Sunday, February 28, 2010

Group mobilizes to fight ban on affirmative action

The Salt Lake Tribune
By Sean P. Means
The Salt Lake Tribune

Updated: 02/27/2010 05:16:21 PM MST

A coalition of Utah community groups is mobilizing to stop a proposed amendment to Utah's constitution that would bar any affirmative-action policy in schools, workplaces or government services.
HJR24 passed out of a Utah House committee Feb. 11, one day after it was introduced, and awaits action by the full House. If passed by a two-thirds majority in both houses and signed by Gov. Gary Herbert, it could appear on the ballot as soon as November.
Speakers at an educational forum organized Saturday at Salt Lake City's Horizonte Instructional Center told an audience of about 60 that they must spread the word that affirmative action is not "reverse racism" -- as labeled by those backing HJR24 -- but a tool to foster equality that benefits everyone.
"The people at the greatest risk from not having diversity are white people," said William Smith, associate professor of educational policy at the University of Utah, who is black. "You're at risk of being culturally and civilly retarded. ... If you put all of your savings in one area, you're bankrupt. I'm talking culturally bankrupt."
Rep. Curtis Oda, R-Clearfield, the sponsor of HJR24, calls affirmative action a failure.
"You're promoting discrimination to stop discrimination," Oda said in a phone interview Saturday. "You're telling these people, 'You're not good enough to do it on your own. Let's just hand it to you.'"

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Tenure decisions can’t remedy racial imbalance

The Boston Globe
By Robert Zelnick
February 28, 2010

NOT TOO MANY years ago the dean of an Ivy League college described a no-holds barred battle at his institution over tenure for an African-American candidate.
“He tried once before and didn’t come close,’’ my friend said. “This time he’s screaming discrimination, racism, God knows what else.’’
“Will he make it?’’ I asked.
“I doubt it. We’re talking tenure, not undergraduate admissions. There’s a world of difference.’’
There certainly is and anyone offering an assessment of the so-called “under-representation’’ of tenure track minorities at leading institutions of higher learning should understand that, while most professors are committed to student diversity and support the affirmative action admissions practices needed to achieve it, many will fight against making race a “plus factor’’ in tenure situations. Here the “publish or perish’’ mandate is as essential as it is race neutral.
The reasoning is simple: An undergraduate is gone in four or five years and few, no matter how talented academically, leave a body of work behind capable of influencing the school’s standing or reputation. But a professor granted tenure at, say, age 30, will remain on the faculty for perhaps the next 35 years. His or her scholarly research and writing will influence the reputation of the department over a period of many years, attracting or repelling other young scholars wishing to enter the same academic field.

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Raynard S. Kington, M.D., M.B.A., Ph.D., National Institutes of Health Deputy Director, to Lead Grinnell College as Its 13th President

PRNewsWire News Releases
Published: 02/17/10 01:15 PM EST

GRINNELL, Iowa, Feb. 17 /PRNewswire/ -- Grinnell College's Board of Trustees today announced that Raynard S. Kington, M.D., M.B.A., Ph.D., the deputy director of the National Institutes of Health (NIH) and a leading scientific researcher on the role of social factors as determinants of health, will become Grinnell College's 13th president on August 1, 2010.
(Photo: )
Dr. Kington was unanimously elected by the trustees after an extensive nationwide search by a 14-member Presidential Search Committee, including representatives from the trustees, faculty, administration, student body and alumni. The committee considered a diverse pool of more than 200 candidates with remarkable talents and accomplishments from large and small public and private institutions as well as multiple academic disciplines. The trustees noted Dr. Kington's exceptional record of achievement at NIH and at the RAND Corporation, including his leadership, policy direction and coordination of NIH biomedical research and research training programs at NIH's 27 institutes and centers, and his community-based leadership and research in Los Angeles, Calif.
The trustees further noted Dr. Kington's unique professional experience at the intersection of higher education, management, public policy, science and medicine. He was elected to the prestigious Institute of Medicine of the National Academy of Sciences in 2006, where he currently serves as the chair of the Section on Administration of Health Services, Education and Research. His broad based responsibilities have included serving as associate director of NIH for Behavioral and Social Sciences Research and acting director of the National Institute on Alcohol Abuse and Alcoholism. Prior to NIH, he was a division director at the Centers for Disease Control and Prevention, where he led the National Health and Nutrition Examination Survey, one of the nation's largest studies to assess the health of the American people. Dr. Kington has been a senior scientist at the RAND Corporation and was the co-director of the Charles R. Drew University/RAND Center on Health and Aging. He has served as an assistant professor of medicine at UCLA and as a visiting associate professor of medicine at the Johns Hopkins University School of Medicine.
Dr. Kington will succeed Russell K. Osgood, who served as Grinnell's president for 12 years and announced his retirement in May of 2009.
"We are thrilled that Dr. Kington, an extraordinarily accomplished scientist, administrator and physician, will lead Grinnell College into the future," said David White, chair of the Board of Trustees and Grinnell College class of 1990. "His passionate belief in the value of a liberal arts education is coupled with a remarkably high level of intellectual energy, a demonstrated commitment to social responsibility and an extensive range of knowledge and experience in scientific, health, economic and social issues. Dr. Kington is an exceptional person who possesses those qualities that will enable Grinnell to build upon our historic commitment to academic excellence and community engagement."
Dr. Kington's personal example underscores his commitment to educational excellence. At the age of 16, he entered a combined undergraduate-medical school program at the University of Michigan that allowed him to earn his B.S. when he was 19 and his M.D. when he was just 21 years old. He completed his residency in internal medicine at Michael Reese Medical Center in Chicago and was appointed a Robert Wood Johnson Clinical Scholar at the University of Pennsylvania. While there, he completed his M.B.A. and Ph.D. with a concentration in health policy and economics at The Wharton School.
"I am absolutely delighted to join the Grinnell community and excited about the tremendous possibilities awaiting this distinguished college," said Dr. Kington. "My entire career to date has been a reflection of the three core values of Grinnell: the pursuit of academic excellence, the advancement of a diverse community and the promotion of social justice. For those fortunate enough to attend a top-tier liberal arts college, particularly one with Grinnell's wonderful heritage, the experience can be transformative. It opens the pathway to a life where students become citizens who make a difference in the world and improve society for the benefit of us all. I can think of no more gratifying opportunity than to lead Grinnell College as it strives to build on this tradition, and I am eager to get started."
In recruiting the 13th president for 164-year old Grinnell College, the Presidential Search Committee established a rigorous set of criteria. "We sought a visionary individual of distinguished intellectual achievements, combined with the ability to inspire our community of scholars," said Paul Risser, search committee chair and Grinnell College class of 1961. "Dr. Kington is one of those very special persons who has enormous talents, who is truly at the top of his field nationally and who literally lives the values and excellence that are the essence of Grinnell College."
Dr. Kington joins Grinnell at a time of significant institutional strength and accomplishment. During President Osgood's tenure, the college generously enhanced its financial aid policies to continue to meet the full, demonstrated need of domestic students; established the Expanding Knowledge Initiative, a program that facilitates interdisciplinary study; initiated a master facilities planning process that led to significant enhancements of its buildings and campus; and instituted a proactive recruitment effort that is substantially broadening diversity within the faculty and student body.
At the same time, Grinnell has identified ambitious goals for the years ahead as it seeks to achieve its highest potential as one of the country's very best liberal arts colleges. Among these are building upon the college's innovative inquiry-based learning model and substantial investments in interdisciplinary study; promoting deliberative processes that value all voices within the community; and effectively communicating Grinnell's record of achievement nationally and internationally.
"Rigorous intellectual inquiry is the hallmark of a great academic institution," observes Dr. Kington. "Liberal arts colleges like Grinnell can play an important role in preparing students for careers that combine social responsibility with a professional or disciplinary focus."
Dr. Kington; his partner, Peter T. Daniolos M.D., a child psychiatrist at Children's National Medical Center and George Washington University; and their two young children plan to move to Grinnell during the summer and occupy the president's home at the college.
Grinnell College is a nationally recognized, private, four-year, liberal arts college located in Grinnell, Iowa. Founded in 1846, Grinnell enrolls 1,600 students from all 50 states and from as many international countries in more than 26 major fields, interdisciplinary concentrations, and pre-professional programs.

EEOC Issues Discussion Letter on Religious Accommodation

The U.S. Equal Employment Opportunity Commission (EEOC) has posted an informal discussion letter on its website and gives guidance on a question of religious accommodation when an employee (Muslim) refuses to shake hands with an African-American female employee on religious grounds. Accommodating the Muslim employee's wish not to shake hands with women could violate Title VII's prohibition against sex discrimination.

Title VII: Religious Discrimination – Religious Accommodation – Sex Discrimination
November 20, 2009
Dear ______________:
This responds to your letter dated August 28, 2009, to the U.S. Equal Employment Opportunity Commission’s (Commission’s or EEOC’s) Greenville Local Office, which was referred to the agency’s Office of Legal Counsel for consideration. I apologize for the delay in answering you.
As set forth in your August 28th letter, you have a client that recently hired a male employee and flew him to the company’s location to meet colleagues and look for a house. When he was visiting the office, an African-American colleague offered her hand to greet him but he refused to shake hands. The new employee explained that he did not touch women because of his Muslim religion. When a human resources manager spoke with him about the incident, the new employee said that it was the co-worker’s female gender, not her race, which prompted his response.
In light of this incident, your client expressed concern that accommodating the new employee’s religious beliefs may conflict with its policy prohibiting sex discrimination in the workplace. Your client also anticipated that if the new employee refuses “to shake [female clients’] hands, [there would be] a negative impact on the employees’ [sic] ability to get their business and . . . be successful on his own behalf as well as on the employer’s behalf.”1
I. Religious Accommodation
Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., prohibits discrimination in employment on the basis of race, color, religion, sex, and national origin. Title VII provides that, once an employer is on notice that an employee’s sincerely-held religious belief, practice, or observance conflicts with a work requirement or policy, it must provide a reasonable accommodation enabling the employee to exercise his beliefs, unless doing so would pose an undue hardship.2 A religious accommodation poses an undue hardship if it involves “more than de minimis cost” to the operation of the employer’s business.3
A. Religious Accommodation that Impacts Co-Workers
The question here is whether it is an undue hardship for your client to accommodate its new employee’s religious practice of not shaking hands with women. We are not aware of any decisions in which federal courts have decided whether such an accommodation poses an undue hardship due to co-workers’ reactions. With respect to accommodating religious expression generally, however, courts have found, and the Commission has stated, that encroaching on co-workers’ ability to perform their duties or subjecting or threatening to subject co-workers to a hostile work environment “will generally constitute undue hardship.”4 For example, in Wilson v. U.S. West Communications,5 the court concluded that an employer was not required to accommodate the plaintiff’s wearing of a graphic anti-abortion button at work where doing so caused serious disruptions among co-workers.6 In Peterson v. Hewlett-Packard Company, where, in response to a diversity program, the plaintiff posted controversial biblical verses that targeted some of his co-workers and were “intended to be hurtful,” the court found that allowing the posters would be an undue hardship for the employer.7 At the same time, a showing of undue hardship requires more than speculation about negative consequences or expressions of discomfort, irritation, or annoyance by co-workers; undue hardship “generally requires evidence that the accommodation would actually infringe on the rights of co-workers or cause disruption of work.”8 Your client should make a fact-specific inquiry into the actual disruptions that have occurred and the level of concern in its workforce about the “no handshake” practice.
B. Religious Accommodation That Impacts Customers
Your client also fears that female customers may take offense regarding the employee’s “no handshake” practice, which in turn “would have a negative impact on the employees’ [sic] ability to get their business and . . . be successful in his own behalf as well as on the employer’s behalf.”9 In assessing whether customers’ objections to an employee's religious practice poses an undue hardship, the question again is the extent to which your client’s concerns are speculative or based on actual events involving more than minimal disruptions to its business.
The courts also are inclined to find undue hardship if the employee’s religious expression can be perceived by customers as the employer’s own message. The Commission has explained:
For example, one court found that it did not impose an undue hardship for a private sector employer to allow a cashier to use the general religious greeting “Have a Blessed Day” in accepting payment where it was said in the context of brief anonymous interactions and had little demonstrable adverse impact on customers or the business. However, other courts have found undue hardship where religiously oriented expression was used in the context of a regular business interaction with a client. Whether or not the client objects, this may be an undue hardship for an employer where the expression could be mistaken as the employer’s message.10
To the extent that your client is concerned that its new employee’s practice will portray it as unfriendly to female customers, your client can focus broadly on the new employee’s overall friendliness and social and sales skills with female customers, above and beyond his “no handshake” practice. It would be relevant if he has good sales with female customers and is generally well-liked; conversely, it also would be relevant if he declines to shake hands with female customers in a manner that conveys negativity about women. These determinations are intensely fact-specific and your client should be careful to avoid speculation.
II. Sex Discrimination
Your client also fears that, by allowing a male employee to refuse to shake hands with female co-workers for religious reasons, it will countenance unlawful sex discrimination in violation of Title VII. Title VII prohibits gender-based employment practices and/or conduct, which involve disadvantageous terms and conditions of employment or severe or pervasive harassment.11
In its Compliance Manual, the Commission explained why a religious accommodation that results in harassment on the basis of religion would pose an undue hardship; the same reasoning would seem applicable to deciding whether a religious accommodation would result in harassment on the basis of sex. The Commission stated:
Since an employer has a duty under Title VII to protect employees from religious harassment, it would be an undue hardship to accommodate such expression. As explained in § III-A-2-b of this document, religious expression directed toward co-workers might constitute harassment in some situations, for example where it is facially abusive (i.e., demeans people of other religions), or where, even if not abusive, it persists even though the co-workers to whom it is directed have made clear that it is unwelcome. It is necessary to make a case-by-case determination regarding whether the effect on co-workers actually is an undue hardship. However, this does not require waiting until the alleged harassment has become severe or pervasive. As with harassment on any basis, it is permitted and advisable for employers to take action to stop alleged harassment before it becomes severe or pervasive, because while isolated incidents of harassment generally do not violate federal law, a pattern of such incidents may be unlawful.12
In assessing the potential for sex discrimination, an important question for your client to consider is whether the new employee implements his “no handshake” practice in a neutral manner or, by contrast, whether he does so in a manner that is actually hostile or demeaning to women. The extent to which this new employee is developing comfortable working relationships with female co-workers, despite his “no handshake” practice, would seem highly relevant.
While your client and its new employee may find an effective religious accommodation, your client should avoid accommodations that would foster sex discrimination, for example, adopting a male-only client policy for the employee, or restricting his interactions to male co-workers. If, in the future, the employee’s “no handshake” practice conveys an intent to demean based on gender, “it is permitted and advisable for [your client] to take action to stop [the] alleged harassment before it becomes severe or pervasive. . . .”13
III. Potential Follow-up
As noted in your letter, your client itself proposed conducting some form of diversity training for its workforce, which could include providing information about Islamic religious practices. Your client’s proposal may help to alleviate possible tension and/or discomfort surrounding its new employee’s practice of declining to shake hands with women for religious reasons.
We hope this information is helpful. Please note that this letter is an informal discussion of the issues you raised and does not constitute an official opinion of the U.S. Equal Employment Opportunity Commission. If you have further questions, please contact Carol Miaskoff at 202.663.4645 or Tanisha Wilburn at 202.663.4909.
Sincerely, Peggy R. MastroianniAssociate Legal Counsel
1 August 28, 2009 letter at page 2.
2 42 U.S.C. 2000e (j); 29 C.F.R. § 1605.2(b). See also EEOC COMPL. MAN., § 12, “RELIGIOUS DISCRIMINATION,” § 12-IV (July 22, 2008), available at,
3 RELIGIOUS DISCRIMINATION, supra note 2, § 12-IV, B.
4 RELIGIOUS DISCRIMINATION, supra note 2, § 12-IV, B.4.
5 58 F.3d 1337, 1341-42 (8th Cir. 1995).
6 Id. at 1339-40. The disruptions cited included: a forty percent decline in productivity that resulted from employees gathering to discuss the button; co-worker protests in the form of refusing to attend work meetings with plaintiff present; employees filing grievances against the employer for its perceived failure to resolve the dispute; and employees threatening walkouts.
7 358 F.3d 599, 607-608 (9th Cir. 2004). The court reasoned that accommodating the plaintiff’s religious expression would have created an undue hardship for the employer because “it would have inhibited [the employer’s] efforts to attract and retain a qualified, diverse workforce, which the [employer] reasonably view[ed] as vital to its commercial success.”
8 RELIGIOUS DISCRIMINATION, supra note 2, § 12-IV B.6.b.
9 August 28, 2009 letter at page 2.
10 RELIGIOUS DISCRIMINATION, supra note 2, § 12-IV, C.6.b.
11 See Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 80 (1998) (indicating that Title VII prohibits harassment where “members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other are not exposed”) (internal quotation marks omitted); Robinson v. Jacksonville Shipyards, 760 F. Supp. 1486, 1522 (M.D. Fl. 1991) (indicating that gender-based harassment can involve “harassing behavior lacking a sexually explicit content but directed at women and motivated by animus against women. . . .”).
12 RELIGIOUS DISCRIMINATION, supra note 2, § 12-IV, C.6.a.
13 Id.

Landwin Management to Pay $500,000 for National Origin Bias and Sexual Harassment

U.S. Equal Employment Opportunity Commission

EEOC Said Hotel Refused to Hire Non-Chinese Banquet Servers and Subjected Women to Verbal Abuse

LOS ANGELES – The U.S. Equal Employment Opportunity Commission (EEOC) today announced the settlement of two lawsuits against Landwin Management, Inc., a San Gabriel, Calif.-based hotel operator, for $500,000 and significant remedial relief in cases alleging national origin discrimination and sexual harassment. Both suits were filed in September 2007 under Title VII of the Civil Rights Act of 1964.
In the first lawsuit (Case No. CV 07-06169 SJO), the EEOC charged that non-Chinese banquet servers were rejected for hire based on their national origin when the San Gabriel Hilton severed its contract and hired Landwin Management to operate the establishment in April 2005. The EEOC said that all the non-Chinese banquet servers who previously worked for the hotel at the time, many of whom were Latino, were not hired back during the turnover and instead replaced with less qualified Chinese workers.
In the second suit (Case No. CV 07-05916 PA), the EEOC alleged that the San Gabriel Hilton subjected female employees to a sexually hostile work environment, including verbal sexual harassment by the housekeeping department supervisor, who referred to the women as “whores” and “prostitutes” in addition to other offensive language. The supervisor also allegedly reprimanded the female employees if they even spoke to men, and Landwin failed to respond to the employees’ complaints of harassment.
In addition to the $500,000 in monetary relief, a three-year consent decree settling the two lawsuits will also ensure that (1) Landwin will implement hiring and recruiting goals for Hispanic employees; (2) Landwin will revise its written policies on discrimination, sexual harassment and recruitment and hiring; (3) employees will receive annual training regarding discrimination, including national origin discrimination and sexual harassment; (4) Landwin will retain an EEO monitor / consultant named by the Commission to assist with recruiting, hiring, training, revision of policies and record-keeping procedures; and (5) the company will provide annual reports to the EEOC regarding its employment practices.
“The days when employers make decisions based on stereotypes and assumptions shaped by the race or national origin of their employees should be far behind us,” said Anna Y. Park, the regional attorney for the EEOC’s Los Angeles District Office. “Further, sexual harassment should no longer be tolerated in any workplace, and employers should never condone or overlook the mistreatment of vulnerable victims, such as monolingual Spanish-speaking women.”
EEOC Los Angeles District Director Olophius Perry added, “Employers must take appropriate corrective action when they receive harassment complaints. We hope that other employers take the lead of the San Gabriel Hilton and take proactive action to ensure EEO compliance. Businesses should take advantage of EEOC trainings that are available to encourage compliance and proactive prevention.”
The EEOC Training Institute provides a wide variety of training to assist employers in educating their managers and employees on the laws enforced by EEOC and how to prevent and correct discrimination in the workplace. More information is available at
The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on the agency’s web site at

Thursday, February 25, 2010

Continuing vacancies at enforcement agencies slow administration's agenda in labor and employment law

Venable LLP
Rebecca H. Ormsbee and James Edward Fagan, III USA
February 22 2010

The Obama Administration’s attempts to fill vacancies at the National Labor Relations Board (NLRB) and the Equal Employment Opportunity Commission (EEOC) have encountered serious opposition and setbacks, and this has led to corresponding delays in expected stepped-up enforcement efforts by these agencies. In particular, on February 9, 2010, U.S. Senate Democrats were unable to break a filibuster against the nomination of Craig Becker to the NLRB. Two Democrats, Senator Ben Nelson of Nebraska and Senator Blanche Lincoln of Arkansas, in addition to thirty-one Republicans voted “nay” on the cloture motion. Mr. Becker was President Obama’s nominee to occupy one of three vacancies that the President currently has the opportunity to fill at the NLRB. The President has also offered up a second Democratic nominee, Mark Pearce, as well as a Republican, Brian Hayes, to fill the other two open posts. Mr. Becker’s nomination to fill one of the open NLRB spots was an especially controversial one, primarily due to Becker’s strong ties to organized labor and his work as a lawyer for both the Service Employees International Union (SEIU) and the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO). There remains the possibility, however, that President Obama will use a recess appointment to place Mr. Becker and his fellow nominees on the NLRB on a short term basis.
Meanwhile, the NLRB continues to operate with only two of its five allotted members in place, which has led to a series of court challenges asserting that the Board lacks the necessary quorum to decide cases. A split in the circuits has developed on this question, and the U.S. Supreme Court granted a petition to decide the issue in the case of New Process Steel v. NLRB. A decision from the Court is expected this Spring.
Similar opposition and delay have left the EEOC in the same situation as the NLRB – only two of the Commission’s five allotted seats are currently filled. The President nominated Jacqueline Berrien as EEOC Chair, along with Chai Feldblum and Victoria Lipnic as Commissioners, but the Senate failed to confirm this package in 2009, and the nominations remain pending.
The net result of the delayed appointments at the NLRB and the EEOC is that anticipated significant changes in the enforcement of labor and employment regulations, once expected to take place in 2009, remain on hold for the time being. But the President will ultimately be able to name a majority of the members of both the NLRB and the EEOC, either through recess appointments or Senate confirmations, which will eventually bring about significant change in the enforcement efforts of both agencies. Employers should therefore remain alert to the agency appointment process and its implications for their workplaces.

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Students walk out of UC San Diego teach-in

Los Angeles Times
By Larry Gordon
February 25, 2010

Reporting from San Diego - A student walkout Wednesday disrupted a UC San Diego teach-in that was intended to promote tolerance in the wake of two recent racially charged incidents. Many of those involved said the protest showed how difficult it will be for the beachside campus to overcome long-standing concerns about the small number of African American students enrolled there.More than 1,200 students, faculty and staff packed an auditorium in the student center for the teach-in, which campus administrators organized in response to the incidents, including an off-campus party Feb. 15 that mocked Black History Month. But halfway through the planned two-hour session, hundreds of students walked out. The students, who were joined by many others during the afternoon, held their own noisy but peaceful rally outside the building, calling on UC San Diego leaders to improve conditions for minority students and boost their numbers.

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Tuesday, February 23, 2010

The B-School Glass Ceiling

Inside Higher Ed
February 23, 2010

Female professors at business schools tend to remain in the mid-faculty ranks after earning tenure, while their male counterparts are more likely to continue onward to full professor, according to a new study.
The study by Shani D. Carter, chair of the management and marketing department at Rhode Island College, is scheduled to be presented later this week at the annual conference of the Academy of Human Resource Development. It utilizes data from 1988 to 2004 provided by the National Study of Postsecondary Faculty.
While, during this 16-year time period, there were inequities in the distribution of males and females throughout the faculty ranks of all disciplines, Carter writes that these gaps were particularly stark in the field of business. For example, in 1988, the largest proportion of male and female faculty members were at the instructor level. As of 2004, the largest proportion of female faculty members were instructors, but a plurality of men (38.2 percent) were at the level of full professor. Additionally, the percentage of male full professors grew from 18.9 percent to 38.2, while that of female full professors only went from 6.4 percent to 13.8.

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Strength in Diversity—Large Corporations Find Working With Minority-Owned Firms Is Good Business

Workforce Management
February 2010

Companies that understand supplier diversity see it not as an expense to be trimmed in a slow economy, but as an investment in the future, a way to find new clients and an integral part of their business strategy. By John Rosenthal

Companies that understand supplier diversity see it not as an expense to be trimmed in a slow economy, but as an investment in the future, a way to find new clients and an integral part of their business strategy.
For these corporations, a diverse supply chain is as essential as marketing or product development.
For minority-owned businesses, meanwhile, corporate diversity programs can be a critical lifeline, especially in a down economy.
Crain’s Chicago Business, a sister publication of Workforce Management, asked minority-business advocates, business owners, academics and consultants to identify the major corporations with the best reputations for building and maintaining supplier diversity in the Chicago area. The results are hardly scientific, but offer a ground-level assessment of seven major Chicago companies viewed by many as going the extra mile to maintain diversity, even in hard times.

PepsiCo Since 2006, the Purchase, New York-based food and beverage conglomerate has been run by a woman of color, CEO Indra Nooyi. Many of the company’s core brands, including those with headquarters in Chicago such as Tropicana, Quaker Oats and Gatorade, count large numbers of minorities among their customers.
“Diversity is a selling point that strengthens the bottom line,” says Ernest Freeman, PepsiCo’s senior manager for supplier diversity.
Freeman says his goal is to increase the total dollar amount spent with diverse suppliers by double digits each year, a goal the company has met every year since 2003. In 2008, PepsiCo spent more than $1 billion with diverse suppliers, up more than 10 percent from 2007.

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OFCCP Issues FAQs on Ricci Decision

The U.S. Department of Labor has issued Frequently Asked Questions in the Ricci v. DeStafano Supreme Court decision and its implications for OFCCP affirmative action programs. In the FAQs, OFCCP emphasizes that the decision does not change how it will conduct compliance evaluations, nor will it affect contractors' affirmative action obligations or obligations regarding the use and validation of tests:

In Ricci v. DeStefano, 129 S. Ct. 2658 (June 29, 2009), the Supreme Court addressed when an employer may take a race-based action in order to correct a potentially discriminatory employment practice. Specifically, Ricci addressed whether the City of New Haven, Connecticut discriminated against a group of white firefighters in violation of Title VII of the Civil Rights Act when the City failed to certify and use the results of a test given to employees vying for promotions within the fire department. The City did not use the test results because they had an unintentional adverse impact on minorities and the City believed it would be liable for discrimination against minorities if the promotions were awarded. The City's decision negatively affected the white candidates, who had expected to be promoted but were not.

In its decision, the Supreme Court held that the City's action constituted intentional race-based discrimination that was not justified by a valid defense, in violation of Title VII. The Court found that New Haven's desire to avoid or remedy unintentional adverse impact on minority candidates, without more, was not a sufficient justification for its challenged action. Rather, the Court ruled, to justify such a race-based selection decision, an employer was required to demonstrate "a strong basis in evidence" that its challenged employment action was necessary to prevent unintentional disparate impact against minority candidates. The Court held that the City did not demonstrate that it had a strong basis in evidence that it would have been liable for disparate impact discrimination if it had certified the test results.

Go to: to view the FAQs.

OFCCP Hosts Town Hall Meetings in March

Continuing its town hall meetings, OFCCP has announced the next round of meetings, to take place in New Orleans, LA in March 2010:

New Orleans, LA
March 17, Lindy Boggs Conference Center, 10AM to 12PM/2PM to 4PM

March 18, Lindy Boggs Conference Center, 10AM to 12PM/2PM to 4PM

These listening sessions are in preparation of proposed regulations planned for the end of 2010 and early 2011. For more information, go to:

Big Lots to Pay $400,000 for Race Harassment

U.S. Equal Employment Opportunity Commission
Press Release: 2/16/10

EEOC Alleged Black Employees Were Subjected to Racial Jokes and Slurs By a Hispanic Supervisor and Co-Workers
LOS ANGELES – The U.S. Equal Employment Opportunity Commission (EEOC) today announced the settlement of its race harassment and discrimination lawsuit against Big Lots, Inc., the nation’s largest broadline closeout retailer. The settlement includes total monetary relief of $400,000 to be paid to least five employees along with a group of unidentified class members. Big Lots also agreed to a two-year consent decree that calls for the implementation of a new policy, training, procedures and court monitoring to address harassment and discrimination in the workplace.
The EEOC originally filed suit against Big Lots in September 2008 in the U.S. District Court for the Central District of California (EEOC v. Big Lots, Inc., CV-08-06355-GW(CTx)). The agency alleged that Big Lots violated Title VII of the Civil Rights Act of 1964 when it subjected a black maintenance mechanic and other black employees to race harassment and discrimination at its Rancho Cucamonga, Calif., distribution center. Specifically, the EEOC alleged that an immediate supervisor and co-workers, all Hispanic, made racially derogatory jokes, comments, slurs and epithets, including the use of the words “n----r” and “monkey.” Despite learning of the harassment, the company took no steps to prevent or correct it.
“Working in a job that they valued highly, the employees in this case rightfully expected to earn a living free of discrimination,” said Anna Park, regional attorney of the EEOC’s Los Angeles District Office. “They should not have had to endure harassment or discrimination based on their race. The EEOC will continue to take all steps necessary to ensure that employees at all workplaces are respected and free from harassment, discrimination and retaliation.”
EEOC District Director Olophius Perry added, “The EEOC is pleased that Big Lots voluntarily entered into a settlement that includes injunctive relief designed to ensure that its black employees are not subjected to harassment or discrimination.”
In fiscal year 2009, the EEOC received 33,579 charges alleging race-based discrimination, accounting for about 36% percent of the agency's private sector caseload. Historically, race-based charges have been one of the most frequent types of filing with EEOC offices nationwide.
The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on its web site at

EEOC Solicits Comments on Proposed Rule Concerning “Reasonable Factors Other than Age” Under the ADEA

U.S. Equal Employment Opportunity Commission
Press Release 2/18/10

WASHINGTON – The U.S. Equal Employment Opportunity Commission (EEOC) has published in the Federal Register a Notice of Proposed Rulemaking (NPRM) addressing the meaning of “reasonable factors other than age” (RFOA) under the Age Discrimination in Employment Act (ADEA). The agency is soliciting comments from the public and other interested parties by Monday, April 19, 2010.
The proposed rule follows a March 31, 2008, NPRM on disparate impact under the ADEA. In addition to requesting comments on its substance, the prior NPRM asked whether the Commission should provide more information on the meaning of the RFOA defense. Most commenters supported addressing the issue and, accordingly, the EEOC is publishing a new NPRM on RFOA. The NPRM has been coordinated with other federal agencies and reviewed by the Office of Management and Budget.
The proposed rule explains that the RFOA defense applies only if the challenged practice is not based on age and that a neutral practice that disproportionately affects older workers can be justified only by showing that the practice is objectively reasonable when viewed from the perspective of a reasonable employer under like circumstances. The proposed rule sets forth non-exhaustive lists of factors relevant to determining whether a factor is “reasonable” and “other than age.”
The EEOC will consider the public comments received and will make appropriate changes based on those comments. A proposed final rule covering this and the March 2008 proposed rules will then be coordinated with other federal agencies and reviewed by the Office of Management and Budget before becoming effective.
The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on its web site at

EEOC attacks law firm retirement again
Moses & Singer LLP
Devika Kewalramani, Arnold N. Bressler
and David Rabinowitz
USA February 16 2010

EEOC v. Kelley Drye & Warren, LLP
On January 28, 2010, the EEOC filed a complaint against Kelley Drye on behalf of a former firm partner and a class of other similarly situated employees. The complaint alleges that Kelley Drye has a partnership agreement requiring all lawyers who reach age 70 and wish to continue to practice law to relinquish any equity interest in the firm. These senior lawyers are allegedly thereafter compensated solely by an annual "bonus" that is wholly discretionary with the firm's executive committee. According to the complaint and the EEOC press release, the particular former partner in question has been paid significantly less than younger lawyers with similar client collections, billings and other measures of productivity, even though he routinely collected over $1 million annually in client fees. This, the EEOC alleges, is an unlawful employment practice in violation of the Age Discrimination in Employment Act (ADEA).
There is also a retaliation claim in the case. The complaint alleges that after the former partner filed a charge with the EEOC, the firm retaliated by reducing his annual "bonus" from $75,000 to $25,000, even though his collections and other measures of productivity had not declined from previous years.
The EEOC complaint seeks an injunction and the institution of policies and programs to eradicate the effects of the firm’s current policy. The complaint also seeks back pay, liquidated damages and prejudgment interest, and compensation for non-pecuniary losses including pain, suffering and humiliation resulting from the firm's retaliatory conduct, as well as punitive damages.

Full Story:

Sunday, February 21, 2010

Two Stories: NAACP Picks Fourth Woman and Youngest Chair of the Board
February 21, 2010 1:16 p.m. EST
New leader vows she'll bring 'new generation' to NAACP

NEW YORK (CNN) -- The new chairwoman for the National Association for the Advancement of Colored People, one of the oldest civil rights groups in the nation, said Sunday she'll work to bring a new generation into the organization.
Roslyn Brock, a health care executive and former NAACP vice chair, was selected to fill the seat left by Julian Bond, a civil rights leader who has held the post since 1998. Brock, 44, is the youngest person to ever serve in the position.
"I want to get the word out that the NAACP is alive and well, and that we are a multi-cultural, multi-racial organization," Brock said on CNN's "Sunday Morning."
"It is our goal to extend a broader net, to encourage all Americans who believe in life, liberty and the pursuit of happiness to come and join us."

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Hartford Courant
4:35 p.m. EST, February 20, 2010

NAACP elects 44-year-old health care executive Roslyn Brock as its youngest board chairman

NEW YORK (AP) — The NAACP elected a health care executive as its youngest board chairman Saturday, continuing a youth movement for the nation's oldest civil rights organization.Roslyn M. Brock, 44, was chosen to succeed Julian Bond. She had been vice chairman since 2001 and a member of the NAACP for 25 years.Brock works for Bon Secours Health Systems in Maryland as vice president for advocacy and government relations, and spent 10 years working on health issues for the W.K. Kellogg Foundation. She joins Benjamin Todd Jealous, the 37-year-old CEO of the NAACP, as leader of the 500,000-member organization.Brock said she plans to focus on pushing for policy changes to eliminate inequality, strengthening the relationship between the national and local NAACP branches and holding people accountable."It's not always what someone is doing to us, but what we are doing for ourselves," Brock said in an interview.

Full Story:,0,3388863.story

Saturday, February 20, 2010

Utah Legislature: Anti-affirmative action measure sinking fast in Utah House

Deseret News
By Josh Smith
Published: Friday, Feb. 19, 2010 9:31 p.m. MST

SALT LAKE CITY — Conflicting conservative values may sink a proposed anti-affirmative action constitutional amendment, at least for this legislative session.
Four Republican representatives told the Deseret News they do not support the resolution as currently written.
As a constitutional amendment, HJR24 requires a two-thirds majority to pass. In the House, that means at least 50 votes.
Minority Leader David Litvack, D-Salt Lake City, confirmed that, as of Friday, all 22 House Democrats oppose the proposal.
With at least four Republicans saying they are opposed to passing the current resolution and more representatives on the fence, the proposal's chances for success may be slim in the House.
The proposed constitutional amendment prohibits state entities from discriminating or granting "preferential treatment" based on race or sex, among other factors.

Full Story:

Affirmative action still needed in Utah

deseret news
By Jeanetta Williams
Published: Saturday, Feb. 20, 2010 12:25 a.m. MST

The NAACP Opposes HJR24 (Joint Resolution on Equal Treatment). This joint resolution of the Utah Legislature proposes to amend the Utah Constitution to enact a provision prohibiting discrimination and preferential treatment by government entities. This resolution proposes to amend the Utah Constitution to: prohibit the state, public institutions of higher education and political subdivisions from discriminating against or granting preferential treatment to any individual or group on the basis of race, sex, color, ethnicity or national origin with respect to public employment, public education or public contracting; and to provide exceptions; to authorize the Legislature to provide a remedy for a violation and provide limits for a remedy; and to provide that the prohibition is self-executing.
The NAACP strongly opposes this legislation and urges a no vote. Furthermore, we do not understand the fast pace of this purposed constitutional amendment.

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Haas gift helps UC Berkeley diversity

Bob Egelko, Chronicle Staff Writer
Thursday, February 18, 2010

(02-18) 10:03 PST BERKELEY -- Campus diversity at UC Berkeley, hemmed in by state law and economic woes, will take a step forward today with the announcement of a privately funded $16 million venture to promote learning across cultural and social gaps.
The university said a gift from the Evelyn and Walter Haas Jr. Fund will establish an ambitious program of teaching, research and public service on inequality and diversity. The project will endow five faculty research chairs, including one on disability and another on the rights of lesbians and gays.
"We're turning the challenges of a multicultural society into a major academic endeavor," said Chancellor Robert Birgeneau.

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Friday, February 19, 2010

Video: Living with disabilites at Vanderbilt
By Sydney Wilmer Published Feb. 18, 2010. 697 views

Sophomore Angel Abbott follows the same route to class each morning. First she waits for an elevator to take her to the lobby of Lewis. She heads out the double doors, up 24th Avenue, then cuts through the Bramscomb Quad parking lot.
But Abbott doesn’t follow this exact route by choice; it’s simply the only accessible way to class. Abbott is disabled and confined to her wheelchair.
“The campus looks a lot more accessible than it is,” Abbott said. “A lot of people don’t realize the problems unless they go around with me on the campus where there are curves and see detours I have to take.”
Abbott said she worked with both Plant Operations and the Office of Equal Opportunities, Affirmative Action and Disability Services this spring to make a number of adjustments. Even still, limited entrances to buildings, curb-cuts and small spaces are obstacles she must traverse each day.

Full story and video:

Minority Report
American universities are accepting more minorities than ever. Graduating them is another matter.
By Evan Thomas and Pat Wingert NEWSWEEK
Published Feb 19, 2010
From the magazine issue dated Mar 1, 2010

Barry Mills, the president of Bowdoin College, was justifiably proud of Bowdoin's efforts to recruit minority students. Since 2003 the small, elite liberal-arts school in Brunswick, Maine, has boosted the proportion of so-called underrepresented minority students (blacks, Latinos, and Native Americans, about 30 percent of the U.S. population) in entering freshman classes from 8 percent to 13 percent. "It is our responsibility, given our place in the world, to reach out and attract students to come to our kinds of places," he told a NEWSWEEK reporter. But Bowdoin has not done quite as well when it comes to actually graduating minorities. While nine out of 10 white students routinely get their diplomas within six years, only seven out of 10 black students made it to graduation day in several recent classes.
The picture of diversity—black, white, and brown students cavorting or studying together out on the quad—is a stock shot in college catalogs. The picture on graduation day is a good deal more monochromatic. "If you look at who enters college, it now looks like America," says Hilary Pennington, director of postsecondary programs for the Bill & Melinda Gates Foundation, which has closely studied enrollment patterns in higher education. "But if you look at who walks across the stage for a diploma, it's still largely the white, upper-income population."

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Tuesday, February 16, 2010

Why Forcing Managers to Interview Minority Candidates Is Good Business

Workforce Management
February 2010

Commentary: To strip the emotion out of the issue, you have to stop talking about affirmative action and start talking about how the world of hiring works. To do that, let’s replace ‘minority candidate’ with ‘internal candidate’ and evaluate the general merits of forcing interviews—even if it seems the hiring decision has already been made. By Kris Dunn

If you follow sports, you’re probably aware that Pete Carroll, former head football coach at the University of Southern California, left the school to become the head coach of the National Football League’s Seattle Seahawks. On the surface, this is pretty pedestrian stuff, as a head coach with a national title at the college level getting a chance at a big payday in the pros happens frequently.
What you probably don’t know is this: Before the Seahawks and Carroll could sign a contract that had already been agreed to verbally, the Seahawks had to interview at least one minority candidate as part of the process. It’s required in the NFL, and here’s how the rule (known as the Rooney Rule) is positioned, according to lawyer/writer Jack Oceano:
“Under the NFL’s Rooney Rule, any team in the National Football League offering a head coaching position must interview at least one minority candidate. Named after the Pittsburgh Steelers owner Dan Rooney, chairman of the league’s diversity committee, the rule was created in the hopes of increasing the number of minority head coaches in the league.”
How do you feel about that? There’s nothing that gets the blood flowing on all sides like a situational hiring analysis with an affirmative-action feel. Since I’m pro-employer on most issues I tackle, you’ll more than likely be surprised by my take on the Rooney Rule: I think it’s a good business practice.

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Federal suit planned against UC over ban on affirmative action

Los Angeles Times
Activists challenge Proposition 209, charging that the 1996 law on university admissions violates right to equal protection under the Constitution.
By Larry Gordon
February 16, 2010

Seeking to increase the ranks of black, Latino and Native American students at the University of California, civil rights activists said they will file a federal lawsuit Tuesday challenging the state law that bans affirmative action in admissions.The suit contends that Proposition 209, which was passed by California voters in 1996, violates equal protections guaranteed by the U.S. Constitution and says it has limited the numbers of non-Asian minority students at UC's most selective campuses. The suit also criticizes the university system for relying too heavily on high school grades and test scores in admissions, saying that the practice discriminates against students from schools without strong honors classes and counseling.

Full Story:,0,6120034.story

Colleges lagging on faculty diversity

The Boston Globe
Numbers trail makeup of Hub’s student bodies
By Tracy Jan
Globe Staff / February 16, 2010

The lack of black and Hispanic professors, highlighted in two recent reports critical of the faculty makeup at MIT and Emerson College, is a problem shared by the most prominent universities in the Boston area, a Globe survey reveals.
Among those struggling the most is the city’s largest school, Boston University, where blacks and Hispanics make up 3.4 percent of tenured and tenure-track faculty, a figure that has barely budged over the past decade. At BU, like the other schools, the percentage of minority faculty lags far behind the demographics of its student body.
Other local institutions don’t fare much better. At Brandeis University, 3 percent of so-called tenure-line professors are black or Hispanic, and at Harvard, they make up 5.8 percent.

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Monday, February 15, 2010

Five Silicon Valley companies fought release of employment data, and won
By Mike Swift
Posted: 02/14/2010 04:00:00 PM PST
Updated: 02/14/2010 08:47:17 PM PST

Google, the company that wants to make the world's information accessible, says the race and gender of its work force is a trade secret that cannot be released.
So do Apple, Yahoo, Oracle and Applied Materials. These five companies waged an 18-month Freedom of Information battle with the Mercury News, convincing federal regulators who collect the data that its release would cause "commercial harm" by potentially revealing the companies' business strategy to competitors. A sixth company, Hewlett-Packard, fought the release and lost.
But many of their industry peers see the issue differently. The Mercury News initially set out to obtain race and gender data on the valley's 15 largest companies, and nine — including Intel, Cisco Systems, eBay, AMD, Sanmina and Sun Microsystems — agreed to allow the U.S. Department of Labor to provide it....

The Labor Department data ultimately obtained by the Mercury News shows that while the collective work force of 10 of the valley's largest companies grew by 16 percent from 1999 to 2005, an already small population of black workers dropped by 16 percent, while the number of Hispanic workers declined by 11 percent. By 2005, only about 2,200 of the 30,000 Silicon Valley-based workers at those 10 companies were black or Hispanic.

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Court Approves $6.2 Million Distribution in EEOC v. Sears Disability Settlement

U.S. Equal Employment Opportunity Commission
Press Release 2-5-2010
235 Former Employees Terminated at End of Workers’ Compensation Leaves of Absence to Share Settlement Proceeds After Participating in Claims Process

CHICAGO – The U.S. Equal Employment Opportunity Commission (EEOC) today announced court approval of the distribution of a $6,200,000 compensation fund in the landmark Americans With Disabilities Act (ADA) litigation between the EEOC and Sears, Roebuck & Co. The distribution is being carried out pursuant to the terms of a consent decree approved by Federal District Judge Wayne Anderson on September 29, 2009. In its lawsuit against Sears, the EEOC had alleged that Sears maintained an inflexible workers’ compensation leave exhaustion policy and terminated employees instead of providing them with reasonable accommodations for their disabilities, in violation of the ADA. The case resulted in the largest ADA settlement in a single lawsuit in EEOC history.
Under the terms of the decree, the EEOC provided claim forms to certain Sears employees who had been terminated under Sears’ workers’ compensation leave policy. The claimants were asked to report to the EEOC, among other things, the extent of their impairments, their ability to return to work at Sears, and whether Sears had made any attempt to return them to work. Based on these criteria, the EEOC found that 235 individuals were eligible to share in the settlement. The average award was approximately $26,300. More than twenty claimants were found to be ineligible by the EEOC. As with all EEOC litigation, none of the settlement fund will retained by the EEOC; all of it will be distributed.
“It is a satisfying day indeed when victims finally receive compensation for the wrongful discrimination they have endured,” said EEOC Acting Chairman Stuart J. Ishimaru. “The EEOC is pleased and proud that we fought long and hard on this case to protect the rights of workers with disabilities, and that many Sears employees will now benefit from our law enforcement efforts.”
Chicago Regional Attorney John Hendrickson said, “The Sears case has been a long haul, but now it’s over—this is it. The court has enjoined future discrimination by Sears and approved the amount of money each class member will receive for the particular discrimination he or she suffered. Their day for compensation is here, and as far as the EEOC is concerned, that makes it a good day for everyone involved.”
EEOC Trial Attorney Aaron DeCamp noted that, in addition to the disbursement of settlement funds, the EEOC is seeing positive effects from the consent decree. “As a result of the decree, we believe Sears has an improved workers’ compensation leave process, and it has posted notices regarding the decree. We know that employees have been seeing the notices because we’ve been receiving inquiries as a result. So we think it’s pretty clear that our lawsuit genuinely benefited the employees of Sears and strengthened the company’s human resources processes.”
The lawsuit, filed in November 2004, was assigned to Federal District Court Judge Wayne Anderson of the Northern District of Illinois and Magistrate Judge Susan Cox, and is captioned EEOC v. Sears Roebuck & Co., N.D. Ill. No. 04 C 7282. Judge Anderson entered the order approving the monetary distributions on February 4.
The EEOC litigation team included, in addition to Hendrickson and DeCamp, Supervisory Trial Attorney Gregory Gochanour and Trial Attorneys Ethan Cohen, Deborah Hamilton and Laurie Elkin.
The EEOC Chicago District Office is responsible for processing charges of discrimination, administrative enforcement, and the conduct of agency litigation in Illinois, Wisconsin, Minnesota, Iowa, and North and South Dakota, with Area Offices in Milwaukee and Minneapolis.
The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on the agency’s web site at

Students File Landmark Federal Lawsuit to Undo Prop 209 and Restore Affirmative Action in California

BAMN News Release
For More Information, Contact:
Shanta Driver, Lead Counsel & National Chair, Coalition to
Defend Affirmative Action, Immigrant Rights and Integration
and to Fight for Equality by Any Means Necessary 313-407-4865
Monica Smith, BAMN Attorney 313-585-3637

Magally Miranda, Spanish Speaking, BAMN Organizer 213-826-4527

Latina/o, black, and Native American students seeking admission to the University of California (UC) are announcing today that they will file a federal lawsuit Tuesday in the U.S. District Court, Northern District of California to overturn California’s Proposition 209 and restore affirmative action in the UC system. The suit asserts that Proposition 209 violates the Equal Protection Clause of the U.S. Constitution. The defendants in the suit are Governor Arnold Schwarzenegger, the UC Regents, and UC President Mark Yudof.
“It is an injustice and a social explosion waiting to happen for California to enforce a system of de facto segregation in which Latina/o, black, and Native American students, who comprise a fast-growing majority of California’s high-school students, are almost entirely shut out of this state’s most selective public universities,” said George Washington, a Detroit labor and civil rights attorney. “The level of segregation at UC-Berkeley relative to the state population is matched only in the Deep South. Proposition 209 cannot stand,” Washington said.
BAMN lawyers represented students in the successful legal defense of the Los Angeles and Berkeley school desegregation programs. Most importantly, BAMN represented the student-defendant interveners in Grutter v. Bollinger (2003), the University of Michigan Law School case in which affirmative action programs were upheld by the U.S. Supreme Court. Driver and Washington are leading civil rights attorneys in defending affirmative action, desegregation programs, and voting rights cases. BAMN also defeated Ward Connerly's efforts to get anti-affirmative action ballot measures in Oklahoma, Arizona, and Missouri in 2008.
Shanta Driver, a Detroit-based labor and civil rights lawyer and National Chair of BAMN, will serve as lead counsel with George Washington. Ronald Cruz of Oakland, Monica Smith of Los Angeles, and Joyce Schon of Detroit are the other members of the legal team (see attached).
“This is a new day in California, with students demanding equal access and opportunity in what should be our public universities. We won’t sit in the back of the bus any longer,” said Issamar Camacho, a UC-Berkeley student who plans to apply to Berkeley Law School, a BAMN organizer and plaintiff.
Driver and Washington urge all students, all public officials, and all organizations that support affirmative action to join in this challenge to Proposition 209.
In 2007, Latina/o, black, and Native American students comprised 45.1% of California’s high school graduates. However, even after 13 years of efforts by the University of California to increase diversity, these groups comprised only 16.9% and 19.9% of new freshman admits at UC-Berkeley and UCLA respectively.
"Qualified Latina/o and black students are being rejected by the UC's in higher proportions than UC qualified white students," Driver said. "BAMN and the student plaintiffs are challenging Proposition 209 because Latina/o, black, Native American and other minority students are forced to labor under an unequal political procedure in seeking redress for discrimination in admissions. Every other group in the state of California, from veterans to rural students to disabled students to lesbian gay students have the right to ask the UC Regents to employ an admissions system that will increase their numbers in the UC student body. The only group legally barred from petitioning the Regents for a change in the admissions system to increase the admission of students from their communities are Latina/o, black, and other underrepresented minority students."
“Proposition 209 requires by law permanent de facto segregation in the UC system," Ronald Cruz, BAMN attorney and Boalt Law School alum. "None of the efforts in the UC's in the last 13 years have been able to change this reality. We will not allow our state to continue to be the legal, social, and political center of the New Jim Crow."
BAMN was founded in 1995 in response to the UC Regents' ban on affirmative action. In 2001, BAMN led a student movement that resulted in the UC Regents reversing their ban on affirmative action had been used as the model for Proposition 209. Last year, in Coral Construction Co. v. San Francisco regarding the use of affirmative action programs in contracting, Attorney General Jerry Brown stated that 209 is unconstitutional.
BAMN is leading the statewide campaign to get the UC Regents to create a UC-wide Dream Act. They are building for a mass mobilization to the UC Regents meeting on March 23-25 to win the creation of a UC-wide institutional financial aid program for undocumented students—a UC-wide Dream Act.
Shanta Driver, lead attorney and BAMN National Chair, emphasized that "while our legal arguments are irrefutable, whether or not we win this case is a political question—a question of social power. If the new civil rights movement can continue to grow and reach new heights, we can convince even the most conservative judges to restore affirmative action in California."

Source: BAMN email
For a copy of the complaint, contact Donna Stern,

DOL Women's Bureau and Solicitor Nominees Confirmed by Senate

On February 4 and 11, 2010, two administration nominees to Department of Labor posts were confirmed by the Senate: M. Patricia Smith, of New York, to be Solicitor for the Department of Labor and Sara Manzano-Diaz, of Pennsylvania, to be Director of the Women's Bureau, Department of Labor.

The following is information released by the White House about these two appointees:

Sara Manzano-Diaz was nominated to lead the Women's Bureau at the Department of Labor. For almost 90 years, the Department of Labor's Women's Bureau has worked to improve the status of wage-earning women, improve their working conditions, and advance their opportunities for profitable employment. The Bureau is the only federal agency mandated to represent the needs of wage-earning women. In 1922, it launched a major investigation on the conditions facing African-American women in industry. In the 1950's, it examined the dynamic situation of older women as office workers. In the 1980's, it broke new ground on the plight of contingent workers, and in the 1990's it researched and reported on domestic violence, long before experts considered the topic relevant to the workplace.
Sara is uniquely qualified to lead the Women's Bureau. She has spent her career in public service advocating on behalf of working class families, women, and girls. She has more than 25 years of federal, state, and judicial experience including 16 years in senior management. Most recently, she was appointed by Governor Edward G. Rendell as Deputy Secretary for Regulatory Programs at the Pennsylvania Department of State. As Deputy Secretary, and the highest-ranking Latina in Pennsylvania state government, Ms. Manzano-Diaz is responsible for protecting the health, safety, and welfare of the public by overseeing the licensure of approximately 1 million professionals. Previously, she served as Deputy General Counsel for Civil Rights and Litigation at the U.S. Department of Housing and Urban Development, where she enforced fair housing, civil rights, and anti-discrimination laws. She has served as Co-Chair of The Forum of Executive Women's Mentoring Committee, which mentors young professional women as they begin their careers, and also participated in Madrinas, a program that provides mentors for at-risk Latina girls to encourage them to finish high school and attend college.

M. Patricia Smith, Nominee for Solicitor, Department of LaborM. Patricia Smith is currently the Commissioner of the New York State Department of Labor and co-chair of New York State’s Economic Security sub-cabinet. She oversees the New York State Department of Labor with an annual budget of $4 billion, with 3,700 employees in 80 offices throughout the state and serves as advisor to Governor David Paterson on workforce and labor policy. Previously, she served for 20 years in the Labor Bureau of the New York State Attorney General’s Office, the last 8 as Bureau Chief. Her responsibilities included representing the New York State Department of Labor and the New York State Workers’ Compensation Board in all State and Federal litigation and advancing an affirmative docket enforcing New York’s Labor Laws. In 1996 and 1997, she argued and won two Employment Retirement Income Security Act cases before the United States Supreme Court. Before joining the Office of the Attorney General, she worked for a variety of Legal Services Organizations representing unemployment claimants, minimum wage workers, workers in federal job training programs and job seekers. She is an honors graduate of Trinity College in Washington, D.C. and received her law degree, cum laude, from the New York University School of Law.

DOL's ODEP Continues Listening Sessions

Department of Labor's Office of Disability Employment Policy continues its listening sessions around the nation. The next one is in San Francisco on February 16, 2010:

A New Day: We’re Listening
On February 16 in San Francisco, California, ODEP and its Federal partners will continue with the fourth in a series of six disability employment Listening Sessions. Each Listening Session is an opportunity for members of the public to provide input to senior Federal officials on their ideas for more effective ways to employ all people with disabilities, including women, Veterans and minorities with disabilities and what is currently working in their regions to increase employment of people with disabilities. ODEP seeks input particularly from:
Individuals & Consumers: youth and adults with disabilities, parents and caregivers
Employers: public and private
Service Providers & Advocacy Organizations (such as Employment Services and Partners): Independent Living Centers, One-Stops, State Vocational Rehabilitation Programs
The dates for the remaining Listening Sessions are:
February 16 – San Francisco, CA February 24 – Atlanta, GA March 3 – Boston, MA
The registration and comment periods for the San Francisco, Atlanta, and Boston sessions are now open. For Listening Session details, a message from Assistant Secretary Kathleen Martinez, registration information and live streaming video during each event, visit A New Day: We're Listening.

Saturday, February 13, 2010

Affirmative action ban advances in Utah House

Associated Press

By BROCK VERGAKIS (AP) – 1 day ago
SALT LAKE CITY — Lawmakers moved quickly Friday to place a ban on affirmative action in the Utah Constitution, despite little evidence the practice is being used or has caused problems.
A resolution that would prevent local governments, state agencies and public colleges from discriminating or providing preferential treatment based on race, sex, color, ethnicity or national origin sailed through a legislative committee only two days after it was made public.
To amend the constitution, the resolution would have to be approved by a two-thirds vote in the state House and Senate and be signed by Republican Gov. Gary Herbert. Voters also would have to approve the measure this fall.
The proposal is likely to have little trouble getting the necessary votes for passage in the GOP-dominated Legislature.
A House committee approved the measure known as House Joint Resolution 24 with a 10-4 vote Friday. The full House will likely vote on it next week.
Picture: Curt Oda (KCPW)

Cornell research shows connection between diverse workplace and bottom-line success
By Stacey Shackford • • February 12, 2010, 8:20 pm

In the private sector, affirmative action quotas seem to have fallen by the wayside in favor of other, more proactive practices. Diane Bradac, director of Tompkins Workforce New York, said, increasingly, this takes the form of social networking, both online and in the real world, with recruiters attending events in underrepresented communities and headhunting at the professional level.
"There's new thinking behind diversity initiatives," Bradac said. "Businesses have been asking themselves, why do we want diversity? It's not just a moral obligation, often it helps improve the bottom line."
Lynette Chappell-Williams, associate vice president of workforce diversity and inclusion at Cornell University, agrees. She said research -- much of it done at Cornell's own School of Industrial and Labor Relations -- shows a strong correlation between diversity and financial success.

Full Story:

Thursday, February 11, 2010

Utah Legislature: Lawmaker proposes ending affirmative action in higher education

Deseret News
By Josh Smith
Published: Thursday, Feb. 11, 2010 6:33 p.m. MST

SALT LAKE CITY — Utah lawmakers are considering a resolution that would call for a constitutional amendment that could effectively end affirmative action and "preferential treatment" in state agencies and higher education.
Rep. Curtis Oda, R-Clearfield, is proposing legislation that would forbid state agencies, contractors and universities and colleges from providing preference based on race or sex.
Under the proposed HJR24, state entities "may not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin with respect to public employment, public education, or public contracting."
Federal law, such as Title IX, would still trump any state amendment and the law would not apply to private businesses or schools, except those that contract with the state, Oda said.

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Fear of a ‘Multicultural’ Nation
Posted on Feb 10, 2010
By Marcia Alesan Dawkins

Last Thursday night former Congressman and 2008 Republican presidential candidate Tom Tancredo made opening-night remarks at the inaugural National Tea Party Convention in Nashville. Tancredo fired verbal shots at Barack Obama, Sen. John McCain and “the cult of multiculturalism,” stating that people who “could not spell the word vote or say it in English” had elected the president. And that Obama’s election reveals the need for us to “have a civics [or] literacy test before people can vote in this country.”
Tancredo is wrong. United States political history reveals our long-standing tradition in this area. In “Before the Mayflower,” Lerone Bennett Jr. recounts how literacy tests were first employed at the federal level as part of the immigration process in 1917. Southern state legislatures adopted literacy tests once African-Americans were granted citizenship rights under the 15th Amendment, as part of the voter registration process. As practiced, the literacy test became notorious for denying suffrage to African-Americans. Adopted by a number of Southern states, the tests were applied in a patently unfair manner and were used, along with the poll tax, to disfranchise many literate Southern blacks while allowing many illiterate Southern whites to vote.
The literacy test—combined with other discriminatory practices that kept African-Americans from attending schools, from particular modes of transportation, from attaining mortgages and from careers in public service—effectively disfranchised the vast majority of people of color in the South from the 1890s until after the middle of the 20th century. Southern states abandoned the literacy test only when forced to by federal legislation in the 1960s. This legalized discrimination caused suffering and turmoil for all parties involved, especially during the slavery period and the Jim and Jane Crow segregation era. Tancredo’s call for the return of literacy and civics tests suggests that those (black and brown) who voted for Obama are incapable of making informed political decisions and are influenced primarily by identity politics. Moreover, it denies the fact that the majority of voters who elected Obama were white.
Then there’s the issue of affirmative action. Like many other reactionary politicians, Tancredo has fallen victim to the misperception that affirmative action policies have done away with institutional racism and moved society beyond equal access to opportunity and into an era of “reverse racism” and discrimination. This has resulted in anti-affirmative action legislation such as California’s Proposition 209, Washington’s Initiative 200 and Ward Connerly’s various racial privacy initiatives.

Full Blog Post:

U.S. Department of Labor’s proposed 2011 budgets reflects an increased emphasis on enforcement

USA February 9 2010
Morgan Lewis & Bokius LLP

On February 1, Secretary of Labor Hilda Solis released the Obama administration’s proposed fiscal year 2011 budget for the U.S. Department of Labor (DOL or the Department). Adopting a theme of “good jobs for everyone,” the DOL’s FY2011 budget reshuffles the Department’s discretionary funds to support new policy, program, and enforcement priorities for the DOL.
Employers should be mindful of the programmatic and policy themes underlying the more technical “dollars and cents” of the budget process. These themes give invaluable insights into the direction the Department intends to move labor and employment law in the coming months.
Summary of Budget Proposal
The DOL’s budget proposal is only one step in a longer funding process that will carry through over the next few years. With that said, however, employers can expect the policies and priorities identified in the Department’s budget to move forward—whether Congress approves the funding or not.
A number of themes emerge that should assist employers in this new regulatory environment:
The DOL prefers corporatewide solutions, not site-specific fixes to a problem, be it an Occupational Safety and Health Administration (OSHA) violation or an Office of Federal Contracts Compliance Programs (OFCCP) audit. Employers should think broadly when problems emerge, and question whether the “band-aid” approach is always appropriate for any given situation.
The DOL will continue to target repeat offenders, and will up the ante significantly when an employer is labeled as a “persistent” problem. Employers need to ensure that any “fixes” made in response to DOL complaints or audits completely fix the problem, and do so in a timely manner— companywide.
The DOL (and the administration as a whole) values open access, making investigations less than confidential, and making press releases the norm of doing business. Employers need to be prepared for external pressure—from the press, from the community, and from the Department—to move in the directions the DOL has identified.
The DOL’s expanded enforcement will be accompanied by a substantial increase in regulatory activity, creating new obligations for employers.

Office of Federal Contractor Compliance Programs Budget
In his State of the Union address last month, President Obama announced, “We are going to crack down on violations of equal pay laws—so that women get equal pay for an equal day’s work.” The FY2011 budget proposal for the Department of Labor implements this part of the president’s agenda. Secretary Solis described this initiative in her budget presentation as “narrow[ing] the wage gap” and requiring employers to “offer fair compensation.”
The OFCCP currently investigates whether federal contractors’ pay and employment practices are discriminatory, and it will play a key role in the Administration’s expanded enforcement agenda. The OFCCP received a 33% budget increase in FY2010 to $105 million, and “has embarked on an unprecedented initiative” to hire 213 new compliance officers. The FY2011 budget proposal maintains these high funding levels: the OFCCP would therefore receive an increase to $113 million (788 full-time equivalents) for FY2011.

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Tuesday, February 9, 2010

Q&A: College gender gap has far-reaching consequences

USA Today
February 8, 2010
By Mary Beth Marklein, USA TODAY

As colleges nationwide review freshman applications over the next several weeks, many will face lopsided numbers of male and female candidates. Some colleges maintain a gender balance, but national data in recent years show a 57%-43% split favoring women, both in enrollments and graduation rates. Richard Whitmire, author of Why Boys Fail and a former USA TODAY editorial writer, talks to reporter Mary Beth Marklein about how we got there, why we should care, and what should be done about it.

Q: Why do boys fail, and how do we turn that around?
A: The reforms launched by the nation's governors more than 20 years ago to get more students college-ready had an unintended consequence: Most girls adjusted nicely to the intensified verbal skills demanded in the early grades; most boys didn't. We have to figure out a way to keep boys on track with reading and writing skills. Boys are failing because the world has gotten more verbal and they haven't.

Q&A: Michael Gurian says boys need societal nurturing, too
COLLEGE: Gender gap steady at 57% women
K-12: Few teachers are black men

Q: The U.S. Commission on Civil Rights is investigating whethercolleges discriminate against girls by giving boys a break in admissions, but you support affirmative action for male students for "just a little longer." How long is that?
A: I would like to get (college graduation rates) at a 55-45 split. We need to wait until corrections are made in elementary and high school that put boys on a better path toward college readiness. Improving verbal skills would be 90% of that task. The first measurement of success would be a drop in the number of boys in the ninth-grade "bulge" — the boys held back for another year because they are not prepared to start high school.

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Win for Women Who Wrestled

Inside Higher Ed
February 9, 2010

A federal appeals court on Monday ordered the University of California at Davis to defend itself against sex discrimination charges brought by a group of female former wrestlers at the institution. The ruling by the U.S. Court of Appeals for the Ninth Circuit, which sided with the former athletes on several fronts, overturned a lower court judge's 2008 opinion.

That judge, Frank Damrell Jr. of the U.S. District Court for the Eastern District of California, had dismissed a lawsuit brought by several women who had, in 2000, been dropped from the wrestling team and, after bringing a federal complaint, reinstated but ordered to compete against men for spots on the squad.

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Oregon minority group to offer scholarships to white students
By Janie Har, The Oregonian
February 07, 2010, 7:20PM

An Oregon group that represents minorities will start offering scholarships to white students -- and only white students -- in a bid to get people in the majority to champion issues important to minorities. The stipends will be small, perhaps no more than $2,000 over five years, for students to study race relations in college. The idea is to get students to translate what they learn in school into action in life. The Oregon League of Minority Voters has not figured out details for the awards, to be issued this spring, said Promise King, executive director of the statewide nonprofit organization. But recipients must live in Oregon. And they can't be of Asian, African, Latino or Native descent. "I want to reach white students because I believe the more the majority is involved in our conversations and in our work, the more we are able to get to solutions," King said. The idea of nudging white people to take up diversity and equity may be the way to go in a state and city where whites far outnumber people of color. But it also underlines a stark reality in Oregon: the stubborn lack of color in power.

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