Wednesday, March 31, 2010

California Court Issues Preliminary Ruling in Favor of Bar Applicants’ Private Data, Denying Prof. Sander’s Request

Equal Justice Society
Posted by keith on Tuesday, March 30, 2010

A California Superior Court judge on March 24 issued a preliminary ruling (download PDF) denying Professor Richard Sander’s request for access to bar applicants’ private data from the State Bar of California.
Prof. Sander’s lawsuit attempted to compel the State Bar to release information regarding applicants’ race, GPA, and bar exam scores in order to advance his research on what he terms the “mismatch hypothesis” – that affirmative action in law schools actually harms Black students by putting them in schools where they are unable to compete.
Sander’s findings to date have been readily contested, and his requests for confidential Bar data repeatedly denied – however, he has continued to pursue his claims in court, prompting attempted intervention by law students who claim that release of the confidential data would violate their right to privacy.
Judge Curtis Karnow ruled that Sander’s request should be denied because the data he requested is not a public record under California law (this order is currently pending, and will not be final until entered by the Court). Sander and his colleagues have stated that they intend to appeal this ruling.
While the final outcome of this case remains to be seen, this initial proposed ruling is a victory for the law students whose private records are at risk of being released without their permission.
Below is a more extensive summary of the March 24 preliminary decision in Sander v. State Bar of California by EJS law clerk Audrey Daniel.
Petitioner Richard Sander has filed suit seeking information from the State Bar of California. Specifically, he is attempting to compel the Bar to release information, including race, GPA, Bar exam scores, etc. for applicants for the Bar exam. Sander plans to utilize this data to argue that affirmative action hinders African Americans’ progress in becoming attorneys. EJS has joined the opposition to protect the privacy of Bar applicants against Sander gaining access to their personal information, and using it for such purposes.
The case will be heard in two stages. First, the judge will decide whether the particular data that Sander requests is considered public record. If so, and Sander prevails at the first stage, then the court will then hear the second phase. There, the judge will consider the privacy and burden issues implicated in the request.
The judge recently issued a Proposed Statement of Decision on phase one. Based on a variety of authorities that Sander claimed allowed him access to this information, the judge found that none of them mandated the Bar release this type of personal information of its applicants. This proposed decision is not yet final, but indicates that the court is heavily swayed towards denying Sander’s requests.
Sander first argued that he is entitled to this data based on the common law right of access to documents filed with the courts. However, the California Supreme Court has distinguished between documents related to adjudication and those that do not, when applying such a right of access. The Court there ruled that while there is a broad public right to documents related to judicial hearings and records, it does not include materials not related to a trial or adjudication. The judge in the case at hand found that the personal information that Sander seeks clearly does not relate to a trial or adjudication, and he therefore is not entitled to it based on this theory.
Sander also claims that he is entitled to the data as judicial records. He argues that there is a broad, general right to access of judicial records. While the definition of judicial records is in fact broad, even more so than the common law right to access, it still does not encompass the type of information that Sander seeks.
Another avenue for access asserted was Proposition 59, the California Public Records Act, which could be a potential basis on which Sander is entitled to the information. He argues that the voters’ intent was to include every writing of a public official, even if it was simply in the possession of an official and not actually written by an official. The court, though, did not find his evidence of that intent sufficient, and found that the plain language of the Proposition would not include Bar applicants’ personal information. While the Act expanded public access, it is limited to meetings of public bodies and writings of public officials. Information collected by officials regarding private individuals does not fall under either category. Thus, Sander cannot gain access to these records under Proposition 59.
The court could now rule that based on neither the common law right of access, the right of access to judicial records, nor Proposition 59, Sander did not have a right to this information. The countervailing policy that we support is the privacy rights of all applicants who gave this information with the understanding that it would not be released to the public in any form. While we expect Sander to appeal this decision, EJS commends the court on recognizing and honoring the privacy of California Bar exam applicants.

Monday, March 29, 2010

Kmart To Pay $120,000 To Settle EEOC Age Bias Suit

U.S. Equal Employment Opportunity Commission

Pharmacist Called ‘Greedy’ for Working at Age 70, Then Forced to Quit and Threatened With Legal Action in Retaliation for Complaining, Federal Agency Charged

HONOLULU – Kmart Corporation will pay $120,000 and furnish other relief to settle an age harassment, constructive discharge and retaliation lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today. The EEOC had charged that Kmart discriminated against a 70-year-old pharmacist at a Honolulu store.
According to the EEOC’s suit, over the course of four years, a pharmacy manager openly professed on several occasions that the pharmacist was “too old,” “should just retire,” and was “greedy” for continuing to work at age 70. Further, the EEOC said, the manager continued to humiliate her in writing by stating, “The pharmacy is no longer your forte” and “You need to retire from pharmacy work now,” in a communication book open to the entire department.
The manager also purposely scheduled her to work on Sundays – knowing that she attended church those days – to encourage her to quit, according to the EEOC. The agency further contended that the victim complained to a district manager, general manager and human resources manager regarding the age-based harassment, to no avail.
Further, the EEOC charged, Kmart threatened legal action against the pharmacist using a pretext on an unrelated matter to retaliate against her for her discrimination complaint. Finally, the EEOC said, she had to quit to escape the mistreatment.
In June 2009, the EEOC filed its lawsuit in U.S. District Court, District of Hawaii (EEOC v. Kmart Corporation, et al., Case No. CV09-00300 SOM BMK), claiming that Kmart failed to take remedial action, which forced the pharmacist to resign. The EEOC argued that the harassment and Kmart’s failure to adequately address it were in direct violation of the Age Discrimination in Employment Act (ADEA).
“Instead of addressing this pharmacist’s legitimate complaints of age discrimination, Kmart made a bad situation worse by threatening her for complaining,” said EEOC Acting Chairman Stuart J. Ishimaru. “Such retaliation only compounds an employer’s culpability.”
In cooperation with the EEOC, Kmart entered into a three-year consent decree which also stipulated that Kmart post a notice on the matter; hire an EEO trainer; review and revise its existing anti-discrimination policy; provide annual ADEA training to all staff; and ensure that performance evaluations reflect discriminatory misconduct by management staff.
“Older workers should be valued for their experience, not viewed as a liability,” said Anna Y. Park, regional attorney for the EEOC’s Los Angeles District Office, which includes Hawaii in its jurisdiction. “Under no circumstances will the EEOC tolerate employers pushing out their older workers simply because of age. The EEOC forcefully protects people against this kind of age-based discrimination.”
Timothy Riera, director of the EEOC’s Honolulu Local Office, added, “Employers should handle complaints of discrimination, including harassment, in an expeditious manner. Training on a company's EEO policies should occur periodically, and if someone if found to be in violation, appropriate disciplinary action should immediately be taken.”
According to company information, Kmart, a wholly owned subsidiary of Hoffman Estates, Ill.-based Sears Holdings Corporation, operates 1,368 general merchandise stores across the U.S. and its territories.
The EEOC is the federal agency that enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on the agency’s web site at

Seventh Circuit revives male employee's claim of sexual harassment based on female supervisor's alleged
Wildman Harrold Allen & Dixon LLP
Theresa M. Van Vuren and David L. Weinstein USA March 5 2010

In Turner v The Saloon, 2010 WL 424580 (7th Cir, Feb 8, 2010), the Seventh Circuit reversed summary judgment for an employer in a sexual harassment/hostile work environment claim brought by a male employee based on the alleged sexual advances of his female supervisor. The decision is important not only due to its analysis of this "unusual" claim, but also because it provides helpful guidance on the types of conduct readily giving rise to hostile work environment claims and related issues that employers should recognize to avoid exposure.
The Turner Decision
Paul Turner sued his former employer, a Chicago restaurant called The Saloon, for hostile work environment sexual harassment based on the alleged actions of Turner's female supervisor. Turner and his supervisor previously had a nine-month sexual relationship. After Turner ended it, the supervisor allegedly retaliated against Turner by altering his table-waiting assignments, writing him up for unwarranted discipline, reprimanding him in front of other employees, and engaging in unwanted sexual conduct. The alleged unwanted sexual conduct consisted of the supervisor: (1) putting her hands inside Turner's pant pockets, grabbing his penis and telling him, "You sure are soaked" after a customer had spilled champagne on him; (2) pressing her chest against Turner and asking him, "Don't you miss me?"; (3) asking Turner to kiss her; (4) approaching Turner from behind and grabbing his buttocks; and (5) watching Turner change into his work uniform and telling him that she missed seeing him naked. Turner also presented evidence that he told his supervisor to stop her advances and complained to management about her behavior. Turner's complaints prompted management to meet with the supervisor and explain that the restaurant did not tolerate sexual harassment of any employees. Turner contended this response was insufficient.

Full Story:

First appellate court decision involving Lilly Ledbetter refuses to apply act beyond claims of pa

Strasburger & Price LLP
Tiffany L. Cox USA March 17 2010

Slightly one year after the passage of the Lilly Ledbetter Fair Pay Act of 2009 (“Ledbetter Act”), the Court of Appeals for the District of Columbia has declined to apply the Ledbetter Act to extend the limitations period for a time-barred age discrimination claim arising out of several instances of partnership denial. Schuler v. PricewaterhouseCoopers, LLP, --- F.3d ----, 2010 WL 522345 (D.C. Cir.2010). The Schuler decision rejects the broader view of the Ledbetter Act advanced by some members of the plaintiffs’ bar that the Act extended beyond pay discrimination claims to other forms of discrimination.
Ledbetter v. Goodyear Tire & Rubber Company
The Ledbetter Act reversed the Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Company, 550 U.S. 618 (2007), in which the Court held the plaintiff’s pay discrimination claims, spanning the duration of her almost 20-year employment at Goodyear, were untimely, explaining that the time for filing a charge of discrimination runs from when an employer makes a discriminatory decision about an employee's compensation and not each time the employee receives a paycheck affected by that discrimination. In effect, employees could not challenge on-going pay discrimination if the employer’s original discriminatory pay decision occurred outside of the 180- day limitations period, even when the employee continued to receive paychecks that had been discriminatorily reduced.
Lilly Ledbetter Fair Pay Act of 2009
Intended to overturn the Supreme Court’s decision, the Ledbetter Act amended four federal laws to declare that an unlawful employment practice related to discriminatory compensation occurs not only upon adoption of a “discriminatory compensation decision or other practice,” but also when the individual becomes subject to the decision or other practice, as well as each additional application of the decision or practice. The Ledbetter Act, therefore, restarts the 180-day statute of limitations upon each occurrence of a discriminatory pay practice, including every issuance of a discriminatory pay check.
Schuler v. PriceWaterhouseCoopers, LLP
In Schuler v. PriceWaterhouseCoopers, LLP, the plaintiffs alleged that PriceWaterhouseCoopers denied them promotion to partnership on several occasions in 1999, 2000, 2001, and 2004 because of their age in violation of the Age Discrimination in Employment Act (“ADEA”). The district court dismissed most of plaintiff Harold Schuler’s claims as untimely under the ADEA because he had failed to file a timely charge of discrimination with the Equal Employment Opportunity Commission. On appeal, Schuler argued the Ledbetter Act made his claims timely. Relying upon the Ledbetter Act’s language of “discriminatory compensation decision or other practice,” Schuler argued the decision not to make him a partner was an “‘other act’ ... intertwined with a discriminatory compensation decision” because as a result of that decision, he received significantly less remuneration than he would have as a partner.
The Court of Appeals disagreed with Schuler’s argument, holding the phrase “discrimination in compensation” means paying different wages or providing different benefits to similarly situated employees—not promoting one employee but not another to a more remunerative position. The Court reasoned that the Ledbetter Act was enacted to address a specific type of discrimination (pay discrimination) and not other unspecified types of discrimination in employment. Schuler’s claim was not a pay discrimination claim but rather, a discriminatory failure to promote claim, which, while actionable, was not a claim for which the limitations period could be extended under the Ledbetter Act.

Full Story:

Sunday, March 28, 2010

Good news on women in science

The Boston Globe
By Jeff Jacoby
Globe Columnist / March 28, 2010

THE NUMBER of women in science and engineering is growing, yet men continue to outnumber women, especially at the upper levels of these professions.’’

So begins a new research report, “Why So Few?,’’ published last week by the American Association of University Women, an advocacy group that describes itself as “the nation’s leading voice promoting education and equity for women and girls.’’ The report argues that “social and environmental factors’’ — negative stereotypes about girls’ math skills, for example, or the hard-driving culture of many science and technology workplaces — contribute significantly to the “striking disparity’’ between the numbers of men and women in the so-called STEM fields: science, technology, engineering, and math.
That disparity, says the association, is reflected in statistics like these:
The Labor Department reports that women account for only 10 percent of the nation’s civil and aerospace engineers, 8 percent of the electrical engineers, and 7 percent of the mechanical engineers....

And in academia? The report concedes that “when women . . . apply for STEM faculty positions at major research universities they are more likely than men to be hired.’’ (emphasis added) Not even “the nation’s leading voice promoting education and equity for women,’’ it turns out, can make a convincing case that sexist bias is a serious problem in science, engineering, or math.

Full Story:

The Boys Have Fallen Behind

The New York Times
Published: March 27, 2010

Around the globe, it’s mostly girls who lack educational opportunities. Even in the United States, many people still associate the educatioYet these days, the opposite problem has sneaked up on us: In the United States and other Western countries alike, it is mostly boys who are faltering in school. The latest surveys show that American girls on average have roughly achieved parity with boys in math. Meanwhile, girls are well ahead of boys in verbal skills, and they just seem to try harder.
The National Honor Society says that 64 percent of its members — outstanding high school students — are girls. Some colleges give special help to male applicants — yes, that’s affirmative action for white males — to avoid skewed sex ratios.
A new report just issued by the Center on Education Policy, an independent research organization, confirms that boys have fallen behind in reading in every single state. It found, for example, that in elementary schools, about 79 percent of girls could read at a level deemed “proficient,” compared with 72 percent of boys. Similar gaps were found in middle school and high school.nal “gender gap” with girls left behind in math.

Full Editorial:

The Rage Is Not About Health Care

The New York Times
Published: March 27, 2010

THERE were times when last Sunday’s great G.O.P. health care implosion threatened to bring the thrill back to reality television. On ABC’s “This Week,” a frothing and filibustering Karl Rove all but lost it in a debate with the Obama strategist David Plouffe. A few hours later, the perennially copper-faced Republican leader John Boehner revved up his “Hell no, you can’t!” incantation in the House chamber — instant fodder for a new viral video remixing his rap with’s “Yes, we can!” classic from the campaign. Boehner, having previously likened the health care bill to Armageddon, was now so apoplectic you had to wonder if he had just discovered one of its more obscure revenue-generating provisions, a tax on indoor tanning salons.But the laughs evaporated soon enough. There’s nothing entertaining about watching goons hurl venomous slurs at congressmen like the civil rights hero John Lewis and the openly gay Barney Frank. And as the week dragged on, and reports of death threats and vandalism stretched from Arizona to Kansas to upstate New York, the F.B.I. and the local police had to get into the act to protect members of Congress and their families.
How curious that a mob fond of likening President Obama to Hitler knows so little about history that it doesn’t recognize its own small-scale mimicry of Kristallnacht. The weapon of choice for vigilante violence at Congressional offices has been a brick hurled through a window. So far.
No less curious is how disproportionate this red-hot anger is to its proximate cause. The historic Obama-Pelosi health care victory is a big deal, all right, so much so it doesn’t need Joe Biden’s adjective to hype it. But the bill does not erect a huge New Deal-Great Society-style government program. In lieu of a public option, it delivers 32 million newly insured Americans to private insurers. As no less a conservative authority than The Wall Street Journal editorial page observed last week, the bill’s prototype is the health care legislation Mitt Romney signed into law in Massachusetts. It contains what used to be considered Republican ideas.
Yet it’s this bill that inspired G.O.P. congressmen on the House floor to egg on disruptive protesters even as they were being evicted from the gallery by the Capitol Police last Sunday. It’s this bill that prompted a congressman to shout “baby killer” at Bart Stupak, a staunch anti-abortion Democrat. It’s this bill that drove a demonstrator to spit on Emanuel Cleaver, a black representative from Missouri. And it’s this “middle-of-the-road” bill, as Obama accurately calls it, that has incited an unglued firestorm of homicidal rhetoric, from “Kill the bill!” to Sarah Palin’s cry for her followers to “reload.” At least four of the House members hit with death threats or vandalism are among the 20 political targets Palin marks with rifle crosshairs on a map on her Facebook page.

Full Editorial:

Saturday, March 27, 2010

Obama to make recess appointments to 15 administration posts
By the CNN Wire Staff
March 27, 2010 6:26 p.m. EDT

Washington (CNN) -- President Obama announced Saturday that he will make recess appointments of 15 nominees to administration posts who are awaiting confirmation by the full Senate.
"The United States Senate has the responsibility to approve or disapprove of my nominees," Obama said in a written statement that also named the 15 individuals. "But if, in the interest of scoring political points, Republicans in the Senate refuse to exercise that responsibility, I must act in the interest of the American people and exercise my authority to fill these positions on an interim basis.
"Most of the men and women whose appointments I am announcing today were approved by Senate committees months ago, yet still await a vote of the Senate. At a time of economic emergency, two top appointees to the Department of Treasury have been held up for nearly six months. I simply cannot allow partisan politics to stand in the way of the basic functioning of government."

...The president has the authority under Article II, Section 2 of the Constitution to make recess appointments.
Besides Becker, the other 14 recess appointees are:
• Jeffrey Goldstein, under secretary for domestic finance, Department of the Treasury
• Michael F. Mundaca, assistant secretary for tax policy, Department of the Treasury
• Eric L. Hirschhorn, under secretary of commerce for export administration and head of the Bureau of Industry and Security, Department of Commerce
• Michael Punke, deputy trade representative - Geneva, Office of the U.S. Trade Representative
• Francisco "Frank" J. Sanchez, under secretary for international trade, Department of Commerce
• Islam A. Siddiqui, chief agricultural negotiator, Office of the U.S. Trade Representative
• Alan D. Bersin, commissioner, U.S. Customs and border Protection, Department of Homeland Security
• Rafael Borras, under secretary for management , Department of Homeland Security
• Jill Long Thompson, Farm Credit Administration Board
• Mark Gaston Pearce, National Labor Relations Board
• Jacqueline A. Berrien, chair of the Equal Employment Opportunity Commission
• Chai R. Feldblum, commissioner, Equal Employment Opportunity Commission
• Victoria A. Lipnic: commissioner, Equal Employment Opportunity Commission
• P. David Lopez: general counsel, Equal Employment Opportunity Commission

Full Story:

Whose Country Is It?

The New York Times
Published: March 26, 2010

The far-right extremists have gone into conniptions.
The bullying, threats, and acts of violence following the passage of health care reform have been shocking, but they’re only the most recent manifestations of an increasing sense of desperation.
It’s an extension of a now-familiar theme: some version of “take our country back.” The problem is that the country romanticized by the far right hasn’t existed for some time, and its ability to deny that fact grows more dim every day. President Obama and what he represents has jolted extremists into the present and forced them to confront the future. And it scares them.
Even the optics must be irritating. A woman (Nancy Pelosi) pushed the health care bill through the House. The bill’s most visible and vocal proponents included a gay man (Barney Frank) and a Jew (Anthony Weiner). And the black man in the White House signed the bill into law. It’s enough to make a good old boy go crazy.
Hence their anger and frustration, which is playing out in ways large and small. There is the current spattering of threats and violence, but there also is the run on guns and the explosive growth of nefarious antigovernment and anti-immigrant groups. In fact, according to a report entitled “Rage on the Right: The Year in Hate and Extremism” recently released by the Southern Poverty Law Center, “nativist extremist” groups that confront and harass suspected immigrants have increased nearly 80 percent since President Obama took office, and antigovernment “patriot” groups more than tripled over that period.

Full Story:

Thursday, March 25, 2010

Employer does not violate ADA by terminating employee unable to perform essential job functions
Seyfarth Shaw LLP
USA March 15 2010

In Richardson v. Friendly Ice Cream Corporation, the First Circuit affirmed a District Court ruling that an employee was not discharged in violation of the ADA because the employee was incapable of performing the essential functions of her position with or without a reasonable accommodation.
Katharine Richardson, an assistant manager at one of the Friendly Ice Cream Corporation’s (Friendly’s) restaurants in Maine, injured her shoulder at work and took a leave of absence under the FMLA to undergo shoulder surgery. After the surgery, she informed Friendly’s that her condition prohibited her from performing repetitive activity with her right arm and from lifting objects weighing more than five pounds. Friendly’s terminated Richardson’s employment, stating that she had remained on leave beyond the time permitted under the company’s FMLA policy.
Following her termination, Richardson first filed a charge of discrimination with the Maine Human Rights Commission and the EEOC, and then filed suit in District Court, alleging that Friendly’s discharged her because of her disability.
In view of the trial court’s decision to dismiss Richardson’s claim, the First Circuit held that she was not qualified for her position at the time of her discharge. Since it was undisputed that Richardson was disabled, the First Circuit’s analysis focused on whether she would be able to perform the essential functions of her position with or without accommodation. The Court rejected Richardson’s argument that her only essential function involved overseeing the operation of the restaurant. Instead, after reviewing a job description for the assistant manager position and testimony about the tasks Richardson had performed in that position, the Court concluded that Richardson’s essential functions also included assisting in kitchen, dining, and take-out operations, all of which required performing a number of predominantly manual tasks.

Full Story:

Registration for AAAA Summer Professional Development and Training Institute Now Available




525 South State Street

Chicago, IL 60605

The Summer 2010 PDTI session is scheduled to occur June 13-19, 2010 in Chicago! Don't miss an opportunity to be trained by leading EEO and Affirmative Action experts. Receive the latest information regarding EEO/AA laws and EEO compensation analysis or prepare for your next OFCCP audit by learning how to develop an affirmative action program! Or, advance your research and data analysis skills with a course in basic statistics and applications! Go to for course details and to register for exciting courses that lead to the completion of the Certified Affirmative Action Professional (CAAP) certification with courses such as:

  • Affirmative Action and Equal Employment Opportunity Law

  • Complaint Processing, Counseling and Resolution

  • Affirmative Action Plan Development

  • Or take advantage of the following special topics course offerings (no prerequisite is required to register):

  • Basic Statistics and Applications in AA Plan Development, Adverse Impact and Compensation Analysis

  • EEO Compensation Analysis

  • Registrants in the June session may complete their entire CAAP certification in 7 days!!

    Registrants for the entire CAAP certification receive $150.00 OFF the entire certification track. You must be registered and complete all three CAAP courses in the same session (June) for this discount to apply.All courses are eligible for HRCI credit. For lodging options, click here or visit the University Center's website for further details more information about PDTI, Webinars or other AAAA programs, please call us toll-free at 1-800-252-8952 or visit

  • Thank you for your continued support!

Legal Alert: OFCCP Update

Legal Alert: OFCCP Update
Ford & Harrison LLP Email

As promised, OFCCP Director Patricia Shiu has ramped up enforcement for covered contractors and has expanded the focus of compliance reviews to include a detailed review of contractors' compliance with Section 503 of the Rehabilitation Act and VEVRAA.
OFCCP is giving heightened scrutiny to disabled and veterans issues. Contractors selected for compliance reviews should be prepared to provide documentation of outreach and positive recruitment for covered disabled individuals and veterans in the event an onsite is scheduled.
The contractor should also be able to document outreach and positive recruitment for individuals with disabilities in accordance with Section 503 of the Rehabilitation Act of 1973 as well as VEVRAA. The OFCCP is reviewing information such as:
Number of partnerships with local veteran or disabled organizations;
Established liaisons with the state work force agency job bank and the Department of Vocational Rehabilitation to facilitate postings of job listings;
The number of veterans and individuals with disabilities hired during the period under review;
Recruitment efforts at educational institutions to reach potential applicants for qualified covered veterans and/or individuals with disabilities;
The number of job advertisements in the local community targeting veterans and targeted recruitment of qualified covered veterans and/or disabled individuals during company career days or related activities within local communities;
Affirmative steps taken to attract qualified special disabled or covered veterans through the nearest Veterans Administration job placement program;
The number of on-the-job training opportunities provided to covered veterans and disabled employees;
Lists of veteran and disabled recruitment sources, contacts for these sources and lists of applicants referred from each source, which includes veteran and/or disabled status and disposition.
Contractors should ensure that their workplaces are accessible for the disabled. Look at your facility and make sure that individuals with disabilities can access the personnel office, and that reasonable accommodations are in place to ensure disabled individuals can apply for jobs online or in person.
The contractor should have available names of the employees who have requested an accommodation under the ADA or the Rehabilitation Act, or used FMLA or USERRA. During an onsite investigation, the OFCCP agent may ask to interview these people. OFCCP will permit the contractor's attorney to be present during an interview of management witnesses. However, attorneys will not be permitted to be present during interviews of non-management witnesses.
For further information, contact the Ford & Harrison attorney with whom you normally work or the attorneys in the Affirmative Action Compliance Group including Bennet Alsher,, 404-888-3852; Linda Cavanna-Wilk,, 212-453-5923; Michelle Harkavy,, 901-291-1533; and Karen Tyner at, 864-699-1134

Linda Cavanna-Wilk is a member of the AAAA Professional Development and Training Institute Faculty

AFT Releases Report on Promoting Diversity

Inside Higher Ed
The American Federation of Teachers released a report Tuesday on steps colleges should take to diversify their faculties. The report reviews data on the lack of racial and ethnic diversity on most faculties, and discusses ways to recruit more diverse pools and to retain minority professors.

For a copy of the AFT Report, go to:

Use of Temporary Workers Also Invites Exposures to Lawsuits

Workforce Management
March 2010
Attorneys say temporary workers hired through staffing agencies generally are considered to be employed by both the agency and company, even though the agency pays the salary. By Judy Greenwald

As the use of temporary workers increases, employers need to guard against the potential liabilities and other pitfalls of bringing in such workers, experts say.
Even though a staffing agency may cut a temporary worker’s check, experts say employers remain obligated to comply with state and federal employment laws, including discrimination statutes. There also are situations in which an employer could be required to provide benefits, experts say.
After several months of declines in the number of temporary help services employees in the U.S. workforce, the figure hit a yearly low in July 2009 at 1.7 million. Since then, the number has risen, hitting an estimated 1.9 million in December on a seasonally adjusted basis, according to the U.S. Bureau of Labor Statistics. The BLS does not track temporary workers or independent contractors hired directly by employers, a much smaller number than temp workers hired through agencies.
Observers say the recent temp hiring upswing could reflect an improving economy.
“I’m hopeful this is a sign that employers are dipping their toe back into the water,” says Lorie E. Almon, a partner with Seyfarth Shaw in New York, who has seen increased client interest in hiring temporary workers.
Attorneys say temporary workers hired through staffing agencies generally are considered to be employed by both the agency and company, even though the agency pays the salary.

Full Story:

UC regents sorry for acts of hate on campuses
Nanette Asimov, Chronicle Staff Writer
Thursday, March 25, 2010

It's taken a series of venomous events - among them a hanging noose, a swastika etched in a Jewish student's door, and anti-gay slurs scribbled on walls - to shake University of California leaders into recognizing that the diversity problem on their campuses is serious.
But recognize it they did on Wednesday as regents, chancellors and UC President Mark Yudof spent the morning apologizing to students for allowing an atmosphere of hatred to fester on at least two campuses, San Diego and Davis. They acknowledged that racial tension undoubtedly exists on other UC campuses.
They laid out plans to make the largely white and Asian American schools more inclusive. And they decried the repeated, hateful incidents that began in February with a San Diego frat party mocking black students. A noose in the school's library followed. Then there was a student's closed-circuit TV rant using a racial slur for black people, and another student's photo that had been darkened and circulated.
At UC Davis, someone defaced the Lesbian, Gay, Bisexual, Transgender Resource Center with derogatory words. And no fewer than six swastikas have been found on campus, the latest just days ago.
"I want to extend a personal apology to every African American kid, every Latino student and Jewish kid, and to every student that became aware of this," Eddie Island told fellow regents and dozens in the audience, from students to staff members. The regents are in San Francisco this week conducting their monthly meeting.
"We as a board failed to provide a nurturing environment," Island said. "We didn't intend to, but we have failed."

Full Story:

China strikes back with report on U.S. human rights record
2010-03-12 15:07:03

BEIJING, March 12 (Xinhua) -- China Friday retorted U.S. criticism by publishing its own report on the U.S. human rights record.
"As in previous years, the (U.S.) reports are full of accusations of the human rights situation in more than 190 countries and regions including China, but turn a blind eye to, or dodge and even cover up rampant human rights abuses on its own territory," said the Information Office of the State Council in its report on the U.S. human rights record.
The Human Rights Record of the United States in 2009 was in retaliation to the Country Reports on Human Rights Practices for 2009 issued by the U.S. Department of State on March 11.
The report is "prepared to help people around the world understand the real situation of human rights in the United States," said the report.
The report reviewed the human rights record of the United States in 2009 from six perspectives: life, property and personal security; civil and political rights; economic, social and cultural rights; racial discrimination; rights of women and children; and the U.S.' violation of human rights against other countries.
It criticized the United States for taking human rights as "a political instrument to interfere in other countries' internal affairs, defame other nations' image and seek its own strategic interests."
China advised the U.S. government to draw lessons from the history, put itself in a correct position, strive to improve its own human rights conditions and rectify its acts in the human rights field.
This is the 11th consecutive year that the Information Office of China's State Council has issued a human rights record of the United States to answer the U.S. State Department's annual report.
"At a time when the world is suffering a serious human rights disaster caused by the U.S. subprime crisis-induced global financial crisis, the U.S. government still ignores its own serious human rights problems but revels in accusing other countries. It is really a pity," the report said.

Full Story:

Full Text of Human Rights Record of the United States in 2009:

Tuesday, March 23, 2010

The gap in women’s power in politics

The Boston Globe
By Derrick Z. Jackson
March 23, 2010

IS IT possible India’s parliament and German industry have something to teach us in the struggle for women’s equality? India’s upper parliament voted this month to require that one-third of seats be reserved for women. In Germany, the telecommunications company Deutsche Telekom announced an affirmative action program to raise its percentage of women managers from its current 12 percent to 30 percent by 2015. Meanwhile, in the United States, although a record number of women serve in Congress, women are still only about 17 percent of the members.

An example of the need for a stronger US women’s voice was evident on Sunday as restrictions on federal funding of abortions remained a ping-pong ball that nearly shattered the fragile framework of health care reform passed by the House. The debate was dominated by men, with it all seemingly coming down to whatever deal President Obama could cut with Democrat Bart Stupak of Michigan.
In 1992, Harriett Woods, the president of the National Women’s Political Caucus, told the New York Times that “men left to themselves are like tribes on the Hill. We just want to try things our way.’’ Eighteen years later, House Speaker Nancy Pelosi said with a straight face that health care reform is “liberating legislation,’’ even as the tribes continue to shackle, in a significant way, women who, being the primary caregivers in our society, might better shape reform. Whereas a Gallup poll last year found that men ages 18 to 49 opposed health care reform 45 percent to 30 percent, women ages 18 to 49 supported reform 47 percent to 27 percent. Abortion is of course not the only thing women care about, but the wrangling over it last weekend was too much a male wrestling tournament.

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Monday, March 22, 2010

Religion-Based Harassment

Workforce Management
By James E. Hall, Mark T. Kobata and Marty Denis
Workforce Management, May 19, 2008, p. 10

When considering appropriate responses to confirmed incidents of workplace harassment, employers are advised to take action that effectively deters recurrence of such conduct. This may include retraining employees about harassment, republishing the employer’s policy on such matters and disciplinary action against responsible parties.

On October 2001, Clinton Ingram, an African-American Muslim, was hired by Sunbelt Rentals in Gaithersburg, Maryland, as a truck driver and was later promoted to rental manager. The company allowed Ingram to use a private room for daily prayer and attend weekly congregational prayer sessions on Fridays from 1-1:45 p.m. After the September 11 terrorist attacks, co-workers regularly called Ingram "Taliban" and "towel head," made fun of Ingram’s appearance, challenged his allegiance to the United States, suggested he was a terrorist and made comments associating all Muslims with senseless violence. Ingram made repeated verbal complaints to Steve Riddlemoser, a general manager, and faxed a written complaint to the company’s human resources department. After Riddlemoser investigated and co-workers denied the comments, Riddlemoser found insufficient support for Ingram’s allegations and refused to take disciplinary action. Riddlemoser told Ingram his "performance and personality are the only cause for the problems," and that Sunbelt had been "very accommodating." Ingram’s co-workers continued to harass him until his termination in February 2003. The EEOC filed suit in the U.S. District Court for the District of Maryland on behalf of Ingram, alleging religious harassment in violation of Title VII. The court granted summary judgment in favor of Sunbelt. The EEOC appealed.

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Office for Civil Rights Revamps Civil Rights Data Collection, Unveils New Web Site for Survey Data

U.S. Department of Education, Office for Civil Rights
FOR RELEASE:March 16, 2010
Contact: Jim Bradshaw 401-1576

The U.S. Department of Education's Office for Civil Rights (OCR) announced today that it will begin collecting new data to measure whether all students have equal educational opportunity and to inform its enforcement of federal civil rights laws. The data will be collected through the Civil Rights Data Collection (CRDC), which surveys school districts in a variety of areas related to civil rights in education.
"Getting relevant, accurate and accessible data is a prerequisite to critical analysis and good decision-making," said U.S. Secretary of Education Arne Duncan. "Our hope and expectation is that by ensuring that the data collected by the CRDC covers the critical issues in civil rights in education, the department and all stakeholders will have the information they need to ensure that school districts and schools are living up to the promise of providing equal educational opportunity."
After conducting a comprehensive review of the past survey and considering comments from numerous stakeholders, OCR added new data items to be used in the 2009-10 CRDC. The new data items cover critical topics such as students' participation in algebra and other college-preparatory subjects, retention, teacher experience/absenteeism, school funding, harassment, restraint/seclusion, and additional information related to discipline.
Most of the data collected by the CRDC will be disaggregated by race/ethnicity, sex, disability, and limited English proficient status. Along with these changes, OCR streamlined the survey by removing several other data items.
In 2010, the CRDC sample will expand from 6,000 to 7,000 school districts. Every school in a district that is part of the sample is surveyed. The sample now includes all districts with enrollments of more than 3,000 students. The survey, which will be conducted in two parts (March and October 2010), will collect data for the 2009-10 school year.
OCR also has launched a new Web site,, to make the CRDC data more accessible and usable to its wide variety of users. The Web site contains CRDC data from 2000-2006, and OCR will post the 2009-10 data when it becomes available. The Web site enhancement was undertaken as part of the department's on-going commitment to transparency and accessibility.
For further information about OCR, please visit, For further information on the 2009-10 CRDC, visit

Fear Strikes Out

The New York Times
Published: March 21, 2010

The day before Sunday’s health care vote, President Obama gave an unscripted talk to House Democrats. Near the end, he spoke about why his party should pass reform: “Every once in a while a moment comes where you have a chance to vindicate all those best hopes that you had about yourself, about this country, where you have a chance to make good on those promises that you made ... And this is the time to make true on that promise. We are not bound to win, but we are bound to be true. We are not bound to succeed, but we are bound to let whatever light we have shine.”
And on the other side, here’s what Newt Gingrich, the Republican former speaker of the House — a man celebrated by many in his party as an intellectual leader — had to say: If Democrats pass health reform, “They will have destroyed their party much as Lyndon Johnson shattered the Democratic Party for 40 years” by passing civil rights legislation.
I’d argue that Mr. Gingrich is wrong about that: proposals to guarantee health insurance are often controversial before they go into effect — Ronald Reagan famously argued that Medicare would mean the end of American freedom — but always popular once enacted.
But that’s not the point I want to make today. Instead, I want you to consider the contrast: on one side, the closing argument was an appeal to our better angels, urging politicians to do what is right, even if it hurts their careers; on the other side, callous cynicism. Think about what it means to condemn health reform by comparing it to the Civil Rights Act. Who in modern America would say that L.B.J. did the wrong thing by pushing for racial equality? (Actually, we know who: the people at the Tea Party protest who hurled racial epithets at Democratic members of Congress on the eve of the vote.)

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U.S. Gets Poor Grades in Nurturing STEM Diversity

Education Week
By Erik W. Robelen
Published Online: March 22, 2010

The nation’s K-12 education system gets an average grade of D for the job it does “engaging and nurturing” minorities to pursue careers in the STEM fields of science, technology, engineering, and mathematics, and a D-plus for such performance with girls, based on results released today from a survey of female and minority chemists and chemical engineers.
Those polled also believe science teachers play a larger role than parents and others in inspiring an interest in science, with 70 percent saying teachers have the most influence at the elementary level, and nearly 90 percent saying teachers have the most influence at the high school level.
Meanwhile, another report out today, developed with support from the National Science Foundation, pulls together “a large and diverse body” of existing research providing evidence that social and environmental factors contribute to the “underrepresentation” of women in science and engineering.
That study, from the Washington-based American Association of University Women, offers a set of recommendations for educators, parents, and others, including a call to “spread the word about girls’ and women’s achievements in math and science” to combat negative stereotypes; teach girls that intellectual skills are “acquired,” and not simply the product of “innate talent”; and explain to girls that buying into negative stereotypes can diminish academic achievement. It also says that in high school, girls should be encouraged to take classes in calculus, physics, chemistry, computer science, and engineering when available.

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Trumka: Temple Takes Taxpayer $$, Should Treat Workers Better

by Tula Connell, Mar 19, 2010

In Philadelphia this morning, AFL-CIO President Richard Trumka joined Pennsylvania AFL-CIO President Bill George in pledging the union movement’s support for an impending strike by Temple University Hospital’s 1,500 nurses and professional and technical employees. Shortly before the press event, the Pennsylvania Association of Staff Nurses and Allied Professionals (PASNAP) delivered a 10-day strike notice to the hospital.
Employees have been working without a contract since September, and Maureen May, RN, president of the Temple unions, says management:
has refused to even discuss our demands for safe staffing and hasn’t budged on its demands for massive concessions, choosing instead to engage in bad faith bargaining. Our members are the backbone of Temple University Hospital and we will strike if we must to force them to give us the respect we deserve.

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Administaff to Pay $115,000 for Religious Bias

U.S. Equal Employment Opportunity Commission

Nationwide Staffing Company Subjected Jewish Employees to Verbal and Physical Harassment, EEOC Charged

BALTIMORE – Administaff, Inc., a nationwide company which provides full-service human resources to small and medium-size businesses will pay $115,000 and furnish substantial remedial relief to settle a harassment lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today.
According to EEOC’s suit (Case No. 1:09-cv-02881-BEL) filed in the U.S. District Court for the District of Maryland, Northern Division, Kingwood, Texas-based Administaff and Conn-X, LLC, a Florida-based cable service provider, violated federal law by engaging in religious discrimination against employees at Conn-X’s Edgewood, Md., office.
The EEOC said that Scott Jacobson and Joey Jacobson, who are brothers, were called “dirty Jew,” “dumb Jew,” and other anti-Semitic slurs by managers and coworkers because of their religion, Judaism. The harassment began in September 2005 and continued for a couple of years and included the defacing of Scott Jacobson’s work vehicle with a swastika symbol, the EEOC said. He was also physically harassed when he was forced into a trash bin for the amusement of managers who observed them on a work surveillance camera and called it “throw the Jew in the dumpster.” The EEOC’s lawsuit against Conn-X, LLC remains unresolved.
Title VII of the Civil Rights Act of 1964 prohibits religious harassment. The EEOC filed suit after first attempting to reach a voluntary settlement.
“What happened to these workers was cruel and callous, involving physical mistreatment, as well as hateful religious slurs and anti-Semitic symbols” said EEOC Acting Chairman Stuart J. Ishimaru. “Title VII of the Civil Rights Act embodies the promise that no one should have to endure this kind of abuse in the workplace. We are gratified we fought and brought an end to the religious discrimination that was happening here, and that we could secure a measure of justice for these victims.”
In addition to the monetary relief to the Jacobsons, the consent decree settling the suit enjoins Administaff, Inc. from engaging in harassment on the basis of religion and from retaliating against employees who complain about it. The employer agreed to revise its policy against harassment and retaliation, provide training to its managers on anti-discrimination laws, and to post notices stating its commitment to maintaining an environment free of religious harassment and retaliation.
“Employers play a critical role in creating a work environment respectful of employee’s religious beliefs,” said EEOC Acting Regional Attorney Debra Lawrence of the EEOC’s Philadelphia District Office, which oversees Pennsylvania, Delaware, West Virginia, Maryland and parts of New Jersey and Ohio. “It is never acceptable to come to work and have your religion and heritage made the subject of such callous and impermissible treatment.”
Religious discrimination charge filings nationwide with the EEOC have increased substantially over the years. In Fiscal Year 2009, the EEOC received a record high level of 3,386 religious discrimination charges – nearly double the number of religious discrimination charges since FY 1992.
According to its web site (, “Administaff, Inc. is the nation's leading professional employer organization (PEO), serving as a full-service human resources department for small and medium-sized businesses throughout the United States. Administaff delivers its personnel management services by entering into a co-employment relationship with a client company and the client company’s existing employees, including the business owner. Under this arrangement, Administaff assumes or shares many of the responsibilities of being an employer.”
The EEOC enforces federal laws prohibiting employment discrimination. Further information about the Commission is available at its web site (

Imagine Schools to Pay $570,000 to Settle EEOC Pregnancy Discrimination Lawsuit

U.S. Equal Employment Opportunity Commission

Charter School Company Chose Not to Retain Two Qualified Employees Because of Their Pregnancies, Federal Agency Charged

KANSAS CITY - Imagine Schools, Inc., a nationwide operator of charter schools, will pay $570,000 to settle a pregnancy discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission, (EEOC), the federal agency announced today.
The suit, filed in U.S. District Court for the Western District of Missouri (EEOC, et al. v. Imagine Schools, Inc., No. 4:08-cv-00731-SOW), charged that Imagine Schools discriminated when it chose not to retain two pregnant employees after closing its charter middle school in Kansas City, Mo., and opening a private middle and high school, Renaissance Academy, at the same location. The lawsuit claimed that the company did not rehire LuShonda Smith, an office manager, and Charity Brooks, an administrative assistant, to work at the new school because they were pregnant.
Pregnancy discrimination violates Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act. The EEOC filed suit in September 2008 after first attempting to reach a pre-litigation settlement. Smith and Brooks, who intervened in the EEOC’s suit, were represented by Patrick Reavey and Kevin Koc of Reavey Law LLC in Kansas City, Mo.
“Unfortunately, the EEOC keeps having to drive home the point that no woman should lose her means of earning a living simply because she is pregnant,” said EEOC Acting Chairman Stuart J. Ishimaru. “This significant settlement should serve as a reminder of that fact to other employers.”
In addition to requiring $570,000 in back pay, emotional distress damages, and attorneys’ fees, the two-year consent decree, which must be approved by the court, requires the nationwide charter school company to disseminate a policy on pregnancy discrimination, provide management training on such discrimination, report internal discrimination complaints to the EEOC, and prominently post a notice regarding employee rights under federal anti-discrimination laws enforced by the agency.
“There is no excuse for a company in the business of educating children to discriminate against pregnant women,” said EEOC Regional Attorney Barbara A. Seely. “We are pleased that Imagine Schools is now setting a good example for today’s youth by recognizing that working mothers deserve the same opportunities as all other employees.”
Pregnancy discrimination charges filed with the EEOC and state and local Fair Employment Practices Agencies rose from 4,160 in Fiscal Year 2000 to 6,196 in FY 2009.
In April 2009 the EEOC issued a document on best practices to avoid discrimination against workers with caregiving responsibilities. It is available at
According to the company web site, Imagine Schools, based in Arlington, Va., operates more than 70 charter schools in 12 states, including two schools in Kansas City, Mo., and five schools in St. Louis.
The EEOC enforces federal laws prohibiting employment discrimination. Further information about the Commission is available on its web site at

OFCCP Posts Compliance Assistance Events

The Department of Labor's Office of Federal Contract Compliance Programs has posted upcoming compliance assistance events through early 2011. For more information, go to:

Senate confirms Obama nominee Sharon Browne

Bob Egelko, Chronicle Staff Writer
Saturday, March 20, 2010

The principal attorney for the conservative Pacific Legal Foundation in Sacramento was among six nominees of President Obama who won unanimous Senate confirmation Friday to the board that oversees federally funded legal aid to the poor.
Sharon Browne's appointment to the board of Legal Services Corp. had drawn opposition from civil rights organizations and the Bar Association of San Francisco. They portrayed her as a partisan who has opposed the interests of the agency's low-income and minority clients.
Browne, in written replies to questions from Democrats on a Senate committee, said she strongly supports equal access to justice and federal aid to legal service programs. She said her stance was consistent with her support for California's Proposition 209, the 1996 initiative that outlawed state and local affirmative action programs for minorities and women.Read more:

Holder's future uncertain amid terror trial disputes

Mar 21 07:30 PM US/Eastern

US Attorney General Eric Holder took office pledging a sharp shift away from the last administration's policies, but an apparent change of heart in the White House could see the top lawyer leave his job.
Holder, 59, is the first African-American to hold the top legal post, and was generally regarded with bipartisan respect when he took office.
But a series of gaffes, fights with both Republicans and Democrats, and apparent disagreements between him and the White House have left Holder looking increasingly embattled.
He came under renewed fire when he told lawmakers Tuesday that Osama bin Laden would not be captured alive, and that US officials would read legal rights to the Al-Qaeda leader's corpse.
But the ridicule and attacks that followed are only the latest blows Holder has faced in the 14 months since he took office pledging to reverse the worst "war on terror" legal abuses sanctioned by former president George W. Bush's administration.
Ultra-conservative activists have questioned his ethics and even his patriotism over his decision to hire lawyers who defended terror suspects to Justice Department posts.
He has also raised the ire of Republicans by seeking to investigate CIA practices during the "war on terror," even over White House opposition.

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Friday, March 19, 2010

AAAA Hosts Access, Equity and Diversity Summit and Annual Meeting in Raleigh, NC June 30 - July 1

AAAA Summit Brochure

Dear AAAA Members and Friends,

Please mark your calendars for the AAAA Access, Equity and Diversity Summit and Annual Meeting, June 30 – July 1, 2010. On-line registration will be available momentarily. We are excited about the plenary sessions and nationally recognized keynote speakers. Presenters have been carefully selected to ensure diverse, cutting edge information for attendees who represent every imaginable entity in employment, government, education and the private sector. As a member-driven association, the primary focus of our Summit and Pre-Conference Workshops is to provide attendees with valuable tools to use on the next assignment, case or review.
The need to continue the "fight" for equal opportunity and inclusion remains relevant, even as historically remarkable changes occur in American and global politics. This event is focused on empowering equal opportunity, diversity and affirmative action professionals by providing leadership, support and resources needed to achieve equity, access and opportunity in the workplace and in education. With the exciting city of Raleigh, North Carolina as the backdrop, the Access, Equity and Diversity Summit is predicted to be among the most power-packed conferences to date.
Hotel and Registration Information: Events will be held at the Raleigh Marriott City Center, 500 Fayetteville Street, Raleigh, NC 27601, P: 919-833-1120; F: 919-833-8912. Website:

You can make reservations in the group block by calling: 1-888-236-2427 and giving the group code AFF. You can also simply give the name of the group and the dates. As a third option, you can go online:, and under the “Special Rates & Rewards” tab, enter AFFAFFA into the group code box. This will enable you to make reservations online. Our special Summit rate is only $99.00 per night. Reservations must be made on or before May 31, 2010.
Remember, one of our membership benefits is discounted conference registration; therefore, you must have a $0 membership balance in order to take advantage of this benefit. If you have not renewed and paid the balances owed on your membership prior to registration you will be required to pay the Non-Member fees.

Should you have any questions, please feel free to contact the national office toll-free at 800-252-8952. Looking forward to seeing you in Raleigh,
ReNeƩ S. Dunman

Thursday, March 18, 2010

Letter to Education Secretary, re: Anti-Semitic Intimidation on Campus

American Association of Jewish Lawyers and JuristsAmerican Jewish CommitteeAmerican Jewish CongressAnti-Defamation LeagueB’nai B’rith InternationalHillel: The Foundation for Jewish Campus LifeInstitute for Jewish and Community ResearchJewish Council for Public AffairsJewish War Veterans of the United States of America Religious Action Center of Reform JudaismScholars for Peace in the Middle EastUnion of Orthodox Jewish Congregations of AmericaZionist Organization of America

March 16, 2010
By FAX Machine-->
The Hon. Arne Duncan
Secretary U.S. Department of Education
400 Maryland Avenue, SW
Washington, DC 20202-1510

Re: Protecting Jewish Students Under Title VI of the Civil Rights Act of 1964

Dear Mr. Secretary:In your thoughtful speech last week in Selma, Alabama, commemorating the 45th anniversary of the “Bloody Sunday” confrontation between law-enforcement officials and civil-rights marchers, you appropriately emphasized both the important mission of Title VI of the Civil Rights Act of 1964 and the critical nature of the work of the Department of Education’s Office for Civil Rights (OCR). We write to urge you to ensure that, in furtherance of that critical work, OCR interprets Title VI to protect Jewish students from anti-Semitic harassment, intimidation and discrimination.
This would not be a novel interpretation. Jewish students who were being threatened, harassed or intimidated on their campuses on the basis of their ethnic identity as Jews had legal recourse to redress these problems after OCR clarified its policy for enforcing Title VI in the fall of 2004. At that time, OCR announced that the agency would assert jurisdiction over claims alleging the harassment of Jewish students. In so doing, OCR looked to U.S. Supreme Court jurisprudence construing a 19th Century civil rights statute directed at racial discrimination and (in dicta) the Equal Protection Clause of the Fourteenth Amendment. The Court concluded that Jews were entitled to protection under that statute because, in the parlance of those times, “race” was understood to encompass what we today understand as “ethnicity” or “national origin.” Relying on this precedent, OCR concluded that Title VI’s broad protections against racial and ethnic discrimination should encompass anti-Jewish incidents.
This conclusion was mandated in light of repeated Supreme Court holdings that the scope of racial discrimination barred under Title VI is coextensive with that which is prohibited under the Equal Protection Clause, as well as the well-established principle that the scope of the 1866 Act’s protection is commensurate with that of the Equal Protection Clause. To this extent, OCR was merely following binding Supreme Court precedent. At the same time, OCR’s 2004 policy was also based on sound public policy; as OCR declared, it “cannot turn its back on victims of anti-Semitism on the grounds that Jewish heritage may include both religious and ethnic characteristics.”
OCR’s policy to protect Jewish students was buttressed by the conclusions of the United States Commission on Civil Rights, after the Commission held a hearing on campus anti-Semitism in November 2005. Finding that campus anti-Semitism is a “serious problem which warrants further attention,” it recommended that “OCR should protect college students from anti-Semitic and other discriminatory harassment by vigorously enforcing Title VI.” OCR has since retreated from this much-needed policy. In 2007, in response to a complaint filed on behalf of Jewish students at the University of California, Irvine, which alleged severe, pervasive and persistent anti-Semitic harassment, intimidation and discrimination, OCR concluded that it lacked jurisdiction over many of the allegations of the complaint. At about that time, the Hon. Stephanie Monroe, then the Assistant Secretary of Education for Civil Rights, stated that OCR would not investigate allegations of anti-Semitic harassment unless the allegations included other forms of discrimination over which OCR has subject-matter jurisdiction.
The Hon. Russlynn Ali, Assistant Secretary Monroe’s successor, echoed this position in a July 2009 letter to Congressman Brad Sherman of California. Assistant Secretary Ali stated that it is OCR’s policy that Title VI does not cover anti-Semitic harassment, intimidation, and discrimination. In short, OCR has decided that it will no longer enforce Title VI in cases in which a Jewish student asserts racial or ethnic discrimination that takes place on the basis of the student’s status as Jewish.
We urge you to review OCR’s change in policy for enforcing Title VI. To Jewish students, the narrowed policy means that that they must endure a hostile educational environment because the law, while protecting other ethnic and racial groups, offers them no protection—even when intimidation or harassment is directed at them based on ethnic, as opposed to religious, identity. The government’s message to campus perpetrators of anti-Semitic harassment, intimidation and discrimination is that they may continue to do what they are doing, because colleges and universities have no legal obligation to respond to their hateful conduct. As to colleges and universities, OCR’s narrowed policy for enforcing Title VI has given the green light not to respond to anti-Semitism, even when it threatens and intimidates Jewish students, because there will be no legal consequences for schools that do not redress the problem.
This unfair and unjust result is no hypothetical matter. Anti-Semitic incidents remain a problem on some U.S. campuses. The Anti-Defamation League (ADL) conducts an annual audit of anti-Semitic incidents in the United States, and reported that in 2008, the number of anti-Jewish incidents on campuses nationwide increased from those reported the previous year. For example, at the University of North Dakota in Grand Forks, a student was reportedly harassed by fellow students with anti-Semitic slurs and was shot with a pellet gun. At the University of California, Santa Cruz, a building was vandalized with anti-Semitic graffiti alleging that Jews were behind the 9/11 attacks. It is fair to assume that the actual number of anti-Semitic incidents is higher than what this audit revealed, since harassment and intimidation often go unreported.
At times, anti-Semitic conduct amounting to intimidation, harassment and discrimination is manifested not by overt anti-Semitic expression, but instead by anti-Israel and anti-Zionist sentiment that crosses the line into anti-Semitism. We recognize that much vehemently anti-Israel and anti-Semitic speech can—and should —be protected First Amendment activity. This is as it should be in a nation that values freedom of speech. For that reason, there is a high bar before any speech or conduct can amount to legally actionable harassment.
Nevertheless, conduct that threatens, harasses or intimidates particular Jewish students to the point that their ability to participate in and benefit from their college experience is impaired should not be deemed unactionable simply because that conduct is couched as “anti-Israel” or “anti-Zionist.” It is also the case that harassment or intimidation that holds Jewish students responsible for the acts of other Jews, or of Israel, is better understood as ethnic or “national origin” discrimination than as religious discrimination. As the U.S. Commission on Civil Rights noted in its 2006 report, “[a]nti-Semitic bigotry is no less morally deplorable when camouflaged as anti-Israelism or anti-Zionism.” We urge you to clarify that the Office for Civil Rights has clear authority to investigate and remedy instances of harassment and intimidation against Jewish students. We ask that you issue a clear and unequivocal statement that a Jewish student is entitled to the protections of Title VI (i) when he or she is targeted in a school setting for speech or conduct based on the victim’s ethnic or “national origin” identity as a Jew that is severe, pervasive or persistent enough to create a hostile environment for a reasonable person similarly situated to the victim, or (ii) where, under the circumstances, speech or conduct creates an actionable hostile environment even where the complainant was not the target of the offensive or harassing conduct. We ask also that you issue a directive that OCR will vigorously enforce the law to ensure that Jewish students are protected against such anti-Semitic harassment, intimidation and discrimination.
We would welcome the opportunity to meet with you to discuss this matter. In the coming days, a representative of our group will be in touch with your office to seek to schedule such a meeting. Respectfully submitted,American Association of Jewish Lawyers and JuristsAmerican Jewish CommitteeAmerican Jewish CongressAnti-Defamation LeagueB’nai B’rith InternationalHillel: The Foundation for Jewish Campus LifeInstitute for Jewish and Community ResearchJewish Council for Public AffairsJewish War Veterans of the United States of America Religious Action Center of Reform JudaismScholars for Peace in the Middle EastUnion of Orthodox Jewish Congregations of AmericaZionist Organization of America

Affirmative Action and the Level Playing Field News
Wednesday, 17 March 2010 15:35
Written by Sherwood Ross

Minorities increasingly are going to have to push harder for their own advancement without affirmative action, says the cofounder of a law school purposefully dedicated to the education of minority, immigrant, and low-income students.
“The corollary is that unfair disadvantage which bars their (minority) advancement must ruthlessly be stomped upon---we must ensure that minority status is not a factor that harms,” writes Lawrence Velvel, dean and cofounder of the Massachusetts School of Law at Andover. “It will be essential that ability and willingness to perform, to get the job done, are all that counts."
Velvel said minorities have to drop any requests for special aid “simply as a matter of the practical realities of life.” He explained, “There is a point in time at which, and a level beyond which, people will no longer assist others. This is true in nuclear families, in extended families, among social groups, and among nations” and exists today concerning “the plight of minorities.”
Rightly or wrongly, dean Velvel writes in an article in his law school publication, The Long Term View, a very large number of Americans feel that minorities must do more to help themselves and that, in the course of this process, minorities will find it empowering. “They learn that they can do much more for themselves” and it will create “a wonderful sense of independence.”
Velvel challenged the idea that racial integration is always and everywhere necessary for progress and leads to progress. “The idea seems wrong. Integration of the public school systems, for example, does not seem to have led to better education, for minority groups or anyone else. On the other side, one often reads of defacto segregated schools in the inner city which are accomplishing wonderful things.”

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Wednesday, March 17, 2010

E-Verify: Truth in Numbers

Department of Homeland Security
Lauren Kielsmeier is the Chief of Staff for U.S. Citizenship and Immigration Services
Wednesday, March 17, 2010

Recently, some media reports have used statistics that appear to call into question the effectiveness and accuracy of E-Verify. I’d like to set record straight. A report by the independent research firm Westat, using a sample from a three month period in 2008, concluded that E-Verify was accurate 96 percent of the time. Since then, the Obama administration has taken significant steps to further improve E-Verify.Read the report for yourself here.What else did this report tell us about E-Verify?
93.8 percent of workers screened by E-Verify were authorized for employment—and the system instantly and accurately confirmed more than 99 percent of these eligible workers.
The remaining 6.2 percent were not eligible for employment. Out of this estimated 6.2 percent, approximately half were told they are work authorized when they were not—just 3.3 percent of the overall population screened by E-Verify.
To be clear, this means that only an estimated 3.3 percent of all workers screened by E-Verify were incorrectly told they were work authorized.The system’s accuracy and efficiency continues to improve, reflecting the changes and improvements to E-Verify that USCIS has made over the past year—and continues to make.

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DHS Unveils Initiatives to Enhance E-Verify

Department of Homeland Security
Press Release
Release Date: March 17, 2010

For Immediate ReleaseOffice of the Press SecretaryContact: 202-282-8010
Agreement with Department of Justice and Outreach Initiatives Will Strengthen E-Verify for Employers and Employees
Department of Homeland Security (DHS) Secretary Janet Napolitano today joined U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas to announce a trio of initiatives to strengthen the efficiency and accuracy of the E-Verify system.
These initiatives include a new agreement with the Department of Justice that will streamline the adjudication process in cases of E-Verify misuse and discrimination; an informational telephone hotline for employees to provide a more timely, effective and seamless customer experience for workers seeking E-Verify information; and new training videos focusing on E-Verify procedures and policies, employee rights and employer responsibilities in English and Spanish.
“E-Verify is a smart, simple and effective tool that helps employers across the country maintain a legal workforce,” said Secretary Napolitano. “The initiatives announced today will provide essential information to workers about their rights and ensure that E-Verify is used fairly while bolstering the Department's efforts to protect critical employment opportunities.”
“USCIS continues to partner with our federal colleagues, as well as industry and employee representatives, to build a verification program that is accurate, efficient and fair for employers and workers alike,” said Director Mayorkas. “We look forward to working with our colleagues in the Department of Justice to ensure the continued integrity and improvement of E-Verify.”
“This agreement will better enable us to protect individuals who are authorized to work in this country from national origin or citizenship-status discrimination,” said Assistant Attorney General for Civil Rights Division Thomas Perez. “We will not hesitate to take action against employers who violate our nation’s civil rights laws.‪”
The Memorandum of Agreement signed between USCIS and the Department of Justice’s Office of Special Counsel for Unfair Immigration-Related Employment Practices establishes a streamlined process for addressing potential cases of discrimination and employer misuse of E-Verify and establishes protocol between USCIS and the Department of Justice for referring matters that fall within the agencies’ respective jurisdictions.
The two new, educational training videos, explaining E-Verify procedures and policies, employee rights and employer responsibilities in English and Spanish were created by the DHS Office for Civil Rights and Civil Liberties and are viewable at and
Additionally, the USCIS E-Verify help line will now offer employees information about the E-Verify process, as well as assistance in completing the Form I-9 (Employment Eligibility Verification). Callers can also use the help line to file complaints about possible discrimination or employer misuse of the E-Verify program. The hotline number is (888) 897-7781 and will be active beginning April 5, 2010.
E-Verify is a free, easy-to-use Web-based system—operated in partnership by USCIS and the Social Security Administration—that allows participating employers to electronically verify the employment eligibility of newly-hired employees. More than 192,000 participating employers at more than 705,000 worksites nationwide currently use E-Verify to electronically verify their workers’ employment eligibility. Since Oct. 1, 2009, E-Verify has processed more than six million queries.
For more information, visit

A lesson on the ADA interactive process

Fox Rothschild LLP
Timothy E. Gilsbach USA
February 22 2010

A recent case out of the Tenth Circuit Court of Appeals is instructive in the need to engage in the interactive process under the ADA when an employee claims that a disability will impact his or her ability to do the job.
In the case of Lowe v. Independent School District No. 1 of Logan County, Oklahoma, an employee had a post-polio condition and was advised by her doctor to avoid standing and walking for long periods of time. The employee was employed as a counselor and required no accommodations for her disability. However, she was re-assigned to a position as a classroom teacher and shared concerns with her employer that she may require accommodations for this new position. The employee was told that no accommodations would be made and she quite her job.
The Court found that this failure to engage in any interactive process on the part of the School District demonstrated that the employee may have violated the ADA by failing to make a good faith effort to determine if reasonable accommodations could be made to allow the employee to perform the job.

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Women, Tenure, and the Law

The Chronicle of Higher Education
March 17, 2010

By Mary Ann Mason
It is well established in the research on higher education that women are less likely to achieve tenure than men.
In our research at the University of California at Berkeley, we found that to be true far more often for married women with children. According to a survey by the National Science Foundation, female scientists with children are 27 percent less likely to win tenure than male scientists with children, and are far more likely to become lecturers or adjuncts. A similar pattern occurs across all of the disciplines.
The stress associated with being denied tenure in our winner-takes-all promotion system is equally well documented. We may never fully know whether, or how much, the stress that Amy Bishop experienced over being denied tenure contributed to the shootings at the University of Huntsville at Alabama in February, but we do know that tenure denial for many assistant professors brings not only disappointment but pain and grief. For women, a critical factor in tenure denial is their gender and family responsibilities.

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Tuesday, March 16, 2010

13-Year-Old Prodigy Claims Age Discrimination After Being Denied

The Chronicle of Higher Education
March 15, 2010

Colin Carlson, a 13-year-old student at the University of Connecticut, has claimed he is the victim of age discrimination after being denied enrollment in a class that requires field work in Africa, ABC News reports. The college's director of risk management said the professor teaching the class did not want the youth to enroll, despite openly recruiting students for the course, according to Colin Carlson's mother, Jessica Offir. She said that not allowing her son to take the class violates federal law and the university's antidiscrimination policy.

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Higher-Education Groups Back U. of Texas in Affirmative Action Case

The Chronicle of Higher Education
March 15, 2010

Fourteen national higher-education associations have filed a friend-of-the-court brief urging the U.S. Court of Appeals for the Fifth Circuit to uphold the use of race-conscious admission policies by the University of Texas at Austin. A lawsuit challenging the university's decision to go back to considering race after several years without doing so argues that the university had achieved sufficient diversity in its enrollments through other, race-neutral means, such as a state law guaranteeing admission to students in the top 10th of their high-school class. The associations' brief argues that Supreme Court precedents concerning academic freedom give colleges a First Amendment.

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For a copy of the ACE, et al. amicus brief, go to: