Friday, September 30, 2011

Fifth Circuit Recognizes Age-Based Hostile Environment Claim

Ford & Harrison LLP
September 2011

Executive Summary: For the first time, the Fifth Circuit Court of Appeals has held that a plaintiff can pursue a claim for a hostile work environment based on age. See Dediol v. Best Chevrolet, Inc. (5th Cir. Sep. 12, 2011). If other federal appeals courts follow this reasoning and recognize age-based hostile work environment claims, more employers may find themselves involved in such litigation. Implementing policies prohibiting harassment, establishing effective complaint procedures and training employees and supervisors on these policies and procedures can help prevent costly litigation and/or provide a defense in the event of litigation.

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Census count finds decreasing white population in 15 states

The Washington Post
By , Published: September 29

Non-Hispanic whites are a dwindling share of the U.S. population, with their numbers dropping in the Northeast and Midwest and growing only modestly in the South and West, the Census Bureau said Thursday.
Whites declined in 15 states, almost all in the industrial and farming states from Massachusetts to Pennsylvania, and from Kansas to Ohio. They also declined in California and three Southern states, including Maryland.

A Census Bureau analysis of the 2010 count showed that the number of non-Hispanic whites rose over the decade from 194.5 million to 197 million, but the 1.2 percent growth rate fell far short of the national increase of 9.7 percent. Non-Hispanic whites are now 64 percent of the population, down from 69 percent a decade ago.

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Thursday, September 29, 2011

Proven Leader Takes the Helm at Emerson College

Diverse Issues in Higher Education
by Kenneth J. Cooper , September 22, 2011

Faced with a public controversy over its limited faculty diversity, Emerson College has responded with a spate of hirings and promotions of minorities, capped by the installation in July of its first African-American president, Dr. M. Lee Pelton.
Though many other higher education institutions have struggled to effect real change in response to institutional bias allegations, Emerson, a private liberal arts college in Boston, broke from that pattern, first by naming an expert panel to conduct an external review and make a public report on its findings.

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Commentary: The Research-Practice Gap – Diversity Predicts Performance

Diverse Issues in Higher Education
by Dr. David A. Kravitz and Dr. Renee Yuengling , September 29, 2011

Stories about generation differences are ubiquitous in the diversity domain, with executives and managers being warned that they must change their organizational cultures, policies and practices if they hope to attract and retain younger workers. In today’s column, we discuss two recent studies that address these questions and offer some surprising answers.
Kali Trzesniewski (University of Western Ontario) and her colleague Brent Donnellan (Michigan State University) analyzed data obtained from high school seniors annually from 1976 through 2006.

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The Center for Corporate Equality (CCE) has published the following information regarding the new Scheduling letter of the Department of Labor's Office of Federal Contract Compliance Programs (OFCCP). Here are CCE's comments about the revised letter:

DCI has received an advanced copy of the revised proposed OFCCP scheduling letter, compliance check and itemized listing. The Office of Management and Budget (OMB) has completed its review of the revised letter and it will be published on tomorrow, September 29, 2011. The current OFCCP scheduling letter, set to expire this Friday September 30, 2011, was updated and published for public comment in May 2011. The Center for Corporate Equality (CCE), along with 17 other groups/individuals, submitted public comments during the initial comment period.

See the full CCE blog post:

Tuesday, September 27, 2011

UC Berkeley blog chronicles diversity bake sale controversy

The Sacramento Bee
Tuesday, September 27, 2011

It's a uniquely Berkeley scene.
College Republicans are selling cupcakes priced according to the buyer's race to highlight opposition to a bill they believe would overturn the state's ban on affirmative action in college admissions. Meanwhile, hundreds of demonstrators dressed in black are gathering to protest the Republican protest.
That's how a live blog by student reporters at the Daily Cal is describing today's actions at UC Berkeley -- a massive wave of lobbying prompted by dueling views of Senate Bill 185. The bill by Sen. Ed Hernandez, D-West Covina, would allow California's public universities to use race as a factor in the admissions process, though it would not allow preferences for any racial groups.

Read more:


A ‘Diversity Bake Sale’ Backfires on Campus

The New York Times
September 26, 2011

BERKELEY, Calif. — A bake sale sponsored by a Republican student group at the University of California, Berkeley, has incited anger and renewed the debate over affirmative action by asking students to pay different prices for pastry, depending on their race and sex.
Last week, the Berkeley College Republicans announced its “Increase Diversity Bake Sale,” scheduled for Tuesday. On Facebook, the group listed the price for a pastry at $2 for white students, $1.50 for Asian students, $1 for Latinos, 75 cents for African-Americans and 25 cents for Native Americans. Women of all races were promised a 25-cent discount.
“Hope to see you all there! If you don’t come, you’re a racist!” the Facebook event page said. (It has since been taken down and replaced with milder text.)
“We expected people to be upset,” the group’s president, Shawn Lewis, 20, a third-year political science major, said Monday in a telephone interview. “Treating people differently based on the color of their skin is wrong, and we wanted people to be upset about that.”
The bake sale was scheduled to protest a phone bank organized by the Associated Students of the University of California, the campus student government group, where students planned to call Gov. Jerry Brown and urge him to sign a Senate bill that would allow public universities to consider race, gender and ethnicity in admissions decisions. In 1996, voters in the state passed a ballot initiative, known as Proposition 209, prohibiting affirmative action in admissions.

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Monday, September 26, 2011

Gallaudet University adjusts to a culture that includes more hearing students

The Washington Post
By , Published: September 24

The quiet campus of Gallaudet University in Northeast Washington was always a place where students could speak the unspoken language of deaf America and be understood.
That is no longer so true. For the first time in living memory, significant numbers of freshmen at the nation’s premiere university for the deaf and hard of hearing arrive lacking proficiency in American Sign Language and experience with deaf culture.Rising numbers of Gallaudet students are products of a hearing world. The share of undergraduates who come from mainstream public schools rather than residential schools for the deaf has grown from 33 percent to 44 percent in four years.

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EEOC highlights legal risks posed by inflexible job requirement and leave policies

Foley & Lardner LLP
Jeremy C. Wooden
September 19 2011

The EEOC has recently highlighted the significant legal risks that arise from an employer’s inflexible, one-size-fits-all application of certain employment policies. The EEOC has singled out two types of employment policies that are likely to draw its attention: (1) uniform job qualification requirements that permit no exceptions for applicants “regarded as” disabled, and (2) leave policies containing inflexible cut-off dates.
Uniform Job Qualification Requirements Must Be Relevant to Performance
Speaking recently at the 2011 Technical Assistance Seminar, EEOC Legal Counsel Peggy Mastroianni warned employers that, in the wake of the ADA Amendments Act (ADAAA), the EEOC will apply heightened scrutiny to uniform job requirement policies that exclude applicants based on impairments. The ADAAA makes it easier for an applicant to qualify for ADA coverage if he/she is “regarded as” disabled . Prior to the ADAAA, an employer may not have had to defend a no exceptions policy because an affected applicant would not have been regarded as disabled for failing to meet the job requirements. Now, an affected applicant will likely be regarded as disabled, and employers will have to defend the policy on the merits by showing how the policy is relevant to job performance.

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Ninth Circuit decertifies sex discrimination case in light of Dukes
Baker & Hostetler LLP
Gregory V. Mersol
September 20 2011

If there was a case that might indicate what the Ninth Circuit would do in the wake of the Supreme Court's decision in Wal-Mart Stores, Inc. v. Dukes.pdf, 131 S. Ct. 2541 (2011), it was that of Ellis v. Costco Wholesale Corp., Case No. CV-04-3341-MHP (N.D. Cal.). The Ellis case was, like Dukes, a putative class action alleging sex discrimination against a major national employer. It was also filed in the same district court as Dukes and, not coincidentally, was only filed days after the Dukes district court had certified that case as the largest employment class action in history. The claim was somewhat narrower than those raised in Dukes in that it focused largely on promotional decisions to several management positions, but it did not include claims for alleged across the board pay disparities. The case was assigned to a different judge, but one that has issued several notable decisions in favor of plaintiffs in the past.

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Employers must stick to "best practices" in light of new statistics that the most frequent discrimination claims filed with the EEOC are retaliation
Fox Rothschild LLP
Richard B. Cohen
September 20 2011

Statistics released recently by the EEOC show, as employment practitioners already intuitively knew, that retaliation claims have skyrocketed so that now they are the most frequently filed EEOC claim against both private sector employers and the federal government.
Retaliation claims are serious business, as we have repeatedly warned employers in this blog. As we noted in our blog entry of May 23, 2011, a retaliation claim is far easier to prove than an underlying claim of discrimination, and that even if the underlying claim of discrimination has no merit, retaliation can still be proved. All that must be shown to make out a claim for retaliation is the employee’s filing of a claim or complaint of discrimination, an “adverse employment action” by the employer, and some causal connection between the two.

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California Jury Convicts 10 Muslim Students of Interrupting Campus Speech

The Chronicle of Higher Education
September 25, 2011
By Josh Keller

(Updated: 8:30 p.m. EDT, September 25, 2011)
In an unusually harsh verdict for a student protest, 10 Muslim college students who interrupted a speech by an Israeli diplomat last year at the University of California at Irvine were found guilty of misdemeanors on Friday.
The Orange County district attorney's decision to prosecute the case prompted a national debate over the nature of free-speech rights on college campuses. Protests that interrupt a speaker are not uncommon at University of California campuses, but nonviolent protesters are rarely charged with crimes.

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EEOC: Bass Pro Discriminates Against Blacks, Hispanics in Hiring
By Judy Greenwald
September 22, 2011

Bass Pro Outdoor World L.L.C., a 60-store sporting goods retailer, has been charged by the U.S. Equal Employment Opportunity Commission with engaging in a pattern of failing to hire African-American and Hispanic job applicants, the agency said.
The lawsuit, filed Sept. 22 in federal court in Houston, accuses the Springfield, Missouri-based retailer of violating Title VII of the Civil Rights Act of 1964, and says it has been discriminating in its hiring practices since at least November 2005.
The suit alleges that qualified African-Americans and Hispanics routinely were denied retail positions such as cashier, sales associate, team leader, supervisor and manager at many stores nationwide.

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EEOC Sues Fashion Boutique Delia's for Pregnancy Discrimination
By Joanne Wojcik
September 23, 2011

The Equal Employment Opportunity Commission has sued a teen fashion boutique for allegedly harassing and discriminating against two pregnant employees.
In a lawsuit filed Sept. 21 in U.S. District Court for the Eastern District of Pennsylvania, the EEOC accused dELiA*s Inc. of violating Title VII of the Civil Rights Act of 1964 and the Pregnancy Discrimination Act of 1978, which prohibit discrimination based on sex, including pregnancy, and retaliation against an employee for complaining about discrimination.
In the suit, the EEOC says Nicole Young, a fashion representative, and Mallory Martin, co-manager, both of whom worked at a dELiA*s store in Lehigh Valley Mall in Whitehall, Pa., were harassed repeatedly by management after they told company managers about their respective pregnancies.

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Best Practices for Diversity Training
Here are five of the best practices based on research and companies’ experiences
By Todd Henneman
September 12, 2011

Here are five of the best practices based on research and companies' experiences.
• Communicate an individual business case. During the past decade, developing a business case for diversity has become a standard practice within companies. However, organizations also should communicate what Villanova University management professor Quinetta Roberson calls an individual business case. “People want to know, ‘What's in it for me?' ” says Roberson, who studies strategic diversity management. “Is this going to increase my skill set where I'm more likely to be identified as a high-potential or future leader? They need to be given some kind of motivation to learn.” That way, they're more engaged when they attend training.
• Use experiential training focused on behaviors. “Generic and theoretical learning doesn't have the same stickiness as experiential learning,” says Michael Hyter, president of diversity consultant Global Novations. Leading-edge practices incorporate experiential learning that develops skills rather than simulates discrimination. “We don't teach people how to manage black people,” Hyter says. “We teach people how to teach people who are different than them.”

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Nu-Way Weiners Sued By EEOC For Same-Sex Sexual Harassment And Retaliation

U.S. Equal Employment Opportunity Commission
Restaurant's Female General Manager Harassed Female Employees Then Fired Them for Rejecting Her Advances, Federal Agency Charges

ATLANTA – Nu-Way Weiners, one of the oldest hot dog restaurants in the country, violated federal law by subjecting two female employees to a pattern of sexual harassment and then firing them for reporting it, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit recently filed.
According to the EEOC’s suit, Civil Action No., 5:11-CV-384 (MTT), filed in U.S. District Court for the Middle District of Georgia, Macon Division, two female employees at the Macon, Ga. restaurant, were subjected to repeated acts of sexual harassment by the restaurant's female general manager. The harassment included a daily barrage of lewd sexual comments, gestures, and inappropriate physical touching. The general manager groped the women's breasts and buttocks and frequently asked them to accompany her at a gay club. Both women said that the harassment began shortly after they started working at the restaurant, one in the summer of 2009, the other in January 2010. Although the general manager made it known that anyone who complained would be fired, both women openly opposed her inappropriate behavior and asked her to stop. Both women were fired in the spring of 2010 by the harasser after they had repeatedly rejected her sexual advances.
Sexual harassment and retaliation for reporting it violates Title VII of the Civil Rights Act of 1964. The EEOC filed its suit after first attempting to reach a voluntary settlement with the employer. The federal agency seeks back pay, compensatory and punitive damages for the women, as well as injunctive relief designed to prevent such harassment and retaliation by the restaurant in the future.
“No employee should have to endure the kind of conduct that took place here,” said Bernice Williams Kimbrough, district director for the EEOC’s Atlanta District Office. “Employers have an obligation to stop and prevent harassment once it is brought to their attention.”
The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on the agency’s web site at

Taqueria Rodeo de Jalisco Sued by EEOC for Pregnancy Discrimination

U.S. Equal Employment Opportunity Commission

Mexican Restaurant Violated Federal Law By Requiring Expectant Mothers To Stop Working, Federal Agency Charged

HOUSTON – Taqueria Rodeo de Jalisco, a Houston-based Mexican restaurant, violated federal anti-discrimination laws when its manager told pregnant employees they had to stop working in their last trimester of pregnancy, the U.S. Equal Employment Opportunity Commission (EEOC) charged discrimination lawsuit filed today.
According to the EEOC’s lawsuit, the restaurant manager told bus person Blanca Esparza that she could not work beyond the seventh month of pregnancy despite the fact that Esparza never complained that she was unable to carry out her duties and her doctor never put any restrictions on her ability to work. Similarly, the manager told a pregnant waitress that she too could not work past the seventh month of her pregnancy. The manager admitted to EEOC investigators that he asked the women to resign, but said it was to look out for their best interests and protect them and their fetuses from injury.
Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act, prohibits employers from discriminating against employees on the basis of sex or pregnancy. The EEOC filed suit (Civil Action No., 4:11-cv-03444) in U.S. District Court for the Southern District of Texas, Houston Division, after first attempting to reach a voluntary settlement. The EEOC seeks an injunction, back pay with pre-judgment interest, reinstatement or front pay, compensatory damages and punitive damages, in amounts to be determined at trial.
“Federal law protects the right of a woman to remain gainfully employed during her pregnancy,” said Jim Sacher, EEOC regional attorney in Houston. “The Supreme Court has made clear that the decision whether a pregnant woman should work rests with her. She alone, and not the employer, is responsible for making decisions that affect her safety and that of her child.”
The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on the agency’s web site at

EEOC Files Trio of New Cases under Amended Americans with Disabilities Act

U.S. Equal Employment Opportunity Commission

WASHINGTON — Taking another step in its commitment to end disability discrimination in employment, the U.S. Equal Employment Opportunity Commission (EEOC) announced the filing of three new disability discrimination cases today, charging employers in Georgia, Maryland and Michigan with violations of the recently amended Americans With Disabilities Act (ADA).
The cases — all filed under the broader and simplified definition of disability set forth in the ADA Amendments Act (ADAAA) — allege discrimination against qualified individuals with diabetes, cancer and severe arthritis.
“The contributions of people with disabilities to the workplace ought to be valued, not rejected based on myths, fears and stereotypes,” said EEOC Chair Jacqueline A. Berrien. “The ADAAA made clear what the EEOC had always asserted: people with a range of disabilities are protected from unlawful discrimination. We hope that these cases send a clear message that the Commission will vigorously enforce the ADA.”

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Pay-by-race bake sale at UC Berkeley still on, student Republican group says
By Holly Yan, CNN
updated 12:28 PM EST, Mon September 26, 2011

(CNN) -- It's meant to be racist, and it's meant to be discriminatory.
And the controversial "Increase Diversity Bake Sale" hosted by the Berkeley College Republicans is still on, the club's president said, despite "grossly misguided comments" and threats aimed at supporters of the University of California, Berkeley, student group.
During the sale, scheduled for Tuesday, baked goods will be sold to white men for $2, Asian men for $1.50, Latino men for $1, black men for 75 cents and Native American men for 25 cents. All women will get 25 cents off those prices.

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UC Berkeley students condemn 'diversity bake sale'
By TERENCE CHEA , 09.26.11, 05:41 PM EDT

SAN FRANCISCO -- A Republican group at the University of California, Berkeley has cooked up controversy with a plan to hold an "Increase Diversity Bake Sale" as a satirical way to oppose legislation that would allow public colleges to consider race and other factors in student admissions.
Students at the Berkeley College Republicans' event set for Tuesday will be charged different prices based on race, gender and ethnicity, with white students charged the most, Native Americans the least, and women receiving a 25 percent discount, according to the Facebook event posting.

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Men far more likely to benefit from affirmative action in college admissions
September 26, 2011 12:06 PM

In the 1970s, after twice being denied admission to medical school at U.C. Davis, Allan Bakke sued the University of California over its admissions policies. A white male, Bakke charged the university with reverse racial discrimination. His suit went to the Supreme Court, where it became a landmark split decision that, while upholding affirmative action as legal, ordered that Bakke be admitted to Davis. The case helped galvanize the movement against affirmative action.
But if Bakke were an applicant today his story might be very different. A survey of admissions directors released last week found that male applicants of all races are far more likely to benefit from affirmative action-like policies than female applicants.
"Men are being admitted with lower grades and test scores," said Scott Jaschik, editor of Inside Higher Ed, which conducted the survey. "While a lot of people don't like to talk about it, a lot of colleges are basically doing affirmative action for men."

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Wednesday, September 21, 2011

Tyson Fresh Meats to pay $2.25 million to settle sex discrimination cases with US Labor Department

News Release
OFCCP News Release: [09/20/2011]
Contact Name: Jason Surbey or Laura McGinnisPhone Number: (202) 693-4668 or x4653
Release Number: 11-0799-NAT

More than 1,650 qualified female applicants denied jobs at 4 Midwest plants

WASHINGTON – The U.S. Department of Labor’s Office of Federal Contract Compliance Programs today announced that Tyson Fresh Meats Inc. has entered into two consent decrees to settle allegations of sex discrimination. The Dakota Dunes, S.D.–based company will pay a total of $2.25 million in back wages, interest and benefits to more than 1,650 qualified female job applicants who were rejected for employment at facilities in Joslin, Ill.; West Point, Neb.; and Waterloo and Denison, Iowa. Tyson Fresh Meats is a subsidiary of Springdale, Ark.-based Tyson Foods Inc., a federal contractor and one of the world’s largest processors of beef and pork.
“Companies that profit from federal contracts must not discriminate in employment decisions,” said Secretary of Labor Hilda L. Solis. “Today’s settlement, one of the largest in OFCCP’s history, means that women who were unfairly denied job opportunities will be compensated.” During scheduled compliance reviews of the four facilities, OFCCP determined that Tyson Fresh Meats had violated Executive Order 11246, which prohibits federal contractors from discriminating on the basis of sex. Under the terms of the decrees, the $2.25 million settlement will be divided among the rejected female job applicants. Tyson also has agreed to offer jobs to at least 220 of the affected women as positions become available in Joslin, Waterloo and Denison. The West Point plant closed in 2006. Finally, Tyson will undertake extensive self-monitoring and corrective measures to ensure that its employment practices fully comply with the law.
These consent decrees resolve the latest lawsuits in a string of cases brought by OFCCP against subsidiaries of Tyson Foods Inc. In 2008, a Labor Department administrative law judge found that TNT Crust in Green Bay, Wis., systematically had discriminated against Latino applicants in its entry-level position hiring. Last year, OFCCP settled a case against Tyson Refrigerated Processed Meats after finding evidence that the company had discriminated against 157 African-American and 375 Caucasian job applicants at the company’s bacon processing plant in Vernon, Texas.
“A year after filing suit, the Labor Department has made good on a promise to those job seekers who were denied the opportunity to work simply because they are women,” said OFCCP Director Patricia A. Shiu. “We will remain vigilant, particularly with a serial offender like Tyson, to protect the rights of workers who can and should expect basic fairness from a company that profits mightily from doing business with the federal government.”
Tyson Foods Inc. has received federal contracts totaling more than $200 million in each of the past three years and recently was awarded another $8 million contract to provide beef and pork products for resale at two commissary stores in Guam. The company is a major supplier for the U.S. Departments of Defense and Agriculture, and is one of the largest employers in Joslin, Waterloo and Denison.
In addition to Executive Order 11246, OFCCP’s legal authority exists under Section 503 of the Rehabilitation Act of 1973 and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974. As amended, these three laws hold those who do business with the federal government, both contractors and subcontractors, to the fair and reasonable standard that they not discriminate in employment on the basis of sex, race, color, religion, national origin, disability or status as a protected veteran. For general information, call OFCCP’s toll-free helpline at 800-397-6251. Additional information is available at

AAAA Board Meets with White House and Agency Officials

On September 15 and 16, 2011, AAAA Board Members participated in its annual meetings with federal agency officials in Washington, D.C. AAAA President Gregory Chambers, Immediate Past President ReNee Dunman and Legislative Chair John Gonzalez met with Cecilia Munoz at the White House. Board Members also met with Claudia Withers, Chief Operating Officer and Dexter Brooks, Director of Federal Sector Programs, at the Equal Employment Opportunity Commission. Ms. Liz Montoya, Chief of Staff, Office of Personnel Management, addressed the AAAA board on September 16th, during its meeting at the AAAA National Office.

In all of the meetings, AAAA members commended President Obama for issuing his Executive Order on Diversity and Inclusion in the Federal Workforce. (See blog posts on this issue). AAAA also offered to serve as a resource on this Order, in light of the fact that our members have been engaged in diversity and inclusion efforts for many years. Members also inquired about the relationship between diversity and inclusion and affirmative action and emphasized the importance of maintaining a relationship between the two.

These meetings were arranged by Legislative Chair John Gonzalez and AAAA Board Member Delia Johnson. Ms. Johnson also represents federal EEO professionals in Washington, DC. We thank Members Gonzalez and Johnson for their leadership in maintaining and enhancing AAAA's presence among policy makers in Washington.

Affirmative action opponents petition Supreme Court to review UT case

American Independent
09.20.11 5:32 pm

The University of Texas is once again embroiled in a possible Supreme Court case involving affirmative action in their admissions process. As the Austin American-Statesman reported, lawyers have filed a petition on behalf of a student who’d applied to the school, asking for the Supreme Court to review the UT’s consideration of race in undergraduate admission decisions.
“If any state action should respect racial equality, it is university admission. Selecting those who will benefit from the limited places available at state universities has enormous consequences for their futures and the perceived fairness of governmental action,” lawyers argue in the petition to the Supreme Court.

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Margaret Krome: Affirmative action counters embedded bias
Posted: Tuesday, September 20, 2011 8:00 am

Our daughter is applying to colleges this fall, and I’m acutely aware of the competition for spaces at top schools. But I strongly support affirmative action. Public debate about its role was sparked last week by the Center for Equal Opportunity’s announcement that it had identified racially discriminatory admissions policies at the University of Wisconsin-Madison. The conservative Virginia-based group said that the university favors black and Hispanic undergraduate and law school students over whites and Asian-Americans.

Read more:

Tuesday, September 20, 2011

OFCCP Director Shiu Holds a Listening Session with AAAA

On September 8, 2011, AAAA participated in a listening session for members of the higher education community with OFCCP Director Patricia Shiu and other DOL staff. Organizer of the session, AAAA Member Marilyn Schuyler reports:

About 150 members of the academic community shared questions and
concerns with Director Shiu on Thursday, September 8, via conference
call. Representatives from the academic community discussed the
challenges they face in applying the OFCCP regulations in an academic
environment. As federal contractors, academic institutions are required to
comply with the same regulations as supply and service contractors, however, due
to the presence of student workers, issues of tenure, etc., academic
institutions often find it challenging to implement the regulations.

For more information and for a copy of the transcript of the discussion, go to:

Monday, September 19, 2011

EEOC Sues Wal-Mart for Firing Disabled Employee

U.S. Equal Employment Opportunity Commission

Carlsbad Store Refuses to Accommodate Employee With Cerebral Palsy After More Than 20 Years of Service, Federal Agency Charges
DALLAS — The U.S. Equal Employment Opportunity Commission (EEOC) announced today that it has filed suit against Wal-Mart Stores, Inc. for refusing to allow a long-term employee with cerebral palsy to return to work after a medical leave because of restrictions imposed by her doctor that would have been temporary.
The EEOC charged in its suit, Case No. 2:11-CV-00834 in U.S. District Court for the District of New Mexico, that a Carlsbad, N.M., Walmart terminated sales clerk Marcia Arney, who was attempting to return to her job following a medical leave for surgery. The surgery had been necessary due to her disability, cerebral palsy. When Arney, who had worked at the store as a sales clerk for 22 years, showed the store manager a note from her doctor stating that she needed to take periodic breaks, he refused to return her to her job, and instead required that she produce a medical release with no restrictions. The EEOC alleges that the medical restriction could have been accommodated by the giant retailer.
“This skilled employee had decades of experience with customers who recognized and greeted her. She had a loyal customer base that also benefited the store. Not allowing her to return to her job or even discuss her temporary restrictions meant the loss of a loyal employee, and violated the federal law against disability discrimination,” said EEOC Supervisory Trial Attorney Toby Wosk Costas.
Such alleged conduct violates the Americans with Disabilities Act of 1990 (ADA), which prohibits disability discrimination in the workplace. The EEOC filed suit after first attempting to reach a pre-litigation settlement through its conciliation process.
The EEOC seeks injunctive relief, including the formulation of policies to prevent and correct disability discrimination. The suit also seeks damages for Ms. Arney and punitive damages against Wal-Mart.
“Employers need to make sure that they understand and comply with the simplified coverage definitions of the ADA Amendments Act, which has been in effect now for over two years, said Robert A. Canino, regional attorney for the Dallas District Office of the EEOC. “Prior skewed interpretations of the law have been corrected by Congress to ensure that persons like Ms. Arney, who suffer from debilitating conditions, are given opportunities to continue their employment through reasonable accommodations.”
The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on its website at

Class action settlement in Verizon ADA case continues EEOC trend
Baker Donelson Bearman Caldwell & Berkowitz PC
September 16 2011

On July 6, 2011, Verizon agreed to pay $20 million as part of a consent decree to settle a class action filed by the EEOC in federal court in Maryland, which alleged the company maintained a "no fault" attendance policy which contains multiple steps of discipline, up to and including discharge, for all absences, including absences caused by an employee's disability, except for certified FMLA leave, jury or military duty, death in the immediate family or excused time without pay. Verizon's policies mandate that when an employee accumulates a certain number of "chargeable absences" an employee is placed on a disciplinary step, and additional absences incurred during the step period result in the employee being placed in the next step, which has more serious consequences, including termination. In its operation, the EEOC alleged that an employee who was on workers' compensation leave due to a disability arising from a work-related injury was automatically terminated after one year of leave without consideration of whether a reasonable accommodation under the ADA might have allowed the employee to return to work.

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Affirmative action faces new challenge

Milwaukee Journal-Sentinel
Group's report on University of Wisconsin brings back old vibes
Sept. 14, 2011

A friend in Madison sent a gleeful message about a recent affirmative action protest at the state's largest university.
"It's just like old times!" she exclaimed.
Like me, she's long past her college days but remembers vividly when affirmative action was the hot button cause of the time.
Along with ending apartheid in South Africa, many Americans who attended college during the 1970s and 1980s still remember battles over affirmative action policies - a thorny issue for students, parents and teachers.

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Sixth Circuit to hear Michigan affirmative action case en banc
Squire Sanders & Dempsey
Bruce A. Khula
September 12 2011

On September 9, 2011, the Sixth Circuit voted to rehear en banc the panel decision in Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary v. Regents of the Univ. of Michigan (6th Cir. Nos. 08-1387, 08-1389, 08-1534, 09-1111) (PDF). With Judges Kethledge and McKeague having recused themselves, the Court voted (PDF) to vacate the panel decision, stay the mandate and set the matter for rehearing by the entire Court. In a subsequent order, the Court established appellants' briefing due on October 11, 2011, with briefing by the appellees due on December 12, 2011. A date for oral argument has not yet been set.

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Short-term pregnancy complications found not to be a disability
Franczek Radelet PC
Lisa A. McGarrity and Abizer Zanzi
September 12 2011

In a case of first impression in a court of appeals, the Seventh Circuit recently ruled that pregnancy-related complications can rise to the level of a "disability" within the meaning of the Americans with Disability Act (ADA). However, such complications, if they are of limited duration and dissipate once a woman gives birth, may not be "substantially limiting." Under those circumstances, no "disability" exists and no duty of reasonable accommodation is owed.
In Serednyj v. Beverly Healthcare, LLC, the plaintiff—who planned, coordinated, and conducted activities for nursing-home residents—became pregnant again shortly after having a miscarriage. She continued to perform her duties, some of which were strenuous, for about two months. When she began to experience spotting and cramping, however, her physician restricted her activities to the point that she was unable to perform many of her duties. Due to her short tenure with the nursing home, she was not eligible for FMLA leave, and her employer let her go. She sued, contending among other things that her employer had failed to provide her with a reasonable accommodation and had otherwise discriminated against her in violation of the ADA.

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In the red-zone with the EEOC: effects of the end of the EEOC's fiscal year
Seyfarth Shaw LLP
Christopher J. DeGroff and Gerald L. Maatman, Jr.
September 13 2011

With the end of the EEOC's fiscal year looming on September 30, 2011, employers across the country are feeling the government's urgency to achieve its year-end goals. The last six to eight weeks of the EEOC’s fiscal year - what we call the “Red Zone” - reveals an EEOC that is a beehive of activity on the litigation front. Surprise requests for information in systemic investigations, abrupt conciliation demands (and equally sudden issuances of notices of conciliation failures), and vague but broad “cause” letters of determination coming seemingly out of the blue are blasting out of the EEOC at a frantic pace. Understanding what the EEOC focuses upon during the Red Zone will help employers make sense of what may seem like some very odd behavior by this agency.

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Commentary: Remember Asian American and Pacific Islander Students

Diverse Issues in Higher Education
by Neil Horikoshi , September 19, 2011

When looking back at my leap from corporate America to the education community almost three years ago — after spending more than 30 years as an executive at tech giant IBM — I’m still shocked at what I found out about Asian American and Pacific Islander (AAPI) students: They have some of the largest disparities in education such as high secondary school dropout rates and low college attendance. In addition, AAPI students have educational levels that are below the national average, with several ranking among the lowest in the nation.

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Buffalo Nonprofit Violated Workers’ Rights in Facebook-Related Firings

Workforce Management
September 7, 2011
Filed by Judy Greenwald of Business Insurance, a sister publication of Workforce Management.

The National Labor Relations Board said Sept. 7 that an NLRB judge has ruled a Buffalo, N.Y., nonprofit unlawfully discharged five employees after they posted comments on Facebook about their working conditions.
According to the Sept. 2 ruling, on Oct. 9, 2010—a Saturday and nonworking day for employees of Hispanics United of Buffalo—Mariana Cole-Rivera posted a message on her Facebook page from her personal computer that said, “Lydia Cruz, a coworker feels that we don’t help our clients at HUB (sic) I about had it! My fellow coworkers how do u feel?”
Several co-workers responded with comments expressing frustration with their job.

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Tuesday, September 13, 2011

Where to Start: Obama’s Executive Order to Promote Diversity and Inclusion in the Federal Workforce

Workforce Management
September 6th, 2011

On Aug. 18 President Obama issued an executive order establishing a “… coordinated government-wide initiative to promote diversity and inclusion in the federal workforce.”
The order reaches civilians and military personnel working in a wide array of agencies, departments, locations and operating environments. This order is not a typical compliance initiative, though adherence to the law is vital and non-negotiable.
It is not a call for new legal rules and more processes. We have plenty of both. In fact, the order calls for a consolidation and coordination of efforts rather than the creation of new structures and regulations recognizing that “less” can prove better than more.

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Campus Connection: Conservative think tank reports 'severe' racial discrimination at UW-Madison
TODD FINKELMEYER The Capital Times 1 Comment Posted: Tuesday, September 13, 2011 1:32 am

Whites and Asians aren't getting a fair crack at being admitted to the University of Wisconsin-Madison.
That's what two studies released late Monday night by the Center for Equal Opportunity indicate. The organization states in apress release accompanying the studies that there is "severe discrimination based on race and ethnicity in undergraduate and law school admissions" at Wisconsin's flagship institution of higher education.
The CEO -- a conservative think tank based out of Sterling, Va., that pushes "colorblind public policies" and backs the elimination or curtailment of existing racial preference and affirmative action programs -- reports that UW-Madison gives "African Americans and Latinos preference over whites and Asians" in admissions.

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Monday, September 12, 2011

Labor and employment alert: NLRB publishes final rule for notification of employee rights

Jeffer Mangels Butler & Mitchell LLP
R. Scott Brink
August 31 2011

The National Labor Relations Board (“NLRB”) published in the Federal Register yesterday a Final Rule requiring most private-sector employers -- even if not unionized --to notify employees of their rights under the National Labor Relations Act ("NLRA") by posting paper and, where applicable, electronic notices identifying those rights.
The Rule, which was highly controversial due to the perception of some employers that it is intended to unfairly foster union organizing, will take effect 75 days from today. Employers covered by the NLRA should begin posting the notice on November 14, 2011. Employers engaged in interstate commerce (which includes employers who buy, sell, or ship more than $50,000 of goods or services from out of state) typically fall within the jurisdiction of the NLRA.

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Immigration-related discrimination alleged based on I-9 violations

Mintz Levin Cohn Ferris Glovsky and Popeo PC
Douglas Hauer and Ari N. Stern
August 31 2011

On August 26, the Department of Justice reached a settlement with Kinro Manufacturing Inc. with regard to allegations that it “engaged in a pattern or practice of discrimination against work-authorized non-citizens in the employment eligibility verification process” by requiring certain new hires to provide proof of employment eligibility beyond that required by law.

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Employer may have duty to accommodate a disabled employee in her commute

Sherman & Howard LLC
Theodore A. Olsen
September 1 2011

In a case that could make landmark law, the Second Circuit Court of Appeals recently ruled that an employer may, depending on the circumstances, be obligated to make reasonable accommodation for a disabled employee's commute to and from work. Nixon-Tinkelman v. N.Y.C. Dept. of Health & Mental Hygiene, No. 10-3317-cv (2d Cir. Aug. 10, 2011). The decision reversed a lower federal court decision that an employer has no legal duty to accommodate a worker's commute, as the commute is "outside the scope" of the employee's job.
In Nixon-Tinkelman, the plaintiff - who has a hearing impairment, cancer, heart problems and asthma - was transferred from Queens to Manhattan for 13 months, during which she complained about problems associated with her commute. The Second Circuit held that possible accommodations for her may have been "transferring her back to Queens or another closer location, allowing her to work from home, or providing a car or parking permit." The Court's reference to the accommodation of working from home deviated from traditional disability accommodation law.

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“Reverse discrimination” may be found when white supervisor was fired for violating “zero tolerance” policy, but black employees who violated policy w

Sherman & Howard LLC
Theodore A. Olsen
September 1 2011

Although "reverse discrimination" claims are not often asserted, and when asserted, are seldom successful, the Eleventh Circuit Court of Appeals recently ruled that such a claim might be viable, when a white supervisor was fired for sending a "Top Ten Reasons Why There are No Black NASCAR Drivers" joke e-mail to others, but two black employees who forwarded a "How to Dance Like a White Guy" video to others were not dismissed. Smith v. Lockheed-Martin Corp., 2011 WL 2567777 (11th Cir. June 30, 2011). On this basis, a summary judgment granted to the employer by the district court was vacated.
Not only did the employer arguably enforce its "zero tolerance" policy differently, the evidence also showed that, when the plaintiff's "NASCAR Drivers" e-mail dissemination was investigated by the company, the races of the white supervisor under investigation and past violators of the policy were shown on a decision-making matrix. A jury could reasonably find that this matrix proved the plaintiff's discharge was due to his race.

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Inaccurate information given in post-offer, pre-hire exam may not be basis for employee’s later discharge

Sherman & Howard LLC
Theodore A. Olsen
September 1 2011

The Americans with Disabilities Act permits an employer to require an applicant to pass an employment entrance examination, if the applicant has received a conditional job offer, if the examination inquires into the ability of the applicant to perform job-related functions, if all such entering employees are required to undergo an examination, and if the information obtained is retained separate from other records and is treated as a confidential medical record. A physician who performs such a post-offer, pre-employment examination may not share information from an exam with the employer, even if it apparently disproves an employee's need for a disability accommodation, and an employer may not discipline an employee for giving contradictory information in the pre-employment exam and later on the job. Blanco v. Bath Iron Works, No. 2:10-cv-00429 (D. Me. July 6, 2011).

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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

Walgreens Sued By EEOC For Disability Discrimination

U.S. Equal Employment Opportunity Commission

Store Fired Worker with Diabetes for Eating Chips to Stop Hypoglycemia Attack, Federal Agency Charges
SAN FRANCISCO — Drugstore giant Walgreens violated federal law by firing a worker with diabetes instead of accommodating her, the U.S. Equal Employment Opportunity Commission charged in a lawsuit filed today under the Americans With Disabilities Act (ADA).
According to the EEOC, Josefina Hernandez, a cashier at Walgreens’ South San Francisco store, was on duty when she opened a $1.39 bag of chips because she was suffering from an attack of hypoglycemia (low blood sugar). Hernandez had worked for Walgreens for almost 18 years with no disciplinary record, and Walgreens knew of her diabetes. Nevertheless, Walgreens fired her after being informed that Hernandez had eaten the chips because her blood sugar was low, even though she paid for the chips when she came off cashier duty.
“I almost always carry a piece of candy in my pocket for situations when I feel my blood sugar getting low, but I didn’t have anything on me this time,” said Hernandez. “I knew I needed to do something quickly, so I reached for a bag of chips and paid for them as soon as I could. I worked for Walgreens with no problems almost two decades, so I am very upset to lose my job over this.”
The ADA prohibits disability discrimination and requires employers to make reasonable accommodations to employees with disabilities. The EEOC filed the lawsuit (EEOC v. Walgreen Co., Case No. CV11-4470-JSC) in U.S. District Court for the Northern District of California, after first attempting to reach a voluntary settlement. The suit seeks monetary damages, including back pay, compensation for emotional distress and punitive damages, as well as measures to prevent future discrimination by the employer.
EEOC San Francisco Regional Attorney William R. Tamayo said, “Employers clearly have an affirmative duty to accommodate employees with disabilities. Ms. Hernandez took action to raise her blood sugar in what could have turned into an emergency situation. Accommodating disability does not have to be expensive, but it may require an employer to be flexible and open-minded. One wonders whether a long-term, experienced employee is worth less than a bag of chips to Walgreens.”
EEOC San Francisco District Director Michael Baldonado noted, “This year theAmerican Diabetes Association reports that 25.8 million children and adults in the United States – or 8.3 percent of the population – have diabetes. Among Mexican-Americans like Ms. Hernandez, 13.3 percent of adults have diabetes. Under the newly amended disability law, savvy employers should focus on training their staff to understand how and when to accommodate employees with disabilities.”
Walgreens (NYSE:WAG) is based outside Chicago in Deerfield, Ill., and has more than 8,000 stores in the United States and its territories. According to its June 21, 2011 financial report, Walgreens’ net earnings for the nine months ending May 31, 2011 totaled $1,922,000,000.
The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on its web site at

Outback Steakhouse Sued by EEOC for Disability Discrimination

U.S. Equal Employment Opportunity Commission

Company Fired Employee Because of Disability And/or Because He Needed a Reasonable Accommodation
PHOENIX — A Phoenix, Ariz., Outback Steakhouse restaurant violated federal law by firing an employee on the basis of his disability and/or because he needed a reasonable accommodation, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed today.
According to the EEOC’s suit against OSI Restaurant Partners, LLC d/b/a Outback Steakhouse and OS Restaurant Services, Inc., server John Woods, who suffers from traumatic brain injury, worked as a server from November, 2009 until approximately January, 2010, when he was fired. The EEOC charged that Outback terminated Woods’ employment because of his disability and/or because he needed a reasonable accommodation.
Such alleged conduct violates Title I of the Americans with Disabilities Act (ADA) as amended by the ADA Amendments Act of 2008 (ADAAA), which prohibits private employers from discriminating against qualified individuals with disabilities in hiring, firing, advancement, compensation, and other terms, conditions, and privileges of employment. The EEOC filed suit (EEOC v. OSI Restaurant Partners, LLC d/b/a Outback Steakhouse and OS Restaurant Services, Inc., Civil Action No. 2:11-cv-01754-NVW) in U.S. District Court for the District of Arizona after first attempting to reach a pre-litigation settlement through its conciliation process. The lawsuit seeks back pay, compensatory and punitive damages for Woods, as well as appropriate injunctive relief to prevent any further discriminatory practices.
“Recent amendments to the ADA make clear that the protections for persons with disabilities should be broadly applied,” said Mary Jo O’Neill, regional attorney for the EEOC's Phoenix District Office. “The ADA, as amended, was intended to ensure that workers with disabilities have equal employment opportunities. Terminating an employee because he is disabled or because he needed a reasonable accommodation is unlawful.”
EEOC District Director Rayford O. Irvin added, “We will vigorously pursue our mission of fighting employment discrimination on all fronts. The EEOC continues to fight for the rights of people discriminated against because they are disabled.”
The EEOC is responsible for enforcing federal laws prohibiting employment discrimination. The EEOC’s Phoenix District Office has jurisdiction for Arizona, Colorado, Utah, Wyoming, and part of New Mexico (including Albuquerque). Further information about the EEOC is available on its web site at

Diversity and the Rankings

Inside Higher Ed
September 12, 2011
By Catharine Hill

It is rankings season again, and despite objecting to their validity and worrying about the incentives they create for colleges and universities, we pay attention nonetheless. And, since they aren't going away, I would like to propose one small change: factor the socioeconomic diversity of a college's student body into the rankings formula.
Consider the top-ranked colleges and universities as a case study. They proclaim in their mission statements and through their financial aid policies that they want to attract the strongest students from all different backgrounds regardless of their families' incomes -- both in support of principles of equal opportunity and fairness, and because a diverse student body improves the quality of education. These institutions commit significant resources to need-based financial aid, approaching as much as a third to a half of their operating budgets. These institutions' success in attracting a diverse student body could easily be incorporated into the data series used by U.S. News & World Report to rank our institutions.

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New Round on Affirmative Action

Inside Higher Ed
September 12, 2011

Since California voters in 1996 passed an amendment to the state constitution to ban the consideration of race and ethnicity in public college admissions decisions and other state government functions, proponents of affirmative action have sought the help of federal courts to block such referendums.
Since then, the U.S. Supreme Court has upheld the right of public colleges to consider race and ethnicity in admissions (in some circumstances), but federal courts have been reluctant to block states from opting out of such considerations. In July, five years after Michigan voters approved such a ban, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit found that the measure was unconstitutional, handing supporters of affirmative action a major victory. But on Friday, the full appeals court vacated the July decision and announced that it would reconsider the case.

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Gender Bias Claims Not Slowing Down

Workforce Management
Employer policies help, but rising awareness fuels complaints.
By Judy Greenwald
March 2011

Gender discrimination claims persist as a risk for employers despite widespread implementation of company policies on the issue and greater employer sophistication in this area.
Greater awareness among workers, legislative developments and demographic trends are among factors that explain why neither the total number of claims filed with the Equal Employment Opportunity Commission nor the percentage of gender discrimination claims has declined, observers say.
According to the EEOC, gender discrimination charges accounted for 29.1 percent of all charges in fiscal 2010. Since 2000, they have registered in a relatively narrow range between 29.1 percent and the 31.5 percent reported in 2000.

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Appeals court to review repeal of Michigan's affirmative action ban

The Detroit Free Press
5:31 PM, Sep. 9, 2011

A federal appeals court has agreed to reconsider its July ruling that struck down the state ban on racial preferences in public education, state Attorney General Bill Schuette announced Friday afternoon.
The U.S. Court of Appeals for the 6th District said it will reconsider the matter based on a request from Schuette for an “en banc” review, meaning the full court will consider the case and not just a three-judge panel.
Wayne State University law professor Peter Henning said the decision is significant because it means “there are enough judges troubled by the earlier panel decision that they want to look at it.

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Tuesday, September 6, 2011

Minter named vice provost for institutional equity and diversity

News at Princeton
Tuesday, Sept. 06, 2011

Michele Minter, who has more than 15 years of leadership in higher education administration and institutional advancement, with a significant amount of that time at Princeton, is returning to the University in her new role as vice provost for institutional equity and diversity. Her appointment is effective Sept. 12.
Reporting to Provost Christopher Eisgruber, Minter will manage the University's equal opportunity and affirmative action efforts, as well as oversee budgets and personnel associated with affirmative action compliance and equity, diversity initiatives, and disability services. She will oversee the University's compliance with Title IX, the federal equal opportunity act, and will coordinate compliance with the Americans with Disabilities Act.

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OFCCP Director Notes Accomplishments in Labor Day Message to Field Staff

Email reportedly sent to OFCCP Staff

Friday, September 2, 2011

Dear Colleagues,

Before you head out for the long weekend, I want to thank you for all your great work over this very busy summer!
Since Memorial Day, we restored the FAAP, closed several major cases (AstraZeneca, ThyssenKrupp, and Alcoa) and went after the big cheese. We took a major step forward on our proposed rule to strengthen VEVRAA and asked for input on a game-changing data tool to strengthen our hand in fighting pay discrimination. We said hello to a team of incredible summer interns and bid a fond farewell to several cherished members of the OFCCP family. We hosted a productive gathering of all managers and engaged in an important dialogue at the Industry Liaison Group’s national convention. And at a time when all of us in government are tightening our belts to cut costs, OFCCP is about to save taxpayers $39 million by updating our electronic case management system. Not bad for the dog days of summer!
I’m so proud of what we have accomplished together and I take every opportunity to tell the Secretary and our stakeholders about my fantastic team of nearly 800 men and women who are on the front lines of protecting workers, promoting diversity and enforcing the law. Earlier today, I spoke at the DOL Civil Rights Center ’s 20th Annual Training and Symposium. I referenced the great Dr. Dorothy Height in reminding the audience that laws without enforcement are just words on a piece of paper. We are the people who bring those words to life. We are the ones who give them meaning and power.
This week, I’m pleased to announce two new additions to our senior leadership team. I hope you will join me in welcoming Cynthia Spishak and Harry Council to the Division of Management and Administrative Programs. Cynthia is DMAP’s new Deputy Director and Harry serves as our Branch Chief for Information Technology. You can read more about them below.
Finally, I want to share with you a Labor Day message from Secretary Solis on the “State of the American Worker.” This weekend, whether you are lying on a beach, standing over a barbeque grill, spending time with family or taking advantage of a good sale, I hope you will pause to remember what Labor Day is all about. I hope you will think of the workers we serve and the ethic of hard work and fair play that has made our nation the lamplight of the world.
Here at DOL, every day is Labor Day. For all of the work you do – on behalf of the workers – I thank you. Have a great weekend!

American Samoa sued for age discrimination

The Associated Press

PAGO PAGO, American Samoa (AP) — The U.S. Equal Employment Opportunity Commission has filed a lawsuit against American Samoa, claiming the U.S. territory's government discriminated against older workers.
The lawsuit, filed Tuesday in U.S. District Court in Hawaii, is the first time the EEOC is suing the government of American Samoa.

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Applebee's Owners to Pay $1 Million in EEOC Suit

U.S. Equal Employment Opportunity Commission

Bismarck, ND, General Manager Abused Women for Six Years Class of 17 Women to Receive Compensation in Largest EEOC Settlement in North Dakota

BISMARCK, N.D. – Food Management Investors, Inc. (FMI) and Apple Core Enterprises, Inc., Minot, N.D.-based companies, have agreed to resolve a lawsuit by the U.S. Equal Employment Opportunity Commission (EEOC) relating to practices at their Bismarck, N.D. Applebee’s Neighborhood Grill & Bar, the agency announced today. Applebee’s violated federal civil rights laws by permitting a former store general manager to create a pattern and practice of sexual harassment and retaliation against employees, the EEOC charged in a lawsuit filled in June 2010. (EEOC v. Apple Core Enterprises, Inc. & Food Management Investors, Inc. d/b/a Applebee’s Neighborhood Grill & Bar, .No. 1:10-cv-00048 (DLH/CSM)). The EEOC filed its suit after first attempting to reach a voluntary, out-of-court settlement through its conciliation process.
According to the EEOC’s complaint, which followed a pre-suit administrative investigation directed by John Rowe, director of the EEOC’s Chicago District, between 2002 and the end of 2007, former Bismarck South Applebee’s General Manager Mike Cordova allegedly regularly groped female employees, solicited sexual relations, and exposed himself. He also allegedly exposed employees to pornography, told sexually explicit stories and jokes and made highly personalized sexual comments designed to demean and humiliate female employees. The EEOC’s investigation indicated that on at least one occasion, Cordova allegedly coerced an employee into giving him oral sex in exchange for a raise.
Despite repeated complaints by employees and, on occasion, customers, Applebee’s allegedly failed to discipline or stop Cordova’s behavior. Five women previously employed at the Bismarck South Applebee’s filed charges of discrimination with the EEOC that led to the lawsuit. Sexual harassment and retaliation for complaining about it violate Title VII of the Civil Rights Act of 1964.
“This case demonstrates in a rather emphatic way that sexual harassment is still a challenge for women at some of our best known neighborhood businesses,” Rowe said.
The EEOC’s lawsuit ended today when U.S. District Judge Daniel L. Hovland entered a consent decree resolving the suit. Under the terms of the decree, the ACE and FMI will pay out $1 million in compensatory damages to 17 female former employees who experienced Cordova’s sexual harassment and retaliation during their employment at the Bismarck South Applebee’s. The companies are required to implement a comprehensive training program to enable its employees to identify sexual harassment and properly investigate internal complaints.
John Hendrickson, the EEOC regional attorney in Chicago, said, “This manager’s sexual harassment of his subordinates was blatant and ugly, and it permeated every aspect of life on the job for these women. Women who work in restaurants have it tough enough without having to put up with illegal sexual misconduct.” Hendrickson added.
According to its website, (, ACE is “a franchisee of Applebee’s International, which owns and operates Applebee’s restaurants in North Dakota, Minnesota, Arizona and California.” Also according to its website, FMI is “a restaurant management company located in Minot, North Dakota [and is] responsible for accounting management for [] Applecore Enterprises, Inc.” Myron D. Thompson of Minot, N.D., has been the president, CEO and director of FMI since 1990. Thompson and Abe Sakak, also of Minot, N.D., are co-owners of ACE.
The EEOC’s litigation efforts were led by trial attorneys Nick Pladson and Jessica Palmer-Denig of the EEOC’s Minneapolis Area Office, Camille Monahan of EEOC’s Milwaukee Area Office, and was supervised by Associate Regional Attorney Jean Kamp of the EEOC’s Chicago District Office. The EEOC’s Chicago District office is responsible for processing charges of discrimination, administrative enforcement, and the conduct of agency litigation in North Dakota, Minnesota, South Dakota, Wisconsin, Illinois and Iowa, with Area Offices in Milwaukee and Minneapolis.
The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on its website at

EEOC to Hold Two Workshops in Washington, DC for EEO, Civil Rights and HR Professionals

U.S. Equal Employment Opportunity Commission

WASHINGTON -- The EEOC Training Institute and the Washington Field Office (WFO) of the U.S. Equal Employment Opportunity Commission (EEOC) will hold two Equal Employment Opportunity seminars on Monday, September 12, 2011. They will be held at the Center for Association Leadership Eye Street Conference Center, 1575 I Street, NW, Washington, DC 20005 (ASAE). The morning session will be on “Harassment in the Workplace.” The afternoon session, “Disability and Genetics in the Workplace: ADAAA, the Reasonable Accommodation Obligation and GINA,” will highlight important considerations to employers in understanding and implementing the law and the final regulations under the ADA Amendments Act (ADAAA) and the Genetic Information Nondiscrimination Act (GINA), as well as how to provide reasonable accommodations under the ADAAA.
These seminars are aimed at experienced HR and personnel specialists; EEO specialists, counselors and investigators; civil rights officers; mediators and other alternative dispute resolution specialists; labor and employee relations specialists; and labor and employment law attorneys, in both the public and private sectors. Both seminars meet the yearly refresher training requirement for Federal agency EEO investigators. Recertification credits from HRCI and Continuing Legal Education (CLE) credits will be requested upon attendee request.
Registration for these seminars is now in progress at the EEOC’s Training Institute website at under the “EEO Seminars” radio button. Click on “Register Now” and scroll down to the bottom of the page to Advanced EEO Workshops. Or contact the Training Institute at 703-291-0880 or 866-446-0940 (800.828.1120 TTY) or
The EEOC is responsible for enforcing federal laws prohibiting discrimination in employment. Further information about the EEOC is available on its web site at

Ruling in Bipolar-Threat Case Brings Mixed Legal Opinions

Workforce Management
Lawyers for employers say a court decision that upheld the termination of a bipolar employee balances the legal obligation of employers to accommodate a worker’s disability with their responsibility to provide a safe workplace. But lawyers for that employee say the appeals court gave employers far too much latitude. By Matthew Heller
August 2011

Like many employers, the Superior Court of Orange County (California) has a written policy that prohibits verbal threats or threatening behavior.
In October 2007, it fired Linda Wills from her job as a court clerk for making threats toward co-workers—even though she was experiencing a severe manic episode of her bipolar disorder when her misconduct occurred and her doctor said she had never posed a threat to anyone.

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Court Rules Against Wal-Mart in Sexual Harassment, Retaliation Case

Workforce Management
August 30, 2011
Jorge Pérez-Cordero filed a lawsuit in October 2001, alleging sexual-based discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 and Puerto Rico law.

A Wal-Mart Stores Inc. unit must defend a lawsuit alleging sexual harassment and retaliation in a case in which its alleged negligence of the initial harassment complaints claim may have led to the retaliation claim, a federal appeals court has ruled.
According to the Aug. 26 decision in Jorge Pérez-Cordero v. Wal-Mart Puerto Rico Inc., Pérez-Cordero had been employed at Wal-Mart’s Sam’s Club store in Humacao, Puerto Rico, as a butcher since 1998. In 2000, Madeline Santiago was assigned as his team leader and given some supervisory authority over him.

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MSU investigation finds professor sexually harassed student

Bozeman Daily Chronicle
Posted: Saturday, September 3, 2011 5:00 am Updated: 12:14 am, Sat Sep 3, 2011.
MSU investigation finds professor sexually harassed studentGAIL SCHONTZLER, Chronicle Staff WriterThe Bozeman Daily Chronicle

An investigation by Montana State University into allegations against MSU Orchestra conductor Shuichi Komiyama has concluded that he had an intimate relationship with a female student and violated university policies against sexual harassment and gender discrimination.
Komiyama, 47, a charismatic conductor credited with breathing new life into MSU's orchestra and jazz programs, has denied all the allegations.

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Jury Verdict in Sex-Assault Case at Sewanee Is Warning to Private Colleges

The Chronicle of Higher Education
September 2, 2011
By Collin Eaton

A jury ruling on Friday against a private university illustrates how institutions can open themselves up to legal challenges if—amid rising pressure to resolve sexual­-assault cases—they fail to seek balance in disciplinary procedures for handling those cases, several experts said.
In Friday's verdict, a federal jury issued a split decision in the case of a former student who accused Sewanee: the University of the South of damaging his reputation in the course of a rape investigation, and who sued the Tennessee institution for million of dollars.
The former student, who remained anonymous under the name "John Doe" for the court proceedings, was awarded just $26,500 after the jury found the private institution was negligent in a disciplinary hearing that resulted from the rape accusation in 2008.

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Family Histories of ‘Passing’ from Black to White Documented in Book

Diverse Issues in Higher Education
by Katti Gray , September 6, 2011

In the summer of 1993, as American-born Daniel Sharfstein registered Blacks to cast their first ballot in race-riven South Africa, he volunteered alongside a South African woman, who professed to be as authentically African as any other Black. This, she told then college student Sharfstein, despite her family’s decades-old designation as Coloured, a mixed-race label that elevated her clan above Blacks in the old White-run government’s hierarchy of peoples.

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Sunday, September 4, 2011

College Asks Students Their Sexual Orientation and Gender Identities

New American
Written by Jack Kenny
Sunday, 04 September 2011 13:00

Higher education is getting "Curioser and curioser!" as Alice said in Wonderland. Elmhurst College in Elmhurst, Illinois, is now asking prospective students about their sexual orientations and "gender identities," the Chicago Sun-Times reported recently. "Would you consider yourself to be a member of the LGBT (lesbian, gay, bisexual, or transgender) community?" is now among the questions asked students applying for admission to the college in the fall of 2012. No one is required to answer the question, the school says, though a "Yes" makes the applicant eligible for a scholarship worth a third of the cost of tuition. About 60 percent of the 3.300 students at the private liberal arts college are on scholarships of one sort or another, school officials said.

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Editorial: A diversity blind spot in Purdue search
Sep. 2, 2011

Purdue University had to see the complaints coming after assembling the team that is supposed to find the university's next president.
With 40,000 students and some 15,000 faculty and staff on the West Lafayette campus, there are more wants and wishes than there are chairs in any conference room or lecture hall. And whittling those constituencies into a dozen voices in charge of finding a leader who will touch every student, faculty and staff member in some way over the next five or so years was bound to bring up this fundamental question: What about me?

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The Too Black, Too White Presidency

The New York Times
Sunday Book Review
Published: September 2, 2011

The next time you see Barack Obama gliding into a White House press conference, take note of that jazzy walk. It is a dead ringer for the strut that was the bearing of choice among ­inner-city cool guys in the 1960s, when Barry Obama was still a tyke growing up in the exotic precincts of Hawaii and Indonesia. The Obama glide represents his embrace of a black aesthetic that was not his by circumstance of birth. It speaks on an intimate frequency to African-­American men, who have been smiling in recognition and rating it for style ever since he stepped into the national spotlight. President Obama is acutely aware of how to deploy the physical self to excellent effect. If we looked back closely at 2008, we would no doubt notice him amping up the glide for black audiences and dialing it back elsewhere.

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