Monday, November 30, 2009

What you don't know about Civil Rights CAN hurt you



"Civil Rights" is not the name of a movement...
"Civil Rights" is not a type of organization...
"Civil Rights" is not a method of protest...

Civil 'Rights' are the rights and privileges guaranteed by law to all citizens of the United States. The Civil Rights movement was an organized and protracted effort to ensure that the rights guaranteed by law were equally extended to all Americans. Civil Rights Organizations were those groups who worked to ensure the fair and equal application of the laws, foremost among them being the 14th amendment to the Constitution which reads in part,
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

In its truest sense, the struggle over civil rights has never really abated. Because Civil 'Rights' are, in essence, matters of law; and the laws from which they derive are dynamic.  Their meanings and applications are subject to change with each interpretation. By Stare Decisis - as courts render new decisions, their precedent becomes the new practice, so a law that you wrote or read yesterday, could be interpreted to mean something completely different next year. When you factor in the role of politics and how federal appointments to District Courts are often made along political and ideological lines, you come to realize that our Civil 'Rights' are extremely fragile. We as activists must not only concern ourselves with securing Civil Rights for all Americans, but we must be equally focused upon protecting those Civil Rights that now exist. Because on any given Monday a court decision, a ballot initiative, or a legal appeal could change the law or its application and strip away a right you had previously taken for granted.

Which brings me to Gross vs FBL Financial Services Inc

Jack Gross went to work at FBL Financial Services back in 1987. He worked his way through the ranks, and by 1999 he had been named the Claims Administration Vice President. A couple years later, Jack's job title and duties began to change. He noticed that the duties and responsibilities that he once had, were being shifted to a younger employee. In 2003 Jack noted that his position as "Claims Project Coordinator" lacked a real job description or clearly defined duties, but his younger co-worker had all but assumed the functional equivalent of his old position.

In 2004 Jack Gross sued FBL Financial Services for Age Discrimination. The trial lasted a mere 5 days and Jack Gross prevailed. The jury found that Jack Gross proved, by a preponderance of the evidence, that he was demoted and his age was a motivating factor in the demotion decision. They awarded him $46,945.00 for lost compensation.

Not surprisingly, FBL appealed... They filed a Petition for Writ of Certiorari, informally referred to as a "Cert Petition" with the Supreme Court. A Cert Petition is a formal request for the Supreme Court to review the decision of a lower court. The Supreme Court granted the Writ of Certiorari and on June 18th, Justice Thomas rendered the 5-4 decision of the court which held that: A plaintiff bringing an Age Discrimination in Employment Act (ADEA) disparate-treatment claim must prove, by a preponderance of the evidence, that age was the "but-for" cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision.

In a nutshell, the Supreme Court reversed the lower courts decision in favor of Jack Gross, and also put forward a new legal standard for ruling in Age Discrimination cases. The conservative majority on the court (Thomas, Scalia, Alito, Roberts, and Kennedy) ruled that a plaintiff in an age discrimination case must not only prove that age was "A" motivating factor in an adverse employment action or decision; they must prove that age was "THE" motivating factor. And unless or until the plaintiff can present direct evidence of the employer's primary personal motivations, the employer should not be required to prove anything.

The case was remanded back to the 8th Circuit Court of Appeals for retrial. And earlier today, the 8th Circuit Court issued a new ruling in favor of FBL Financial Services... The preponderance of the evidence still shows that FBL Services was considering Jack Gross' age when deciding to demote him, but as of this morning, that no longer meets the legal standard of an Age Discrimination Claim. You see, protection from discrimination or adverse employment actions on the basis of ones age is still a 'Civil Right', but is is now a right guaranteed in a law that is virtually impossible to assert.

I said all of that to say this... Civil Rights are fragile. Like the picture above, these Rights are like a candle in the wind. If we are not vigilant, if we do not safeguard and protect them, they will be lost...The courts have been busy chipping away at them, bit by bit, for a number of years. We must remember that the protections and safeguards that we fought so hard to secure in the 50's and 60's are not promised to our children. Whether or not they are passed on to the next generation will depend on what we do today. Because on any given Monday, things can change... just like this morning.

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