Will Judge Jackson’s Impending Appointment Help Or Hurt Civil Rights?

The premier civil rights law in the nation makes it unlawful for employers to fail or refuse to hire any individual on on the basis of “such individual’s race, color, religion, sex, or national origin.”

Title VII of the Civil Rights Act was passed in 1964, amid sit ins and marches, to ensure equal opportunity in employment for minorities.

Democratic President Joseph Biden ignored Title VII when he announced he would choose a Supreme Court candidate who is a black woman, and then picked Judge Ketanji Brown Jackson.

Additionally, he ignored the Fourth Amendment to the U.S. Constitution, which was adopted in the aftermath of the Civil War and prohibits states from denying to any person “the equal protection of the laws.” The U.S. Supreme Court in the landmark case of Brown v. Board of Education held that race discrimination violates the Fourteenth Amendment.

Judge Jackson, who was appointed to the U.S. Circuit Court of the District of Columbia less than a year ago, is currently the subject of nomination hearings before the U.S. Senate. Democrats say they have the votes to confirm her nomination.

A Fraction of 6%

Pres. Biden isn’t the first president to pick a justice on the basis of external characteristics.

GOP Pres. Ronald Reagan announced in 1980 that he would pick a woman for the nation’s highest court, and Sandra Day O’Connor became the first female justice.

However, Pres. Biden drastically narrowed the field of potential nominees to fill the vacancy on the Court created by the retirement of Justice Stephen Breyer.

African American women comprise around six percent of the U.S. population and, of that percentage, only a tiny fraction normally would be considered qualified to serve on the nation’s high court.

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More Evidence The Hiring Game Is Rigged?

When I was in my 50s, I considered transitioning into a career teaching media law at a major university.

Brian Flores
Brian Flores

I applied for a half-dozen jobs and each time I was selected as one of three finalists and invited to the campus to present a lecture. Each invitation took a couple of days, many hours of preparation, travel time and exhaustive work.

Each time I was rejected in favor of a young newly-minted PhD with no experience, or a member of a minority group who was far less qualified. When I talked to a professor friend about this, he said I would never be hired because, “You’re too old.” I stopped wasting my time.

Apparently, no one told Brian Flores the game of hiring is rigged.

Former Miami Dolphins Coach Brian Flores recently sued the National Football League and its 32 teams alleging they discriminated against him and other Black coaches in their hiring practices.

It seems NFL teams pick at least one minority as a finalist for coaching jobs for the sake of appearances and Flores is getting tired of being that minority.

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An Election Integrity Issue The U.S. Supreme Court Can’t Duck?

A majority of the U.S. Supreme Court recently dismissed, without comment, lawsuits alleging election fraud in swing states during the 2020 Presidential election.

In a neat twist, the Court refused to hear the cases prior to the election because it was too close to election day and then, after the election, declared the cases were moot.

So far the Court has managed to avoid what may be the greatest crisis of confidence in America’s electoral process in U.S. history.

But it still faces another test.

A month prior to the 2020 election, the Court agreed to decide a challenge by the Democratic National Committee (DNC) to an Arizona law that prohibits ballot harvesting, a practice where a third-party often is paid by an advocacy group to fan out across poor neighborhoods to collect and then file absentee ballots. The DNC also wants to overturn an AZ policy requiring ballots be cast in the precinct that matches the voter’s home address.

The case is scheduled to be heard next month.

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Appeals Ct Says OK for Supervisor to Throw Things

shoeA federal appeals court panel  has ruled that a supervisor did not violate the rights of a subordinate when he allegedly yelled at her in front of coworkers and violently threw a heavy notebook at her.

A panel of the U.S. Circuit Court of Appeals for the District of Columbia Circuit ruled the above conduct may be  “unprofessional, uncivil and somewhat boorish” but it does not rise to the level of malevolence necessary to constitute a “hostile work environment” under Title VII of the Civil Rights Act o f 1964.

Instead, the appellate panel compared the behavior to the “ordinary tribulations of the workplace,” which include petty insults, vindictive behavior and angry recriminations.

The  decision, written by Justice Janet Rogers Brown, comes in a case that is also unusual because it involves the Merit Systems Protection Board, an independent agency charged with addressing the grievances of federal workers who challenge discriminatory employment practices.

Patricia A. Brooks, who is an African-American, filed a race discrimination complaint alleging that she was a victim of a “hostile workplace environment” at the Office of Information Resources Management of the MSPB.

Brooks, who had worked at the MSPB since 1998, said her supervisor in 2005 insulted and demeaned her in front of coworkers when he yelled at her and threw a heavy notebook in her direction.  The supervisor admitted slamming the book with his hand. Brooks said she was subsequently given poor performance ratings and became subject to selective enforcement of workplace rules.

After filing several equal employment opportunity complaints, Brooks filed a lawsuit alleging  race discrimination and retaliation in violation of Title VII.  A federal judge dismissed Brooks’ complaint on a pre-trial motion for summary judgment, which means the judge ruled that no reasonable jury could find that the supervisor’s “conduct was so severe and pervasive as to alter the conditions of Brooks employment.”  The three-judge panel for the D.C. Circuit court upheld the dismissal of  Brooks’ complaint.

Justice Brown writes in an April 15 decision that Brooks failed to show that she was subjected to “discriminatory intimidation, ridicule and insult” that was “sufficiently severe or pervasive to alter the conditions of [her] employment.”  Justice Brown said the panel evaluated the “totality of the circumstances, including the frequently of the discriminatory conduct, its severity, its offensiveness and whether it interferes with an employee’s work performance.”

Even if the supervisor did violently throw a book at Brooks, the appellate panel said, the incident involved “unprofessional conduct” but was isolated and not sufficiently malevolent to constitute actionable abuse.

A retaliation complaint and other other claims were rejected on technical grounds.

See Patricia Brooks v. Susan Tsui Grundmann, chairman, Merit Systems Protection Board, No. 12-5171.

 

Oregon Interns Get Harrassment/Discrimination Protection

InternsUnpaid interns are especially vulnerable to predatory behavior in the workplace because they are young and inexperienced.

However, many courts have ruled that unpaid interns are not protected by state and federal harassment and discrimination laws.

This week the Oregon legislature agreed to extend workplace protections against harassment and discrimination to unpaid interns.  These protections formerly were reserved only for employees.

The Oregon Senate unanimously passed HB 2669, sending it to Gov. John Kitzhaber for signature. The Oregon house unanimously passed the bill last month. Kitzhaber has indicated that he will sign the bill. 

The new law will give unpaid interns legal recourse against employers for workplace violations including sexual harassment; discrimination based on race, color, religion, gender, sexual orientation, national origin, marital status or age; and retaliation for whistleblowing, among other things.

With no protection in state law, you might think that unpaid interns could turn to federal law. You’d be wrong.

The Equal Employment Opportunity Commission has issued  guidelines that provide coverage to volunteers under Title VII of the Civil Rights Act of 1964 “if the volunteer work is required for regular employment or regularly leads to employment with the same entity.”  However, unpaid interns have been unable to bring sexual harassment or civil rights complaints under Title VII  because judges have not found them to be “employees”  to whom protections are explicitly afforded.

According to a  2010 study by the Economic Policy Institute (EPI), federal courts have consistently found that the question of whether an individual is compensated for his or her work by an employer is the first test for determining employee status. Accordingly, unpaid interns, or even interns paid by an entity other than an employer, do not receive workplace discrimination protection.

The EPI study reports that the leading precedent for the failure to protect unpaid interns is the case of O’Connor v. Davis,  126 F.3d 112 (2d Cir. 1997).  Bridget O’Connor was required to complete an internship for her college degree and chose to work at a local psychiatric center. There, O’Connor allegedly was subject to repeated sexual harassment by one of her supervisors, Dr. James Davis. The district court summarily dismissed O’Connor’s complaint because the plaintiff, as an unpaid intern, did not receive compensation from the center, and thus did not qualify as an employee protected under Title VII. The decision was upheld on appeal.

Oregon Labor Commissioner Brad Avakian told the Associated Press that interns had contacted his office looking for help in the past and “we had to tell them that the law did not protect them.”

Under the measure, an intern who alleges workplace harassment or discrimination, among other violations, can bring a lawsuit against the employer or file a formal complaint with the Oregon Bureau of Labor and Industries.

Avakian said the idea for the bill came from a legislative intern at the Bureau of Labor and Industries. He said the intern discovered the loophole and brought it to his attention.  In 2011, a similar bill failed to gain traction. This year, however, the bill passed with broad support from civil rights groups and a student advocacy group.

The Oregon law  does not create an employment relationship and does not affect wage or workers’ compensation laws.

 Photo by: John Amis