevant respects. Applying the requirements of Clark v. Runyon to non-disciplinary claims like Philip’s places an inappropriate burden on plaintiffs to show similarities irrelevant to their claims.

So while we welcome the news of the bills introduction and strongly support its passage, we would also encourage our Legislators to take one more look at the the insidious form of discrimination that inspired the original Act. Let's work together to close that final loophole an grant some legislative relief to the victims of Racial Discrimination as well...

Washington, Can you hear me???

1 Click HERE to POST or READ the latest comments!!!:

Villager January 26, 2008 at 12:26 PM  

Thank you for sharing this legislative information. Please continue to put this information front & center for all of us...

peace, Villager

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