Friday, July 3, 2009

President Obama marks the 45th anniversary of the Civil Rights Act: But safeguarding its protections will require work and not words

"Forty-five years ago today, President Johnson signed into law historic legislation that moved America closer toward fulfilling the dream of our founding – a dream of opportunity, equality, and justice for all. The Civil Rights Act of 1964 ended legal discrimination, helping grant all Americans equal justice under the law – no matter what their gender or the color of their skin.

"The Civil Rights Act was born during Freedom Summer 1963, but its passage was only possible because generations of Americans of all backgrounds stood up, sat down, and marched in freedom’s cause. Once it was signed into law, a renewed pledge was made to all Americans not to deny any man a seat at a lunch counter, not to deny any woman an opportunity in the workplace, and not to deny any child a chance to make the most of their God-given potential.

"But while the Civil Rights Act opened doors of freedom and opportunity, we know that far too many inequities and barriers remain in the African-American community and across this country. And we must continue to break down these barriers in our laws, our policies, and our hearts so that we can not only fulfill the full promise of the Civil Rights Act, but perfect the union that our founders created two hundred and thirty-three years ago this week."

~ President Barack Obama

As can now be expected, the President has delivered an eloquent and timely statement marking the anniversary of this important event in our history. The passage of the Civil Rights Act was a watershed moment in the struggle for equality and social justice. It was the culmination of countless protest marches, boycotts, demonstrations, rallies, prayers, songs, and dreams. But now we must ask ourselves; 45 years since the passage of the landmark Civil Rights Act, what remains of the promises and protections it once offered?

The protections afforded by the Civil Rights act have been under assault from hostile Judges and Courts, eroded by judicial decisions and interpretations carrying the force of law, and by the radical re-visioning of post-racial delusions.

Activist Judges:
In 1972, just 8 years after Senator Robert Byrd's 15 hour floor speech to prevent the passage of the Act, William Rehnquist was appointed to the Supreme Court. Rehnquist was a former Law Clerk who had fought against equal accommodations in his home city of Phoenix and who would distinguish himself with memorandums arguing against Brown v Board, defending the doctrine of Separate but Equal, referring to the 'search' for discrimination as "pathological", stating that the majority may in fact withhold rights from the minority because the majority ultimately determines the rights of the minority, and claiming that the 14th amendment dealt only with slavery and was in fact misapplied when used to grant basic rights to all citizens. Rehnquist went on to rule against African American and Hispanic litigants in almost every case he heard in his 33 years on the Supreme Court.

Radical Decisions and Legal Interpretations
In 1979, Lilly Ledbetter went to work at the Goodyear Tire and Rubber company in Gadson, Alabama. While she and her male counterparts stared at the same pay, through a process of annual 'merit' increases, a disparity between her rate of compensation and that of her male coworkers appeared and began to grow. By 1998, she was making roughly $6,000 less than the lowest paid man. Ms. Ledbetter filed suit alleging discrimination under Title VII of the Civil Rights Act but her claim was ultimately denied by the Supreme Court. The Supreme Court took the position that a claim of pay discrimination on the basis of race or gender would have to be filed with the courts within 180 days of the original act (meaning that since she didn't file her claim back in '79, within the 6 months following the first evaluation wherein she was rated lower than her male co-workers, then her statute of limitations had expired and her claim was no longer valid). This despite the fact that the disparities in evaluations continued throughout her career and she continued to be paid at the discriminatory rate. In 2007, Congress introduced the Lilly Ledbetter Fair Pay Act to restore the intent of the Civil Rights Act and to reinstate the "Paycheck Accrual" interpretation - that each paycheck paid at a discriminatory rate constitutes an act of discrimination each with a fresh statute of limitations. The bill, facing the threat of a Presidential Veto by then President George W. Bush and opposition from Presidential candidate John McCain, was defeated in 2008 through filibuster and cloture. It was reintroduced in the 111th congress and was the first bill signed into law by President Obama.

"Similarly Situated" - the establishment of impossible burdens
In 2000, April Clark filed a claim of discrimination against the US Postal Service. The case (known as Clark v Runyon) was originally found in favor of the USPS then appealed. In the appeal, April Clark waived her right to a jury and the case proceeded as a bench trial. The Judge in this case did not dismiss the claim under summary judgment but went on to rule that April Clark failed to establish a prima facie case of discrimination. In order to establish a prima facie case of racial discrimination, the plaintiff must show that she 1) was a member of a protected group, 2) was meeting the legitimate expectations of her employer, 3) suffered an adverse employment action, and 4) that similarly situated employees, who are not members of the protected group were treated differently. In this case, the Judge ruled that the April Clark had the burden of demonstrating that there were individuals similarly situated in all relevant aspects to her by a preponderance of the evidence. Specifically, the individuals used for comparison had to have dealt with the same supervisor, have been subject to the same standards, and engaged in the same conduct without any mitigating or distinguishing circumstances. And that in this case, there were no employees who were similarly situated.

In 2004, Otha Wheeler filed a claim of discrimination against Aventis Pharmaceuticals. She was terminated after claims that she had inappropriately toughed the genitalia of several male co-workers during 'horseplay'. While this fact was uncontested, Ms. Wheeler later noted that multiple employees engaged in this type of horseplay including one white male co-worker (Joe Harrell) who had touched the breasts and buttocks of several female co-workers and had been known to do so for more than a year, and a white female employee (Toni Conrad) who exposed her breasts to her co-workers while on the job. Mr. Harrell, the male employee who had touched the buttocks and breasts of his female co-workers, was eventually terminated (approximately a year after Otha Wheeler's termination and after Ms Wheeler's initial claim of discrimination). Ms. Conrad, the employee who exposed her breasts to employees while on the job, was only counseled and not terminated. The 8th circuit Court of Appeals affirmed the earlier Courts order granting Summary Judgment. The court ruled that the even though Ms. Conrad, Mr. Harrell, and Ms. Wheeler were all in the same department, with the same supervisors, and all had engaged in inappropriate acts of sexual misconduct, the fact that Mr. Harrell's conduct had been ignored for more than a year until after Ms. Wheeler's claim of discrimination was simply unfortunate timing, and that since Ms. Conrad hadn't actually touched anybody, Ms. Conrad and Ms. Wheeler were not 'similarly situated'.

In 2003, The 8th Circuit Court of appeals heard an appeal in the case of George Philip v the Ford Motor Company. George Philip's original claim of discrimination against Ford was dismissed by an order of summary judgment. Mr. Philip alleged that after 10 years on the job, the plant physician placed him on disability. Ford Motors then elected to place him on a "no work available status" despite the fact that other similarly situated employees throughout the company were allowed to remain or rebid for their positions with any necessary accommodations. As a part of his case, Mr. Philip provided affidavits from the plant Physician, Dr. Zubieda Kahn, and from Nancy Schillinger, a Committeeperson for the United Auto Workers at the Twin Cities Assembly plant. Dr. Kahn testified as to a number of instances of possible disparate treatment by Ford. For example, Kahn testified that Human Resources Manager Jack Halverson had interfered with the medical placement of black employees and that the workers' compensation representative used derogatory language towards a black employee. Dr. Kahn also testified that Ford Company personnel failed to follow her medical recommendations regarding the placement of black employees. Nancy Schillinger's affidavit also suggests that black employees were treated differently. For example, she testified concerning specific instances where two Caucasian employees were treated differently based on race when they sought reclassification to driver-inspector positions (which was the same position that Mr. Philip was denied). The Court's ruling acknowledges that Mr. Philip's claim presented clear evidence of disparate treatment of black and white employees, but it ruled that because the examples cited were of employees with different supervisors or in different departments, they were not 'similarly situated' so his claim of discrimination was denied. The 8th circuit affirmed the earlier court’s ruling granting summary judgment.

The dissenting Judge in this case, Judge Donovan Frank, wrote in his dissent, "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 Runyon to non-disciplinary claims like Philip's places an inappropriate burden on plaintiffs to show similarities irrelevant to their claims."

Ricci v DeStefano - New Haven and the reinterpretation of Rights
Title VII of the Civil Rights Act prohibits discrimination in employment. It also specifically prohibits the creation or implementation of employment standards, qualifications, or tests that by their design result in disparate outcomes among social groups. The reason for this protection is that employers who had discriminated in the past and who wanted to continue to discriminate could simply design tests or create requirements that were not job essential, but were really intended to screen out women or minorities. Things like unnecessary strength requirements to screen out women, or the introduction of culturally biased questions to screen out African Americans and Hispanics, and even the use of prohibitive sexual orientation requirements such as 'Dont ask Dont tell' are the types of non-essential measures that the disparate impact provisions of Title VII are designed to protect against.

Now comes New Haven: A city with documented cases of discriminatory hiring practices; even within its Fire Department. In a city that is 60% minority, they opted to go outside of the City's personnel department and to hire an outside consultant to design a new promotions test for the Fire Department. The result? 45 people took the tests, and while nearly 40% of the test takers were African American or Hispanic, only two of the minorities were eligible for promotion.

Now the outcome alone is not proof of discrimination. The City of New Haven had the option of performing a "validation study". The study had actually been suggested to the City by Fire Union President Pat Egan. A Validation Study is a process during which the test would have been professionally scrutinized to determine if in fact it was composed of job-essential questions. Had the test been validated and shown to be non-discriminatory, New Haven would have been able to promote the Fire Fighters and been protected from any future litigation -- no controversy. Had the test been submitted for validation and found to be invalid or found to be composed of questions or requirements that were not job essential, then the process would have identified those questions that needed to be stricken or changed and they could have reissued the test, again indemnified from litigation. But the City of New Haven elected to skip that step and to simply throw out the test, thus prompting the lawsuit. Skipping that step was an extremely consequential decision, the ramifications of which will be felt far beyond the boundaries of New Haven.

What the Supreme Court did, in essence, is use the equal protection clause of the 14th amendment to trump Title VII of the Civil Rights Act. Under Title VII, if an organization or agency enacts a test or qualification for employment that has a disparate impact on a particular group or sub-group, then that test or qualification should be changed. The New Haven ruling basically nullifies that protection by saying that it’s the rights of those who 'pass' the test that should not be abridged. The Supreme Court’s ruling infers that if a Police Department instituted a strength test that no female test takers were able to pass, the disparate impact protections afforded by Title VII should not be controlling. Instead, the rights of the men who DID pass should be upheld on the basis on the disparate treatment protections afforded by the 14th amendment. And that throwing out the test would be an act of discrimination against the men who actually met the unnecessary strength requirement.

Placed in more contemporary terms, it is analogous to saying that eliminating DADT (Don't ask, Don't tell) would constitute an act of discrimination against heterosexual recruits who might then be excluded if forced to compete on a level playing field with a larger applicant pool.

Justice Scalia took it a step further, indicating the direction he hopes the Court will move. Scalia expressed dissapointment that the Supreme Court did not use this case to challenge the validity of the Disparate Impact protections of the Civil Rights Act itself, saying that Title VII’s disparate impact provisions “place a racial thumb on the scales, often requiring employers to evaluate the racial outcomes of their policies, and to make decisions based on (because of) those racial outcomes”. A practice which Justice Scalia calls "Discriminatory"...

More work ahead...
As an activist, and someone who believes in and fights for the establishment of level playing fields, it is troublesome to witness the constant attacks on and the gradual erosion of our Civil Rights protections. Now I know that there are many who argue that with Obama in the Whitehouse, we've reached some new post-racial landscape. But claiming that civil rights laws are no longer needed and therefore should be reversed or circumvented makes no more sense than arguing to repeal the Thirteenth Amendment because legal slavery has ended.What people fail to realize is that Civil Rights protections were not simply put in place as a remedy to past acts of discrimination... These are the legal safeguards put in place to ensure fair treatment and level playing fields for our children and grandchildren. As Justices Scalia, Thomas, and Roberts, along with Judges from the 8th and 10th circuits, and others continue to chip away at our hard-earned gains, it is those yet to come who will suffer; they are the ones who will be left unprotected.

In light of all this, I had an opportunity a few months back, to ask our new National NAACP President Benjamin Jealous a question during a conference call. I asked him if he thought that we as an Organization could return to our Legislative Advocacy roots and work towards the creation and introduction of new legislation (like Ledbetter) that would clarify the intent of civil rights law and protection. He asked if I had any suggestions -- and our team has been working on language ever since. I hope you haven't forgotten that exchange Ben, because I most certainly have not.

And while I am certainly happy to see our new President dutifully observing this significant milestone; it is clear to me that the Civil Rights Act of 1964 is in a state of disrepair. Repairing it, and reinstating its protections will require work over words, and leadership over language. And as a former Civil Rights Attorney and Constitutional Law Professor, I am prayerful that our new President decides to take this on...

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