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.

EJS, Others File Brief on Prelim. Injunction Against Ariz. Anti-Immigrant Statute

The Equal Justice Society, the Asian American Institute and thirty-six other public interest organizations, represented pro bono by the law firm Covington & Burling LLP, have filed an amicus brief in Friendly House v. Whiting, supporting the plaintiffs’ request for a preliminary injunction against SB 1070, Arizona’s disturbing new immigration statute.

The lawsuit, a class action filed in the U.S. District Court for the District of Arizona, challenges the constitutionality of this recently passed law on the grounds that it invites the racial profiling of people of color, violates the First Amendment and interferes with federal law.

The amicus brief argues that an injunction is justified on three principal grounds.

First, SB 1070 will result in discrimination against communities of color. Although the statute was written seemingly to exclude the possibility of racial profiling, in practice, there is no question but that this law will lead to heightened and disproportionate police scrutiny of minorities. Because Mexico is the nearest border, Latinos especially will be targeted under SB 1070.

Second, this bill threatens public safety in Arizona. If enforced, it will breed resentment and distrust of the police in communities of color. Fearing immigration inquiries, communities of color are very likely to report crime less, making their neighborhoods increasingly unsafe. Moreover, the under-reporting of crime in minority communities will render them even more vulnerable to hate crimes.

Finally, the bill, ostensibly designed to reduce crime, simply does not justify the means. American history is sadly littered with numerous statutes aimed at excluding certain minority groups from the benefits, rights, and liberties granted to the majority. The courts have struck down those laws for over 150 years. SB 1070 is in keeping with this sordid past and must also be struck down.

Dying While Black: An Examination of Race and the California Death Penalty

Photo by nodeathpenalty.org

The foundation of the Equal Justice Society is based on the premise that racial justice cannot be achieved when the law fails to reflect actual experience. Under existing equal protection law, the constricted “Intent Doctrine” (as established in the 1976 United States Supreme Court decision Washington v. Davis) ignores much of what we know about the dynamics of modern day discrimination and therefore deprives underrepresented groups access to our courts and redress for discrimination.

By requiring plaintiffs to prove a decision-maker’s conscious intent to discriminate, they are faced with an almost impossible burden.

Our focus on the Intent Doctrine intersected with the efforts of journalist Claire Cooper, formerly of the Sacramento Bee, to draw attention to the structural causes of the vast over-representation by Blacks on death row to a degree virtually unmatched in the nation.

We share Claire’s thoughts below:

In late 2008, I was asked to participate in a panel discussion on race and the California death penalty. What I learned in preparing for my remarks surprised me, though I had covered the state’s death penalty for almost 30 years as a newspaper reporter. Because this information has not been part of our death penalty debate, it may surprise you, too.

I learned, in sum, that blacks in this progressive state are over-represented on death row to a degree virtually unmatched in the nation. Death sentence rates for black defendants here (but not Latinos) far exceed black population rates and even black homicide arrest rates. I also learned that neither race-of-victim information nor any other available data seem sufficient to explain the wide disparities.

Please take a few minutes to read my Sacramento Bee commentary, “Scales of justice may weigh heavily against blacks.” Share with us your reactions and suggestions here. If you are in California, please consider how we might bring the issues to the attention of the state’s policy-makers. If you are outside California, please consider whether hidden racial issues are affecting the death penalty in your state.

My own view is that California should be collecting data on the way discretion is exercised in charging, prosecuting and defending homicide cases, as well as data on the racial composition of death penalty juries. But please share your understanding of the situation. Tell us how we can raise awareness of it and begin to fix it.

- Claire Cooper

EJS has examined the intersection of the doctrine and the death penalty before.

In August 2004, more than 60 people from the Bay Area legal and social science communities gathered for an EJS brown bag to discuss how we can use social science research to advocate for social justice and challenge existing legal frameworks

At the gathering, we discussed how the death penalty — in this case, at the federal level — and race is a good example of an arena with a high potential for frame-breaking.

There have been many cases where the Supreme Court ruled that racial disparities in the way the death penalty is administered are not that important even though in the last 30 years data show that there is a much greater likelihood that Black Americans will be sentenced to death in homicide cases (if and when the victim is white).

The U.S. Supreme Court has chosen to ignore data showing racial patterns, and has instead insisted on an individual case-by-case assessment of fairness.

In the fall of 2005, following the Katrina disaster, EJS began working with a coalition of more than 140 U.S. social justice groups in an effort to focus international attention on human rights violations in the United States. EJS focused on race discrimination and the impact of the intent doctrine on civil rights litigation, and other groups dealt with issues ranging from voting rights to environmental racism and the death penalty.

How the Amazon ‘Glitch’ Relates to Structural Discrimination and Racism

Technologist Mary Hodder discussed yesterday on the blog TechCrunch the ethical issues related to the Amazon ‘glitch’ that removed the rankings of gay content made me think about analogies between the technical causes of the glitch and how unconscious bias can fuel structural racism.

Background on the Amazon ‘glitch’ issue from Wikipedia (edited):

Users on Twitter generated a firestorm of criticism that some erotic, lesbian, gay, bisexual, transgender, feminist and progressive books were being excluded from Amazon’s sales rankings.

Various books and media were flagged as “adult content” (including children’s books, self-help books, non-fiction, and non-explicit fiction), with the result that works by established authors like E. M. Forster, Gore Vidal, Jeanette Winterson and D. H. Lawrence were now unranked.

The change first received publicity on the blog of author Mark R. Probst, who reproduced an e-mail from Amazon customer service describing a policy of de-ranking “adult” material.

However, Amazon later said that there was no policy of de-ranking LGBT material, and blamed the change first on a “glitch” and then on “an embarrassing and ham-fisted cataloging error” that had affected 57,310 books.

Here’s the meat of Mary Hodder’s TechCrunch post: Read more

Eva Paterson: ABC7 Story on Ledbetter Act

Eva Paterson is included in a story by ABC7′s Mark Matthews on President Obama’s signing of the Lilly Ledbetter Fair Pay Act of 2009, which will make it easier for people to get the pay they deserve — regardless of their gender, race, or age. The Act was introduced by Bay Area Congressman George Miller.