EJS Joins Lawyers’ Committee in Filing Brief with U.S. Supreme Court in Staub v. Proctor Hospital
The Equal Justice Society joined the Lawyers’ Committee for Civil Rights Under Law and AARP in filing an amicus brief (PDF available for download here) in the Supreme Court of the United States supporting the petitioner in Staub v. Proctor Hospital. The brief urges the Court to recognize employer liability for the unlawful bias of a supervisor if the bias was a significant motivating factor for an adverse employment practice, even if the ultimate decisionmaker – someone other than the supervisor — harbored no discriminatory motive toward the employee. This is an important question that Justice Alito also raised in the recent Supreme Court decision, Ricci v. DeStefano, but that has not yet been resolved.
The petitioner, Vincent Staub, a member of the Army Reserves, was a hospital technician at Proctor Hospital for fourteen years until his dismissal in 2004, which he argues was motivated by discrimination based on his military status. Multiple supervising officials were hostile towards Staub for his involvement in the military and although the Court of Appeals for the Seventh Circuit acknowledged that “there can be little dispute that… [Staub’s supervisor] didn’t like Staub, and that part of this animus flowed from his membership in the military,” the Court refused to recognize the animosity of nondecisionmakers, such as Staub’s supervisor, without a showing of “singular influence” over the ultimate decisionmaker, a different official who was responsible at the last stage for handing Staub his pink slip.
While singular influence could include concealing or fabricating relevant information given to the person who ultimately makes the decision to dismiss an employee, the Court stated that it would not matter if the information came from a potentially biased source as long as the decisionmaker appeared to conduct her own independent investigation.
By focusing on the ultimate decisionmaker, standards such as the one applied by the Court in Staub effectively legalize unlawful action in all phases of the decision-making process except the last stage. The amicus brief argues that a “motivating factor” standard should be applied in cases like these, similar to what is used in other cases involving protection against discrimination, like Title VII of the Civil Rights Act of 1964.
Just as Title VII protects against discrimination on the basis of race, sex, religion, national origin, or ethnicity, the Uniformed Services Employment and Reemployment Rights Act (USERRA) at issue in this case protects against discrimination on the basis of military status. Recognizing employer liability for adverse employment actions motivated by unlawful animus on the part of supervisors is important to prevent discrimination that may be occurring behind-the-scenes. To fully carry out the purposes of USERRA and Title VII, the whole employment process should be free from bias.
The law firm Fried, Frank, Harris, Shriver & Jacobson LLP and the Civil Rights Appellate Clinic at Pennsylvania State University Dickinson School of Law provided pro bono assistance.
Supreme Court Nominee Elena Kagan and the Intent Doctrine
Twenty years ago Supreme Court nominee Elena Kagan, like President Obama who nominated her, would have had little chance of such ascension in our society.
Because these are the types of gains that the Equal Justice Society champions-removing barriers based on race and gender so that our nation’s promise of equal opportunity and equality under the law can be realized for all people—EJS supports President Obama’s nomination of Elena Kagan to the Supreme Court. Her confirmation hearings began today.
Much has been said about the fact that Kagan clerked for Justice Thurgood Marshall, but Kagan does not seem afraid to shatter expectations, including people’s hopes that she might be Justice Marshall’s protégé.
Instead of asking whether Kagan will be the next Thurgood Marshall, which we cannot now know, we should assess her record on the issues Marshall championed, including eradicating structural exclusion and inequality.
As Kagan related in a law review article on Justice Marshall shortly after his death, his stories of growing up in segregated Baltimore and representing African-American defendants in criminal capital cases, as well as his prioritization of social reality, made a profound impression on her. Kagan was very aware of Marshall’s commitment to “eradicating entrenched inequality.”
Her vision of his legacy may reveal more about how she might act on the Supreme Court than what she wrote in the memoranda she churned out as clerk trying not only to analyze the law, but also to anticipate Justice Marshall’s take on the issues.
Although Kagan is certainly not a carbon copy of Justice Marshall, she clearly admired his “solicitude for the despised and disadvantaged.” EJS has studied her record and positions to ascertain what type of Supreme Court justice she would make, especially in regards to racial justice issues.
EJS has issued a brief summary (download PDF) of the good, the not-so-good, and EJS’s hopes and expectations for a new era on the Supreme Court.
Ricci Decision Threatens Constitutional Values of Equal Justice for All
In a 5 to 4 decision in the case of Ricci v. DeStefano, the U.S. Supreme Court ruled today that the city of New Haven, Connecticut violated Title VII when it declined to make promotions in the fire department on the basis of a test that disproportionately screened out minority candidates.
The Equal Justice Society joined the Lawyers’ Committee for Civil Rights Under Law in an amicus curiae, or friend of the court, brief urging the Court to uphold New Haven’s efforts to root out discrimination from its promotional process, consistent with civil rights laws and the Constitution. The Lawyers’ Committee brief was also joined by the National Association for the Advancement of Colored People and the National Urban League.
“We are shocked by the decision and we will continue our work to preserve the vital protections of Title VII of the Civil Rights Act of 1964,” said Barbara Arnwine, executive director of the Lawyers’ Committee for Civil Rights Under Law. “Like Justice Ginsburg, we anticipate that the decision ‘will not have staying power.’”
In this case, the city of New Haven, Connecticut declined to certify the results of a firefighter promotion test based on evidence that the test discriminated on the basis of race. The city also had evidence that more fair and effective tests were available. Rather than making promotions on the basis of the discriminatory test, the city declined to certify the results, and sought to explore less discriminatory alternatives, in keeping with its obligations under Title VII of the Civil Rights Act of 1964. When the city declined to make promotions on the basis of the test results, firefighters who had scored highly on the test filed suit, alleging that the city discriminated on the basis of race.
“Today’s decision ignores the plain language of Title VII, congressional intent and established precedent,” said Sarah Crawford, senior counsel with the Lawyers’ Committee for Civil Rights Under Law’s Employment Discrimination Project. “We still have far to go to fulfill Title VII’s promise of equal employment opportunity. This is a giant leap backward.”
Ideologically-Charged Decision in Ricci v. DeStefano Ignores History, Precedent
In a statement issued today on the Supreme Court’s 5-4 decision on Ricci v. DeStefano, Alliance for Justice President Nan Aron said that the “majority’s opinion ignores our nation’s history, rejects precedent, overturns the judgment of local government officials and makes it more difficult for employers to take voluntary steps to break down barriers to equal employment.”
“Continuing its assault on our civil rights laws, the five conservative ideologues on the Supreme Court today rejected long-standing law to weaken Title VII protections for traditional victims of discrimination,” said Aron.
Before the Court issued its ruling, People For the American Way Executive Vice President Marge Baker said that: “Opponents of Judge Sotomayor have gone to great lengths to use the ruling of her panel in Ricci v. DeStefano against her, and they will surely ramp up their efforts if the Supreme Court overturns the Second Circuit. But the simple fact is that the Supreme Court’s ruling, whatever it may be, will not reflect upon Sotomayor’s jurisprudence.
“Sotomayor and her panel colleagues were bound by longstanding precedent and federal law. They applied the law without regard to their personal views and unanimously affirmed the district court ruling. To do anything but would have been judicial activism.
“The full Second Circuit backed up the panel, which came as no surprise. Nearly ten years earlier a Second Circuit panel — consisting of three GOP nominees — reached the same conclusion in a similar case (Hayden v. County of Nassau).
“When a case virtually identical to Ricci came before the Sixth Circuit — Oakley v. Memphis — a panel rejected the plaintiffs’ claims and affirmed the district court ruling. Notably, they did so in an unpublished summary order, and one of the three judges was conservative Bush nominee Richard Allen Griffin.
“In other words, Sotomayor is anything but an outlier. She and the seven other federal judges who decided Ricci and Oakley at the district and circuit levels were unanimous in determining that precedent and federal law required the rejection of the suits.”
LDF: Supreme Court Ruling Leaves in Place Core Provision of the Voting Rights Act
Today, the Supreme Court in Northwest Austin Municipal Utility District Number One v. Holder rejected a challenge to the constitutionality of Section 5, the core provision of the Voting Rights Act, said the NAACP Legal Defense and Educational Fund, Inc. (http://www.naacpldf.org) in a press release.
In an opinion authored by Chief Justice Roberts, the Supreme Court recognized that “[t]he historic accomplishments of the Voting Rights Act are undeniable.”
Today’s ruling, which was joined by seven other Justices, recognizes Section 5′s critical importance in addressing voting discrimination faced by citizens throughout our country.
“The entire thrust of LDF’s argument was that Section 5 remains critical to our democracy and, however grudgingly, the Court acknowledges that in its opinion today. In an unusually harmonious opinion, today’s decision upholds the constitutionality of an essential core protection in our democracy,” said John Payton, LDF Director-Counsel.
Payton observed that “Section 5 of the Voting Rights Act protects and shields the rights of minority voters from discrimination. Section 5 has long been symbolic of our nation’s long and unsteady march toward greater political equality. Without its protections, our nation would unnecessarily face the grave risk of significant backsliding and retrenchment in the fragile gains that have been made.”
The Court’s ruling today ensures that minority voters will continue to have the safeguards provided by the Section 5 preclearance process.
The Court expanded the number of places that can seek to “bailout” or exempt themselves from preclearance. However, no Section 5-covered jurisdiction can do so without demonstrating a clean bill of health for a ten-year period.
The bailout provision has proven workable and achievable for those jurisdictions that have sought it. It remains to be seen how the Court’s interpretation of the bailout provision will impact enforcement of Section 5. If, for any reason, today’s ruling renders Section 5 unworkable in the future, Congress could always amend the statute.
“The utility district brought this case to tear out the heart of the Voting Rights Act. Today, it failed. The Voting Rights Act remains one of Congress’s greatest legacies,” said Debo P. Adegbile, LDF Director of Litigation, who argued the case on behalf of Appellee-Intervenors.
Editorial cartoon on Judge Sotomayor has subtext of lynching, stereotypes Latinos
The Oklahoman newspaper printed on Tuesday a racist, sexist and outright offensive “editorial” cartoon.
It depicts Judge Sotomayor strung up by a rope, likening itself to lynching images or a piñata, with President Barack Obama wearing a sombrero, holding a stick and asking a crowd of elephants (Republicans) “Now, who wants to be first?”
The cartoon is captioned “Fiesta time at the confirmation hearing.” See the cartoon here on our ConfirmSotomayor.org blog.
Bittersweet Week: Judge Sotomayor, Prop 8 Upheld, Ron Takaki Passes; Launching ConfirmSotomayor.org
We experienced last week several gut-wrenching and rejoiceful moments.
On Tuesday, May 26, President Barack Obama announced his historic nomination of Judge Sonia Sotomayor to the Supreme Court. On the same morning, the California Supreme Court ruled against marriage equality by upholding Prop. 8. The following day brought news that a preeminent scholar on our nation’s diversity, UC Berkeley professor Ronald Takaki, passed away.
SUPREME COURT NOMINEE JUDGE SONIA SOTOMAYOR
In nominating Judge Sonia Sotomayor to the Supreme Court, President Obama fulfilled a promise to the American people to appoint judges who are well-qualified, grounded in the rule of law and the Constitution, fair-minded and committed to equal justice for all. Judge Sotomayor embodies all these traits.
In the course of a life that began in a housing project in the South Bronx and brought her to the pinnacle of her profession, Judge Sotomayor accumulated more experience on the federal bench than any incoming Supreme Court Justice in the past 100 years, touching nearly every aspect of our legal system.
But Judge Sotomayor’s ethnicity has proven too much of a temptation for the voices of hate and extremism, who instead of looking at her judicial record have launched a vocal rampage that has reached new heights of absurdity, including calling her a “reverse racist” and calling the National Council of La Raza (NCLR) “the Latino KKK without the hoods and nooses.”
Condemn these unacceptable attacks on Latinos and Judge Sotomayor now. Join NLCR and send a message to Chairman Michael Steele of the RNC, House Minority Leader John Boehner, and Senate Minority Leader Mitch McConnell asking them to denounce these statements and restore the nomination process for Judge Sotomayor to a more appropriate and civil discourse.
EJS has also launched a blog and Facebook page in support for Judge Sotomayor. Visit http://ConfirmSotomayor.org and join the Facebook page as a fan. The blog includes a page with information on how you can support Judge Sotomayor.
And if you’re in California, please support our Californians for Fair and Independent Judges coalition so that organizations and individuals here can work together to support Judge Sotomayor’s confirmation. Email Keith Kamisugi at kkamisugi@equaljusticesociety.org for information about joining the coalition.
CALIFORNIA SUPREME COURT RULING ON PROP. 8
The California Supreme Court last Tuesday in a 6-1 vote upheld Prop. 8, the ballot measure discriminating against marriage by same-sex couples.
EJS is relieved the Court protected couples who married before November 5. The presence of thousands of married same-sex couples across California will show that marriage strengthens families and communities and threatens no one.
But by upholding Prop 8, the Court has diminished its legacy as a champion of equality. No minority group should have to defend its right to equality at the ballot. The Court’s decision jeopardizes every minority group in California.
As a racial justice organization, the Equal Justice Society opposes Prop. 8 – not only because it’s the right thing to do, but also because EJS strongly believes in working with others to ensure that the rights of all are expanded, rather than diminished, in our society.
We cannot just pigeonhole Prop. 8 as a ‘gay’ issue. By rolling back the fundamental rights of one group, the Supreme Court’s decision on Prop. 8 casts a threat that now looms over the civil rights of all.
Since the vote on Prop 8, there has been a tidal wave of momentum in favor of full equality. Five states now embrace marriage equality for same-sex couples, and several more are on the brink. We believe that California voters will reverse this injustice at the ballot. California has been a leader in standing up for equality, and it will be again.
Banning same-sex couples from marriage is unfair. Same-sex couples have the same hopes, dreams and concerns for their families as everyone else. They should be allowed the dignity, recognition, and responsibility that come with marriage, just like everyone else.
The fight is not over. Join our friends at the National Center for Lesbian Rights (led by EJS board member Kate Kendall) to receive updates on next steps in this battle for justice.
PROF. RON TAKAKI PASSES AWAY
Ronald Takaki, professor emeritus of ethnic studies at the University of California, Berkeley, and a preeminent scholar of U.S. race relations who taught the University of California’s first black history course, died at his home in Berkeley on Tuesday, May 26, at age 70. He had struggled for years with multiple sclerosis, an autoimmune condition that attacks the central nervous system.
During his more than 40 years at UC Berkeley, Takaki established the nation’s first ethnic studies Ph.D. program as well as UC Berkeley’s American Cultures requirement for graduation, and advised President Clinton in 1997 on his major speech on race.
“Ron Takaki elevated and popularized the study of America’s multiracial past and present like no other scholar, and in doing so had an indelible impact on a generation of students and researchers across the nation and world,” said Don Nakanishi, director of and professor at UCLA’s Asian American Studies Center and a longtime friend of Takaki’s.
Takaki’s 1989 book, “Strangers from a Different Shore: A History of Asian Americans,” was nominated for a Pulitzer Prize.
A descendent of Japanese field workers in Hawai’i, Takaki was acutely attuned to the inequities in Hawai’i's tough and ethnically divided plantation system.
In 1966, he was hired to teach UCLA’s first black history course in the wake of the explosive Watts riots. “I can still remember the smoke rising from Los Angeles and the sound of gunfire – it was a war zone,” he told the San Francisco Chronicle in that same interview.
When a student in the black history class asked him which revolutionary tools he could teach them, Takaki replied: “We’re going to study the history of the U.S. as it relates to African Americans. We’re going to strengthen our critical thinking skills and our writing skills. These can be revolutionary tools if we make them so.”
After five years at UCLA, Takaki returned in 1971 to UC Berkeley as the Department of Ethnic Studies’ first full-time teacher. He became wildly popular, filling auditoriums with hundreds of students hungry for perspectives on the struggles of America’s minority groups, and went on to win the campus’s Distinguished Teaching Award in 1981.
Takaki is survived by his wife, Carol; his three children, Todd of El Cerrito, Calif., Troy of Los Angeles and Dana of Chester, Conn.; and several grandchildren.
Takaki has donated his research and published papers to the Ethnic Studies Library at UC Berkeley. His family asks that, in lieu of flowers, donations be made in Takaki’s name to the Asian Law Caucus in San Francisco. Plans for a campus memorial service are pending.
All of us at the Equal Justice Society mourn Prof. Takaki’s passing and we express our deepest condolences to Ron’s family and friends.
Join a Facebook page launched in tribute to Prof. Takaki.