Race Discrimination

It’s been a busy week for employment law and civil rights.  The impact of the past week’s Supreme Court decisions on these two areas of law cannot be understated.  The Voting Rights Act was gutted, killing protections put in place to prevent discrimination at the ballot box.  The Civil Rights Act was substantially weakened, stripping minority employees across the country from access to Title VII remedies. And although the news for same-sex couples was brighter, the Court’s narrow decisions on that front leave much work to be done in the struggle for equality.

Wednesday, the Supreme Court released its decisions in United States v. Windsor (the “DOMA” case) and Hollingsworth v. Perry (the “Prop 8″ case).  These two cases each had the potential to become landmark civil rights precedent, with monumental significance for gay and lesbian Americans; they were heralded by pundits as the most important civil rights cases of our generation.

Indeed, the decision in Windsor will go down as one of the most significant decisions in Supreme Court history; it struck at the heart of DOMA and declared gay and lesbians deserving of equal protection under the law.  The Court’s decision in Perry, on the other hand, will soon be brushed into the dusty corners of irrelevance; in that case, a group of five strange bedfellow Justices entirely ducked the question of whether same-sex couples are entitled to marriage equality.  Thus, the struggle for gay civil rights marches on – and there is a lot of ground to cover. [click to continue…]

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Today, the United States Supreme Court, in a 5-4 vote, struck down a key provision of the Voting Rights Act (“VRA”), which is considered by many to be the most important civil rights law to have ever been authored by Congress. In short: the Supreme Court gutted our country’s chief mechanism for preventing the South from engaging in racially discriminatory voting practices.

Minnesota Civil Rights Attorneys

From Justice Ginsburg’s dissent in Shelby County v. Holder:

Congress approached the 2006 reauthorization of the VRA with great care and seriousness. The same cannot be said of the Court’s opinion today. The Court makes no genuine attempt to engage with the massive legislative record that Congress assembled. Instead, it relies on increases in voter registration and turnout as if that were the whole story. See supra, at 18–19. Without even identifying a standard of review, the Court dismissively brushes off arguments based on “data from the record,” and declines to enter the “debat[e about] what [the] record shows.” Ante, at 20–21. One would expect more from an opinion striking at the heart of the Nation’s signal piece of civil-rights legislation.

The Court has time and again declined to upset legislation of this genre unless there was no or almost no evidence of unconstitutional action by States. See, e.g., City of Boerne v. Flores, 521 U. S. 507, 530 (1997) (legislative record “mention[ed] no episodes [of the kind the legislation aimed to check] occurring in the past 40 years”). No such claim can be made about the congressional record for the 2006 VRA reauthorization. Given a record replete with examples of denial or abridgment of a paramount federal right, the Court should have left the matter where it belongs: in Congress’ bailiwick.

Instead, the Court strikes §4(b)’s coverage provision because, in its view, the provision is not based on “current conditions.” Ante, at 17. It discounts, however, that one such condition was the preclearance remedy in place in the covered jurisdictions, a remedy Congress designed both to catch discrimination before it causes harm, and to guard against return to old ways. 2006 Reauthorization §2(b)(3), (9). Volumes of evidence supported Congress’ determination that the prospect of retrogression was real. Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.

The sad irony of today’s decision lies in its utter failure to grasp why the VRA has proven effective. The Court appears to believe that the VRA’s success in eliminating the specific devices extant in 1965 means that preclear­ ance is no longer needed. Ante, at 21–22, 23–24. With that belief, and the argument derived from it, history repeats itself. The same assumption—that the problem could be solved when particular methods of voting discrim­ ination are identified and eliminated—was indulged and proved wrong repeatedly prior to the VRA’s enactment. Unlike prior statutes, which singled out particular tests or devices, the VRA is grounded in Congress’ recognition of the “variety and persistence” of measures designed to impair minority voting rights. Katzenbach, 383 U. S., at 311; supra, at 2. In truth, the evolution of voting discrim­ination into more subtle second-generation barriers is powerful evidence that a remedy as effective as preclear­ance remains vital to protect minority voting rights and prevent backsliding.

Beyond question, the VRA is no ordinary legislation. It is extraordinary because Congress embarked on a mission long delayed and of extraordinary importance: to realize the purpose and promise of the Fifteenth Amendment. For a half century, a concerted effort has been made to end racial discrimination in voting. Thanks to the Voting Rights Act, progress once the subject of a dream has been achieved and continues to be made.

The record supporting the 2006 reauthorization of the VRA is also extraordinary. It was described by the Chairman of the House Judiciary Committee as “one of the most extensive considerations of any piece of legisla­ tion that the United States Congress has dealt with in the 271⁄2 years” he had served in the House. 152 Cong. Rec. H5143 (July 13, 2006) (statement of Rep. Sensenbrenner).

After exhaustive evidence-gathering and deliberative process, Congress reauthorized the VRA, including the coverage provision, with overwhelming bipartisan support. It was the judgment of Congress that “40 years has not been a sufficient amount of time to eliminate the vestiges of discrimination following nearly 100 years of disregard for the dictates of the 15th amendment and to ensure that the right of all citizens to vote is protected as guaranteed by the Constitution.” 2006 Reauthorization §2(b)(7), 120 Stat. 577. That determination of the body empowered to enforce the Civil War Amendments “by appropriate legis­lation” merits this Court’s utmost respect. In my judg­ment, the Court errs egregiously by overriding Congress’ decision.

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The Twin Cities leads the nation in racial inequality in the workplace.  A study released last month by the Institute on Metropolitan Opportunity at the University of Minnesota Law School suggests one potential contributory reason for the inequity between black and white employees in Minneapolis and St. Paul: segregation that begins in school.

In the late 1980′s, Minnesota began allowing for open enrollment between school districts.  Provided that parents provide for transportation if they elect to put their children in a school outside of their home district, they may send their children to whatever Minnesota public school district they see fit.  The study results suggest, however, that racial discrimination may be one reason parents are choosing to send their children’s to different districts.   [click to continue…]

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As published in the Harvard Law & Policy Review, Kevin M. Clermont & Stewart J. Schwab observed that from 1979-2006, plaintiffs bringing employment law matters (discrimination, wrongful termination, etc) in federal court won only 15% of the time. When paired with the observation that plaintiffs in non job-related matters won 51% of the time, that 15% figure is stunning. Questions as to why there is such an imbalance in employment law compared to other areas of law have been the focus of many journalists, lawyers and academics. But for attorneys who represent plaintiffs in employment discrimination cases, there is one key factor worth focusing on: properly preparing a case to survive motions for dismissal, particularly summary judgement motions.

http://www.hlpronline.com/Vol3.1/Clermont-Schwab_HLPR.pdf

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In Brown v. Board (U.S. 1954), the United States Supreme Court ordered that public schools across the nation integrate, supposedly putting an end to the segregation of schools on the basis of race. Yet, Minnesota spent the better part of the next thirty years attempting to achieve that end.

In 1964, Title VII of The Civil Rights Act prohibited discrimination (by covered employers) on the basis of race, color, religion, sex, or national origin. In light of these measures, one might expect that in 2012 matters of racial inequality would be more fully addressed. Yet, Minnesota Public Radio reported Tuesday that the Twin Cities (again) lead the nation in the gap between black and white unemployment. Read More . . .

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The EEOC updated its guidance regarding how criminal records can be used by employers in hiring decisions.  The EEOC reaffirmed that – in some instances – an employer’s use of an individual’s criminal records when making employment decisions will violate Title VII’s ban on employment discrimination.

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Sanders v. Lee County School District, No. 10-3240 (8th Cir. 2012).  An Arkansas jury found in favor of plaintiff Sharon Sanders on her Title VII claims of race discrimination and constructive discharge.  The jury awarded $10,000 in compensatory damages for race discrimination, $60,825 in back and front pay damages for her constructive discharge, and $8,000 in punitive damages.  After the verdict, the district court judge granted the School District’s motion under Rule 50 of the Federal Rules of Civil Procedure to set aside the jury’s verdicts on constructive discharge and punitive damages.  Sanders appealed the district court’s vacation of the jury’s verdicts to the Eighth Circuit Court of Appeals – the Eighth Circuit reversed the district court’s ruling and reinstated the jury’s findings.

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This was a case in which an Asian American manager was chosen for termination pursuant to a reduction in force by his employer.  In hard economic times, employers sometimes need to cut back in their workforce, and there’s nothing illegal about that.  The issue in this case, though, was that the employer chose this particular manager for termination, despite the fact that he had more experience, better performance reviews, and better attendance than his only peer.

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Minnesota Employment, Wrongful Termination Lawyers

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