Monday, August 31, 2009

REMINDER: EEO - 1 Survey Due September 30, 2009

U.S. Equal Employment Opportunity Commission
EEO Surveys

The EEOC collects workforce data from employers with more than 100 employees (lower thresholds apply to federal contractors). Employers meeting the reporting thresholds have a legal obligation to provide the data; it is not voluntary. The data is collected using the reports below and is used for a variety of purposes including enforcement, self-assessment by employers, and research. Each of the reports collects data about gender and race/ethnicity by some type of job grouping. This information is shared with other authorized federal agencies in order to avoid duplicate collection of data and reduce the burden placed on employers. Although the data is confidential, aggregated data is available to the public.

In 2007, the EEO-1 report was modified. The major changes involved dividing the job category of "Officials and Managers" into two levels. Revised race/ethnic categories were also implemented. The EEOC plans to update the other reports to use the same race and ethnic categories as the new EEO-1 but, before doing so, will give respondents a full reporting cycle to change their recordkeeping.

EEO-1 Report
The filing deadline for the 2009 EEO-1 Report is September 30, 2009.

The EEO-1 Report, otherwise known as The Employer Information Report, is submitted to the EEOC and the Department of Labor's Office of Federal Contract Compliance Programs.
Revised survey information

EEO-3 Report
The EEO-3 Report, formally known as the Local Union Report, is a biennial survey conducted every other year in the even calendar years. The filing deadline was December 31, 2008.

EEO-4 Report
Notification letters for 2009 reporting will be mailed on August 10, 2009. For more information, go to EEO-4 Report.
The EEO-4 Report, formally known as the State and Local Government Report, is collected in odd-numbered years from State and Local governments. If you have questions about this survey, or to be placed on a mailing list you may email, call the EEO-4 Coordinator at (202) 663-4947, or send a fax to (202) 663-7130.
State and Local Government Information (EEO-4) Instruction Booklet

EEO-5 Report
The EEO-5 Report, formally known as the Elementary-Secondary Staff Information Report, is a joint requirement of the EEOC, and the Office for Civil Rights (OCR) and the National Center for Education Statistics (NCES) of the Department of Education. It is conducted biennially, in the even numbered years, and covers all public elementary and secondary school districts with 100 or more employees in the United States. The filing deadline was September 30, 2008.
EEO-5 Survey

Hospitals Providing Medical Services to Federal Employees May Be Covered Contractors for AAP Purposes

Ford & Harrison LLP Legal Alert

Hospitals Providing Medical Services to Federal Employees:

Recent OFCCP activity demonstrates the agency's desire to establish jurisdiction over hospitals and other health care providers even when the hospital does not have a direct contract with a federal agency (e.g., the Bureau of Prisons or the VA).
Providing Services to HMOs: Recently, the Administrative Review Board (ARB) upheld an Administrative Law Judge's (ALJ) determination that three hospitals which received payments from an HMO for providing medical products and services to individuals covered by the HMO, including employees of the U.S. government, were federal subcontractors subject to federal equal employment and affirmative action obligations. See OFCCP v. UPMC Braddock, ARB No. 08-048 (ARB May 29, 2009). In this case, the Office of Personnel Management (OPM) had a contract with University of Pittsburgh Medical Center (UPMC) Health Plan (an HMO) to provide medical benefits to federal government employees. The three defendant hospitals had contracts with UPMC to provide medical products and services to individuals covered by the HMO. The OFCCP filed administrative complaints with the Department of Labor (DOL) against the three hospitals for non-compliance with Executive Order 11246, Section 503 of the Rehabilitation Act, and Section 402 of the Vietnam Era Veterans' Readjustment Assistance Act of 1974 because they did not produce documents in response to OFCCP's request and did not allow OFCCP access to their premises for onsite reviews.
The ARB upheld the ALJ's grant of judgment in favor of the OFCCP, even though the hospitals did not consent to be federal subcontractors and the language of their contracts with the HMO specifically excluded them from the definition of subcontractor. The ARB held that the equal employment opportunity clauses in the three federal laws were implied by law in the hospitals' contracts and that the contractual terms did not override the requirements of federal law. The ARB also distinguished its earlier decision in OFCCP v. Bridgeport Hospital (Jan. 31, 2003), in which it held that a hospital providing medical services to federal employees under an agreement with Blue Cross and Blue Shield was not a federal subcontractor. In Bridgeport, the ARB found that Blue's contract with the OPM was to provide insurance, while its contract with Bridgeport was for the provision of medical services. Thus, the hospital was not considered a subcontractor of the federal contract. However, in the recent UPMC case, the ARB found that the provision of medical services and supplies was a critical component of the contract between the OPM and UPMC Health Plan. The ARB also found that the contract depended on medical providers like the hospitals to enable UPMC Health Plan to meet the obligations of its contract with OPM. Rejecting the hospitals' arguments that they should be considered insurance providers, the ARB found "ample evidence that the Defendants were operating primarily as health care delivery providers and not strictly as insurance providers." Thus, the ARB found the Bridgeport decision inapplicable and held that the hospitals were subcontractors subject to the equal employment obligations of the three laws.
Providing Services to TRICARE Beneficiaries: Another OFCCP jurisdictional development is that several hospitals have received compliance review letters from the OFCCP in which the agency argues that the hospital is a federal contractor based on the provision of services to TRICARE beneficiaries. Some hospitals/other health care professionals have entered into agreements with HUMANA Military or other third parties to be included in a network of providers for TRICARE beneficiaries to utilize. Ford & Harrison recently learned that one hospital in Florida is challenging the OFCCP's jurisdiction based on TRICARE services alone. According to the OFCCP, this situation is in litigation; thus, we will report on any decisions in this case as they develop.
What do these recent developments mean for hospitals/other health care providers? With the UPMC case and the pending Florida hospital TRICARE issue, it is apparent that if OFCCP prevails in its arguments, many hospitals/health care providers will be required to maintain AAPs and adhere to all the requirements associated with them.
If you have any questions regarding these issues, please contact an attorney in Ford & Harrison's Affirmative Action Compliance Group or the Ford & Harrison attorney with whom you usually work. Linda Cavanna-Wilk and Karen Tyner contributed to this Alert.


U.S. Equal Employment Opportunity Commission
Home Improvement Giant Subjected Young Workers to Physical and Verbal Abuse, Retaliation

SEATTLE – The U.S. Equal Employment Opportunity Commission (EEOC) today announced a major settlement of a discrimination lawsuit under Title VII of the Civil Rights Act against Lowe’s Home Improvement Warehouse, Inc. for $1.72 million and significant remedial relief on behalf of three employees in their twenties who were subjected to a pervasive sexually hostile work environment and retaliated against for complaining about it.
The former employees, two young men and one woman, were subjected to widespread and repeated sexual harassment by male and female managers and coworkers at a Lowe’s store in Longview, Wash., according to the EEOC. The sexually hostile workplace, which endured for more than six months, included physical and verbal abuse which culminated in one instance of sexual assault.
Among the many allegations in the litigation (Civ. No. CV08-331 JCC in U.S. District Court for the Western District of Washington), the EEOC said the female employee, age 21 at the time, was sexually assaulted by the 44-year-old male store manager in his office. Prior to the alleged assault, the EEOC said she was implicitly propositioned for sex by the manager related to a recent promotion she received. EEOC asserted that Lowe’s not only failed to take prompt remedial action to stop the sexual harassment, but also fired the three victims in the case.
“Corporate America should be on notice that sexual harassment and retaliation will not be tolerated by the EEOC,” said Commission Acting Chairman Stuart J. Ishimaru. “In this case, severe sex-based harassment of young workers was permitted to run rampant at one of the nation’s largest retailers. It is shocking that Lowe’s store managers actively engaged in, and even encouraged, such blatant unlawful conduct and then retaliated against the victims for objecting to it.”
In addition to the $1,720,000 in monetary relief for the three victims, the three-year consent decree resolving the case requires Lowe’s to provide comprehensive training to management, non-management, and human resources employees in all Washington and Oregon stores. Employees will be trained on what constitutes harassment and retaliation, and on their obligation not to harass or retaliate against any individual. Managers and supervisors will be trained on what constitutes harassment and retaliation, their obligation to provide a discrimination-free work environment, and their responsibilities if an employee complains about harassment or retaliation, or if they observe it. Human resources personnel will be trained on what constitutes harassment and retaliation, how to institute policies and practices to correct past discrimination and prevent future occurrences, informing complainants about the outcome of internal investigations, and the steps Lowe’s will take to assure a discrimination-free workplace in the future.
EEOC Regional Attorney William R. Tamayo of the San Francisco District Office, which oversees Washington and Oregon, said, “Through this consent decree, Lowe’s is demonstrating its commitment to preventing sexual harassment and retaliation going forward, particularly at its 50 stores in Washington and Oregon. No worker, regardless of gender or other discriminatory factors, should ever have to endure harassment in order to earn a paycheck.”
In addition to the comprehensive training and monetary relief, the consent decree requires Lowe’s to revise its sexual harassment and anti-retaliation policies, issue an anti-harassment statement to all employees in Washington and Oregon, revise its method for tracking employee complaints of harassment, and report regularly to the EEOC on harassment and retaliation complaints which arise in Washington and Oregon stores during the term of the decree.
EEOC San Francisco District Director Michael Baldonado, noted, “The EEOC litigates in the public interest when employers fail to voluntarily comply with the law. It is in the best interest of all employers to have effective anti-discrimination policies and procedures in place to promptly address workplace disputes.”
The EEOC consent decree covers 37 Lowe’s stores in Washington and 13 stores in Oregon. Cindy O’Hara, a senior trial attorney at the EEOC’s San Francisco District Office, led the federal government’s litigation efforts. Seattle private attorney Scott Blankenship intervened in the case on behalf on the three victims and served as co-lead counsel with the EEOC.
With headquarters in Mooresville, N.C., Lowe’s, a Fortune 500 company, is the second largest home improvement retailer worldwide, operating 1,525 stores throughout the United States and Canada, according to company information.
The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on its web site at


FOR IMMEDIATE DISTRIBUTION: Thursday, August 27, 2009
CONTACT: NWLC - Mary Robbins/Adrienne Ammerman, 202-588-5180
MALDEF - Estuardo Rodriguez, 202-631-2892

NWLC and MALDEF survey Latinas about their aspirations and unique challenges to reaching their goals

(Washington, DC) The National Women’s Law Center (NWLC) and the Mexican American Legal Defense and Educational Fund (MALDEF) today released a new report highlighting that Latina students face greater challenges graduating from high school than many of their counterparts. The report is available here:

The report, Listening to Latinas: Barriers to High School Graduation, addresses the challenges facing Latina high school students in the United States and explores ways to overcome obstacles that undermine their chances of graduating from high school. It also brings new voices to the conversation: those of Latina students themselves and of the adults who work with them on a daily basis. The report includes recommendations for schools and policymakers to improve the odds that young Latinas will graduate from high school and lead successful lives.

“To ignore high dropout rates among Latina students is to turn our backs on the American promise of fairness and equality of opportunity,” stated Marcia D. Greenberger, Co-President of NWLC. “Significant resources should be devoted to improving the graduation rates of Latinas and to ensuring that each young Latina can achieve her dreams and that the country can benefit from her talents.”

“This year historic strides have been made by minority communities- Americans elected our first black President and the first Latina, and only third woman, was confirmed as the newest Justice to the U.S. Supreme Court,” stated Representative Raul Grijalva (D-AZ). “As outlined by this report, Latina students, in particular, face greater hurdles to achieving academic success than their male counterparts. In order to ensure that our leaders continue to reflect the racial, ethnic and gender diversity of our nation we must address these obstacles and provide our students with the resources and support they need.”

Latinas are dropping out of school in alarming numbers; the latest data show that 41 percent of Hispanic female students do not graduate in four years with a standard diploma. Latinas also have the highest teen pregnancy and birth rates of any subgroup of young people in the United States, with 53 percent becoming pregnant before age 20, which significantly affects girls’ graduation rates. Dropping out has serious and damaging repercussions for the future prospects and economic security of these young women, who comprise the fastest growing group of female school-aged youth in the U.S.

“Despite the many barriers and challenges they face, Latina students possess a remarkable resiliency and a strong desire to succeed,” said Veronica Rivera, a Legislative Staff Attorney at MALDEF. “To make their desire to succeed a reality, young Latina women need the support of their families, their teachers, their communities, and the attention of policymakers.”

Listening to Latinas incorporates the results of national surveys, interviews, and focus groups conducted earlier this year with Latina students and the adults who work with them. Several clear themes emerged from the research:

Latinas have high aspirations. Almost every Latina surveyed, 98 percent, reported that they want to graduate from high school, and 80 percent said they want to graduate from college and perhaps go further. As one interview participant commented: “It’s very important to me to graduate - it’s one of my goals in life because nobody in my family really graduated from middle school or high school so I want to do that for myself, so I don’t have to worry about working in fast food places or whatever.”
Sadly, too many young Latinas doubt their ability to reach their goals. In response to the survey question: “Realistically, what is the highest level of education you think you will achieve?” a full one-third of the girls (34%) responded by checking a lower level of education than they had reported wanting to achieve.

The Latino community faces many challenges that help explain the discrepancy between Latinas’ dreams and actual expectations for their lives. Latino students’ academic achievement and dropout rates can be profoundly affected by the challenges faced by many of their communities. These challenges include poverty, schools with limited resources and restricted learning opportunities, immigration status, limited English proficiency, and lack of parental involvement in school.

Latinas face particular challenges related to the intersection of their ethnicity and gender. Latinas and Latinos face some similar challenges at school, such as concerns about school safety, attendance problems, disciplinary issues, and poor academic performance – all of which tend to limit student engagement in school and increase the risk of dropping out. Latinas face additional challenges, including the influence of harmful gender and ethnic stereotypes and discrimination from teachers and classmates based on their ethnicity and gender.

Teen pregnancy, teen parenting, and other care-giving responsibilities at home present barriers for Latinas. Latinas, who have the highest teen pregnancy and birth rates of any racial or ethnic group, are at high risk of dropping out because of pregnancy and parenting responsibilities. In the survey, more than one-quarter of the girls (27%) said they had friends who dropped out of school when they got pregnant. In addition, family care-giving responsibilities – typically for younger siblings or elderly relatives – fall more heavily on Latinas than on Latinos.

Listening to Latinas concludes with concrete recommendations for schools and policymakers to enable Latinas to overcome the barriers that they face.

For more information on dropout prevention for girls, visit NWLC’s website:

To interview Marcia D. Greenberger at NWLC, please contact Adrienne Ammerman or Mary Robbins at 202-588-5180. To interview Veronica Rivera at MALDEF, please contact Estuardo Rodriguez at 202-631-2892.


The National Women's Law Center is a non-profit organization that has been working since 1972 to advance and protect women's legal rights. The Center focuses on major policy areas of importance to women and their families including economic security, education, employment and health, with special attention given to the concerns of low-income women. For more information on the Center, visit:

Founded in 1968, MALDEF, the nation’s leading Latino legal organization, promotes and protects the rights of Latinos through litigation, advocacy, community education and outreach, leadership development, and higher education scholarships. For more information on MALDEF, please visit:

Wednesday, August 26, 2009


Office of the Press Secretary
For Immediate Release August 26, 2009
Blue Heron Farm
Chilmark, Massachusetts

The President spoke at 9:57 this morning at Blue Heron Farm in Chilmark, Massachusetts:

THE PRESIDENT: I wanted to say a few words this morning about the passing of an extraordinary leader, Senator Edward Kennedy.
Over the past several years, I've had the honor to call Teddy a colleague, a counselor, and a friend. And even though we have known this day was coming for some time now, we awaited it with no small amount of dread.
Since Teddy's diagnosis last year, we've seen the courage with which he battled his illness. And while these months have no doubt been difficult for him, they've also let him hear from people in every corner of our nation and from around the world just how much he meant to all of us. His fight has given us the opportunity we were denied when his brothers John and Robert were taken from us: the blessing of time to say thank you -- and goodbye.
The outpouring of love, gratitude, and fond memories to which we've all borne witness is a testament to the way this singular figure in American history touched so many lives. His ideas and ideals are stamped on scores of laws and reflected in millions of lives -- in seniors who know new dignity, in families that know new opportunity, in children who know education's promise, and in all who can pursue their dream in an America that is more equal and more just -- including myself.
The Kennedy name is synonymous with the Democratic Party. And at times, Ted was the target of partisan campaign attacks. But in the United States Senate, I can think of no one who engendered greater respect or affection from members of both sides of the aisle. His seriousness of purpose was perpetually matched by humility, warmth, and good cheer. He could passionately battle others and do so peerlessly on the Senate floor for the causes that he held dear, and yet still maintain warm friendships across party lines.
And that's one reason he became not only one of the greatest senators of our time, but one of the most accomplished Americans ever to serve our democracy.
His extraordinary life on this earth has come to an end. And the extraordinary good that he did lives on. For his family, he was a guardian. For America, he was the defender of a dream.
I spoke earlier this morning to Senator Kennedy's beloved wife, Vicki, who was to the end such a wonderful source of encouragement and strength. Our thoughts and prayers are with her, his children Kara, Edward, and Patrick; his stepchildren Curran and Caroline; the entire Kennedy family; decades' worth of his staff; the people of Massachusetts; and all Americans who, like us, loved Ted Kennedy.

AAAA News Release: AAAA Mourns the Passing of Senator Edward M. Kennedy

American Association for Affirmative Action
Mourns the Passing of Senator Edward M. Kennedy
“Champion of Civil Rights and Equal Opportunity through Affirmative Action”

Washington, DC. August 26, 2009 - The American Association for Affirmative Action (AAAA), a national membership organization of equal employment opportunity (EEO), affirmative action and diversity specialists, mourns the passing of Senator Edward M. Kennedy of Massachusetts. AAAA President ReNee Dunman stated that “Senator Kennedy was truly a champion of those who were disenfranchised and discriminated against.” While Kennedy was born to privilege, he spent a lifetime bringing hope and opportunity to those who were less fortunate in American society. “Kennedy’s was a life of service to humanity; it was a life well-lived.” Senator Kennedy passed away on August 26, 2009 at the age of 77.

In his years in the U.S. Senate, Kennedy sponsored approximately 2500 pieces of legislation. Of special note are the many bills and enacted laws promoting civil rights and equal opportunity. Senator Kennedy believed that civil rights remained America’s great unfinished business, and he had a major role in every civil rights battle in Congress for the past half century.

In 1964, after his brother’s tragic assassination, Senator Kennedy supported the Civil Rights Act of 1964, which outlawed discrimination in employment, housing and public accommodations. Kennedy also worked to outlaw the poll tax. Later, Senator Kennedy sponsored the Voting Rights Act Amendments of 1982 and other legislation, which had the effect of increasing the representation of minorities in Congress and enabling language minorities to participate in the voting process. In the 1980s, Kennedy worked with a bipartisan group of Senators and Coretta Scott King to establish a federal holiday in honor of Martin Luther King, Jr.

As a champion of equal education opportunity, Senator Kennedy led the effort to overturn the Supreme Court’s Grove City case, which found that Title IX of the 1972 Higher Education Act only applied to a private college’s financial aid department, not the school as a whole. Senator Kennedy also passed amendments to extend the Fair Housing Act of 1968 to include individuals with disabilities and families with children. He also cosponsored the Americans with Disabilities Act of 1990. Among other civil rights bills that Kennedy sponsored were the Civil Rights Act of 1991, which strengthened existing protections and remedies available under federal civil rights laws, including remedies for intentional discrimination and harassment in the workplace; and the Employment Non Discrimination Act which prohibits employers from discriminating on the basis of sexual orientation.

Since the 1960s, Senator Kennedy was a leader in Congressional efforts to preserve federal affirmative action programs. In the 1980s, Kennedy joined other members of Congress in resisting Reagan Administration efforts to weaken Executive Order 11246, which requires equal opportunity and affirmative action for employees of federal contractors. In 1998, he helped defeat a legislative proposal to end federal affirmative action. In 2003, he joined Senate colleagues in filing a brief urging the Supreme Court to uphold affirmative action at the University of Michigan. In 2005, he strongly supported reauthorization of programs administered by the Department of Transportation and the Department of Defense to ensure equal opportunities for minority and women contractors.

Ms. Dunman added that “Senator Kennedy was the legislative champion of the civil rights community. Kennedy was also proactive, seeking to complete the “unfinished business” that was civil rights. We thank Senator Kennedy for his lifetime of service. He will be sorely missed in the months and years to come, when challenges to civil rights and affirmative action laws will undoubtedly intensify, both in the Congress and in the states.”

Founded in 1974, the American Association for Affirmative Action (AAAA) is a national not-for-profit association of professionals working in the areas of affirmative action, equal opportunity, and diversity. AAAA helps its members to be more successful and productive in their careers. It also promotes understanding and advocacy of affirmative action to enhance access and equality in employment, economic and educational opportunities.


888 16th Street, NW, Suite 800
Washington, D.C. 20006

Edward Kennedy, Senate Stalwart, Dies

The New York Times
Published: August 26, 2009

Senator Edward M. Kennedy of Massachusetts, a son of one of the most storied families in American politics, a man who knew triumph and tragedy in near-equal measure and who will be remembered as one of the most effective lawmakers in the history of the Senate, died late Tuesday night. He was 77.
The death of Mr. Kennedy, who had been battling brain cancer, was announced Wednesday morning in a statement by the Kennedy family, which was already mourning the death of the senator’s sister Eunice Kennedy Shriver two weeks earlier.
“Edward M. Kennedy — the husband, father, grandfather, brother and uncle we loved so deeply – died late Tuesday night at home in Hyannis Port,” the statement said. “We’ve lost the irreplaceable center of our family and joyous light in our lives, but the inspiration of his faith, optimism, and perseverance will live on in our hearts forever.”
President Obama issued a statement acknowledging Mr. Kennedy’s accomplishments. “An important chapter in our history has come to an end,” the statement said. “Our country has lost a great leader, who picked up the torch of his fallen brothers and became the greatest United States senator of our time.”
Mr. Kennedy had been in precarious health since he suffered a seizure in May 2008. His doctors determined the cause was a malignant glioma, a brain tumor that often carries a grim prognosis.
As he underwent cancer treatment, Mr. Kennedy was little seen in Washington, appearing most recently at the White House in April as Mr. Obama signed a national service bill that bears the Kennedy name. Last week Mr. Kennedy urged Massachusetts lawmakers to change state law and let Gov. Deval Patrick appoint a temporary replacement upon his death, to assure that the state’s representation in Congress would not be interrupted by a special election.
While Mr. Kennedy was physically absent from the capital in recent months, his presence was deeply felt as Congress weighed the most sweeping revisions to America’s health care system in decades, an effort Mr. Kennedy called “the cause of my life.”
On July 15, the Senate Health, Education, Labor and Pensions committee, which Mr. Kennedy headed, passed health care legislation, and the battle over the proposed overhaul is now consuming Capitol Hill.

Full Story:

Monday, August 24, 2009

BLS Issues Report on Women's Earnings 2008

In July the Bureau of Labor Statistics released its report on women's earnings. This report also covers the earnings of other demographic groups as well. Of significance in the report is that the median weekly earnings of women are eighty percent of the median weekly earnings of men. The women’s-to-men’s earnings ratio peaked at 81 percent in 2005 and 2006. To see the complete report, go to:

Among the Highlights:

  • Median weekly earnings were highest for women and men aged 45 to 64.
  • Between 1979 and 2008, the earnings gap between women and men narrowed for most age groups
  • Asian women and men earned more than their white, black,and Hispanic counterparts in 2008.
  • Earnings differences between women and men were widest for Asians and for whites.
  • Across the major race and Hispanic ethnicity categories,women’s inflation-adjusted earnings grew from 1979 to2008 while those for men were fl at or down.

REMINDER: OFCCP Workshop "Good Jobs for Everyone" September 9, 2009

This is a reminder that OFCCP will hold a workshop entitled "Good Jobs for Everyone"

Wednesday, September 9, 2009 – Alexandria, VA
Holiday Inn - Alexandria Historic District
625 First St. Alexandria, VA 22314 • 703.548.6300 •
New Federal Supply & Service Contractors –What You Need to Know
Construction Contractors – 16 Steps to Affirmative Action Compliance
Federal Contracting & Procurement Officers –EEO and the FAR
Veterans’ Employment and the G-FIVE Initiative
Ricci and ADAAA legal updates
Contractor and agency requirements under Executive Order 11246, as amended, Section 503 of the Rehabilitation Act of 1973, as amended, and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended
How to promote opportunities for veterans and disabled workers
How to promote nontraditional jobs for women and access for all workers
Compliance assistance and enforcement processes

For more information, go to:

On-the-Job (Legal) Training

Chronicle of Higher Education
August 21, 2009, 10:00 AM ET
By Gene C. Fant Jr.

Recently, I had the opportunity to attend a closed-door, small-group meeting of academic leaders with a lawyer who specializes in higher-education law. It was fascinating to hear the questions and the ensuing discussions. I'd never met with an attorney in a setting like that (the clock wasn't running on my personal dime!), and I learned a great deal about actions I need to take, especially in the hiring process, to head off misunderstandings and liabilities. ...

Comments on the story: In terms of costly mistakes, tenure denial lawsuits are generally more frequent and more expensive than cases over failure to hire. That's no excuse, however, for lousy hiring practices. "Folk law" is not good enough. More internal education is needed on legal obligations in this area and many others. Ann H. Franke, Esq., Washington, DC


Handbook for Hiring Tenure Track Teaching Faculty. University of Hawaii at Hilo
Thorough manual with, among other elements, useful advice on candidate screening. See interview evaluation form on page 32. Includes lots of templates and sample

Full article:

Friday, August 21, 2009

OFCCP News Release: Gerber Products Co. in Fort Smith, Ark., agrees to pay $900,000 to minorities and females for hiring discrimination

ESA News Release: [08/18/2009]Contact Name: Elizabeth M. Todd Phone Number: (972) 850-4710Release Number: 09-0969-DAL

Gerber Products Co. in Fort Smith, Ark., agrees to pay $900,000 to minorities and females for hiring discrimination

FORT SMITH, Ark. — The U.S. Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) announced Gerber Products Co. has agreed to settle findings of hiring discrimination against 1,912 rejected minority and female applicants for entry-level positions. The agreement settles the department's allegations that Gerber engaged in hiring discrimination against minority and female applicants for one year.
"This administration is committed to ensuring that all Americans are hired, promoted, and compensated fairly, without respect to their race, gender, ethnicity, disability, religion, or veterans' status," said Secretary of Labor Hilda L. Solis. "This settlement of $900,000 on behalf of more than 1,912 minorities and females should put all federal contractors on notice that the Labor Department is serious about eliminating systemic discrimination."
During a scheduled compliance evaluation of Gerber Products in Fort Smith, OFCCP investigators found the hiring disparity was in part caused by inconsistent selection procedures for entry-level positions. Additionally, OFCCP found that Gerber used pre-employment tests that negatively impacted minority applicants and determined that there was insufficient evidence of validity to support Gerber's use of the test. Gerber has discontinued its use of the test in the hiring process for entry-level positions. The company is headquartered in Florham Park, N.J.
Under the terms of the conciliation agreement, Gerber will not only pay 1,912 minority and female applicants $900,000 in back pay and interest, but will provide 61 entry-level positions, 11 of whom have already been hired. The company has also agreed to undertake extensive self-monitoring measures to ensure that all hiring practices fully comply with the law and immediately correct any discriminatory practice. In addition, Gerber will ensure compliance with Executive Order 11246 recordkeeping requirements.
The Office of Federal Contract Compliance Programs enforces Executive Order 11246 and other laws that prohibit employment discrimination by federal contractors. The agency monitors federal contractors to ensure that they provide equal employment opportunities without regard to race, gender, color, religion, national origin, disability or veterans' status.

Wednesday, August 19, 2009

Commentary: Slavery needs more than an apology


Story Highlights:
Katrina Browne: House and Senate have apologized for slavery
She says slavery benefited the North as well as the South
Slavery created enduring disparities in society and economy, she says
Browne: Empathy and effort can address the legacy of slavery
By Katrina Browne

Special to CNN
updated 1 hour, 8 minutes ago

Editor's note: Katrina Browne is the producer/director of "Traces of the Trade: A Story from the Deep North." The documentary has been nominated for an Emmy for research. For more information, see

(CNN) -- The Senate voted to apologize for slavery on June 18. The House apologized last summer. The first family -- descendants of Africans, of enslaved Africans and of slave-holders -- visited a slave fort in Ghana.
These were historic occasions, and they occasioned the kind of hue and cry that always accompany the subject of slavery and whether we still need to reckon with it.
I believe we do need more reckoning, and a little more love and a little more logic would help that process.
Logic first: There's this quasi-math problem in which things don't add up. Many African-Americans naturally feel as if there is unfinished business from the past, while many European-Americans (and others) don't think they should inherit burdens from a past not of their making. So there's this generational equation to be worked out, and it will take big hearts, eager hearts, to do so.
The calculation is a bit easier for me at first glance. I'm the seventh-generation descendant of the worst slave traders in American history. I found out from my grandmother when she was 88 and I was 28, a few years before she died.
Over three generations, from 1769 to 1820, the DeWolfs brought more Africans to the Americas than any other family. They conducted the trade from Rhode Island, the "largest" slave trading state, contrary to what most of us would expect.
It's natural for me to feel a particular burden. I wasn't the perpetrator, I didn't inherit money from the slave trade, but I gained so much through the accident of birth: material comfort, education, access, a sense of entitlement.
A look at the other branches of my family tree makes it more complicated. I have ancestors who were here during slavery but, as far as I know, didn't own slaves, and I'm also the descendant of Irish immigrants who came to work in factories in New Jersey in the late 1800s.
What I've learned is that this ancestry is not exempt either:
• Slavery was not just a Southern but also a Northern institution. Northerners, including the "middling" classes, owned slaves for over two centuries; they dominated the slave trade (which included ship-building, producing trade goods, regular folks buying shares in slave ships, etc.); they fueled industrialization with slave-picked cotton. From workers to the wealthy, everyone was part of the slave-based economy, even if just as consumers.
• Slavery benefited immigrant families, even after the Civil War. Millions of Europeans flocked to the "land of opportunity" for jobs in a booming economy built largely on unpaid labor. Immigrants struggled when they arrived but then found routes to prosperity closed to African-Americans for a century after slavery as a result of official and unofficial segregation.
Within two to three generations, my Irish ancestors were solidly middle-class, not because they worked harder than African-Americans but because they were white. They worked hard, and the system worked for them: home loans, home values that rose in white neighborhoods and not in black ones, college loans, access to better-paid jobs ... it all added up.
So I can't help but conclude that slavery was central to building this nation, paving the way for so many, at the expense of so many. It was a national institution, not a Southern fluke or a sin of the wealthy few.

Full Story:

Blow for affirmative action (South Africa)
Jan de Lange
2009-08-19 09:28

Johannesburg - The way in which affirmative action is applied in the civil service has been dealt a blow in the labour court.In a recent court settlement, four police officers who were denied promotion five years ago were vindicated on all the points of their complaint, with retroactive effect.The South African Police Service (SAPS) hastily and surprisingly offered a settlement, therefore preventing a legal argument from developing regarding critical aspects of affirmative action.The matter of the four officials was the most important test case regarding affirmative action in the civil service to date.The legal proceedings had been instituted by four forensic scientists and on Monday the case was settled by granting all the requests they asked for back in November 2004: immediate promotion, which was formerly refused due to the colour of their skin, as well as full compensation with retroactive effect, as if they had indeed been promoted at that time.Posts left vacantIn this case the SAPS had decided to leave key positions vacant rather than appointing white candidates.The white applicants were fully qualified - with formal training and years of experience - for these highly skilled posts.

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Oxford University admissions favour men, study finds Education Web
• White students also more likely to be offered place
• Admissions director rejects discrimination claims
Jessica Shepherd
The Guardian,
Wednesday 19 August 2009

Women are less likely than men to be offered a place at Oxford University even when they have better grades and are from similar backgrounds, a study has found.
Academics at Oxford, Manchester and London University's Institute of Education analysed details of 1,700 UK students who had applied to 11 Oxford colleges in 2002.
They asked students what kind of school they attended, their GCSE and predicted A-level results, the number of books they read in a year, and the jobs and qualifications of their parents.
The students were asked how often, in the past year, they had visited a museum, art gallery, classical music concert, theatre, opera or ballet, and whether they played a musical instrument. They were then asked to tick in which field figures such as Mahatma Gandhi, Lloyd George and Graham Greene were best known.
The academics found men were twice as likely as women to be offered a place in a science subject, and 1.4 times more likely than women to gain a place in an arts subject. This was despite the fact that the women had the same or better grades, had similar scores on the historical figures test, came from similar backgrounds to the men and claimed to have read more books.
Some 86.3% of the women had been predicted straight As at A-level, compared with 81.5% of the men. Despite this, 34% of the women were offered places, against 40% of the men.
The research, published in the latest edition of the journal Sociology, also found white applicants were five times more likely than students of south Asian heritage to be offered a place on science courses. Students from state schools were 1.7 times more likely than those from private schools to be offered a place on an arts course, even when they achieved the same or worse grades, were from similar backgrounds and had comparable scores in the historical figures test. There was no difference between state and private school pupils on science courses.

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Tuesday, August 18, 2009

Affirmative Action Role is to Unravel White Privilege, Writes Former Library of Congress Officer in New Book

Dr. Eugene Walton,
Press Release
August 18, 2009

The role of Affirmative Action is to unravel White Privilege, writes Dr. Eugene Walton, former Coordinator of Affirmative Action at the Library of Congress, in his new book: Recasting The Statue of Freedom. The author proposes a recasting that establishes each December as "Statue of Freedom Month" dedicated to frank communication across racial lines. He includes three essays for future Statue of Freedom Month discussions: "The Slaves Who Built the Capitol and White House," "The Statue of Freedom and Philip Reid," and "Affirmative Action vs. White Privilege". The book concludes with "A Memo to President Barack Obama," pleading for Presidential leadership for establishing the Statue of Freedom Month and encouraging g all Americans to participate. The book is available online from and
Silver Spring, MD (PRWEB) August 18, 2009 --

The role of Affirmative Action is to unravel historical and continuing White Privilege, writes Dr. Eugene Walton, Coordinator of Affirmative Action Programs at the Library of Congress (1973 to 1986), in his book Recasting the Statue of Freedom, available online from and (Search: "Recasting the Statue of Freedom")
The author ties the Statue of Freedom, the historical statue above the U.S. Capitol, to the issues of White Privilege and Affirmative Action because "the Statue of Freedom was dedicated in 1863 with no reference to THE issue of the time: the abolition of slavery." He writes that the statue must be SPIRITUALLY recast and rededicated to address the problems of white supremacy and black disadvantage that has persistently poisoned the American society for 146 years.
The author proposes making December, the month the statue was installed atop the U.S. Capitol, "Statue of Freedom Month," dedicated to the promotion of dialogue across racial lines on the continuing problems of race in America.
The book concludes with "A Memo to President Barack Obama," pleading for Presidential leadership in establishing The Statue of Freedom Month and encouraging all Americans to participate.
About the author:
Eugene Walton is graduate (Doctor of Public Administration) from the University of Southern California, and author of "The Biography of Philip Reid: Historical Fiction" He had a 32 year Federal career which included, in addition to working at the Library of Congress, also serving with the United States..Information Agency (Research Officer. West Africa).the Housing and Urban Development (Management Analyst), and the Department of the Navy (Management Research).

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Court Win for Affirmative Action

Inside Higher Ed
August 18, 2009

A federal judge on Monday rejected one of the first legal attempts to roll back the 2003 ruling by the U.S. Supreme Court upholding the consideration of race and ethnicity, in some circumstances, in admissions decisions by public colleges and universities.
The decision by Judge Sam Sparks strongly upheld the admissions policies at the University of Texas at Austin as consistent with the Supreme Court ruling -- and rejected the argument that Texas had failed to meet the tests set out by the Supreme Court. In so doing, Judge Sparks shut down (for now) one strategy of those who oppose affirmative action -- namely trying to say that colleges' policies go beyond what the Supreme Court permitted. But the legal group that brought the case vowed Monday night to appeal to the U.S. Court of Appeals for the Fifth Circuit and, if necessary, to the Supreme Court.
The arguments in the suit against Texas generally attempted to use the Grutter v. Bolllinger decision, which upheld the use of race at the University of Michigan law school, to limit affirmative action. The Texas lawsuit, filed on behalf of a white high school senior who was rejected by UT Austin, noted that Grutter was premised on a link between diversity goals and educational goals, and that the decision did not envision the consideration of race as open-ended. The suit argued that because Texas didn't define a specific percentage goal and continued to use affirmative action after having success at attracting many minority students, the university was going too far.
But Judge Sparks disagreed. "The court finds both the plaintiffs' arguments unpersuasive and finds UT has a compelling interest in student body diversity as articulated in Grutter. First and foremost, nothing in Grutter suggests a university must establish a specific percentage, or range of percentages, the achievement of which would satisfy critical mass," Sparks wrote. He goes on to say that if UT did establish a specific percentage, it might be creating a quota of the sort barred by Grutter.

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Monday, August 17, 2009

Sotomayor and the Fundamentals of Diversity and Affirmative Action

The Huffington Post
Posted: July 20, 2009 12:26 PM
Jim Wallis

The confirmation hearing for Judge Sonia Sotomayor this week again brings up the fundamental issues of diversity and affirmative action. Regardless of what we think of the good judge -- I like her, and was honored to be at the White House for the announcement of the first Latina for the Supreme Court by the first African-American president, something that I actually did find very moving -- it is worth reflecting theologically and politically on the issues involved.The story of creation in Genesis provides a great depth of insight into the being and nature of God. In those first chapters of scripture we see that the image of God is best reflected not through sameness, but through the breadth that exists within the grand diversity of creation. Jonathan Sacks, Chief Rabbi of the U.K., argues in his book, The Dignity of Difference, that the Tower of Babel stands as a warning against the hubris of humans who try to impose uniformity where God has created diversity. The doctrine of the Trinity holds that God, while perfect in unity, is at the same time diverse as Father, Son, and Holy Spirit.Our country is always at its best when diversity is not viewed as a problem to be overcome but as a strength to be celebrated. The challenge diversity presents is not for the country to become colorblind but for us all to be able to recognize and celebrate our differences while maintaining the proposition our country was founded upon, that all are created equal. While all are equal, we are not all the same -- and that is a very good thing.This principle was affirmed in the 1978 case of Regents of the University of California vs. Bakke, when the Supreme Court struck down as unconstitutional a strict quota system for admissions into medical school. But it was in the opinion of Justice Lewis Powell that another precedent was established. Justice Powell affirmed the role of well-designed affirmative action policies because of the benefits for society as a whole. Jeffery Toobin describes and quotes from the opinion as follows in his book The Nine:
... Powell justified affirmative action because of what it did for everyone, not just for its immediate beneficiaries. In his view, diversity -- a buzzword that came into wide use only after Bakke -- helped all students of all races. "The nation's future depends upon leaders trained through wide exposure to the ideas and mores of students as diverse as this Nation of many peoples," Powell wrote, so "race or ethnic background may be deemed a 'plus' in a particular applicant's file." ... In the subsequent 25 years, Powell's rationale had become the dominant intellectual justification for affirmative action -- not as a handout to the downtrodden but as a net benefit to the society as a whole.
In the 2003 cases against the University of Michigan (Gratz vs. Bollinger) and the university's law school (Grutter vs. Bollinger), the principle of taking race into consideration as one factor of admission to achieve the goal of diversity was again affirmed. In those cases, the law school's affirmative action policy was considered to be set up in a way that promoted this principle while it was determined that the undergraduate system was not. Of special concern in the case was a brief signed by top retired military officers who argued that affirmative action programs in place for officer training was vital to the quality, effectiveness, and cohesiveness of our armed forces.One of the great benefits of diversity is that whether in regards to life in general or the particulars of a court case, our background, life stories, and identities all afford us different perspectives and unique insights. A diverse class, officer training program, community or Supreme Court is going to have a broader and deeper wealth of knowledge and experience to interpret the world around them or a plaintiff's grievance. This is the value of empathy that the president laid out as one of his requirements for a judge. Empathy allows us to rightly consider our emotions in the process of making a decision and to view the facts within more than just one framework.

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NAACP Legal Defense Fund Applauds Decision Upholding University of Texas Admissions Plan

NAACP Legal Defense Fund
August 17, 2009
News Release (Email)

(New York, NY)- Today, a federal district court upheld the University of Texas at Austin's (UT) consideration of race in student admissions. Fisher v. Texas is the first federal court challenge to the use of race in university admissions since the 2003 Grutter v. Bollinger decision, where the United States Supreme Court declared that universities can take account of race in pursuing the compelling interest in a diverse student population. LDF and Fulbright & Jaworski, LLC filed a friend-of-the-court brief in support of UT's admissions plan, on behalf of UT's Black Student Alliance and several African-American students who are enrolled or who would like to enroll at UT in the future. The court concluded that, consistent with Grutter,UT's plan seeks to "'break down racial stereotypes,' enable students to better understand persons of different races, better prepare students to function in a multi-cultural workforce, cultivate the next set of national leaders, and prevent minority students from serving as 'spokespersons' for their race." The court rejected plaintiffs' claims that Texas's law guaranteeing admission to the top ten percent of high school graduates generated a sufficiently diverse student body at UT.

"LDF has fought tirelessly to ensure the pathways to success and leadership are open and accessible to all students. Today's decision will allow the University of Texas at Austin to continue its essential and well-documented efforts to provide a truly diverse educational environment for its students." said John Payton, LDF President and Director-Counsel. LDF's brief detailed the need for greater African-American enrollment to achieve the educational benefits of diversity. It also addressed the severe racial isolation experienced by African-American students at UT. As the court recognized, in 2002, 90% of UT classes with between five and 24 students had only one or no African-American students. Today's decision in Fisher v. Texas, issued by Judge Sam Sparks of the United States District Court for the Western District of Texas, can be located online at

The NAACP Legal Defense and Educational Fund (LDF) is America's legal counsel on issues of race. Through advocacy and litigation, LDF focuses on issues of education, voter protection, economic justice and criminal justice. We encourage students to embark on careers in the public interest through scholarships and internship programs. LDF pursues racial justice to move our nation toward a society that fulfills the promise of equality for all.


U.S. Equal Employment Opportunity Commission

EEOC issued information on waivers of discrimination claims. This is particularly relevant during this time of economic downturn and layoffs. Such terminations often lead to litigation under a number of the civil rights laws including the Age Discrimination in Employment Act. The following is a copy of the introduction. To view the entire guidance, go to:

Employee reductions and terminations have been an unfortunate result of the current economic downturn. Even in good economic times, however, businesses of every size carefully assess their operational structures and may sometimes decide to reduce their workforce. Often, employers terminate older employees who are eligible for retirement, or nearly so, because they generally have been with the company the longest and are paid the highest salaries. Other employers evaluate individual employees on criteria such as performance or experience, or decide to lay off all employees in a particular position, division, or department.[1] An employer’s decision to terminate or lay off certain employees, while retaining others, may lead discharged workers to believe that they were discriminated against based on their age, race, sex, national origin, religion, or disability.
To minimize the risk of potential litigation, many employers offer departing employees money or benefits in exchange for a release (or “waiver”) of liability for all claims connected with the employment relationship, including discrimination claims under the civil rights laws enforced by the Equal Employment Opportunity Commission (EEOC) -- the Age Discrimination in Employment Act (ADEA), Title VII, the Americans with Disabilities Act (ADA), and the Equal Pay Act (EPA).[2] While it is common for senior-level executives to negotiate severance provisions when initially hired, other employees typically are offered severance agreements and asked to sign a waiver at the time of termination. When presented with a severance agreement, many employees wonder: Is this legal? Should I sign it?
This document answers questions that you may have if you are offered a severance agreement in exchange for a waiver of your actual or potential discrimination claims. Part II provides basic information about severance agreements; Part III explains when a waiver is valid; and Part IV specifically addresses waivers of age discrimination claims that must comply with provisions of the Older Workers Benefit Protection Act (OWBPA). Finally, this document includes a checklist with tips on what you should do before signing a waiver in a severance agreement and a sample of an agreement offered to a group of employees giving them the opportunity to resign in exchange for severance benefits.

Saturday, August 15, 2009

Statement by U.S. Secretary of Labor Hilda L. Solis on the confirmation of Judge Sonia Sotomayor

OPA News Release: [08/12/2009]
Contact Name: Sonia Melendez Phone Number: (202) 693-6075
Release Number: 09-0974-NAT
Statement by U.S. Secretary of Labor Hilda L. Solis on the confirmation of Judge Sonia Sotomayor

WASHINGTON — U.S. Secretary of Labor Hilda L. Solis today issued the following statement on the confirmation of Judge Sonia Sotomayor to the Supreme Court of the United States:
"Now that Justice Sonia Sotomayor has been confirmed, I want to congratulate her for this achievement and for her grace under fire as she had her judicial record closely scrutinized over the past 10 weeks. She handled herself with poise, but with her keen intellect and impeccable record, she won over the hearts and minds of members of Congress.
"Judge Sotomayor's story serves as an inspiration to us all. She is the daughter of working-class Puerto Rican parents who grew up in public housing in the Bronx. Driven by her mother's belief in the power of education and her unrelenting work ethic, she excelled in school and won a scholarship to Princeton University and later attended Yale Law. Today she is one of the most qualified and experienced Justices sitting on the Supreme Court. Her story demonstrates that anything is possible in this country and that the American Dream is alive and well.
"I also want to applaud President Obama for choosing Judge Sotomayor. His choice demonstrates his commitment to bring greater diversity of thought, perspective and experience to the nation's legal system. It's a pleasure and an honor to serve for him."

Friday, August 14, 2009

Margaret Bush Wilson, former Chair of the NAACP, Dies at 90

The Defenders Online
NAACP Legal Defense Fund
Posted By The Editors On August 13, 2009

Margaret Bush Wilson, the former Chair of the Board of the National Association for the Advancement of Colored People, died August 11 in St. Louis. Missouri. She was 90 years old.
[1]Mrs. Bush Wilson led the NAACP Board from 1975 to 1984. Julian Bond, the organization’s current Chairman, said in a statement that “The NAACP has lost a champion and the world has lost a pioneer.” Benjamin Todd Jealous, NAACP president and chief executive officer, described her as “the consummate NAACP leader (whose) steadfast commitment to the Association was unparalleled.”
In many ways, Margaret Bush Wilson, who was born and lived all her life in St. Louis, embodied the indomitable will and determination that characterized the black freedom struggle of the twentieth century.
She was born in 1919 to parents who were both deeply involved in local civil rights activism. Her mother, Margaret Berenicy Casey Bush, was a leader of the St. Louis NAACP. Her father, James T. Bush, a real estate agent, financially supported many civil rights causes throughout his life. He was also instrumental in organizing the St. Louis law suit that became part of the landmark Shelley v Kraemer Supreme Court case. That 1947 decision declared the use of restrictive covenants to bar blacks from buying homes in previously all-white neighborhoods unconstitutional.

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Thursday, August 13, 2009

Minority contract dispute, over H R Block's headquarters construction, is settled

The Kansas City Star
Posted on Wed Aug. 12, 2009 11:10 PM

A long-simmering affirmative action dispute over the construction of H&R Block’s downtown headquarters was settled Wednesday by a city development agency.
The Kansas City Tax Increment Financing Commission unanimously agreed to accept an offer by J.E. Dunn Construction Co. to spend an additional $1.1 million for minority contracting work at its own soon-to-be completed headquarters at 11th and Locust streets.
J.E. Dunn had been accused by the City Human Relations Department of inflating its minority-participation numbers during the construction of the H&R Block project, which opened in 2006.
It was up to the TIF Commission to determine whether a “good faith” effort had been made to achieve affirmative action goals.
Chairman Ron Yaffe said accepting the offer by J.E. Dunn to increase minority contracts for its own headquarters project was the “right thing to do” to resolve the dispute.

The Kansas City Star

An Overdue Gesture: Birmingham Protesters Pardoned

The ColorLines Blog
Posted at 4:59 PM, Aug 12, 2009

It’s about time. The Mayor of Birmingham, Alabama seeks to put a small stitch in wounds left over from the Civil Rights Movement, by issuing a blanket pardon to activists arrested during demonstrations, sit-ins and marches of the era.
In addition to erasing vestigial arrest records, Mayor Larry Langford has also called for refunding the fines imposed on protesters. People can voluntarily apply to get compensation for the fines, which ranged from $10 to $30, according to the Birmingham News. Overall, the pardons and apologies could impact thousands of protesters.
Framing the pardon as a symbolic but important milestone (an earlier state law allows for the expungement of arrest records for nonviolent civil rights protests), Langford said:
Once again the world is watching Birmingham. Only this time they are watching us do the right thing and correct the ills of the past.
In the wake of a shameful historical legacy, the process of reconciliation is a complex dance of looking back and lurching forward.

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Obama names four new federal judges for California

The Los Angeles Times
Three of his four appointees to the Central and Northern U.S. District Courts in California are Asian Americans.
By Carol J. Williams
August 9, 2009

Fresh from his appointment of the first Latino to the U.S. Supreme Court, President Obama has named four new federal judges for California, three of them Asian Americans, who have long been underrepresented on the federal bench.Two of the appointments are to the U.S. District Court for the Central District of California in Los Angeles, and two are to the Northern District of California in San Francisco. They will be brought before the Senate for confirmation after its summer recess.On Friday, a day after Supreme Court nominee Sonia Sotomayor was confirmed by the Senate, the president named U.S. Magistrate Judges Edward M. Chen and Richard G. Seeborg to the Northern District bench. Both have served there as magistrate judges since 2001.He also named Dolly Gee, managing partner of the Los Angeles law firm Schwartz, Steinsapir, Dohrmann & Sommers LLP, to the Central District bench. A week earlier, he named Los Angeles County Superior Court Judge Jacquelyn H. Nguyen to the District Court in Los Angeles."So far, his nominations have been quite diverse in terms of race and gender," Carl Tobias, a law professor at the University of Richmond, said of Obama's choices to date for 16 of the 101 federal judgeships that were vacant nationwide when he took office.Even after the four appointments to California districts, five seats remain vacant in the state -- two each in the Central and Northern districts and one in the Eastern District, which includes most of the state's prisons.Obama's nominations for California are also striking in their establishing of a "career judiciary," Tobias said, noting the president's preference for elevating sitting judges, from the magistrate courts to the district courts, and from the district courts to the circuit courts of appeal.Only Gee, 50, a labor and employment litigator and past president of the Southern California Chinese Lawyers Assn., lacks prior experience as a judge, although she was a clerk for an Eastern District judge after graduating from UCLA law school in 1984.

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Unprecedented Number of Female Faculty Hired

University of Texas at Austin
News Release
August 12, 2009

AUSTIN, Texas — About half of the 49 professors who will be joining the College of Liberal Arts faculty in 2009-2010 are female. That includes an unprecedented five women coming in as full professors from such schools as Harvard University, the University of California at Berkeley and the University of Southern California.
The hires come less than a year after an internal University of Texas at Austin report identified potential strategies for eliminating gender inequity on the faculty. They represent one of the university's biggest successes to date in closing the gender gap.
The new professors' arrival also highlights the College of Liberal Arts' ability to attract top scholars who are already tenured at nationally ranked schools.
"The professors joining the Liberal Arts faculty are among the most accomplished and respected scholars in their fields," said Randy L. Diehl, dean of the College of Liberal Arts. "They will conduct cutting-edge research in such disciplines as linguistics, history, anthropology, psychology and Middle Eastern studies and will work directly with graduate students and undergraduates."
Among the incoming faculty members are Jo Ann Hackett, former director of graduate studies in the Department of Near Eastern Languages and Civilizations at Harvard, and her husband John Huehnergard, a former chair of that department.
"Everybody knows about the University of Texas and the quality of the languages and linguistics programs and we've always known this was a marvelous place," said Hackett, a Semitic language and Hebrew Bible scholar who will teach in the Department of Middle Eastern Studies. "We were in Austin for two days visiting and we left and we said, 'we've got to do this."

Full News Release:

Monday, August 10, 2009

Senate Committee Apologizes to All Native Americans for Violence and Maltreatment by U.S. Citizens
Monday, August 10, 2009
By Penny Starr, Senior Staff Writer – The Senate Committee on Indian Affairs passed a resolution by voice vote last week apologizing "on behalf of American people" to all Indian tribes for the mistreatment and violence by American citizens. Senate Joint Resolution 14, sponsored by Sen. Sam Brownback (R-Kan.), states that its purpose is “to acknowledge a long history of official depredations and ill-conceived policies by the Federal Government regarding Indian Tribes and offer an apology to all Native Peoples on behalf of the United States.” In Section 1A, No. 4 of the resolution states that the apology is on behalf of U.S. citizens for harm they have done to “Native Peoples.” In the resolution, native peoples are defined as people who “inhabited the land of the present-day United States since time immemorial and for thousands of years before the arrival of people of European descent.” “Apologizes on behalf of the people of the United States to all Native Peoples for the many instances of violence, maltreatment, and neglect inflicted on Native Peoples by citizens of the United States,” the resolution reads.

Department of Labor Issues Proposed Rules on Contractor Labor Rights Notices

On August 3, 2009, the U.S. Department of Labor issued a Notice of Proposed Rulemaking to implement President Obama's Executive Order 13496. This Executive order requires nonexempt Federal departments and agencies to include within their Government contracts specific provisions requiring that contractors and subcontractors with whom they do business post notices informing their employees of their rights as employees under Federal labor laws. As required by the Executive Order, this proposed rule establishes the content of the notice required by the Executive Order's contract clause, and implements other provisions of the Executive Order, including provisions regarding sanctions, penalties, and remedies that may be imposed if the contractor or subcontractor fails to comply with its obligations under the Order and the implementing regulations.

The Office of Federal Contract Compliance Programs (OFCCP) will be responsible for establishing compliance with the executive order, including conducting compliance evaluations exclusively concerning this Executive Order or in combination with other compliance evaluations. Complaints of non compliance would be filed with OFCCP and the Office of Labor Management Programs (OLMP). OLMP will be responsible for securing the administrative enforcement in the event of noncompliance. Sanctions for non compliance are comparable to those for noncompliance with Executive Order 11246: an order for cancellation, termination, or suspension of any contract or debarment of any contractor from further Government contracts. Prior to such actions, the contractor would have an opportunity for a hearing. The deadline for submitting comments to the Department of Labor on the proposed rule is September 2, 2009.

See the Notice of Proposed Rulemaking at: (PDF)

or (HTML)

What Affirmative Action Babies Can Give Back

Huffington Post
Natalie Holder-Winfield
August 9, 2009

Earlier this week I realized how easy it is to throw out an affirmative action baby with the bathwater. I took a day off from my diversity consulting practice to participate in a mock interview session for an organization that provides mentoring and other support for attorneys of color. I sat across from a tense, African-American woman in a poly-blend suit who did not crack a smile. Her posture betrayed her lack of confidence and she bombed my canned interview questions. In a brief moment of smugness, I wondered if I was ever that choppy in an interview. I'm sure that Senator David Vitter would resoundingly say yes.
When I was a law student, David Vitter, in his pre-Senate days, was my mock interviewer when I participated in a leadership program for minority law students. Aside from his office (and bedroom) politics, I thought he was a great person for sharing a few hours of his Saturday to polish up my interviewing skills. Even though my style at the time was as coarse, if not more so than the young woman I mock interviewed, David did not write me off. Whether his community service was driven by ambition to get votes or was genuine, it really doesn't matter because in the end the result is the same--he was there for me.
When I learned that there was a shortage of mock interviewers last week, I was reminded that too often, those of us who have benefited from affirmative action forget how and when to give back. You have those who forget that anyone ever helped them and as a result, do not help others. Then you have those who will help out but will only invest their time in those they deem the talented tenth. Others will only write a check to support a charity fundraiser. (I think they are too afraid to have any human contact with the people who are standing in the shoes we have since discarded.)
I can already hear the ripostes from both sides of the affirmative action divide. "I'm no affirmative action baby, I worked hard to get where I am," or "Why should I have to do anything for anyone else?"
I would challenge most people (even white people), to show me that they have not benefited from some form of affirmative action.

Full op-ed:

Department of Labor Eliminates Employment Standards Administration

In a memorandum to Employment Standards Administration (ESA) employees dated July 8, 2009, Acting Assistant Secretary Shelby Hallmark advised that the Department of Labor will abolish ESA effective November 8, 2009. The component parts of the ESA, the Office of Labor Management Standards, the office of Workers' Compensation Programs, the Wage and Hour Administration and the Office of Federal Contract Compliance Programs (OFCCP) will be stand-alone programs reporting directly to the Office of the Secretary of Labor. The memorandum suggests that the reorganization will enhance efficiency and cost savings and improve policy decision making.

Reporting directly to the Secretary of Labor's office, the agencies will immediately enjoy increased visibility and will gain the Secretary's enhanced attention -- and control. It may also suggest that the worker protection agencies, including OFCCP, are a higher priority for this Administration. Whether the reorganization will enhance efficiency and cost savings remains to be seen. It is also unclear if the heads of the agencies will attain Assistant Secretary status or will, like the Women's Bureau, be given the title "Director". During the Clinton Administration, the OFCCP head's title was changed from Director to "Deputy Assistant Secretary."

OFCCP Hosts National Forum "Good Jobs for Everyone"

The U.S. Department of Labor's Office of Federal Contract Compliance Programs will host a national forum entitled "Good Jobs for Everyone" on September 9, 2009, in Washington, D.C. The focus is the American Recovery and Reinvestment Act. The agency will have representatives discuss the legal requirements of federal contractors and will host workshops on opportunities for veterans, ways to promote nontraditional jobs for women, and promoting access for all workers.

For more information, go to: (information brochure),, the OFCCP webpage, or call: the toll-free information helpline, available 8 a.m. to 5 p.m.Eastern Time, 1-800-397-6251.

Gender, Majors and Money

Inside Higher Education
August 10, 2009

SAN FRANCISCO -- These are great days for female undergraduates, who with their greater numbers are excelling in higher education, leaving their male counterparts in the dust. That's the increasingly common view, at least, leading to calls in some quarters to focus more on male students.
But what if the enrollment totals are obscuring a major equity issue that may not favor women at all? That was the idea behind research presented here Sunday at the annual meeting of the American Sociological Association. The research links women's and men's college majors with earning gaps by gender, after graduation. And even as the earning gaps nationally have declined, the study says, the share of the gap attributable to college major has grown.
The author of the paper, Donna Bobbitt-Zeher, a sociologist at Ohio State University, used the National Longitudinal Study of the High School Class of 1972 and the National Education Longitudinal Study of 1988, combining data sets to compare men and women who graduated from high school in 1972 and 1992, and to compare their salaries seven years after high school graduation. (Only those employed full time, following a college degree, were compared.)
The good news for women is that during the time period studied, their average salary increased from 78 cents for every male dollar earned to 83 cents. But when Bobbitt-Zeher controlled for various factors, she found that the share of that gap attributable to selection of major had increased. She controlled for a variety of factors that may result in some people, on average, earning more than others: industries that employ them, socioeconomic status, SAT scores, the competitiveness of the colleges students attended, and whether students subsequently earned a graduate degree.
When controlling for all available factors, Bobbitt-Zeher found that the choice of major explained 19 percent of the income gap between college-educated men and women for the high school class of 1999, nearly twice as much of an impact as could be documented for the class that graduated 20 years earlier.

Full Story:

Friday, August 7, 2009

Sotomayor's background will shape her service
David G. Savage, Los Angeles Times
Friday, August 7, 2009

Justice Sonia Sotomayor will bring something new to the U.S. Supreme Court, far beyond her being its first Latina member.
Her background and experiences undoubtedly will affect her thinking and influence her decisions, but they probably will do so in ways that were hardly mentioned during her confirmation hearings.
Sotomayor - who was confirmed Thursday on a largely partisan 68-31 vote by the Senate - will be the only justice whose first language was not English. She spoke Spanish at home as a child, and she will join a court that enforces a federal law that calls for equal opportunity in schools for children who do not speak English.
She has been diabetic since childhood, a medical condition that is classified as a disability under the federal law that forbids discrimination against persons with physical or mental impairments.
Disability-rights advocates recently have suffered some big defeats in the court, and they have high hopes for her.
"We're very excited. We don't feel we have had a champion on the current court," said Andrew Imparato, president of the American Association of People with Disabilities.
Affirmative action
She was raised in a city housing project where drugs and crime were more common than Ivy League scholarly success. Sotomayor refers to herself proudly as an "affirmative action baby," having been admitted to Princeton University with less-than-stellar SAT scores, but who nonetheless graduated with highest honors.
She will "change the conversation on affirmative action" within the court, says University of Maryland law Professor Sherrilyn Ifill. The only other minority on the court, Justice Clarence Thomas, is a staunch foe, maintaining that affirmative action policies taint the accomplishments of all minorities.
"Her story of how hard she worked to graduate first in her class from Princeton makes her really the poster child for the benefits of affirmative action," Ifill said.
Sotomayor is also a divorced woman with no children but a close relationship with an extended family.
"She is a modern woman with a nontraditional family," said Sylvia Lazos, a law professor at the University of Nevada at Las Vegas. "She is much more reflective of contemporary American society than the other justices, like Alito and Roberts."
She was referring to Chief Justice John Roberts and Justice Samuel Alito, both of whom are married and have two children. The court soon is expected to face a series of cases involving the legal rights of other nontraditional families with gay and lesbian couples.
Even her personal finances look more like contemporary America. According to friends, Sotomayor has struggled to pay her mortgage and her credit card bills, and her financial disclosures show she has no substantial savings or stock portfolio.

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American Association for Affirmative Action Applauds Justice Sonia Sotomayor, First Latina and Third Woman to Serve on the Supreme Court

AAAA News Release
August 7, 2009

Association commends the President and the Senate for acting “affirmatively” to promote equal opportunity in the selection of the 111th Justice of the Supreme Court

Washington, D.C. – The American Association for Affirmative Action (AAAA), an association of equal employment opportunity (EEO), diversity and affirmative action professionals founded in 1974, hailed the Senate confirmation of Judge Sonia Sotomayor to serve as an Associate Justice of the U.S. Supreme Court.

AAAA’s President, ReNeĆ© S. Dunman, stated that, “The President and the Senate have selected a person who is eminently qualified to serve and who comes from a group that has been historically underrepresented on the Supreme Court of the United States.” Dunman added, “Judge Sotomayor has cracked one of the most persistent glass ceilings in the legal profession.”

Judge Sotomayor is widely admired as a judge with a sophisticated grasp of legal doctrine and a keen awareness of the law’s impact on everyday life. She understands that upholding the rule of law means going beyond legal theory to ensure consistent, fair, common-sense application of the law to real-world facts.

AAAA commends the Senate for confirming the nomination of Judge Sotomayor civilly, respectfully and by a wide margin. “We know that Justice Sotomayor will execute her Constitutional responsibility fully and fairly in the years to come.” Ms. Dunman added: “We look forward to seeing a Court that is more diverse and represents all Americans on the First Monday in October.”

Founded in 1974, the American Association for Affirmative Action (AAAA) is a national not-for-profit association of professionals working in the areas of affirmative action, equal opportunity, and diversity. AAAA helps its members to become more successful and productive in their careers. It also promotes understanding and advocacy of affirmative action to enhance access and equality in employment, economic and educational opportunities.

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Sotomayor Confirmed by Senate, 68-31

The New York Times
August 7, 2009

WASHINGTON — The Senate on Thursday confirmed Judge Sonia Sotomayor as the nation’s first Hispanic Supreme Court justice, concluding a 10-week battle with a resounding victory for the White House.
The largely party-line vote, 68 to 31, brought Judge Sotomayor, 55, to the threshold of one of the United States’ most prestigious institutions, completing an extraordinary narrative arc that began in a Bronx housing project where the Puerto Rican girl was raised by her widowed mother.
In brief remarks at the White House, President Obama hailed her confirmation as “breaking yet another barrier and moving us yet another step closer to a more perfect union.”
“With this historic vote,” he said, “the Senate has affirmed that Judge Sotomayor has the intellect, the temperament, the history, the integrity and the independence of mind to ably serve on our nation’s highest court.”
A White House spokesman said the judge watched the vote on television in her chambers in New York City, and she released no statement. But when Judge Sotomayor returned to her West Village home Thursday night, she beamed and waved at neighbors who lined the sidewalks to clap and shout encouragement.
Chief Justice John G. Roberts Jr. is expected to swear the new justice in at a private ceremony at the Supreme Court on Saturday morning, a court spokeswoman said.
Leaders of conservative groups had tried to delay the confirmation vote, but Democrats pushed it through to ensure that Judge Sotomayor would be installed by September, when the court takes up a campaign-finance case left over from its last term. She is not expected to alter the balance of the court on most issues, as her views appear to be similar to those of David H. Souter, the retired justice she is succeeding.

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Wednesday, August 5, 2009


by Tim Wise
July 27, 2009, 12:32 pm

If you wish to gaze upon the depth and breadth of America's racial divide--particularly the canyon-like gulf between white folks and black folks--you need look no further than the recent incident involving Harvard Professor Henry Louis Gates Jr., Cambridge police officer James Crowley, and now, President Obama who weighed in on the matter a few nights ago, when asked for his reaction to Gates's arrest on charges (since dismissed) of disorderly conduct. In this case, as with so many other news stories that have touched on race--the O.J. Simpson trial and the aftermath of Hurricane Katrina as just two of the more obvious examples--whites and blacks, generally speaking, and with obvious exceptions on both sides, see the story and the racial component of the story in fundamentally different (often diametrically opposed) ways.
To hear most white folks tell it, Gates was to blame. Yes, he was only trying to enter his own home when a white woman saw him (as well as his driver), assumed they were burglars and then convinced another woman to call the cops on her behalf. And yes, he produced identification for the officer when asked, indicating that he was indeed the resident of the house to which the officer had come to investigate the initial call. But because he became belligerent to Sgt. Crowley, and because he unfairly called Crowley a racist, he is guilty of escalating the situation, and thus, is the bad guy in the scenario. Meanwhile Crowley, according to the dominant white narrative, spread by media far and wide, is a wonderful and thoughtful cop, who is hardly a racist--after all he teaches a diversity training class and once gave mouth-to-mouth-resuscitation to a dying black athlete--and who was inappropriately smeared: first by Gates who accused the officer of asking him for proof of residency only because he was black, and then by Obama, who said the police had acted "stupidly" in arresting the esteemed professor in his own home.
Such a perception on the part of whites makes sense, given the white racial frame, as sociologist Joe Feagin calls it, through which most whites view these matters. That frame says, among other things, that as long as you are respectful to police, nothing bad will happen to you (thus, if something bad does happen to you it was likely your own fault), and secondly, that there can be no racism involved in an incident unless the person being accused of such a thing clearly acted with bigoted and prejudicial intent. In this case, since Gates mouthed off and Crowley is, from all accounts, hardly a bigot, the case is closed so far as the dominant white narrative is concerned.
But to most black folks, their frame or lens is entirely different, and not because they are irrational or hypersensitive (which is what many whites assume, sadly) but because their experiences with law enforcement are, frankly, different than those typically enjoyed by whites. Far too many African Americans, and many other persons of color, have experienced mistreatment at the hands of police, no matter their behavior (1). For instance, they are, according to all available evidence, more likely to be stopped and searched for drugs, even though, when stopped, they are less likely to have drugs on them than whites (2). In other words, even when they have done nothing wrong, the suspicion that they are up to no good causes cops to disproportionately suspect them of wrongdoing and then treat them as criminals until proven otherwise. In addition, there have been numerous examples in recent years of black and brown folks--mostly men but some women as well--who have been killed by police, even though they posed no threat to the officers, and were unarmed. Although these tragedies have happened to white folks too, such occurrences are far less common.

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