Friday, July 29, 2011

Long Fights for Sports Equity, Even With a Law

The New York Times
Published: July 28, 2011

In 1998, the University of Southern California was accused of denying its female students a fair chance at participating in sports. Thirteen years later, the federal agency charged with investigating sex discrimination in schools has not completed its inquiry of U.S.C.In 2008, the same federal agency, the Office for Civil Rights, came across evidence that Ball State University in Indiana was losing a disproportionate number of women’s coaches. But the agency opted to let Ball State investigate itself. After a two-week inquiry, during which Ball State failed to interview a single coach, the university concluded that there was no evidence that any of the coaches had been unfairly treated or let go.

Full Story:

AAUP Urges Education Dept. to Reconsider Sexual-Harassment Guidance

The Chronicle of Higher Education
The Ticker
May 5, 2011, 5:20 pm

The Foundation for Individual Rights in Education has told the U.S. Education Department’s Office for Civil Rights that the agency failed to acknowledge students’ First Amendment rights in its April 4 “Dear Colleague” letter offering guidelines for colleges and schools dealing with allegations of sexual assault.

Full Story:

OFCCP Hosts Webinar on Functional AAPs

The U.S. Department of Labor,Office of Federal Contract Compliance Programs, is hosting a webinar on August 9, 2011 entitled "How to Comply with the New Functional Affirmative Action Program (FAAP) Agreement Directive Published June 14, 2011." OFCCP The webinar is 90 minutes long and includes a half hour of question and answers. According to OFCCP:

"This webinar is designed to provide an overview of the key changes to the FAAP Directive and the procedures for requesting, renewing, modifying and terminating FAAP agreements. The regulations implementing Executive Order 11246 at 41 CFR 60-2.1 (d) (4) permits federal supply and service contractors to develop affirmative action programs (AAPs) that are organized around distinct business functions or lines of business rather than AAPs based on contractor establishments. Under the regulation, federal contractors must have an agreement approved by the OFCCP Director to develop and operate under a FAAP."
For more information and to register, go to:

Question and Answer with Dr. Lawrence T. Potter

Diverse Issues in Higher Education
by Amara Phillip
July 29, 2011

Part 3 of three-part series

In 2010, Dr. Lawrence T. Potter made history by becoming the first chief diversity officer of Allegheny College, a predominantly White, private liberal arts institution in rural, northwestern Pennsylvania. Here, Dr. Potter talks with Diverse about the challenges — and triumphs — of his new job.

Why did you take the job at Allegheny, over other potential opportunities you could have pursued?

I looked at three pathways: continuing down the road of private liberal arts institutions, looking at the HBCU path in terms of leadership and going back to where I actually got my start in higher education, as a third generation college student.

Full Story:

Thursday, July 28, 2011

Schuette to appeal affirmative action ruling, calling it "nutty"

detroit news
Last Updated: July 28. 2011 2:22PM

Mike Wilkinson/ The Detroit News
Detroit— Michigan Attorney General Bill Schuette lashed out Thursday at the U.S. appeals court that overturned the state's 2006 law banning the use of race and gender preferences, calling its decision "nutty" and saying that he will file an appeal Friday morning.

In a 2-1 decision, the court ruled July 1 against the Michigan Civil Rights Initiative, which prohibited using race and gender in college admissions and government hiring and contracting.

Schuette said his office will ask the entire U.S. 6th Circuit Court of Appeals to consider a rehearing of the case. If it does, a panel of 15 judges will hear the entire case again, he said. Meanwhile, the law remains in effect. It could take until early next year to resolve the matter before the appellate court, he said.

From The Detroit News:‘nutty’#ixzz1TRdVq2bA

New Haven Firefighters Win $2 Million In Discrimination Case

MyFox New York
Updated: Thursday, 28 Jul 2011, 4:35 PM EDT
Published : Thursday, 28 Jul 2011, 3:16 PM EDT

By NewsCore


A group of mostly white Connecticut firefighters whose affirmative action lawsuit made it to the US Supreme Court settled with the city of New Haven for $2 million, the mayor's office confirmed Thursday.

The 20 firefighters had sued after a promotion exam was scrapped because no black employees scored well enough to advance.

Full Story:

HBCU Goes on the Offensive Against Sexual Assault

Journal of Blacks in Higher Education
July 28, 2011

Bowie State University, the historically black educational institution in Maryland, has developed a new sexual assault awareness initiative. The Partners in Peace program was created to train the campus community on issues relating to domestic violence, sexual assault, dating violence, and stalking. The program includes mandatory training classes for all incoming students.

Full Story:

Federal Leads Review Progress at One-Year Anniversary
HIV Policy & Programs July 27, 2011

By Ronald Valdiserri, M.D., M.P.H., Deputy Assistant Secretary for Health, Infectious Diseases, U.S. Department of Health and Human Services

On the eve of the first anniversary of the National HIV/AIDS Strategy (NHAS), representatives of the six federal agencies tasked by the President with lead responsibility for implementing NHAS gathered for one of our regular meetings and shared updates on implementation progress. Chairing the meeting, the Assistant Secretary for Health, Dr. Howard Koh, praised the participants for the progress being made within and across Departments and for the personal dedication of each of these representatives to bringing the Strategy to life not only within their respective agencies, but also across the nation....

Department of Labor – A recent DOL-convened roundtable explored how to improve employment opportunities and outcomes and reduce stigma and discrimination for people living with HIV/AIDS, reported Mr. Dylan Orr, Special Assistant/Advisor to the Assistant Secretary for Disability Employment Policy. In an effort to better coordinate related federal efforts, many of the other lead federal agencies were involved in the roundtable (including the Departments of Justice, Housing and Urban Development, and Health and Human Services, and the Social Security Administration) as well as the Equal Opportunity Commission, the Department of Education, the White House Office of National AIDS Policy, and a number of HIV/AIDS service providers, employers, disability employment advocates, and members of the HIV/AIDS community. On another front, DOL’s Office of Federal Contract Compliance Programs (OFCCP) has launched a system for prioritizing and fast-tracking investigations of employment discrimination complaints based on HIV/AIDS status. OFCCP has also developed public education materials on employment rights under Section 503 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act with emphasis on HIV/AIDS employment discrimination. These materials have been distributed to OFCCP’s field offices and will also be distributed to stakeholders and community groups....

Full Story:

Women's Colleges and Ex-Women

Inside Higher Ed

July 28, 2011
Marcus Waterbury, a graduate of the women’s institution Mount Holyoke College, didn’t think it was a big deal when, 15 years after graduation, his alma mater agreed to re-issue his degree to reflect the new name he adopted after transitioning from female to male.

It’s not unheard of to re-issue a degree after an alumna becomes an alumnus – this is at least the third time Mount Holyoke alone has done it – but that’s a pretty straightforward and uncontroversial thing to do; for instance, it’s not uncommon at any given college for graduates to be granted replacement diplomas that reflect their married names.

Full Story:

Gov. Jerry Brown Nominates Scholar Goodwin Liu to California High Court

Diverse Issues in Higher Education

by Paul Elia, The Associated Press , July 28, 2011

SAN FRANCISCO — A California law professor was nominated Tuesday for the California Supreme Court, just two months after criticism by Republicans led him to withdraw his candidacy for the second-highest court in the country.

Gov. Jerry Brown, a Democrat, said he did not buy into Republican criticism faced by University of California, Berkeley law professor Goodwin Liu after he was nominated by President Obama for the 9th U.S. Circuit Court of Appeals.

Full Story:

Wednesday, July 27, 2011

Widening wealth gap between whites, minorities has deep roots

CNN Opinion
By Ellis Cose, Special to CNN
July 27, 2011 4:23 p.m. EDT

Editor's note: Ellis Cose is the author of "The End of Anger: A New Generation's Take on Race and Rage" and "The Rage of a Privileged Class."

(CNN) -- No one who is remotely familiar with American demographics should be surprised to hear that Anglo families, on average, are wealthier than black or Latino families. Nonetheless, the magnitude of the disparity revealed by a new study is staggering.

The median wealth of Anglo households is now 20 times that of black households and 18times that of Hispanic households, according to the Pew Research Center.

Full Story:

FRD—Not Law, but Courts and EEOC Think It Is

HR Daily Advisor
Thursday, July 21, 2011 3:00 AM
by Steve Bruce

What Family Responsibilities Discrimination Is Not ...

Family discrimination is not a new protected category, says Beachboard, who is a shareholder in the Los Angeles office of law firm Ogletree Deakins. (His tips came at the SHRM Annual Conference and Exposition held recently in Las Vegas.)

Furthermore, the family responsibilities discrimination concept does not prohibit an employer from treating parents/caregivers the same as childless workers.

Nevertheless, the EEOC does recognize employment discrimination based on stereotypes. The EEOC sees this new form of discrimination as an amalgamation of Title VII, FMLA, and ADA. EEOC's new family focus has been influenced by the fact that there are more women in the workforce, more families with two parents working, and the acceptance of FRD by the courts and legislatures.

Full Story:

Monday, July 25, 2011

Great Colleges Reap the Benefits of Great Workplace Culture

The Chronicle of Higher Education
July 24, 2011
By Josh Fischman

Great academic workplaces are filled with people who believe that their jobs are important to the college, that the institution is important to the community, and that the college gives them the freedom to do that job well. Those are some of the findings of The Chronicle's Great Colleges to Work For survey for 2011, which identifies 111 colleges—small, medium, and large, all across the country—that are exceptional places to work.

Full Story:

AAAA Note: Diversity was one of the criteria for great workplace culture

Cavalier Telephone Pays $1 Million to Settle EEOC Age Discrimination Lawsuit

U.S. Equal Employment Opportunity Commission

Company Engaged in Unlawful Age Discrimination, Including Refusing to Hire Older Workers, Federal Agency Charged

WASHINGTON, D.C. – Cavalier Telephone Company Inc. will pay $1 million and furnish other significant relief to settle an age discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today.

According to the EEOC’s suit, from around May 2003 and continuing, Cavalier Telephone’s mid-Atlantic region had a practice of not hiring applicants age 40 or older for sales account executive positions. The EEOC charged that Cavalier indicated both verbally and in writing that the company was looking for candidates for its sales positions who were “recent college graduates,” and in their “early 20s or 30s.” Cavalier offered its employees a $500 bonus for referral of a “friend’s younger brother and sister.” The EEOC alleged that as a result of the discriminatory recruitment and hiring practices, Cavalier maintained a work force that underrepresented people age 40 or older in its sales positions within its mid-Atlantic region. The company’s mid-Atlantic region includes five states – Virginia, Maryland, Pennsylvania, Delaware and New Jersey – as well as Washington, D.C.

The EEOC’s complaint also included individual claims of retaliation against two former Cavalier Telephone employees. The complaint alleged that two former employees were demoted for complaining about the company’s discriminatory hiring practices. One of the demoted employees resigned from Cavalier while the other continued to complain about age discrimination and was ultimately fired, the EEOC charged.

Age discrimination violates the Age Discrimination in Employment Act of 1967 (ADEA). Persons age 40 or older are protected from employment discrimination by the act. It is also unlawful under the ADEA to retaliate against an employee who complains about age discrimination because of his or her complaint. The EEOC filed suit (Equal Employment Opportunity Commission v. Cavalier Telephone Company, Inc.; Civil Action No. 3:10-cv-664 in U.S. District Court for the Eastern District of Virginia, Richmond Division) after first attempting to reach a pre-litigation settlement through its conciliation process.

Pursuant to the consent decree resolving the litigation, Cavalier agreed to pay $1 million in monetary relief. The money will be distributed to the two individuals who were allegedly retaliated against for complaining about the discriminatory practices and to a class of individuals age 40 or older who, the EEOC determined, were not hired because of their age.

“Cavalier Telephone’s hiring practices penalized older applicants simply because of their age and that is illegal,” said EEOC General Counsel P. David Lopez. “I am pleased that we were able to work out a resolution of this suit that provides relief for the victims of discrimination and brings the company’s practices into compliance with the law.”

“We brought this lawsuit to advance everyone’s legal right to a workplace free of age bias,” said Lynette A. Barnes, regional attorney for the EEOC’s Charlotte District Office, which oversees litigation filed by the agency in Virginia. “Stereotypes concerning the abilities of older workers often lead companies to make discriminatory hiring decisions. This lawsuit and settlement will serve as a reminder to all employers that companies must make employment decisions based on an applicant’s ability to perform the job, not his or her age.”

In addition to the monetary relief, the three-year consent decree resolving this case provides significant injunctive relief covering Cavalier Telephone’s locations in its mid-Atlantic region. For example, the decree:

•prohibits Cavalier from further discriminating against job applicants or employees because of age and retaliating against any of its employees or applicants;
•requires Cavalier to use an applicant tracking system for persons hired and for any person who submits an application, and to provide specific information about its hiring of applicants by age; and

•mandates that Cavalier provide training to staff, post a notice about its commitment to equal opportunity and a diverse work force and report compliance to the EEOC.
The decree also requires Cavalier to provide jobs to qualified applicants age 40 or older who were denied hire because of the alleged discriminatory hiring practices.

According to its website, Richmond, Va.-based Cavalier Telephone is a full-service provider of telecommunication services for residential and business customers. In December 2010, after this lawsuit was filed, Cavalier was acquired by PAETEC and now the combined companies deliver telecommunication services in 86 of the top 100 metropolitan statistical areas (MSAs) in the United States.

The EEOC is responsible for enforcing federal laws prohibiting discrimination in employment. Further information about the EEOC is available on its web site at

What constitutes filing a "charge" with the EEOC?
Fox Rothschild LLP Richard B. Cohen USA
June 29 2011

In order to sue in federal court for employment discrimination under Title VII, an employee must first file a “charge” with the EEOC. That much is crystal clear. But what, in fact, constitutes a “charge,” since Title VII does not define that term with any precision? What is minimally required for a filing to be deemed a “charge?”

In an opinion issued on June 28th, Williams v. CSX Transportation Co., a federal appeals court provided a nice review of when a filing is deemed a “charge” under Title VII, and went through the elements set out by the EEOC and the Supreme Court. In that case, the employee’s filing was initially dismissed because it purportedly contained insufficient allegations of a hostile work environment. The Court discussed the elements to be considered as to when a filing can be considered a “charge”:

Title VII requires only that it must be in writing under oath or affirmation, and it must contain such information and be in such form as the EEOC requires.
The EEOC requires that a charge should contain the names, addresses, and telephone numbers of the person making the charge and the charged entity; a statement of facts describing the alleged discriminatory act; the number of employees of the charged employer; and a statement indicating whether the charging party has initiated state proceedings.

Finally, the Supreme Court added a further element – that “taken as a whole” an “objective observer” would believe that the filing indicated that the charging party was actually requesting some action by the EEOC, as opposed to, for example, merely being a request for information. Federal Express Corp. v. Holowecki.

Full Story:

Bill introduced in congress to forbid discrimination in hiring the unemployed
Fox Rothschild LLP Richard B. Cohen USA
July 14 2011

In our blog entry of February 22, 2011, we noted that under the anti-discrimination laws there is no protected class known as “the unemployed,” and if you are not hired because of your unemployment status, you have no actionable claim of discrimination.

In our blog entry of June 8, 2011, we gave this warning:

“No laws or regulations yet exist which forbid the use of employment status as a hiring criteria, but given the increase in the jobless rate, an employer who is hiring is certain to encounter applicants who are unemployed or who have unexplained gaps in their resumes. Don’t automatically disqualify these applicants, or advertise that only the employed need apply – there is no point in looking for increased scrutiny in these uncertain economic times.”

A law directly on this point may now be in the offing. With the unemployment rate currently hovering at around 9.2 per cent, with long term unemployment an increasing problem, and with an increasing number of employers advertising that the unemployed “need not apply,” two Democratic members of Congress have this week introduced a bill, the Fair Employment Opportunity Act of 2011, H.R. 2501,which would prohibit employers from refusing employment to persons on the basis of their being unemployed, and also prohibit employers from advertising that the unemployed “need not apply.”

Full Story:

Commission to Examine Arrest and Conviction Records as a Hiring Barrier

U.S. Equal Employment Opportunity Commission

July 26 Meeting to Identify Impact of Employment Decisions on Protected Groups

WASHINGTON – The U.S. Equal Employment Opportunity Commission (EEOC) will hold a public meeting at 9:30 a.m. (Eastern Time) Tuesday, July 26, to employment barriers faced by individuals with arrest and conviction records.

The meeting will be held at EEOC headquarters, 131 M Street, N.E. In accordance with the Sunshine Act, the meeting is open for public observation of the Commission’s deliberations.

The Commission will hear from invited panelists. The meeting agenda includes:

Panel 1: Best Practices for Employers

•Michael F. Curtin, CEO, DC Central Kitchen
•Victoria Kane, Area Director, Labor Relations & Integration, Portfolio Hotels & Resorts.
•Robert Shriver, Senior Policy Counsel, U.S. Office of Personnel Management
Panel 2: An Overview of Local, State and Federal Programs and Policies

•Amy Solomon, Senior Advisor to the Assistant Attorney General, Office of Justice Programs, U.S. Department of Justice
•Professor Stephen Saltzburg, Criminal Justice Section Delegate and Past Chair, American Bar Association
•Cornell Brooks, Executive Director, New Jersey Institute for Social Justice
Panel 3: Legal Standards Governing Employers’ Consideration of Criminal Arrest and Conviction Records

•Juan Cartagena, President and General Counsel, Latino Justice
•Barry Hartstein, Shareholder, Littler Mendelson, P.C.
•Adam Klein, Partner, Outten & Golden LLP
A brief question-and-answer session with EEOC Commissioners will follow each panel discussion.

Seating is limited and it is suggested that visitors arrive 30 minutes before the meeting in order to be processed through security and escorted to the meeting room. The Commission agenda is subject to revision. Additional information about the hearing, when available, will be posted at

The EEOC will hold open the July 26, 2011, Commission meeting record for 15 days, and invites audience members, as well as other members of the public, to submit written comments on any issues or matters discussed at the meetings. Public comments may be mailed to Commission Meeting, EEOC Executive Officer, 131 M Street, N.E., Washington, D.C. 20507, or emailed to All comments received will be made available to members of the Commission and to Commission staff working on the matters discussed at the meetings. Comments will also be placed in the EEOC library for public review.

The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on its web site at

DOL announces OFCCP priority of seeking class relief for equal pay and other violations as response to Dukes v. Wal-Mart
Seyfarth Shaw LLP Valerie J. Hoffman
and Leslie M. Solondz
July 18 2011

According to Department of Labor Secretary Hilda Solis, the Office of Federal Contract Compliance Programs (OFCCP) will provide a key avenue for victims of employment discrimination seeking class-wide relief, particularly following the United States Supreme Court's decision in Dukes, et al. v. Wal-Mart Stores, Inc. During a speech given at the National Employment Lawyers Association's 22nd Annual Convention in New Orleans, Louisiana, on July 1, Solis spoke about "the big impact with limited resources at the Department of Labor." She stated her belief that OFCCP is "a vital civil rights agency within the federal government," particularly in the wake of the Dukes v. Wal-Mart decision, which many commentators believe made certifying nationwide class actions more difficult. In Dukes, as described in our Management Alert here, the Supreme Court made it more difficult for plaintiffs to satisfy the "commonality" requirement for class certification under Rule 23(a)(2), and also held that claims for backpay and other monetary relief may not be certified under the injunctive or declaratory relief provisions of Rule 23(b)(2), where such monetary damages are not incidental to such relief.

Full Story:

Hiring Ban After Failed Drug Test and the ADA

Workforce Management
A rule that bars hiring or rehiring employees who have tested positive for drugs, even if it affects an employee who may otherwise be protected under the ADA or similar state statutes, does not violate those acts.
By James E. Hall, Mark T. Kobata and Marty Denis

Santiago Lopez’s job application as a longshore worker in California with the Pacific Maritime Association was rejected in 1997 when he tested positive for marijuana during a pre-employment drug screen.

Lopez claims to have been addicted to alcohol and drugs at the time, but that the defendant was unaware of his addiction. Lopez underwent rehabilitation in 2002 and has been sober since, according to court records. Lopez reapplied for a longshore position in 2004, but, under the association’s “one-strike rule,” was denied employment because of his previous positive test result. Lopez sued in federal court, claiming that the association violated the Americans With Disabilities Act and California’s Fair Employment and Housing Act by discriminating against him based on his protected status as a rehabilitated drug addict.

Full Story:

US Labor Department assistant secretary testifies before Senate HELP committee on improving employment opportunities for people with disabilities

U.S. Department of Labor
Office of Disability Employment Policy
News Release
ODEP News Release: [07/14/2011]
Contact Name: Gloria Della or Bennett Gamble
Phone Number: (202) 693-8666 or x4667
Release Number: 11-1061-NAT

WASHINGTON — Kathy Martinez, assistant secretary of labor for the Office of Disability Employment Policy, today testified before the U.S. Senate Committee on Health, Education, Labor and Pensions to discuss the U.S. Department of Labor's public and private partnership initiatives designed to connect people with disabilities and employment opportunities.

"The ultimate goal is to increase employment opportunities for people with disabilities," said Martinez. "Disability is an issue that impacts all of us. As we get older, we will probably all acquire a disability or live with someone who does. Technology now allows us to participate in the workforce, and it can be the great equalizer."

Martinez told the committee that the department is taking concrete steps to increase employment outcomes in the private and public sectors. An example is the Add Us In Initiative, which aims to increase the ability of small and minority businesses to include people with disabilities in their workforces. She also discussed the agency's efforts to promote emerging technology for workers with disabilities, improve education and job training for unemployed youth and adults with disabilities, and provide assistance to human resource professionals at federal agencies to develop recruitment and hiring strategies as well as training programs.

In concluding her testimony, Martinez described the success story of an individual once considered by many to be unemployable but who now has his own profitable business that hires others. "Improving employment outcomes for people with disabilities is a significant and complex undertaking, but one that holds great potential to improve the lives of many and strengthen our economy," she said.

Martinez's testimony is available at

The wait is over: OFCCP issues new directive on functional affirmative action programs

Bond Schoeneck & King Tyler T. Hendry
USA July 20 2011

Federal contractors should be aware that the Office of Federal Contract Compliance Programs (OFCCP) recently issued a much anticipated directive impacting certain affirmative action programs. The new directive, which became effective on June 14, 2011, outlines the procedures for developing and maintaining a “Functional Affirmative Action Program” (FAAP). The directive ends OFCCP’s year-long moratorium on processing contractor requests to develop or renew FAAP agreements.

FAAPs are affirmative action programs covering a particular business function or business unit rather than covering a particular establishment or worksite. For example, covered contractors may develop an FAAP for all marketing associates across multiple offices in different states, instead of having to create affirmative action programs for each individual establishment where those associates work. Unlike establishment-based programs, covered contractors cannot implement FAAPs without first obtaining OFCCP approval and then entering into an agreement with the Agency.

Full Story:

Wednesday, July 20, 2011

John R. Burleigh 2d, civil rights activist, dies

The Baltimore Sun
July 19, 2011By Frederick N. Rasmussen, The Baltimore Sun

He helped organize the 1963 demonstration at Gwynn Oak Park and participated in the historic March on Washington

He was a 1943 graduate of Wiley H. Bates High School in Annapolis, and attended Howard University in Washington. He later earned a degree in urban planning and urban administration from Antioch College

Mr. Burleigh had been executive director of Maryland Project Equality for six years and had worked for the Social Security Administration before joining the city Department of Housing and Community Development in 1974 as an equal employment opportunity officer.

It was Mr. Burleigh who developed the agency's affirmative-action plan, its first, which was approved by the federal Department of Housing and Urban Development in 1975.

The plan established goals and timetables for improving minority and female employment, expanded procurement of supplies and purchase of services from minority firms, and urged third-party contractors to adhere to affirmative-action procedures.

Full Story:


OFCCP Blog Spot
by Art Gutman Ph.D., Professor, Florida Institute of Technology
Tuesday, July 12, 2011

On August 17, 2009, Judge Sam Sparks of the US District Court for the Western District of Texas granted summary judgment to the University of Texas (UT) at Austin in a lawsuit by two white applicants claiming, via the 14th Amendment, that they were unfairly denied admission on the basis of race [556 F. Supp. 2d 603]. Citing the Supreme Court’s rulings in Grutter v. Bollinger (2003) and Parents v. Seattle School District (2007), Judge Sparks ruled that UT had a compelling government interest in achieving diversity in their undergraduate programs, UT exhausted race-neutral methods in failed attempts to achieve diversity, and therefore, UT’s race-conscious plan was narrowly tailored toward the goal of achieving diversity.

Full Story:

US universities in Africa 'land grab'

John Vidal and Claire Provost,
Wednesday 8 June 2011 20.18 BST
The Guardian/UK
Institutions including Harvard and Vanderbilt reportedly use hedge funds to buy land in deals that may force farmers out

US universities are reportedly using endowment funds to make deals that may force thousands from their land in Africa. Photograph: Boston Globe via Getty Images
Harvard and other major American universities are working through British hedge funds and European financial speculators to buy or lease vast areas of African farmland in deals, some of which may force many thousands of people off their land, according to a new study.

Researchers say foreign investors are profiting from "land grabs" that often fail to deliver the promised benefits of jobs and economic development, and can lead to environmental and social problems in the poorest countries in the world.

Full Story:

Monday, July 18, 2011

Editorial: A victory for college diversity

The Denver Post
We agree with a federal court ruling that overturned a Mich. ban on affirmative action, but this issue isn't going away. Posted: 07/06/2011 01:00:00 AM MDT

A federal court decision last week overturning a Michigan ban on affirmative action is a victory for those who see value in considering diversity in college admissions.
It's clear that such sensitivities are important to Coloradans — who voted down a similar ban in 2008 — and to state university officials, who have been working hard to increase minority representation on their campuses.
We're hopeful the Michigan decision, which assuredly will be appealed, will withstand further scrutiny.
We have long favored the policy in Colorado allowing race and gender of applicants to be a consideration in a small portion of college admissions.

Read more: Editorial: A victory for college diversity - The Denver Post

Department of Justice complaint against Farmland Foods highlights fine line employers must walk in evaluating employment authorization documents
Porter Wright Morris & Arthur LLP
Robert Cohen
June 28 2011

Today, the Justice Department announced that it has filed a lawsuit against Farmland Foods, Inc., a major producer of pork products based in Kansas. The lawsuit, which will be heard by an Administrative Law Judge, alleges that the employer engaged in unlawful discriminatory acts by requiring foreign born and non-citizen employees to provide additional documentation of employment authorization beyond what was required by law and the documents required from U.S. citizens. While we have not yet heard the full facts or Farmland Food's position, the lawsuit highlights the fine line employers must walk to satisfy both the obligation to verify employment eligibility for all employees, and avoid unfair discrimination against employees born in other countries or with foreign sounding names.

Full Story:

What is on the horizon for employers after Dukes v. Wal-Mart?
Orrick Herrington & Sutcliffe LLP
June 23 2011

In a well-reasoned decision that will impact class actions of every stripe, the United States Supreme Court on Monday shut the door to a 1.5 million woman class in Dukes v. Wal-Mart. Plaintiffs sought to certify their Title VII gender discrimination claims by showing that Wal-Mart had a common policy giving local managers discretion in making pay and promotion decisions, and that such discretion was exercised, class-wide, to disproportionately benefit men over women.
In reversing the lower courts’ decisions, the Court stated that “the crux of this case is commonality,” and Plaintiffs failed to meet their burden under Federal Rule of Civil Procedure 23(a)(2). Justice Scalia, writing for Justices Roberts, Kennedy, Thomas, and Alito, explained that plaintiffs were attempting to “sue about literally millions of employment decisions at once.” But he noted that “[w]ithout some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why was I disfavored.” Any plaintiff can craft a complaint to raise common questions. But, “[r]eciting these questions is not sufficient to obtain class certification.” Rather, the claims “must depend on a common contention” that can be resolved “in one stroke” and is “capable of classwide resolution.”

Full Story:

Supreme Court's Wal-Mart decision dramatically alters class action landscape
White & Case LLP
Owen C. Pell, Gregory G. Little and Glenn M. Kurtz
June 24 2011

On June 20, 2011, the Supreme Court issued its decision in Wal-Mart Stores, Inc. v. Dukes, 564 US ___ (2011), a Title VII gender discrimination case against Wal-Mart, the nation’s largest private employer. The issues before the Court concerned the scope of class certification under Rule 23 of the Federal Rules of Civil Procedure. While the Court split over particular issues, it was unanimous in reversing the decision of the Ninth Circuit; it held that the District Court had improperly certified a proposed class of some 1.5 million female employees of Wal-Mart who all claimed gender discrimination.
The unanimous part of the Court’s decision held that most class actions seeking monetary compensation cannot be brought under the portion of Rule 23(b) which was designed for suits seeking injunctive or declaratory relief. This will have a significant impact on employment discrimination cases by precluding the use of Rule 23(b)(3) where plaintiffs seek backpay and other individualized damage claims. In a more far-reaching ruling, the Court also ruled 5-4 that in order for any class to be certified as presenting common questions of law or fact under Rule 23(a), the class claims must depend upon some common contention—the resolution of which is subject to classwide resolution which will resolve an issue central to the validity of one of the class claims. This latter ruling, which will apply to all potential class actions, may make it somewhat more difficult for plaintiffs to obtain broad class treatment of many claims.

Full Story:

At Two-Year Colleges, Less Scrutiny Equals Less Athletic Equality

The New York Times
Published: July 16, 2011

Los Angeles Southwest College has a new athletic field house and football stadium, but almost no female athletes. Women make up more than two-thirds of students at this community college in the city’s South Central neighborhood, but less than a quarter of its athletes. The college’s decision to suspend the track team this year left women who wanted to play a sport with a single option: basketball.
Henry Washington, the college’s athletic director and head football coach, acknowledges that his program is most likely violating federal law by failing to offer enough roster spots to women.

Full Story:

Labor Secretary Speaks about Wal-Mart Decision and OFCCP at NELA Conference

Secretary of Labor Hilda L. Solis

Remarks by Hilda L. Solis, Secretary of Labor National Employment Lawyers Association 22nd Annual New Orleans, Louisiana

July 1, 2011

Thank you, NELA. Good morning. Buenos dias! I'm so happy to be with you here in the great city of New Orleans to talk about our shared mission to fight inequality and discrimination in the American workplace.
Let me start by recognizing a few of the trailblazers here with us today. Judge U.W. Clemon made history as the first African-American federal judge in Alabama. I'm honored to be here with him.
I want to acknowledge Jackie Barrien who is doing extraordinary work as chair of the EEOC. Jackie joined me and Attorney General Holder at the Department of Labor last week for a panel focused on removing employment barriers for the formerly incarcerated. We have more Americans in prison today than at any time in our history. Chairwoman Barrien has been an incredible partner in our effort to give these Americans a second chance to find work and a make a positive contribution to society.
Finally, I want to thank my dear friend Pat Chiu for introducing me. It's a pleasure to have my colleague, mi amiga, and my fellow California girl Pat working by my side at DOL.
When I look around this room today, a Spanish phrase comes to mind: Nos conocemos. We know one another.
Many NELA members are now on my staff, and many of your priorities are my priorities as the Secretary of Labor.
When I interviewed Pat, her incredible work at NELA jumped off her CV. It let me know she was a kindred spirit. Pat played a key leadership role with NELA for so many years. She continues to play that role for me as the head of our Office of Federal Contract Compliance Programs
OFCCP is a civil rights agency in the Labor Department. It requires federal contractors to follow non-discrimination laws. Pat and her staff are leading the way in our efforts to end pay discrimination faced by women o increase the hiring of women and minorities in construction and to improve job opportunities for veterans and people with disabilities.
President Obama likes to say, "We do big things." Under Pat's leadership, OFCCP is doing big things to open the doors of opportunity for nearly one quarter of the American workforce. So thanks for sharing Pat with me, and thanks for inviting both of us to New Orleans for your convention this year.
I know you were here in 2007 to support the city's efforts to rebuild after Hurricane Katrina. I understand you worked with Habitat for Humanity and built five houses in three days, in addition to holding your convention. A lot of lawyers can talk the talk. But NELA: You walk the walk.
Your clients are more than a paycheck to you. They are people in need of help and support. You may be in private practice, but you are doing a public service every morning you go to work. My friends, amigos, you give lawyers a good name.
In many ways, this has been an emotional return to New Orleans for me. The triple blow of Katrina, the recession and last year's devastating oil spill would have brought almost any city to its knees. But not New Orleans.
Here you see a people rebuilding their great city and cleaning up the coast. Here, you see workers fighting to recover lost jobs. Here, you see communities working to regain their economic independence. Here, we are reminded that the American dream can be redeemed over and over again — as long as you're willing to fight for it.
The people of New Orleans give me enormous hope — and you honor them with your presence here today.
A couple of months ago, we marked the one-year anniversary of the Deepwater Horizon oil spoil. Last year, I traveled across the Gulf Coast to meet with many of the people and communities devastated by the largest oil spill in American history.
FEMA had primary jurisdiction. Some folks in Washington even warned me to lay low. The Department of Labor, they said, usually wasn't a major player in a disaster of this type. But when I stood on the beach and saw clumps of toxic black crude wash up on to the shore and endanger workers, I knew they were wrong. When I visited a local church and met with fishermen and shrimpers who were praying for answers after losing their livelihoods, I knew the Labor Department had a major role to play.
I made a commitment to stand by the people of the Gulf Coast to ensure:
that BP protected its workers from health and safety hazards;
that our One Stop Career Centers stood ready to help displaced workers find jobs;
that workers received the pay and the benefits they deserved; and
that BP lived up to its legal obligation to ensure the safety of those working on the cleanup effort.
I'm proud to say that we were on the ground from the very beginning... and we never left.
OSHA conducted more than 4,200 site visits — on land and in boats — to make sure BP and its contractors provided the right kind of safety equipment to cleanup crews. OSHA also required BP to provide safety training to more than 47,000 workers involved in the cleanup effort. We made sure the instructions were provided in languages that all 47,000 cleanup workers could understand.
In addition, my Wage & Hour Division conducted more than 40 investigations related to the oil spill. Since then, we've collected $420,000 in back wages for more than 300 employees who worked on oil spill-related projects.
Later today, I'll be meeting with many of the community leaders and advocates I saw last year. We will assess the continuing needs in this area to hear how we can make workers whole again.
NELA: I know this is our shared concern. I know many of you see yourselves as "private attorneys general." You've dedicated your lives to enforce the legal rights of vulnerable workers.
I want to talk a little bit today about how we're trying to make a big impact with limited resources at the Department of Labor. I know many of you are concerned about the fallout of the Supreme Court's ruling in Walmart v. Duke.
I told you Pat's office is a vital civil rights agency within the federal government. I think that's especially true in the wake of this ruling.
Here's an important point: The Supreme Court's Walmart ruling was limited to class actions under Rule 23 of the Federal Rules of Civil Procedure. But my department's efforts to eliminate workplace discrimination in America don't depend on this rule.
We enforce an executive order that says federal contractors can't discriminate. We have oversight over any company doing at least $10,000 of government business a year. This means that Pat's office can obtain class-wide relief for victims of pay discrimination without having to file a class action lawsuit.
The Walmart decision won't affect our ability to address pay disparities on a broad scale — even if our lawyers have to tweak some of their legal arguments based on the reasoning used in that case.
Here's my bottom line: If you do more than 10K of business with the federal government, my department will enforce civil rights laws on behalf of your workers. This absolutely includes pay discrimination. When DOL seeks a remedy for pay discrimination, we automatically seek back wages for all affected employees at a company. We feel this is an important way to level the playing field for pay disparities affecting women.
Today in America, women are paid on average of 80 cents for every dollar paid to men. For African-American women, it's 70 cents on the dollar. For Latina women, it's 60 cents on the dollar.
This means that each time the average woman starts a new job, she starts from a lower base salary. Over time, that pay gap becomes wider and wider. If you look at what a woman loses in earnings from the start of her career to the end, she stands to lose $380,000 over her lifetime. That means $150 less in her weekly paycheck. It means nearly $8,000 less at the end of the year.
The problem doesn't just affect women. It affects families, too. It's 20 percent less food they can put on the table, 20 percent less that they can spend on their kids' education, 20 percent less to pay the gas bill.
The bottom line: When women start at a disadvantage, they stay at a disadvantage. And we all lose.
So OFCCP is dramatically shifting its enforcement priorities. Last year, 14 percent of their investigations involved compensation cases. This year, that number will go up to between 20 and 40 percent.
Last year, the Paycheck Fairness Act was just two votes short of passing in Congress. The Obama administration remains committed to this legislation.
We need to close loopholes that give employers unjustified defenses to discrimination. We need to strengthen the ban on retaliation against those who complain about unequal pay. We need to rescind the Bush-era guidelines that prevent effective enforcement of equal pay laws.
And we need to create more flexible workplaces so women don't have to choose between motherhood and a fulfilling career. My Wage & Hour division has begun enforcing a new provision in the Affordable Care Act that guarantees break time for nursing mothers. For the first year of a baby's life, employers with at least 50 workers must provide a private location and reasonable break time for nursing mothers.
At the Labor Department, we are also focusing more of our Wage & Hour cases on what we call enterprise-wide enforcement. If an employer is violating the law in one workplace, we think it's likely they're engaging in the same practice in other company locations.
So we're seeking injunctions to ensure that an employer complies with the law across all of its operations. And we're seeking back wages across all of a company's workplaces.
In Ohio, we found overtime violations at a supplier of heating and cooling products, and we obtained back wages for employees at 520 different locations.
In California, we investigated a company that sells biometric equipment to police and government agencies. We obtained back wages for the California workers and company employees in five other states.
One reason we've been so successful is because I hired 350 new wage and hour investigators as Labor Secretary. When I was nominated, I told employers, "There's a new sheriff in town." And I meant it. But I truly believe that most employers want to comply with the law. However, a few bad apples can really spoil the bunch.
We've focused our enforcement efforts on companies that see violating the Fair Labor Standards Act as an acceptable corporate strategy. I'll be blunt: Anyone who views back wages and fines for pay violations as the cost of doing business is going to have big problems with my Department.
These bottom-feeder companies are depressing wages for all American workers. It's immoral and illegal to seek a competitive advantage by paying workers less than the minimum wage. It's immoral and illegal to cheat your workers out of overtime pay.
Protecting the rights of workers has been a passion of mine for over 20 years. I grew up in a home where both of my parents were immigrant union members. They taught me the value of a hard day's work.
My father is of Mexican descent and my mother is Nicaraguan. My father will proudly tell you he was a laborer, a farm worker and a railroad worker. My mother worked at a battery recycling plant and raised seven kids.
Growing up in the La Puente, California, the air was not always fit to breathe. In my zip code, we had one Superfund site, 17 gravel pits, and 5 polluted landfills — including one in the backyard of an elementary school. Nine miles away in area code 90210 — Beverly Hills — there were zero landfills, zero gravel pits, and zero chemical plants. I grew up with a strong understanding that there were "haves" and "have-nots" in this world.
My father was a Teamsters shop steward. I remember sitting at the kitchen table and helping him translate the workers' grievances from Spanish to English. Their pay was meager. The work was dirty. The conditions were unsafe. It wasn't fair. They taught me that injustices in the workplace exist and that workers need a voice on the job.

So, when the President asked me to join his Cabinet and to lead the Labor Department, I wasn't only humbled, I was also honored. I believe in my agency's mission. I believe in improving working conditions, safeguarding workers' rights, and advancing job opportunities for all Americans.
Not many people know that the Department of Labor is the second-largest enforcement agency in the federal government. Only the DOJ is bigger. Under my watch, we've recovered million of dollars in back wages for working men and women all over this country. We've performed a record number of workplace inspections in places where almost 6 million people are employed. I believe we've saved many lives.
These are protections that working people need. They are protections they deserve. And I'm proud to be a part of an administration that is delivering on a promise of justice and equality.
Workers across the country are struggling to get basic employment protections under our laws. During these difficult economic times, every dollar that workers are entitled to is even more crucial.
NELA: I know we care about the same things. So let me close by saying: Thank you for championing what is decent, fair and just. Thank you for using your skill and education to make a difference. Thank you for fighting the good fight.
I'm proud to be here today. Good morning, God bless, and have a wonderful convention

Court Says Injured Wal-Mart Worker Can Pursue Retaliation Claim
After the fall, Cox returned to work in May 2007 and Wal-Mart afforded her several accommodations, court records state. But she alleges that Wal-Mart disciplined and fired her after she invoked her rights under Oregon’s workers’ compensation law. July 11, 2011

A woman can proceed with a lawsuit alleging that Wal-Mart Stores Inc. violated the Americans with Disabilities Act and retaliated against her for demanding her workers’ compensation rights, a federal appeals court has ruled in a split decision.
The July 6 ruling by the 9th U.S. Circuit Court of Appeals in Heidi M. Cox vs. Wal-Mart Stores Inc. overturned a district court ruling that had granted Wal-Mart summary judgment in the case involving the Oregon employee who was injured in a fall.

Full Story:

Muslims Turn More Often to EEOC to Resolve Workplace Discrimination
The U.S. Equal Employment Opportunity Commission has been actively pursuing cases in which Muslims have been discriminated against since the terrorist attacks of Sept. 11, 2001, in New York, says an attorney with the commission. By Judy Greenwald
October 2010

Discrimination claims filed by Muslims with the U.S. Equal Employment Opportunity Commission were increasing before controversy erupted over a planned Islamic community center blocks from New York’s ground zero.
The number of claims more than doubled to 1,490 in fiscal 2009, which ended Sept. 30, from 697 in fiscal 2004, according to the agency. These claims resulted in 803 EEOC charges, which can include more than one claim.
Of the 10,005 claims concerning discrimination against Muslims in the past 10 years, the most frequent was discharge (2,722), followed by harassment (1,861) and terms and conditions of employment (1,419).

Full Story:

EEOC Files Disability Discrimination Lawsuit Against Johns Hopkins Home Care Group

U.S. Equal Employment Opportunity Commission

Health Care Provider Refused Accommodation to Employee With Breast Cancer, Then Fired Her, Federal Agency Charged

BALTIMORE – Johns Hopkins Home Care Group, Inc. (JHHCG), a full-service home health care provider, violated federal law when it fired an employee because of her disability and because she challenged the company’s failure to accommodate her, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it announced today.
According to the EEOC’s suit, JHHCG had employed Ray Ellen Fisher, a registered nurse, as a pediatric case manager since 2003. According to the complaint, Fisher was diagnosed with breast cancer in September 2009 and shortly thereafter began medical treatment for her disability. JHHCG refused to provide Fisher with reasonable accommodations to enable her to return to work in a pediatric case manager job or an appropriate alternate position, despite Fisher’s being released to return to work with limited restrictions that were phased out and ultimately eliminated. As a result of JHHCG’s refusal to reasonably accommodate her, Fisher filed a discrimination charge with the EEOC. The EEOC said that Fisher was subsequently subjected to adverse employment actions, including termination, in retaliation for her having filed the charge.
Such alleged conduct violates the Americans With Disabilities Act (ADA). The EEOC filed suit (Case No. 11-cv-01911) in U.S. District Court for the District of Maryland after first attempting to reach a pre-litigation settlement through its conciliation process. The agency seeks injunctive relief and punitive damages as well as lost wages and benefits because of JHHCG’s discrimination.
“Federal law clearly obligates employers to work with disabled employees to determine how best to accommodate them,” said Regional Attorney Debra Lawrence of the EEOC’s Philadelphia District Office, which oversees Pennsylvania, Delaware, West Virginia, Maryland, and portions of New Jersey and Ohio. “Further, retaliating against someone for filing a discrimination charge is unlawful, and the EEOC will continue to vigorously prosecute cases where the employer has punished an employee for simply exercising her rights under the law.”
According to the company’s website, Johns Hopkins Home Care Group, Inc. is owned and operated by Johns Hopkins Health System and Johns Hopkins University and has been servicing Maryland since 1983.
The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on its web site at

Court Finds for EEOC in Religious Discrimination Suit Against Abercrombie & Fitch

U.S. Equal Employment Opportunity Commission

Judge Finds Retailer Refused to Hire Teen Muslim Applicant Because of Head Scarf
TULSA, Okla. – A federal court has agreed with the U.S. Equal Employment Opportunity Commission (EEOC) that national clothing retail giant Abercrombie & Fitch, doing business as Abercrombie Kids, committed religious discrimination against a 17-year-old Muslim girl, the agency announced today. The EEOC had charged that Abercrombie Kids failed to hire Samantha Elauf for a sales position because she wore a hijab, or head scarf, in observance of her sincerely held religious beliefs.
U.S. District Court Judge Gregory Frizzell granted summary judgment to the EEOC after finding that Abercrombie and Fitch failed to produce sufficient evidence to dispute the EEOC’s claims (EEOC v. Abercrombie & Fitch Stores, Inc., Case No. 09-CV-602-GKF-FHM). Damages will be determined by a jury at a later date.
The court found that Abercrombie Kids refused to hire Elauf in June 2008 for a position at its store in Woodland Hills Mall in Tulsa, Okla., because she was wearing the hijab when she was interviewed and this violated the company’s “look policy.” The “look policy” prohibited the wearing of any head coverings. Abercrombie claimed that allowing Elauf to wear a hijab would cause an undue burden on the conduct of its business.
The court, noting that Abercrombie and Fitch had allowed numerous exceptions to its “look policy,” including eight or nine head scarf exceptions, found Abercrombie had “completely failed to consider the impact, if any, of those exceptions” and that its evidence was thus too speculative.
Title VII of the Civil Rights Act of 1964, as amended, protects workers from discrimination based upon religion. This includes disparate treatment, harassment and segregation of employees based on religion. Title VII requires employers to provide reasonable accommodations for the religious practices of its applicants and employees when to do so would not be an undue hardship.
“The EEOC is committed to enforcing the prohibition of all forms of religious discrimination,” said P. David Lopez, EEOC General Counsel. “In this case, the Court's ruling makes clear an employer's ‘corporate image’ policy does not relieve an employer of the obligation to provide a reasonable religious accommodation.”
Barbara A. Seely, regional attorney of the EEOC’s St. Louis District Office, which is responsible for the agency’s litigation in Oklahoma, said, “Samantha is a typical American teenager who has a sincere religious belief that she must wear a head scarf. Employers need to understand their obligation to balance employees’ needs and rights to practice their religion with the conduct of their business. Where there is a minimal impact on the business, those religious needs must be accommodated.”
Jeff A. Lee, one of the EEOC trial attorneys representing the EEOC, said, “The court has sent a clear message to employers: that the denial of a request for a reasonable accommodation of an employee’s or applicant’s religious beliefs must be based on demonstrated facts, not guesswork or speculation.”
The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on its web site at

Tuesday, July 12, 2011

OFCCP Director Hosts Web Chat on Regulatory and Compliance Issues

On July 12, 2011, OFCCP Director Patricia A. Shiu conducted a web chat that addresses many important issues of concern to federal contractors. The following is brief synopsis of her comments on the issues. To view the entire transcript of the "chat" go to the OFCCP website at:

Notice of Proposed Rulemaking for VEVRAA Regulations:

The comment period for Notice of Proposed Rulemaking on Section 4212 of the Vietnam Era Veterans’ Readjustment Assistance Act closed yesterday and the agency has begun the process of reviewing and analyzing all of the comments. This process may take several weeks to complete, and will include consideration of suggestions for revision to the NPRM. In the Final Rule the agency will describe the comments, the issues they raised, and our responses to them. OFCCP anticipates publishing a Final Rule in the spring of 2012.

Approximately 80 comments were received regarding the proposed rule. In answer to the question whether OFCCP will withdraw the proposed rule in accordance to a demand by various employer organizations, the director said that she would not.

Census Bureau Data for 2010:

OFCCP is working with census bureau, EEOC and Department of Justice in creating the special tab. It should be available in the next 12 months. Contractors should continue to use the 2000 census data until the 2010 data are available. The Census Bureau indicates that it expects to release the 2010 data in December 2012.

Compensation Data Collection Tool:

The Compensation Data Collection Tool ANPRM is in the final stages of review and the agency expects to publish it within the next few weeks.

Regional Vacancies:

OFCCP is currently recruiting for Regional Director in the Midwest Region and Deputy Regional Directors in the Northeast, mid-Atlantic, Midwest and Dallas regions.

Proposed Rescission of Compensation Guidelines:

In response to the proposed rescission people have made the agency aware of the need to develop new guidance. OFCCP is reviewing those comments.

Documenting Good Faith Efforts:
The director stated that there are a variety of ways to document good faith efforts. For example, copies of job postings, correspondence, and documentation of community outreach with public workforce agencies or training and educational organizations. The most important thing is to ensure that you have complete and accurate documentation (e.g. emails, letters of confirmation, job postings, etc.). OFCCP regulations and technical guides have more detailed information:

Section 503 ANPRM:
The Section 503 NPRM is currently under review. Once the review is complete, OFCCP will publish the NPRM for public comment. OFCCP anticipates publication of the Section 503 NPRM in the Federal Register sometime in the next month. The NPRMs for construction and sex discrimination are anticipated for publication on the dates listed in the spring regulatory agenda.

FAAP Agreements:
Contractors are not required to develop a FAAP (Functional AAP) agreement. The regulations specify that contractors who have employees who work at an establishment with fewer than 50 employees have the following options for covering these employees: 1. In an AAP covering just that establishment 2. In an AAP which covers the personnel functions or 3. In the AAP of the managing official to whom they report. The new FAAP directive is available on the OFCCP website. Notification letters were sent to existing FAAP holders to inform them to contact the agency about renewal of the FAAP.

The Revised Scheduling Letter:
The revised scheduling letter was published for comment in May, and the comment period closed July 11th. There were a few comments received. OFCCP is reviewing those comments and will make a determination regarding the letter and the itemized listing in the very near future. There are no new regulatory changes that will be reflected in the current revision.

The Federal Contract Compliance Manual:
The FCCM will be published sometime this fall.

The ACM vs. the ACE:
There are several major differences between Active Case Enforcement (ACE) and Active Case Management (ACM). Under ACE, OFCCP is using all of the compliance evaluation investigative methodologies specified in the regulations (i.e., compliance review, offsite review of records, compliance check and focused review), whereas under ACM, only the compliance review method was used. Under ACM, a full desk audit was only conducted where there were indicators of discrimination or in every 50th review. ACE procedures require a full desk audit in every compliance evaluation. Additionally ACM procedures focused on identifying cases where there were 10 or more affected class members, whereas ACE does not have a minimum affected class member threshold.

Outreach Efforts:
In the first half of the current fiscal year, OFCCP conducted nearly 1,000 outreach events, reaching almost 26,000 stakeholders, including workers, community-based organizations, civil rights groups, employers, human resources professionals, attorneys, consultants, labor unions, veterans’ service organizations and more. OFCCP will continue to participate in these activities. Notices of meetings and events can be found on the agency's website

Inter-Agency Communications:
OFCCP and EEOC, as well as the Department of Justice, have increased communications at all levels. For example, the agencies are conducting joint trainings; coordinating civil rights policies on an ongoing basis; developing pilot programs among the field offices; and sharing best practices. The purpose of this collaboration is to develop a unified civil rights agenda which is part of President Obama’s vision for our agencies.

Does OFCCP always send a notice to the contractor to advise that the audit has been closed? Yes

One trend that OFCCP has observed is that when it identifies major violations, contractors have failed to implement internal, self-audit procedures and failed to implement corrective actions. This has resulted in the agency finding record keeping violations relating to personnel activity and compensation.

Will the proposed scheduling letter update follow OIRA protocol (, which includes a second public comment period of 30 days before final approval? If so, will OFCCP seek an emergency extension for the current scheduling letter, which expires 9/30/2011?

Yes, OFCCP is following the OIRA protocol and will provide an opportunity for a second round of comments on the proposed updates to the scheduling letter.

Databases Used for Contractor Selection:
OFCCP uses several databases to determine whether an employer is a federal contractor. Examples include Central Contractor Registration (CCR), Federal Procurement Data System-New Generation (FPDS-NG), EEO-1 Surveys, and Dun & Bradstreet. CCR captures registration information of all federal contractors. FPDS-NG captures all transactions of federal contracts. OFCCP receives EEO-1 reports from the U.S. Equal Employment Opportunity Commission for all businesses that self-report as federal contractors. Finally, Dun & Bradstreet captures name, address, family tree, and DUNS numbers for all facilities and subsidiaries of a business.

Worker Misclassification:
Worker misclassification is an important issue for the OFCCP because Federal contractors must include all their workers in their compliance plans and not mask some by classifying them as independent contractors. As part of the Secretary’s department-wide “Plan Prevent and Protect” initiative, OFCCP is working with other DOL agencies on this misclassification issue.

In the first six months of Fiscal Year 2011, OFCCP has completed 44 financial conciliation agreements that include $5.66 million and 657 job offers for 8,090 victims. This compares favorably to the same period last year when the agency had completed 35 financial CAs totaling $2.77 million and 582 job-offers for 3,157 victims. This represents a 25 percent increase in CAs, more than double the financial remedies and, most importantly, an increase in job opportunities for workers who faced discrimination.

CNN: Can't Find Anyone of Color Qualified

The Root
Richard Prince
July 10, 2011 at 4:37 AM

CNN's top executive has all but said that the on-air journalists of color it employs are not ready for prime time, and deployed Mark Whitaker, the former Newsweek editor who recently became a CNN news executive, to talk with the National Association of Black Journalists about finding more suitable ones.
In a statement protesting CNN's new fall prime-time lineup that was announced Wednesday and includes no journalists of color, NABJ President Kathy Y. Times said she had raised the issue with Jim Walton, president of CNN Worldwide.

Full Story:

Racial Breakdown of Full-Time Women Faculty in the U.S.

Women in Academia Report
Posted on Jul 07, 2011

Data from the U.S. Department of Education shows that in 2009 there were 313,156 women holding full-time faculty positions at degree granting institutions in the United States. Women made up about 43 percent of all full-time faculty.
If we break down women faculty by race we find that whites are 75.5 percent of all women faculty. African Americans make up 6.9 percent of women full-time faculty members. For men, whites are 75.6 percent of all full-time faculty and African Americans are 4.3 percent of the total for men.
Faculty of Asian descent made up 7.2 percent of all women holding full-time jobs. For men, Asians held 9 percent of all positions.

Full Story:

Recent Developments in Gender Discrimination Lawsuits Against Universities

Women in Academia Report
Posted on Jul 07, 2011

• A former professor at Old Dominion University in Norfolk, Virginia, has filed a discrimination lawsuit against the university.
Linda Gagen was hired as an assistant professor of exercise science in 2002. In the lawsuit, she claims she received unwanted sexual advances from a senior faculty member. When she complained, no action was taken by the university, according to the lawsuit. Furthermore, Gagen states that the faculty member who had harassed her sat on the committee that decided if she were to be granted tenure and served to persuade other committee members that she was not worthy despite the fact that she had received unanimous favorable evaluations from outside the department. She left the university in 2009 after her application for tenure was declined.

Full Story:

Push for Transgender Rights in the Workplace Continues to Grow

Workforce Management
Policies have been introduced by some employers specifically for transgender workers that go beyond written statements and address issues such as safe access to bathrooms, health insurance policies that cover medical treatments and training for supervisors of employees undergoing gender reassignment procedures, among others. By Rita Pyrillis
June 2011

Kathleen Culhane was thrilled to land a job two years ago with a large Minnesota-based employer known for its commitment to lesbian, gay, bisexual and transgender rights.
Culhane, a chemist, was born male. Her decision to change gender in 2001 forced her to quit a job she loved at a university research lab in Iowa after her supervisors tried to fire her, telling her that they doubted she could do the job in her “condition.”

Full Story:

Complying With GINA

Workforce Management
Follow these tips to stay in compliance with the Genetic Information Nondiscrimination Act. By Susan G. Hauser
July 2011

Follow these tips to stay in compliance with the Genetic Information Nondiscrimination Act:
• Homework: Make sure you understand the complex definitions of “family members” and “genetic information” under the Genetic Information Nondiscrimination Act, or GINA. Know the difference between genetic information and other medical information.
• Protection: Attach the “safe harbor” language suggested in the GINA regulations to just about every document that might result in the acquisition of genetic information.

Full Story:

Monday, July 11, 2011

Retaliation Remains Most Frequent Allegation Among Federal-Sector Discrimination Complaints

U.S. Equal Employment Opportunity Commission

WASHINGTON – Federal employees and applicants filed 17,583 complaints of employment discrimination during fiscal year 2010, a 3.75 percent increase over the previous year, according to the U. S. Equal Employment Opportunity Commission’s (EEOC) Annual Report on the Federal Work Force Part I: EEO Complaints Processing for Fiscal Year 2010. The report, issued today, assesses federal agencies’ equal employment opportunity complaints program statistics. The full text of the report is available on the agency’s web site at
As with private sector charges of discrimination, retaliation was the most common allegation of discrimination, and registered a 2.7 percent increase over the prior fiscal year. Age and race (African-American) discrimination were the next most frequently alleged bases and each registered 5.1 percent increases. Federal employees and applicants are also protected against employment discrimination on the bases of color, sex, national origin, religion, disability, equal pay and genetic information.
“The federal government should be a model workplace,” said Dexter Brooks, director of the EEOC’s Federal Sector Programs. “We are concerned that retaliation is the most common basis of discrimination alleged and we caution all federal agencies to make sure that reprisals do not become the usual response to complaints of discrimination.”
Unlike in the private sector, where the EEOC investigates and processes charges of discrimination, federal agencies themselves are responsible for handling complaints of discrimination filed against them. The average processing time for conducting investigations dropped from 185 days in FY 2009 to 181 days in FY 2010; however, the average processing time for closing complaints increased from 344 days to 360 days. Of the 7,053 cases closed on the merits, 3.3 percent resulted in findings of unlawful discrimination. Additionally, the parties entered into settlements in 3,623 complaints or 21.2 percent of the total complaint closures.
Part II of the report, assessing equal employment opportunity throughout the federal work force, including trends in work force composition, will be published later this year.
The EEOC is responsible for enforcing federal laws against employment discrimination. Further information is available at

Nine Tips for Avoiding Gender Discrimination

Workforce Management
The tips include establishing a clear policy and making a concerted effort to hire a diversified workforce
March 2011

Steps that employers can take to prevent gender discrimination charges or address them once they have been made include:
• Establishing a clear, simply stated policy.
• Avoiding gender stereotypes, such as assuming a man is the family’s breadwinner.
• Training employees on avoiding gender discrimination at least annually.
• Establishing a complaint procedure that employees can use without fear of repercussions

Full Story:

California moves toward reversal of Prop. 209

Pasadena Star-News
Beige Luciano-Adams, Staff Writer
Posted: 07/10/2011 07:02:58 AM PDT

PASADENA - While it may have changed face since the affirmative action debates of the 1990s, the battle for diversity in California's higher education system has intensified in recent years, taking on new urgency as the state struggles to get ahead of its deep fiscal maladies.
Since voters approved a constitutional amendment prohibiting the state from considering race, sex or ethnicity fifteen years ago, critics say minority enrollment at the California's best public universities has plummeted - even as the number of minority high school graduates rises.

Read more:

EEOC Schedules Meeting on Use of Criminal Records for Employment Screening Background Checks on July 26

Employment Screening Resources
Posted July 6, 2011 — By Tom Ahearn, ESR News Editor

The Equal Employment Opportunity Commission (EEOC) – the agency of the United States Government that enforces the federal employment discrimination laws – will hold a meeting focusing on the use of criminal records for employment screening background checks on Tuesday, July 26, in Washington, D.C., according to a recent Action Alert from the National Association of Professional Background Screeners (NAPBS®).
The NAPBS, a non-profit trade association representing the interests of companies offering employment background screening, believes the July 26th meeting “could be a critical step in the Commission’s adoption of policies that could significantly impact how employers use criminal background checks for employment purposes.”

Full Story:

OFCCP Releases its Semi-Annual Regulatory Agenda

The U.S. Department of Labor's Office of Federal Conract Compliance Programs (OFCCP) has released its Semi-Annual Regulatory Agenda. According to the Director, Ms. Patricia A. Shiu, the agency plans to amend the regulations in order to "bring greater scrutiny to current and past regulations in order to more fully prepare for the future, modernizing our policies and practices to adjust to a changing workforce." Among the regulations to be amended will be the OFCCP's Sex Discrimination Guidelines, which have not been changed since 1978; the veterans' regulations and the Section 503 disability regulations. The agency also plans to amend the regulations regarding women and minorities in the construction trades.

OFCCP is also planning to release a new tool on compensation. According to Ms. Shiu, "This data will be critical to realizing President Obama’s vision of ending, once and for all, the persisting gap in wages between men and women, especially women of color. "

OFCCP is seeking input on the agency's regulatory agenda. On Tuesday, July 12, OFCCP will host a live web chat from 1:00-2:00 PM (EDT) to discuss OFCCP’s regulatory agenda and answer your questions. You may join the chat by going to On the website you will find information about the Department’s entire agenda, including fact sheets, videos and archival material. You can also register to receive a reminder for the web chat.

Post-9/11, Sikhs say they are mistaken targets

Google News
By TAMARA LUSH, Associated Press
8 hours ago

ELK GROVE, Calif. (AP) — Kamaljit Atwal's neighborhood seems like an unlikely place for a hate crime. His street in this Sacramento suburb seems a model of diversity.
Atwal and his family are one of two Sikh families on the block from India. On Atwal's street alone, there's a Vietnamese family, a Mexican family, a black woman and a white man.
But in March, Atwal's 78-year-old father Gurmej Atwal and his 67-year-old friend Surinder Singh were shot and killed while taking an afternoon stroll in the neighborhood.

Full Story:

Governor files legal opinion against ban on affirmative action

Los Angeles Times
July 8, 2011 5:59 pm

Gov. Jerry Brown on Friday added his voice in support of a federal lawsuit challenging the constitutionality of California’s ban on racial affirmative action in public university admissions.
In a legal brief, Brown said that minorities face too high a barrier in efforts to overturn Proposition 209, which voters approved in 1996, because it is part of the state Constitution and not just a law or university policy. In addition, he noted a 2003 U.S. Supreme Court ruling that said race could be considered in state college admissions if it did not involve quotas or carry predetermined weight in decisions.

Full Story:

Sunday, July 10, 2011

Verizon to Pay $20 Million to Settle Nationwide EEOC Disability Suit

U.S. Equal Employment Opportunity Commission

Largest ADA Settlement in EEOC History for Hundreds of Employees Terminated or Disciplined Based on Rigid Attendance Policy

BALTIMORE – Telecommunications giant Verizon Communications will pay $20 million and provide significant equitable relief to resolve a nationwide class disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today. The suit, filed against 24 named subsidiaries of Verizon Communications, said the company unlawfully denied reasonable accommodations to hundreds of employees and disciplined and/or fired them pursuant to Verizon’s “no fault” attendance plans.
The consent decree settling the suit, which is pending judicial approval, represents the largest disability discrimination settlement in a single lawsuit in EEOC history. The EEOC charged that Verizon violated the Americans With Disabilities Act (ADA) by refusing to make exceptions to its “no fault” attendance plans to accommodate employees with disabilities. Under the challenged attendance plans, if an employee accumulated a designated number of “chargeable absences,” Verizon placed the employee on a disciplinary step which could ultimately result in more serious disciplinary consequences, including termination.
The EEOC asserted that Verizon failed to provide reasonable accommodations for people with disabilities, such as making an exception to its attendance plans for individuals whose “chargeable absences” were caused by their disabilities. Instead, the EEOC said, the company disciplined or terminated employees who needed such accommodations.
The ADA prohibits discrimination based on disability. The law also requires an employer to provide a reasonable accommodation, such as paid or unpaid leave, to an employee with a disability, unless doing so would cause significant difficulty or expense for the employer.
“Flexibility on leave can enable a worker with a disability to remain employed and productive -- a win for the worker, the employer and the economy,” said EEOC Chair Jacqueline A. Berrien. “By contrast, an inflexible leave policy may deny workers with disabilities a reasonable accommodation to which they’re entitled by law – with devastating effects.” Chair Berrien presided over a Commission meeting earlier this month on leave as a reasonable accommodation.
"I am pleased the parties were able to resolve this historic case without resorting to prolonged and expensive litigation," said EEOC General Counsel P. David Lopez. "Hopefully this nationwide decree will further public awareness of the importance of engaging in an individualized interactive process to determine whether a disabled employee must be accommodated under the ADA."
The EEOC filed suit in U.S. District Court for the District of Maryland, Civil Action No. 1-11-cv-01832-JKB, after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC filed its lawsuit and the proposed consent decree resolving the suit on the same day. The consent decree resolves the EEOC’s lawsuit, an EEOC Commissioner charge, a charge filed by the Communications Workers of America, AFL-CIO, and over 40 individual charges filed with the EEOC. The investigation involved coordinated systemic efforts by EEOC’s Baltimore Field Office and Newark Area Office.
“This settlement demonstrates the need for employers to have attendance policies which take into account the need for paid or unpaid leave as a reasonable accommodation for employees with disabilities,” said Spencer H. Lewis, Jr., Director of the EEOC’s Philadelphia District Office, which oversees Pennsylvania, Maryland, Delaware, West Virginia, and parts of New Jersey and Ohio.
In addition to the $20 million in monetary relief, the three-year decree includes injunctions against engaging in any discrimination or retaliation based on disability, and requires the company to revise its attendance plans, policies and ADA policy to include reasonable accommodations for persons with disabilities, including excusing certain absences. Verizon will provide mandatory periodic training on the ADA to employees primarily responsible for administering Verizon’s attendance plans. The company will report to the EEOC about all employee complaints of disability discrimination relating to the attendance policy and about Verizon’s compliance with the consent decree. The company also agreed to post a notice about the settlement. Finally, Verizon will appoint an internal consent decree monitor to ensure its compliance. The settlement applies to certain Verizon wireline operations nationwide which employ union-represented employees.
EEOC Regional Attorney Debra Lawrence said, “This consent decree is the result of productive and thoughtful negotiations with Verizon. We appreciate Verizon working with the EEOC to reach a settlement. In addition to providing meaningful monetary relief for hundreds of former Verizon employees, the settlement contains important equitable relief, including company policy changes and training designed to provide people with disabilities equal opportunities in the workplace.”
According to its website,, Verizon Communications Inc., headquartered in New York, is a global leader in delivering broadband and other wireless and wireline communications services to mass market, business, government and wholesale customers. Verizon has more than 196,000 employees and last year generated consolidated revenues of $106.6 billion.
In fiscal year 2010, private sector workplace discrimination charge filings with the EEOC hit an unprecedented level of 99,922, which included a record-high number of disability charges (25,165) – an increase of 17.3 percent in disability charges over the prior fiscal year.
The EEOC enforces federal laws prohibiting employment discrimination. Further information about the Commission is available on its web site at

Tuesday, July 5, 2011

AAAA Summit Embraced the Future, Present and the Past in Atlantic City

The American Association for Affirmative Action's Access, Equity and Diversity Summit and Annual Meeting presented a three-fold perspective: future, past and present, in its meeting of EEO, affirmative action and diversity professionals in Atlantic City last week. The Summit, which borrowed its theme from the Equal Employment Opportunity Commission: "EEO and Diversity: A Strong and Prosperous Nation Secured Through and Fair and Inclusive Workforce," attracted participants from the State of New Jersey and from as far away as Maui, HI. This year, the summit was co-sponsored by the New Jersey Affirmative Action Officers' Council.

By inviting the Director of the Office of Federal Contract Compliance Programs (OFCCP) Patricia A. Shiu and the Chair of the Equal Employment Opportunity Commission Jacqueline Berrien, the summit looked to the future of the civil rights enforcement activities of these key agencies. Also participating from the federal government was Veronica Villalobos, Director of the Office of Diversity and Inclusion with the Office of Personnel Management. As an additional effort to embrace the future as well as the present, AAAA used Skype to include a French professor in the dynamic discussion about Affirmative Action and Diversity. This is the first time that AAAA has included an international component using Skype.

In its twelve workshops, AAAA also addressed current issues affecting compliance with EEO and affirmative action laws and policies. The association also held two pre-conference workshops, one on faculty recruitment and retention and the other an "EEO Boot Camp" for individuals who are new to the profession.

The final panel on Equity in Education underscored the current challenges facing diverse communities and the importance of groups' mutual support and funding for equity programs. The panelists represented Holocaust education, integrating African American history and Italian culture into the K-12 curriculum. The panel also addressed the ongoing issue of bullying and the importance of teaching respect for differences in elementary and secondary schools.

Added to the substantive training opportunities was an African-American Art exhibit, highlighting the local community and its artists, and an awards luncheon featuring Ms. Flonzie Brown Wright, who spoke of the contributions of women to the civil rights movement and the Mississippi Freedom Rides. Looking back on the fifty-year history of the rides was an attempt to underscore the continuing importance of civil rights laws and to re-connect with the origins of these laws.

By all accounts this collaboration with one of AAAA's state partners was a tremendous success. Next year, AAAA will host its 38th Annual meeting in Washington, DC.