Barbara, Dorothy and Mona join the existing directors:

• Board Chair Anthony Solana, Jr. (President and Chairperson, For People of Color, Inc.)
• John Bonifaz (Founder, National Voting Rights Institute)
• James J. Brosnahan (Senior Partner, Morrison & Foerster)
• Kate Kendell (Executive Director, National Center for Lesbian Rights)
• Eva Paterson (President, Equal Justice Society)
• Tobias Wolff (Professor of Law, University of Pennsylvania Law School)
• Eric Yamamoto (Professor of Law, University of Hawai`i School of Law)

EJS is thrilled to have many of the country’s top progressive leaders and advocates serve on our board, devoting significant time and expertise to help guide our initiatives and programs. Our impact is more meaningful because of the involvement of our board members and we thank each one of them for investing their time and resources into our organization.

Barbara A. Caulfield is the Managing Partner of the Silicon Valley office of Dewey & LeBoeuf LLP and Co-Chair of the firm’s Intellectual Property Litigation Group. She has experience in complex intellectual property litigation for pharmaceutical and biotechnology companies.

Prior to joining Dewey & LeBoeuf, Ms. Caulfield was the Executive Vice President and General Counsel for Affymetrix, Inc., a biotechnology company in the Silicon Valley. Before working at Affymetrix, Inc., she was a partner at a major international law firm, where she served as the San Francisco Litigation Partner-In-Charge from 1997-2001.

Previously, Ms. Caulfield served as a United States District Judge in the Northern District of California from 1991-1994. In addition, she has taught various courses at Northwestern Law School, University of California, Hasting College of Law and University of Oregon Law School.

She has also given lectures and instructed on trial advocacy programs around the country, including Harvard University Law School and the San Francisco Bar Association Advocacy Training Program.

Dorothy M. Ehrlich is Deputy Executive Director of the national American Civil Liberties Union, the nation’s premier defender of liberty and individual freedom.

Previously, Ehrlich served as Executive Director of the ACLU of Northern California, the largest ACLU affiliate in the nation, for 28 years.

Ehrlich has led civil liberties campaigns around reproductive rights, opposition to the death penalty, censorship, and civil rights, launched projects focused on youth, racial justice and reproductive rights. She was the driving force behind the affiliate’s vigorous response to the federal erosion of civil liberties since September 11, 2001.

An accomplished spokesperson and writer, Ehrlich has been a frequent contributor to KQED Radio’s Perspectives Series, the Daily Journal’s “Taking Liberties” column, the San Francisco Chronicle’s “Open Forum,” and other publications. Ehrlich has received civil rights leadership awards from the Asian Law Caucus and Equal Rights Advocates and was also honored with the Mario Cuomo Acts of Courage Award from Death Penalty Focus. She was awarded a Gerbode Fellowship in 1992.

Mona Tawatao has been a regional counsel with Legal Services of Northern California (LSNC) since October 1999. In this capacity, she directs LSNC’s major land use and housing advocacy in its 23 county service area. She is also a co-coordinator of LSNC’s Race Equity Project.

Ms. Tawatao has led numerous land use, housing and civil rights litigation and policy advocacy projects on the state and federal level in her current position and also previously, as a directing attorney with Neighborhood Legal Services in Los Angeles.

Ms. Tawatao is a visiting professor at UC Davis School of Law and serves on the boards of the Public Interest Law Project and the Advisory Editorial Board of the Clearinghouse Review. Ms. Tawatao received her J.D. from UCLA School of Law in 1986.

Emails to our staff sent after Monday evening were queued up and are now being delivered to our inboxes. It may take a few hours for all of the queued email to reach us.

Our access to the Internet and to external emails was abruptly cut off Monday evening when our service provider decided to make changes to our configuration without notifying us. We ended up spending the entire week trying to restore our service.

Thank you for your patience as we worked through this technical issue. We apologize for any inconvenience caused by our inability to respond to emails in a timely manner.

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Due to an error by our DSL provider, our Internet access in our EJS offices has been down the entire day.

Based on the information provided to us, we expect to be down throughout Wednesday, July 7, and possibly into Thursday.

During this time, our email is down and we are unable to access the Internet. If you emailed any of our staff after 11 p.m. PT on Monday, July 5, we did not yet receive that email, but it is likely queued up and will reach us when our internet access is restored.

Until we have our service restored, if you have an urgent matter, please call the appropriate staff member directly, or call our main line at 415-288-8700.

Thank you for your patience while we work through these connectivity issues.

In Kasten, the petitioner argued that oral complaints should be protected under the anti-retaliation provision of the Fair Labor Standards Act, which says that employees who “file a complaint” are protected from retaliation. The Seventh Circuit disagreed, narrowly construing “filing” to include only tangible written documents so that oral complaints are excluded from protection under the anti-retaliation provision. The decision is contrary to the Department of Labor’s interpretation, Congress’s intent in passing FLSA, and the interpretations of many other circuit courts.

In supporting petitioner’s position, the amicus brief focuses on the value of informal problem-solving and the reality that many employers, as in Kasten, not only encourage, but also often require, oral complaints prior to formal filings or litigation. The brief points out the “perverse incentives” of a remedial mechanism that does not protect oral complaints and in the process ends up giving employers incentives to retaliate prior to the filing of a written complaint, when an employee first voices his or her concern. Finally, the brief urges deference to the Equal Employment Opportunity Commission’s and the Department of Labor’s interpretations of the anti-retaliation provision, protecting oral complaints as well as written ones.

The anti-retaliation provision of FLSA was intended to help ensure that employers complied with workplace standards by encouraging individual employees to report grievances without fear of suffering economic consequences such as job loss. FLSA was enacted in part to protect vulnerable populations who might not be able to file a formal written complaint and at the same time would be most in need of the statute’s protections. Victims of discrimination in particular, including those who are illiterate or non-English speaking and unable to file written complaints, should not be afraid to complain orally when their rights are being infringed upon in the workplace.

The other signatories to the brief are the Asian American Justice Center, Asian Pacific American Legal Center, National Partnership for Women and Families, and the National Women’s Law Center.  Pro bono assistance was provided by the law firm Fried, Frank, Harris, Shriver & Jacobson LLP.

EJS is delighted to announce that, as of May 1, Sara Jackson, our 2007-8 Motley Fellow and National Network Coordinator, has been promoted to the position of Staff Attorney.

Sara has been doing extraordinary work as our liaison to the Impact209 Coalition in California and as our contact to the national and state coalitions combating anti-affirmative action initiatives. The Staff Attorney position is a new position for EJS made possible by the recent grant from the Kellogg Foundation.

Our 2008-9, Motley Fellow, Claudia Pena, engaged in developing legal research regarding the intent doctrine and alliance building efforts, assisting the development of the rapid response network (re ICE raids). Both Sara and Claudia are graduates of UCLA Law School and its Critical Race Studies Department.

We have also had two dedicated interns this past semester: Danfeng Soto-Vigil Koon, a 3L from Boalt (Berkeley Law) where she is also a participant in the EJS Scholar Advocate program with the Thelton Henderson Center for Social Justice and Audrey Daniel, a graduating 3L from Golden Gate University School of Law.

The Equal Justice Society continues its efforts to challenge Proposition 209, and advocate for the continued importance of equal opportunity policies and programs.

Over the past several months, EJS and the Impact 209 Coalition collaborated with Drew Westen of Westen Strategies and Celinda Lake of Lake Research Partners to conduct messaging and polling research regarding Californian’s feelings about diversity, inclusion and affirmative action.

Although the results evidenced a wide range of opinions and some mixed feelings, they also indicated general appreciation of California’s diversity, and some willingness to support programs aimed at expanding opportunities for marginalized groups.

In the coming year, we hope to conduct further polling to assess the viability of amending or repealing Proposition 209 (which outlaws equal opportunity policies and programs in the state, and has been in effect since 1996), and utilize our current messaging results to support efforts to expand equal opportunity programs across the country.

EJS also played an integral role in persuading Attorney General Jerry Brown to publicly declare Proposition 209 unconstitutional.

Attorney General Brown was asked by the California Supreme Court to advise them about the constitutionality of Prop 209, in response to a case involving the validity of outreach programs designed to expand opportunities for women and minority owned businesses (Coral Construction, Inc. v. City and County of San Francisco).

Under the leadership of the Lawyers Committee for Civil Rights (LCCR), EJS helped draft and submit a letter to the Attorney General outlining why 209 is unconstitutional, and the harm it has wrought to women and communities of color across California.

For instance, enrollment of Black, Latino and Native American students in the UC system has declined dramatically since Proposition 209 passed, and contracting dollars awarded to Women and Minority owned businesses have also decreased significantly.

In addition to submitting this letter, representatives from LCCR and EJS met with the Attorney General to press upon him the import and timeliness of this decision, particularly in light of the increasing diversity of our state. Ultimately, Attorney General Brown concluded that Proposition 209, through prohibiting all affirmative action, ultimately fosters the discrimination it was intended to eliminate – and should overturned to the extent that it is more restrictive than US Supreme Court precedent on affirmative action.

This holding was an enormous victory for EJS, our civil rights allies, and for women and communities of color in California. We’ll be watching closely as the Court hears oral arguments on this case next month!

Finally, EJS is working with the Fulfilling the Dream Fund (FDF) to convene an Equal Opportunity Strategy Session to help determine next steps for national advocates of race conscious laws and policies.

In 2008, EJS helped bring together a network of grassroots and national advocacy organizations to prevent Ward Connerly from passing anti-affirmative action initiatives in five states across the country. Now that the 2008 election cycle is over, and a new administration is in place, EJS is working with these organizational allies to map a proactive agenda for supporting and expanding equal opportunity policies and programs and productively talking about race and opportunity in America.

The U.S. Supreme Court this term is hearing a number of cases that may have important implications for maintaining and advancing civil rights in the years ahead. EJS has partnered with colleagues around the country to file amicus curiae or friend of the court briefs in several matters.

Ricci v. DeStefano

In the 1976 Washington v. Davis case, black police officers and recruits sued the Metropolitan Police Department in the District of Columbia for violation of their equal protection rights. The black officers alleged that an employment test effected unconstitutionally disparate results resulting in their exclusion from further employment consideration with the police department. The Supreme Court determined then that a showing of disparate impact alone was insufficient for plaintiffs to prevail without proof of the police department’s racially discriminatory motivation.

Now, more than 30 years later in Ricci v. DeStefano, it is the white firefighters who have sued the New Haven Fire Department in Connecticut for violation of their rights under equal protection and Title VII. The white firefighters allege that the fire department inappropriately failed to certify the results of an employment test that disparately excluded black firefighters from further employment consideration.

EJS provided technical support on contemporary discrimination to our friends at the Opportunity Agenda on its amicus brief in support of the City of New Haven. The Opportunity Agenda, with the assistance of Ankur Goel, Kelly Falls, and Amy Granger of McDermott, Will & Emory, LLP., argued that investigating and responding to disparate outcomes is an essential part of identifying discriminatory practices and ensuring equal opportunity. Further, the brief argued that attending to disparate outcomes is particularly important when addressing hidden and structural biases.

Additionally, EJS joined the Lawyers’ Committee for Civil Rights, National Urban League and the NAACP, in filing a brief in support of the City of New Haven. The brief, drafted by Michael Foreman of the Pennsylvania State University School of Law and John Brittain and Sarah Crawford of the Lawyers’ Committee, argued that acting with a consciousness of race does not always result in a racial classification under law or trigger strict scrutiny.

Northwest Austin Municipal Utility District v. Holder

The Voting Rights Act was passed in 1965 to enforce and protect the 15th Amendment to the U.S. Constitution which guarantees the right to vote regardless of “race, color, or previous condition of servitude” and grants Congress enforcement power. Because so many Southern states deployed literacy tests and other pretexts to prevent blacks from voting, in the 1960s (after having ignored it for quite some time) the federal government began to secure court orders against such practices.

Election official would then conceive of new barriers until finally the Voting Rights Act was passed including Section 5. The section is a pre-clearance which requires state and local governments deemed to have historically suppressed people of color votes to obtain approval from the Justice Department before altering any election practices. Nine states are fully covered by Section 5 as well as certain cities and counties in seven other states.

The case before the Supreme Court this session involves a local utility board member who wanted to move a polling booth from someone’s garage to the local elementary school. In attempting to realize this change, he found out that the state of Texas falls under Section 5 and he would need authorization from the Department of Justice to move the polling booth. Thus, he has opted to challenge Section 5 and alleged it is unconstitutional.

There are major racial implications to this case. EJS signed on to the amicus curiae brief of the Leadership Conference on Civil Rights and The LCCR Education Fund. The brief argued that the gains in minority political participation can be reversed if we fail to vigilantly protect such advancements. Additionally, Congress’ recent determination that Section 5 protections are still necessary in certain jurisdictions was reasonable and well considered given the overwhelming evidence offered during hearings.

Since its founding, EJS has been working with allies to counter the conservative right-wing imbalance in the courts that has limited the reach of antidiscrimination law and undermined civil rights policy.

As a part of this effort, we continue to collaborate with Supreme Court litigators, general counsels and attorneys of legal services organizations, policy advocates, communications experts, law professors and other advocates to share information, strategize and coordinate approaches to short- and long-term litigation strategies, policy development and public education.

In January, EJS co-hosted with Erwin Chemerinsky, dean of UC Irvine School of Law, its most recent convening on Litigation Strategies in the Roberts Court Era. EJS Board members and legal strategists, James Brosnahan, Anthony Solana and Tobias Barrington Wolff participated.

We were also joined by Elliot Mincberg of the U.S. House of Representatives Committee on the Judiciary and colleagues from around the country from organizations such as National Senior Citizens Law Center, Constitutional Accountability Center, National Employment Lawyers Association, MALDEF, National Legal Aid and Defenders Association, National Health Law Program, Center for Reproductive Rights, Lamda Legal, Legal Services of Northern California, Disability Rights and Education Fund, and many other important allies.

Together, we discussed the future of federal courts and agencies, litigation and decision trends in the federal appellate courts and Supreme Court, future litigation to improve antidiscrimination protections, pending and future legislation, and communications strategies.