Monday, February 27, 2012

AAAA Regions Host National Briefing on Affirmative Action, Diversity and Inclusion

Dear Colleagues:

We're pleased to be able to share with you this invitation to attend a significant educational event exploring current legal challenges to affirmative action, diversity and inclusion in education and employment. The briefing is scheduled for March 21, 2012, 2:00 to 4:00 PM, at Ohio Northern University, Claude W. Petit College of Law, Ada, Ohio. As you know, the U.S. Supreme Court has just decided to hear a challenge to affirmative action in admissions from the 5th Circuit in the case known as Fisher v. Texas. The Court's decision will be its most significant ruling affecting college and university admission practices in a decade, since it made its 2003 rulings in the Michigan cases. In addition to the Fisher case, there are 2 other notable cases that have reached the federal circuit court level: BAMN v. University of Michigan Regents in the 6th Circuit, and BAMN v. Brown in the 9th Circuit. Litigation in both of these cases has been led by BAMN with support from the United for Equality and Affirmative Action Legal Defense Fund (UEAALDF). Both cases challenge the constitutionality of state referenda, such as Michigan's Proposition 2 and California's Proposition 209. After year's of seeing these statewide referenda successfully attempt to eliminate affirmative action, diversity and inclusion efforts, especially those initiatives that use race as a factor, BAMN brought suit against Michigan's Proposition 2 and their constitutional arguments successfully swayed a panel of judges for the 6th Circuit Court of Appeals. The 6th Circuit has jurisdiction over Michigan, Ohio, Kentucky, and Tennessee. In July 2011, this 6th Circuit panel ruled in favor of BAMN that Proposition 2 unconstitutionally infringed upon the rights of minority groups by depriving them of equal protection of law as required by the 14th Amendment. That decision is currently under appeal with an en banc hearing scheduled before the court on March 7th in Cincinnati, Ohio.

California's Proposition 209, notorious for being the first state constitutional ban on race and gender conscious affirmative action, has been the law of California since 1996. Although UEAALDF and BAMN have been mobilizing and fighting against Proposition 209 from the beginning, they raised the intensity of their struggle with a lawsuit that was filed in February 2010. The lawsuit, as did their case against Proposition 2 in Michigan, raises the same 14th Amendment constitutional arguments that were successful in the 6th Circuit. The 9th Circuit, with jurisdiction over the states of Alaska, Arizona, California, Hawaii, Idaho, Nevada, Montana, Oregon and Washington, as well as the territories of Guam and the Northern Mariana Islands, is the nation's largest federal court. BAMN presented its oral arguments before this court in a hearing on February 13th and presently awaits its decision.

We are especially pleased that the presenters for this National Briefing are two of our nations most knowledgeable and articulate individuals on the cases presently before the courts. Shanta Driver, Esq. is the National Chair for BAMN, National Director for UEAALDF, and head of the legal team in the cases before the 6th and the 9th Circuits. An attorney with Scheff, Washington & Driver, a leading Detroit civil rights and labor law firm, Ms. Driver has been organizing and fighting for civil and human rights for 35 years. Shirley Wilcher, JD is nationally known for her background in EEO and affirmative action law. For nearly seven years during the Clinton Administration, she served as Deputy Assistant Secretary of Labor in charge of the Office of Federal Contract Compliance Programs (OFCCP). The OFCCP is the federal agency charged with enforcing Executive Order 11246, as amended, and requires non discrimination and affirmative action by companies doing business with the federal government. Presently, she is the Executive Director of the American Association for Affirmative Action and President of Wilcher Global, LLC., a consulting firm that specializes in diversity management, affirmative action, contract compliance, and government relations.

There is no question that this National Briefing comes at a most propitious time given the current legal landscape for affirmative action, diversity and inclusion initiatives in colleges and universities, state and local governments, but also for all other segments of our society that will be impacted by these courts' decisions. The National Briefing will be held from 2:00 to 4:00 p.m. at the Pettit College of Law on the campus of Ohio Northern University in Ada, Ohio. We are confident that you will find this National Briefing worthy of your time and consideration, and we hope that you will join us for this consequential event.

P.S. We want to also make you aware of an important diversity conference that will be held Thursday, March 22, 2012, in Lima, Ohio on the campus of Rhode State College. Lima is only 17 miles from the campus of Ohio Northern University in Ada. The 16th Annual State-of-the-State Conference will also feature Ms. Wilcher and Ms. Driver and offer conferees a choice of 18 breakout sessions. For more information please visit the conference website at:

Marshall Rose, Region V Director
Huda N. Melky, Region IV Director
American Association for Affirmative Action
888 16th Street, NW, Suite 800 888 16th Street, NW, Suite 800
Washington, D.C. 20006 Washington, D.C. 20006
(Tel) 202-349-9855 * 800-252-8952 * (Fax) 202-355-1399

2262 Grelyn Drive
Equal Opportunity/Affirmative Action/University ADA Services
Toledo, Ohio 43615 Western Kentucky University
Phone: 419/557-2754 Bowling Green, KY 42101
Phone: 270/745-5121


Cornell President Skorton issues statement on diversity goals

Cornell University Chronicle Online
Feb. 15, 2012

President Skorton issues statement on diversity goals

The following statement was issued by President David Skorton:

Cornell University is a community of diverse people, respectful and appreciative of difference. A commitment to diversity, central to the university's founding vision, remains a core value of Cornell. The increased diversity of our university community is an imperative in our strategic plan, a key priority of university leadership, and, I believe, a foundation for our continued strength and success.

As a world-class research university, Cornell recognizes that learning, discovery, creativity, and the innovative dissemination and application of knowledge benefit tremendously from the full participation of individuals with diverse points of view, coming from varied life experiences. To be on the cutting edge in all aspects of our mission, we must boldly pursue an inclusive academic and work environment.

Provosts Kent Fuchs and Laurie Glimcher and I are committed, between now and 2015, to:
• increase the diversity of our faculty, academic professionals and administrative staff through new hires and enhanced engagement and retention efforts;
• strengthen efforts to attract, educate, develop and graduate an excellent and diverse body of students;
• promote intercultural dialogue and community-building across difference;
• enhance the accessibility of our campuses for individuals with disabilities; and
• expand the number of returning veterans in our workforce.

The provosts and I are directing the development of explicit institutional diversity goals across all campus populations to which university leaders and their units and departments will be held accountable. This accountability will be part of an annual, university-wide process of goal-setting at both the university and the college/unit levels, and the assessment of progress, which the provosts and I will oversee, will be measured by public, organized and comparative tracking data.

To help shape our work and move it forward, a team of diversity professionals with expertise in faculty, staff and student diversity and inclusion will coordinate efforts across the campuses and provide assistance to colleges and units in meeting diversity goals. Together with the provosts and a number of vice provosts and vice presidents, they form a new University Diversity Council (UDC), charged with:
• building university-wide capacity to address the needs of an increasingly diverse population of undergraduate, graduate and professional students, postdoctoral associates, faculty and staff;
• providing an opportunity for broad, university-wide participation in the diversity agenda;
• setting long- and short-term institutional diversity and inclusion goals, priorities and policies;
• creating, with input from the university community, appropriate metrics and benchmarks for assessing progress as well as reporting on them; and
• serving as a resource for the Cornell community as we develop strategies and actions to advance the university's diversity agenda.

The university's deans and vice presidents, who have line responsibilities for staff, faculty and student diversity and inclusion, will continue to have the key responsibility for identifying and taking direct actions to meet the agreed-upon goals in support of the university's diversity agenda, and their progress will be tracked and assessed. College deans, vice presidents, chairs and supervisors will have the opportunity to consult with the diversity professionals as they pursue their diversity initiatives.

Our annual report on diversity will highlight best practices across the campuses and document progress made in achieving our diversity goals.

We welcome all members of the Cornell community to offer input on the university's diversity plans at

Collectively, as a university community, we must value diversity and inclusion and reject both active and passive discrimination. Progress toward achieving our goals will require not only committed work by university leadership, but also your active participation. Our future strength requires it.


Highly Educated People No More Likely to Support Affirmative Action Than Their Less-Educated Peers

Journal of Blacks in Higher Education
Filed in Research & Studies on February 22, 2012

A new study appearing in the March issue of the American Sociological Association’s Social Psychology Quarterly, finds that highly educated Whites and Blacks are no more likely than their less educated peers to support race-based affirmative action in the workplace. The study is authored by Geoffrey T. Wodtke, a doctoral student in sociology at the University of Michigan.

Full Story:

Supreme Court Takes Up Challenge to Race-Conscious Admissions at U. of Texas

The Chronicle of Higher Education
February 21, 2012
By Peter Schmidt


[Updated at 3:49 p.m. with additional reaction.]

The U.S. Supreme Court announced on Tuesday that it would take up a lawsuit challenging race-conscious admissions at the University of Texas, setting the stage for it to reconsider affirmative-action policies that it had ruled constitutional in 2003, before its composition significantly changed.

The case, Fisher v. University of Texas at Austin (No. 11-345), involves an appeal of a decision last year by the U.S. Court of Appeals for the Fifth Circuit that upheld the race-conscious admissions policies of the chief undergraduate program at the University of Texas at Austin. Among the key questions in the case is whether the university was constitutionally precluded from considering applicants' race or ethnicity because it could achieve diversity in a race-neutral manner, through a state law guaranteeing students in the top 10th of their high-school classes admission to any public college in the state.

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New Census Data Show Minority Gains in Bachelor's Degree Attainment

The Chronicle of Higher Education
February 23, 2012
By Emma Roller


New data from the U.S. Census Bureau give a more detailed look at the 61 million Americans over the age of 25 who hold a bachelor's degree or higher, and show strong gains in degree attainment among minority groups over the past decade.

From 2001 to 2011, the number of Hispanics 25 and over with a bachelor's degree or higher rose by 80 percent, the figures show. Among blacks, the increase was 47 percent, and among non-Hispanic whites, it was 24 percent.

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AAAA Comments on the OFCCP's Proposed Sec. 503 Regulations

The American Association for Affirmative Action (AAAA) submitted comments to the Department of Labor, OFCCP regarding its proposed regulations related to Section 503 of the Rehabilitation Act of 1973, as amended. The Association applauded OFCCP’s efforts to remove barriers to those in the disabled community and strengthen employment opportunities for individuals with disabilities and agreed that one of the primary tools for effectuating change in private employment is through the affirmative action obligations affecting government contractors and subcontractors. This has been the intent behind Section of 503 of the Rehabilitation Act of 1973 and its implementing regulations since their inception. We also agreed that the regulations, in their current form, do not seem to have produced significant, measurable improvement in employment opportunities for disabled individuals. Moreover, on a purely practical level, the regulations need to be updated to reflect the ADA Amendments Act.

Despite the Association’s agreement with the principles supporting OFCCP’s efforts, AAAA has serious concerns with the revised regulations as proposed. Most importantly, AAAA fears that in its efforts to strengthen the regulations governing affirmative action for individuals with disabilities, the Agency will be viewed as overreaching. AAAA also believes that OFCCP has grossly underestimated the time and resources that the contractor community would need to dedicate to implementing these changes. Underestimating the burden associated with these changes will create objections from those in the contractor community who would support OFCCP’s efforts but for this significant, additional burden.

AAAA provided a detailed examination of various sections of the proposed regulations and, where feasible, offered possible alternatives that address the Association’s concerns. In particular, the association analyzed the burden suggested by the agency and argued that OFCCP had grossly underestimated the time needed to comply with the proposed regulations. In the areas of applicant/employee self-identification, data collection analysis, and the assessment of outreach efforts, the time estimated was far less than the reality would suggest.

The 7% percent utilization goal, while commendable, raises other questions as well. AAAA questioned how the agency derived the goal and how it plans to implement the requirement. AAAA also does not support sub-goals for certain disabilities in light of the dearth of data to support such goals.

AAAA thanks Matthew Camardella, AAAA General Counsel, and the Jackson Lewis law firm, for their assistance in the preparation of these comments.

For a copy of the AAAA Comments, email the AAAA National Office at

Ready Mix to pay $400K to Settle Racial Harassment Suit

U.S. Equal Employment Opportunity Commission

Class of Blacks Subjected to Noose Display and Racial Slurs, Federal Agency Charged

BIRMINGHAM, Ala. – Ready Mix USA, a major cement and concrete products company, will pay $400,000 and furnish other relief to settle a lawsuit for racial harassment filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today.

The EEOC charged in its lawsuit that a class of African American males at Ready Mix’s Montgomery-area facilities was subjected to a racially hostile work environment. The EEOC said that a noose was displayed in the worksite, that derogatory racial language, including references to the Ku Klux Klan, was used by a direct supervisor and manager and that race-based name calling occurred. Ready Mix denies that racial harassment occurred at its worksites.

Racial discrimination and harassment violate Title VII of the Civil Rights Act of 1964. The EEOC filed suit against Ready Mix USA LLC, doing business as Couch Ready Mix USA LLC (EEOC v. Ready Mix USA 2:09-CV-923) after first attempting to reach a pre-litigation settlement through its conciliation process.

The consent decree settling the suit provides that Ready Mix will pay a total of $400,000 in compensatory damages to be apportioned among the seven class members. Each party will bear its own litigation costs and attorneys’ fees. The two-year decree enjoins Ready Mix from engaging in further racial harassment or retaliation and requires that the company conduct EEO training. Ready Mix will be required to modify its policies to ensure that racial harassment is prohibited and a system for investigation of complaints is in place. The company must also report certain complaints of harassment or retaliation to the EEOC for monitoring.

“Employees have a right to expect that harassment based on race will be kept out of the workplace,” said Delner Franklin-Thomas, district director for the EEOC Birmingham District. “This case involved not only racist language, but a noose, a threatening symbol of cruelty that has no place in any American workplace.”

EEOC Birmingham District Regional Attorney C. Emanuel Smith said, “We are pleased that Ready Mix has taken these steps to address this very alarming situation and improve its work environment. We encourage all employers to help make workplace race discrimination a thing of the past.”

According to company information, Ready Mix provides cement and concrete products to construction projects in industrial, commercial, residential and municipal projects.

In Fiscal Year 2011, the EEOC received 35,395 charges alleging race-based discrimination and 8776 of those alleged race-based harassment. Historically, race-based charges account for more than 35% of all charge filings nationwide.

The EEOC enforces federal laws prohibiting employment discrimination. Further information about the Commission is available on the agency’s web site at

EEOC Approves Strategic Plan For Fiscal Years 2012-2016

U.S. Equal Employment Opportunity Commission

WASHINGTON – In a public meeting today at agency headquarters, the U.S. Equal Employment Opportunity Commission (EEOC) approved its Strategic Plan for Fiscal Years 2012-2016. The Strategic Plan establishes a framework for achieving the EEOC’s mission to stop and remedy unlawful employment discrimination, so that the nation might soon realize the Commission’s vision of justice and equality in the workplace. Implementation of the new Strategic Plan will begin in March 2012.

“In approving the Strategic Plan, the EEOC today is taking a significant step toward realizing the Commission’s vision of ending employment discrimination and promoting equal opportunity in the American workplace,” said EEOC Chair Jacqueline A. Berrien. “I am very pleased with the hard work of staff across the agency who provided assistance throughout the planning process, and I look forward to the successful implementation of the plan.”

The Commission voted 4-1 to approve the FY 2012-2016 Strategic Plan. The Plan serves as a framework for the Commission in achieving its mission by focusing on three strategic objectives: strategic law enforcement, education and outreach, and efficiently serving the public. The three strategic objectives each have a number of performance measures detailing outcomes to be achieved during the four year period the Plan is in effect. The different outcomes are designed to measure the Commission’s progress in carrying out its mission in a time of static resources and a growing need for its services.

As an example of the plan’s proposed outcomes, the Strategic Law Enforcement objective includes the development of a new strategic enforcement plan to better leverage the Commission’s resources to “stop and remedy unlawful employment discrimination” and to build on its existing systemic program to remedy discrimination against large numbers of individuals or where the discrimination has a broad impact on an industry, profession, company, or geographic area.

In the area of Education and Outreach, the plan requires the Commission to develop “significant partnerships with organizations that represent vulnerable workers and/or underserved communities” as well as significant partnerships with organizations that represent small or new businesses (or with businesses directly), since those two groups were found to be in greatest need of assistance with understanding the laws the Commission enforces. In the objective of providing excellent and consistent service, the plan asks the Commission to “ensure the effectiveness of its systems by leveraging technology to streamline, standardize, and expedite the charge process across its field offices.”

The plan was created by work groups comprised of staff from the EEOC’s headquarters and field offices, with a broad range of internal and external expertise and understanding of the programs and activities conducted within the agency. Every four fiscal years, Congress requires Executive departments, government corporations, and independent agencies to develop and post a strategic plan on their public website. These plans direct the agency’s work and lay the foundation for the development of more detailed annual plans, budgets, and related program performance information in the future.

The Commission will hold open the Feb. 22, 2012 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 meeting. Public comments may be mailed to Commission Meeting, EEOC Executive Officer, 131 M Street, N.W., Washington, D.C. 20507, or e-mailed 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

Tyson Foods Settles EEOC Disability Discrimination Lawsuit

U.S. Equal Employment Opportunity Commission

Company Agrees to Pay $35,000 to Applicant Denied Employment Because of Epilepsy

ST. LOUIS – Tyson Foods, Inc., one of the world’s largest processors of chicken, beef and pork, will pay $35,000 and furnish other relief to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today. The EEOC had charged that Tyson Foods refused to hire a former employee because he had epilepsy.

The EEOC lawsuit filed in May 2010 (EEOC v. Tyson Foods, Inc., Case No. 2:10-cv-04072-NKL) alleged that Tyson failed to hire Mark White for an open maintenance job in its Sedalia, Mo., plant because he had epilepsy and that Tyson’s refusal to hire White violated the Americans with Disabilities Act (ADA). White’s epilepsy had been controlled by medication for twelve years and he had been previously employed by Tyson on two occasions during this time period. However, Tyson instituted a new medical assessment procedure since last hiring White, and refused to hire him because he did not pass a medical evaluation required for applicants with epilepsy to determine whether he could safely perform the job. The doctor who performed the evaluation for Tyson did not examine White, but relied on outdated medical research in determining that he could not safely perform the job. At the same time, Tyson employed several other persons with epilepsy who had been grandfathered in.

Besides agreeing to pay White $35,000 as back pay and compensatory damages, Tyson agreed to institute a new assessment procedure for similar cases. Henceforth, an applicant who is disqualified from employment because of Tyson’s required medical assessment has the right to a second medical assessment at the applicant’s expense. Further, an independent and determinative third medical assessment will be made for any applicant not hired after the second assessment. The consent decree settling the suit, which must be approved by U.S. District Judge Nanette Laughrey, also provides for injunctive relief, including training to individuals involved in the assessment procedure, posting notification to employees, and compliance reporting to the EEOC.

“The potentially three-step medical assessment process agreed to by the parties is an extraordinary step in the right direction in terms of making sure disabled employees are given a full and fair opportunity to compete in the workplace,” said EEOC attorney Melvin Kennedy.

EEOC Regional Attorney Barbara Seely said, “While the terms of the consent decree only affect Tyson’s Sedalia facility, Tyson employs more than 117,000 people at more than 400 facilities and offices, and we are hopeful that the process we have agreed to works well enough that Tyson adopts it in other facilities.”

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

A Defense of Affirmative Action

The Huffington Post
Ediberto Roman.
Professor of Law, Florida International University
Posted: 02/27/2012 11:19 am

Among the most controversial issues of our day, perhaps with exception of another one of my favorites -- immigration reform -- is affirmative action. It appears that the Supreme Court of the United States may once and for all end such programs, and with it, society's ongoing debate concerning the propriety of such efforts. Indeed, just a week ago, the Court granted cert. in Fisher v. University of Texas Austin. In this case, the Court will examine UT's undergraduate admissions program in order to determine whether it comports with the United States Constitution's Equal Protection Clause.

Full Story:

Legislature could ponder college admissions

My San Antonio
By Peggy Fikac
Updated 01:26 a.m., Saturday, February 25, 2012

AUSTIN — State lawmakers may take a fresh look at university admissions and student diversity in light of the U.S. Supreme Court decision to weigh the University of Texas at Austin's consideration of race.

The court said it would consider a challenge of UT's policy next fall. It's unclear exactly when it will rule.

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Will the Supreme Court End Affirmative Action?

The Daily Beast
Dan Slater
Feb 26, 2012 4:45 AM EST

Feb 26, 2012 4:45 AM EST

When the Supreme Court agreed to hear a case challenging affirmative action, many saw evidence that it wants to end the practice for good. Not so fast, writes Dan Slater.

When the Supreme Court announced this week that it would hear a case involving race-conscious admissions at the University of Texas, many in the legal community suspected it was high noon for affirmative action in American higher education.

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Academy Awards: Study Shows Lack Of Diversity Continues In The Film Industry

The Huffington Post
Danielle Cadet First
Posted: 02/24/2012 5:59 pm
Updated: 02/26/2012 12:30 pm

It's no secret that demonstrating diversity isn't exactly Hollywood's strong point--and that fact becomes more painfully obvious on Oscar night. Although the industry has made major strides, a new University of Southern California study reveals there's still a long way to go.

According to the report, which analyzed the Academy Award's Best Picture nominees from 1977-2010, a vast majority of actors and directors are white and male. The study found that less than one percent of all directors across the 180 films in the sample were African American, and of over 1,400 speaking characters, only 11.6 percent were black, 1.9 percent were Hispanic and 7 percent were Asian. Women made up only 36 percent of those roles.

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The next champion of LGBT workplace rights?

The Washington Blade
By Chris Johnson on February 15, 2012

The Obama administration official who would be responsible for enforcing a proposed federal ban on discrimination against LGBT workers by federal contractors boasts a long record of advocating for LGBT rights.

Patricia Shiu heads the Labor Department’s Office of Federal Contract Compliance Programs (OFCCP), which enforces contractual promises of equal employment opportunity for companies doing business with the federal government.

If, as advocates have been pushing him to do, President Obama issues an executive order requiring federal contractors to adopt non-discrimination policies inclusive of sexual orientation and gender identity, Shiu would be responsible for ensuring companies live up to that obligation.

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Wednesday, February 22, 2012

College admissions: How diversity factors in

The Washington Post Local

By Valerie Strauss
Posted at 03:00 AM ET, 02/22/2012

The Supreme Court just agreed to effectively consider whether affirmative action should be eliminated in college admissions via a case in which a white student claimed that she was denied admissions to the University of Texas because of race.

Amid this renewed attention to affirmative action in college admissions, here is a look at the issue by Jarrid Whitney, executive director of admissions and financial aid at the California Institute of Technology.

Full Story:

Supreme Court To Revisit Affirmative Action In University Of Texas Case

Huffington Post
Posted: 02/21/12 10:37 AM ET | Updated: 02/22/12 10:20 AM ET
Mike Sacks

WASHINGTON -- Affirmative action is heading back to the Supreme Court, and this time its prospects for survival are poorer than ever.

The Court announced on Tuesday that it has agreed to hear a challenge to the University of Texas' affirmative action program, which is used in sorting through applications after the automatic admission of all in-state applicants who graduated in the top 10 percent of their high school class.

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Tuesday, February 21, 2012

Statement of the American Association for Affirmative Action

Statement of the American Association for Affirmative Action
On the United States Supreme Court’s Decision to Hear the Fisher v. University of Texas Case
Affirmative Action association urges Court to uphold its 2003 decision allowing race as one of many factors in higher education admissions

For Immediate Release: February 21, 2012
Contact: Shirley J. Wilcher

Washington, D.C., February 21, 2012 – Today, the U.S. Supreme Court has agreed to grant certiorari in the affirmative action case of Fisher v. University of Texas. The American Association for Affirmative Action (AAAA), an organization of equal opportunity, affirmative action and diversity professionals founded in 1974, urges the Court to follow its own precedent in the Grutter v. Bollinger case in 2003 and continue to hold that diversity in higher education admissions is a compelling state interest. Colleges and universities should be able to consider the whole student, including a student’s race among many factors, to determine who is admitted.

AAAA President Gregory T. Chambers stated: “Now that the Supreme Court has decided to revisit the question of race in admissions decisions, an issue that we hoped had been decided in 2003, we urge the Court to respect its own precedent and uphold the use of race among many factors in higher education admissions.”

“AAAA will actively monitor the briefs and oral arguments offered in the Fisher case,” added Chambers. “As the nation’s demographics indicate, this nation is becoming increasingly diverse and it is not the time to close the doors of opportunity based on race or national origin. Our future depends upon all qualified individuals receiving a chance to compete in education, employment and business.”

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

American Association for Affirmative Action
888 16th Street, NW
Suite 800
Washington, DC 20006

Statement by LDF President and Director-Counsel John Payton on the Vital Importance of Higher Education Diversity

Statement by LDF President and Director-Counsel John Payton on the Vital Importance of Higher Education Diversity in Response to the Supreme Court’s Decision Today to Review the University of Texas at Austin’s Race-Conscious Admissions Policy.

Tuesday, February 21, 2012


NAACP Legal Defense Fund

Related Case or Issue:
Fisher v. Texas
Today, the Supreme Court granted certiorari in Fisher v. University of Texas at Austin, the first federal appellate challenge to the use of race in university admissions since the Court's landmark 2003 decision in Grutter v. Bollinger. Last year, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit unanimously affirmed that UT Austin’s admissions plan is consistent with Grutter, which provided a workable standard for colleges and universities to select student bodies throughout the nation. The NAACP Legal Defense Fund (LDF) has participated in the case as a friend-of-the-court and presented oral argument in the Fifth Circuit on behalf of the Black Student Alliance at UT Austin in support of the positions taken by the University.

"The benefits of diversity are unquestionable and as the Fifth Circuit recognized, UT Austin's policy falls squarely within the four corners of the Supreme Court's landmark 2003 decision in Grutter v. Bollinger. We trust that the Court will reaffirm that the educational benefits of diversity are a compelling interest that colleges and universities can and should pursue for the good of our students, our communities, and our nation."

Asian-American Student Withdraws Bias Complaint Against Harvard


Asian-American Student Withdraws Bias Complaint Against Harvard
Daniel Golden, ©2012 Bloomberg News
Saturday, February 18, 2012

Feb. 17 (Bloomberg) -- An Asian-American student withdrew federal complaints that Harvard University and Princeton University rejected him for their current freshman classes because of his race, according to the universities.

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Mandatory employee arbitration agreements: the NLRB throws a wrench into their enforceability
Epstein Becker Green
Forrest G. Read, IV
February 10 2012

Arbitration agreements can be an effective way for employers in the hospitality industry to streamline and isolate an employee’s potential claims on an individual basis and protect themselves from a proliferation of lawsuits with many plaintiffs or claimants. But the National Labor Relations Board’s (“Board”) January 6, 2012 decision in D.R. Horton, Inc. and Michael Cuda, notably finalized by two Board Members on departing Member Craig Becker’s final day, has caused significant confusion as to how employers can enforce such arbitration agreements with their employees over employment claims, including wage and hour disputes.

In D.R. Horton, the Board concluded that an employer commits an unfair labor practice under the National Labor Relations Act (“NLRA”) when it requires, as a condition of employment, its employees to sign an arbitration agreement that precludes them from filing, in any forum, any class or collective claims addressing their wages, hours or other working conditions against the employer. However, the Board’s decision in D.R. Horton appears to be inconsistent with, if not directly contradicts, a recent U.S. Supreme Court decision upholding the validity of class action waiver provisions in consumer arbitration agreements under the Federal Arbitration Act, which many employers and members of the labor and employment bar interpreted as extending to waiver provisions in employment-related agreements.

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Your anti-harassment policies and practices are of little utility if you do not follow them
Fox Rothschild LLP
Richard B. Cohen
February 15 2012
A Little Background

In the famous Faragher and Ellerth cases decided in 1998, the US Supreme provided an employer with an affirmative defense to a sexual harassment claim involving a hostile work environment. To take advantage of this defense, the employer must show that:
a. it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior,” and (b) “the plaintiff employee unreasonably failed to take advantage of any protective or corrective opportunities provided by the employer or to avoid harm otherwise.”

However, it was held that this defense was not available where a supervisor had taken a “tangible employment action” against the complaining employee. The issue left open was whether a “constructive discharge” – i.e., where an employee quits alleging that the harassment she is suffering is so severe that no reasonable employee would have remained -- constitutes a “tangible employment action.”

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EEOC issues guidance on the interplay between educational requirements and the ADA

Littler Mendelson
Ilyse Schuman
February 16 2012

After an informal discussion letter the Equal Employment Opportunity Commission (EEOC) issued in November 2011 raised more questions than it answered, the agency decided to release additional guidance on when an employer potentially violates the Americans with Disabilities Act (ADA) by requiring employees to have a high school diploma. In the discussion letter, the EEOC stated that:

If an employer adopts a high school diploma requirement for a job, and that requirement “screens out” an individual who is unable to graduate because of a learning disability that meets the ADA’s definition of “disability,” the employer may not apply the standard unless it can demonstrate that the diploma requirement is job related and consistent with business necessity. The employer will not be able to make this showing, for example, if the functions in question can easily be performed by someone who does not have a diploma.

Even if the diploma requirement is job related and consistent with business necessity, the employer may still have to determine whether a particular applicant whose learning disability prevents him from meeting it can perform the
essential functions of the job, with or without a reasonable accommodation.

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Top 10 essentials to include in an employee handbook

Dinsmore & Shohl LLP
R. Joseph Stennis Jr.
February 15 2012

One of the most important attributes of any successful business is a relationship built on trust between the employer and the employee. One very important tool to communicate and establish this relationship is through an employee handbook. It is the employee handbook that creates company policies, procedures and expectations that serve to avoid potential conflicts and misunderstandings. Additionally, a well written handbook establishes a structured work environment that builds company loyalty.

Alternatively, an employee handbook not drafted properly can be disastrous for a company. Poorly written policies and procedures can cause problems such as creating a hostile environment, to legally binding an organization to commitments it was not aware it made. Whether your first draft, or making revisions to an existing one, the following are 10 essential policies and procedures employers should consider including in their employee handbook:

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Affirmative action in college admissions goes back before Supreme Court

Christian Science Monitor
US Supreme Court is taking an affirmative action case about the University of Texas admissions policy, which permits race to be a factor in deciding which applicants are admitted.
By Warren Richey, Staff writer / February 21, 2012

The US Supreme Court agreed on Tuesday to take up a potential blockbuster case testing the constitutionality of race-based admissions policies at the University of Texas. The case, Fisher v. University of Texas (11-345), is being closely followed by conservative analysts who are hopeful the high court will use the Texas dispute to establish new constitutional limits on race-conscious affirmative action plans at public colleges and universities nationwide.

High court to take new look at affirmative action
By Mark Sherman
Associated Press / February 21, 2012

WASHINGTON—The Supreme Court will once again confront the issue of race in university admissions in a case brought by a white student denied a spot at the flagship campus of the University of Texas. The court said Tuesday it will return to the issue of affirmative action in higher education for the first time since its 2003 decision endorsing the use of race as a factor in admissions. This time around, a more conservative court is being asked to outlaw the use of Texas' affirmative action plan and possibly to jettison the earlier ruling entirely.

James E. Brown & Associates Sued by EEOC for Pregnancy Discrimination

U.S. Equal Employment Opportunity Commission
D.C. Law Firm Rescinded Job Offer to Pregnant Applicant, EEOC Charges

WASHINGTON – A Washington, D.C. law firm violated federal law when it refused to hire a job applicant because she was pregnant, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed today.

According to the EEOC’s complaint, James E. Brown & Associates, PLLC rescinded its offer of employment to Zorayda J. Moreira-Smith when it learned that she was pregnant. The EEOC said Moreira-Smith interviewed for an associate attorney position at Brown & Associates around November 2010 and received a job offer in January 2011. Before Moreira-Smith accepted the job offer, on or around January 6, 2011, she e-mailed the Brown & Associates’ business manager to inquire about the company’s maternity leave policy, among other things. In the same e-mail, Moreira-Smith informed the business manager that she was six months’ pregnant. Later that same day, Brown & Associates e-mailed Moreira-Smith and rescinded its job offer, the EEOC said. The company continued to advertise for the same position and, within three months, hired two associates who were not pregnant.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act. The EEOC filed suit in the U.S. District Court for the District of Columbia (Equal Employment Opportunity Commission v. James E. Brown & Associates, PLLC, Civil Action No. 1:12-cv-00262 ), after first attempting to reach a voluntary settlement out of court. The suit seeks back pay, compensatory damages and punitive damages for Moreira-Smith, as well as injunctive and other non-monetary relief.

“Working women who choose to have children cannot be penalized or treated differently from other employees simply because they are pregnant,”said Lynette A. Barnes, regional attorney for the EEOC’s Charlotte District Office, which has litigation authority in the District of Columbia. “Employers must remember that refusing to hire a woman because she is pregnant violates federal law, and the EEOC will enforce that law.”

On Feb. 15, the EEOC held a meeting examining pregnancy discrimination and caregiving issues. In Fiscal Year 2011, the EEOC received 5,868 charges of pregnancy discrimination.

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

Next Commission Meeting Wednesday, February 22

U.S. Equal Employment Opportunity Commission

Next Commission Meeting Wednesday, February 22

WASHINGTON – The U.S. Equal Employment Opportunity Commission (EEOC) will hold a meeting on Wednesday, February 22, at 9:30 a.m. (Eastern Time), at agency headquarters, 131 M Street, N.E. In accordance with the Sunshine Act, the open session of the meeting will be open to public observation of the Commission’s deliberations and voting. The remainder of the meeting will be closed.

The following matters are scheduled for consideration during the open session of the meeting:

•Announcement of Notation Votes
•Vote on EEOC Strategic Plan for Fiscal Years 2012-2016.

For the open session, 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. Any matter not discussed or concluded may be carried over to a later meeting. Additional information about the hearing, when available, will be posted at

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

EEOC Issues Qs and As on High School Diploma Requirements

U.S. Equal Employment Opportunity Commission
What You Should Know:
Questions and Answers about the EEOC and High School Diploma Requirements

Background: On November 17, 2011, the EEOC issued an informal discussion letter about how the Americans with Disabilities Act (ADA) applies to qualification standards for jobs. The letter can be found at There has been significant commentary and conjecture about the meaning and scope of the letter. The following questions and answers are meant to clarify these issues.

Question: Have you just made it illegal for businesses to require a high school diploma?

Answer: No. Nothing in the letter prohibits employers from adopting a requirement that a job applicant have a high school diploma. However, an employer may have to allow someone who says that a disability has prevented him from obtaining a high school diploma to demonstrate qualification for the job in some other way.

Question: Are you telling people that they are protected by the ADA if they decide not to graduate from high school? Wouldn’t this create a disincentive to finish high school?

Answer: No. The ADA only protects someone whose disability makes it impossible for him or her to get a diploma. It would not protect someone who simply decided not to get a high school diploma.

Employers may continue to have high school diploma requirements and, in the vast majority of cases, they will not have to make exceptions to them. However, if an applicant tells an employer she cannot meet the requirement because of a disability, an employer may have to allow her to demonstrate the ability to do the job in some other way. This may include considering work experience in the same or similar jobs, or allowing her to demonstrate performance of the job’s essential functions. The employer can require the applicant to demonstrate, perhaps through appropriate documentation, that she has a disability and that the disability actually prevents her from meeting the high school diploma requirement.

Question: So, does that mean the employer must hire the person with a disability?

Answer: No. Even if the applicant with a disability can demonstrate the ability to do the job through some means other than possession of a high school diploma, the employer may still choose the best qualified person for the job. The employer does not have to prefer the applicant with a disability over someone who can perform the job better.

Question: Is the informal discussion letter a new interpretation of the law?

Answer: No. Like all of EEOC’s informal discussion letters, the letter simply applies the existing standards under the ADA and the EEOC's regulations. The EEOC’s informal discussion letters are meant to provide assistance for employers in complying with the laws. In this case the letter was intended to explain how the ADA applies when any job requirement (although a high school diploma was the specific example that we were asked about) excludes someone with a disability from a job.

Question: Is this the first time that a high school diploma requirement has been questioned as a possible violation of employment discrimination law?

Answer: No. The U.S. Supreme Court decided in 1971 that a high school diploma requirement was discriminatory because it had a disparate impact on African Americans who had high school diploma rates far lower than whites in the relevant geographical area, and because the requirement was not job related for the position in question and consistent with business necessity. Griggs v. Duke Power Co., 401 U.S. 424 (1971). The courts and the EEOC have consistently applied the Supreme Court’s interpretation of the law ever since, and Congress confirmed it in the Civil Rights Act of 1991.

Additionally, in 2003, EEOC brought a lawsuit on behalf of an employee with an intellectual disability who was fired from her job as a nursing assistant in a residential care facility when the employer adopted a requirement that nursing assistants have high school diplomas. She had worked successfully in the job for four years and had several times tried to obtain her GED, but could not do so because of her disability. Her GED instructors offered to work with the employer to find an alternative way to assess the employee’s ability to do the job, but the employer refused. The employer settled the case with EEOC.

Unlawful Discrimination Based on Pregnancy and Caregiving Responsibilities Widespread Problem, Panelists Tell EEOC

U.S. Equal Employment Opportunity Commission

Despite Laws, Guidance and Willingness to Work, Many Pregnant Women and Caregivers are Denied Job Opportunities, Workplace Modifications, Leave, and Equal Treatment

WASHINGTON—At a time when most pregnant women want and need to work, and more American workers struggle to balance work and family, discrimination against pregnant women and workers with caregiving responsibilities remains a significant problem, experts told the U.S. Equal Employment Opportunity Commission at a public meeting today. The meeting follows up on Commission meetings in 2007, when the Commission issued its groundbreaking “Enforcement Guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities” and in 2009 when the Commission issued “Employer Best Practices for Workers with Caregiving Responsibilities.”

“Pregnancy discrimination persists in the 21st century workplace, unnecessarily depriving women of the means to support their families,” said EEOC Chair Jacqueline A. Berrien. “Similarly, caregivers – both men and women – too often face unequal treatment on the job. The EEOC is committed to ensuring that job applicants and employees are not subjected to unlawful discrimination on account of pregnancy or because of their efforts to balance work and family responsibilities.”

Despite the passage of the Pregnancy Discrimination Act more than 30 years ago, women still often face demotions, prejudice, and even job loss when they become pregnant. The past 40 years have seen a major increase in the number of women choosing to work while pregnant and during the later stages of pregnancy, Emily Martin, Vice President and General Counsel of the National Women’s Law Center, told the Commission. Moreover, women currently make up 47% of the nation’s workforce, according to Bureau of Labor Statistics data cited by Judith Lichtman, Senior Advisor for the National Partnership for Women & Families. They are now the primary, or co-primary, breadwinners in nearly two-thirds of families. Because of this, “women cannot afford to lose their jobs or income due to pregnancy or childbirth,” Lichtman said.

In addition to discrimination based on pregnancy, women and men face obstacles in their work lives due to their roles as caregivers. According to Lynn Friss Feinberg, Senior Strategic Policy Advisor at the AARP Public Policy Institute, the aging of the population and changing demographics mean that “42% of U.S. workers have provided care for an aging relative or friend in the past five years,” and almost half of U.S. workers expect to provide eldercare in the next five years, Feinberg said. These numbers do not include workers who care for children.

“Discrimination against pregnant women and caregivers continues to be an issue of vital concern for the Commission,” said Commissioner Stuart J. Ishimaru. “Employers should not make decisions based on stereotypes and presumptions about the competence and commitment of these workers. EEOC will vigorously enforce the anti-discrimination laws as they apply to pregnant women and caregivers.”

Panelists Sharon Terman and Joan Williams cited numerous examples of the kinds of discrimination pregnant workers and workers with caregiving responsibilities experience. Terman, of The Legal Aid Society Employment Law Center, described situations in which pregnant women were met with harassment and hostility in response to their pregnancies, or were subjected to decreased hours, forced unpaid leave, or job loss. Williams, Director of the Center for Worklife Law at Hastings Law School and a leading expert on caregiver bias, recounted the story of a pregnant worker who was not permitted to alter her uniform due to her pregnancy but forced to take leave when it no longer fit her. Williams also pointed out examples of men who were penalized by their employers for requesting to use leave to which they were entitled for caregiving responsibilities, based on gender stereotypes that dictate caregiving should be “women’s work.”

While pregnancy and discrimination arising from caregiving impacts all segments of the workforce, low-wage workers are particularly affected, said Maryann Parker, Associate General Counsel of the Service Employees International Union. She noted the change away from manufacturing and towards service sector jobs for low-wage workers—jobs which are notably more likely to be part-time and low wage. These jobs often entail rigid work schedules with no flexibility or, on the other end of the spectrum, completely unpredictable schedules with no fixed hours from week to week, making planning for caregiving more difficult.

Across the board, there is a measurable “motherhood wage penalty” of as much as 5% per child, controlling for education, experience, and other factors known to affect wages, Professor Stephen Benard of Indiana University testified via video-conference from the EEOC’s Indianapolis district office. This may be due to unconscious stereotyping of the capabilities of mothers. “Motherhood constitutes a significant risk factor for poverty,” Benard said, and it is possible that “the gender gap in wages may be primarily a motherhood gap.”

A number of witnesses called for stepped-up enforcement and greater guidance on the subject, as well as closer coordination between the EEOC, which enforces laws prohibiting discrimination on the basis of sex, pregnancy, and disability, and the Department of Labor, which enforces the Family and Medical Leave Act and the Affordable Care Act’s Break Time for Nursing Mothers provision of the Fair Labor Standards Act.

Deane Ilukowicz, Vice President for Human Resources at Hypertherm, a manufacturer that has managed to provide a great deal of work-life balance to its workers, said that even employers that want to provide the maximum flexibility possible within the constraints of their businesses have trouble reconciling the requirements of the various laws affecting caregiving. She called for greater clarity and interagency coordination to help employers comply with the law, and implement best practices for work-life balance.

The Commission will hold open the Feb. 15, 2012 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.W., Washington, D.C. 20507, or e-mailed 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 plaved in the EEOC library for public review.

Affirmative Action on the Docket

Inside Higher Ed
February 21, 2012 - 10:08am
Scott Jaschik

WASHINGTON – The U.S. Supreme Court today agreed to consider whether the University of Texas at Austin has the right to consider race and ethnicity in admissions decisions. Those bringing the case hope the Supreme Court will restrict or even eliminate the right of colleges to consider race in admissions – a prerogative last affirmed by the Supreme Court in 2003 in a case involving the University of Michigan’s law school.

In a sign that is likely to worry supporters of affirmative action (and to cheer critics of the practice), Justice Elena Kagan announced that she took no part in consideration of the appeal seeking a Supreme Court review -- a likely sign that she will not take any part in the actual review. Kagan did not announce why, but conservative legal bloggers have been calling on her to recuse herself because of her work as U.S. solicitor general filing a brief in support of the University of Texas. If she continues to recuse herself, a justice thought to be supportive of affirmative action will not be voting.

Read more:

Wednesday, February 15, 2012

Pregnancy bias is alive and well in America

By Eve Tahmincioglu

It’s hard to imagine we still have to tell employers this today, but here goes: Pregnancy discrimination is illegal.

While it may sound obvious to some, blatant pregnancy bias is still alive and well in the workplace. A pregnant woman who applied for a job at a Subway franchise in Phoenix was told by a manager “we can’t hire you because you’re pregnant.” Last month, she won punitive damages against the employer.

Full Story:

California Man With Half an Arm Sues Starbucks, Alleging Discrimination

ABC News
By LYNEKA LITTLE | ABC News – Tue, Feb 14, 2012

Starbucks is facing allegations of discrimination from a job applicant who claimed he was "blatantly" discriminated against because of a disability during a job interview at one of the coffee chain's San Diego stores.

In court documents filed on Feb. 8 at the Superior Court of the State of California in the County of San Diego, Eli Pierre, who was born with half of a left arm, alleged he "was not hired for the position because of his disability, despite his capable work history."

Full Story:

Tuesday, February 14, 2012

ABA Urges Flexibility for Law School Applicants With Disabilities

Inside Higher Ed
February 14, 2012 - 4:31am

The American Bar Association's House of Delegates has approved a resolution urging flexibility by the Law School Admission Council on requests for accommodations by people with disabilities when they take the Law School Admission Test. The resolution calls for information to be made available to test-takers on their options.

Read more:
Inside Higher Ed

Title IX Officials Support OCR 'Dear Colleague' Letter

Inside Higher Ed
February 14, 2012 - 3:00am

The Association of Title IX Administrators, a group of officials charged with ensuring gender equity on campuses, issued a declaration of support Monday for the Office for Civil Rights’ controversial “dear colleague” letter that reiterated institutional responsibilities in responding to and preventing sexual assault. The declaration was co-authored by the Women's Sports Foundation.

Read more:
Inside Higher Ed

Click here for a copy of the letter of support:

California Minorities Ask Court to Restore Affirmative Action in College Admissions

Fox News
Published February 14, 2012
Fox News Latino

SAN FRANCISCO – Attorneys for the plaintiffs in a case challenging California's ban on using affirmative action to determine admission into public colleges argued that race and ethnicity should be considered to improve diversity at the state's top campuses.

The plaintiffs want a federal appeals to overturn California's 15-year-old ban on affirmative action in college admissions, citing a steep drop in black, Latino and Native American students on campuses.

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DOL issues proposed rules to expand FMLA’s provisions

Day Pitney LLP
Kevin J. Skelly

February 2 2012

On January 30, 2012, the United States Department of Labor (“DOL”) released a notice of proposed rulemaking to implement a 2009 statute that amended the military family leave benefits available under the Family and Medical Leave Act (“FMLA”).

As we previously posted, in 2008, Congress amended the FMLA to provide eligible employees with covered family members serving in the military with two different types of leave: military caregiver leave and qualified exigency leave. Military caregiver leave permits eligible employees to take up to 26 weeks of leave in a single 12-month period to care for a seriously injured or ill family member currently serving in the military. Qualified exigency leave permits eligible employees (whose spouse, child, or parent is called into active duty) to respond to certain situations that arise because of a call to active duty.

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EEOC extends employer recordkeeping requirements to GINA

Blank Rome LLP
Stephanie L. Aranyos

February 8 2012

The Equal Employment Opportunity Commission (EEOC) recently published its final rule extending the recordkeeping requirements imposed under Title VII of the Civil Rights Act and the Americans with Disabilities Act (ADA) to employers covered by Title II of the Genetic Information Nondiscrimination Act (GINA). This rule will take effect on April 3, 2012.

Title II of GINA prohibits the use of genetic information in making employment decisions, restricts acquisition of genetic information by covered employers and entities, and strictly limits the disclosure of genetic information. GINA covers employers with 15 or more employees, employment agencies, labor unions, joint labor-management training programs, and federal sector employers.

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OFCCP Extends Comment Period for Rule On Employment of People With Disabilities

Bureau of National Affairs
Monday, February 13, 2012

OFCCP Proposed Rule Under Section 503 of the Rehabilitation Act

Key Development: OFCCP extends by 14 days the public comment period for a proposed rule that would, among other things, set a 7 percent national utilization goal for hiring individuals with disabilities in each job group within a federal contractor's workforce.

Next Step: Comments are now due Feb. 21.

By Jay-Anne B. Casuga

The Labor Department's Office of Federal Contract Compliance Programs has extended to Feb. 21 the comment period for a proposal that would revise regulations pertaining to federal contractors' nondiscrimination and affirmative action obligations for individuals with disabilities, DOL announced Feb. 7.

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OFCCP Extends Deadline for Comments on Sec. 503 Proposed Regulations

Office of Federal Contract Compliance Programs (OFCCP)
Latest Events and News
503 NPRM Comment Period Extended

On December 9, 2011, the Office of Federal Contract Compliance Programs (OFCCP) published in the Federal Register a notice of proposed rulemaking (NPRM). This NPRM (76 FR 77056) proposes to revise the regulations implementing the non-discrimination and affirmative action regulations of section 503 of the Rehabilitation Act of 1973, as amended.

The original comment period is scheduled to end on Tuesday, February 7, 2012. After receiving several requests for extensions, OFCCP is extending the comment period for this NPRM for 14 days until Tuesday, February 21, 2012. This action will provide all interested persons additional time to analyze the issues and provide their comments on the NPRM. Parties who filed comments previously may supplement or submit additional comments during the extended comment period. Parties interested in commenting can view the NPRM and submit comments by using the Federal eRulemaking Portal and referencing RIN 1250-AA02.

OFCCP is publishing a Federal Register notice announcing this two-week extension of the comment period.

Read the Labor Department's press release about this extension.

US Labor Department and National Equal Pay Task Force launch equal pay application development challenge

OFCCP News Release
OPA News Release: [01/31/2012]
Contact Name: Dave Roberts or Laura McGinnis
Phone Number: (202) 693-5945 or x4653
Release Number: 12-0146-NAT

Contest will engage developers to address wage gap through innovative use of data

WASHINGTON — Seeking novel ways to eliminate the gender gap in pay, the U.S. Department of Labor and its federal agency partners on the National Equal Pay Task Force today announced a contest for creating software applications that use the department's data to promote equal pay for men and women. Women are still paid less on average than their male counterparts for doing comparable jobs, and the discrepancy is even greater for minority women. Over the course of a lifetime, this "pay gap" results in lost wages, reduced pensions and diminished Social Security benefits.

"Women make up nearly half of the U.S. labor force and play a vital role in the nation's economy," said Secretary of Labor Hilda L. Solis. "While progress has been made in recent decades, the pay gap continues to disadvantage many women, with consequences not only for them, but for their families and the economy as a whole."

The Equal Pay App Challenge calls on developers to use publicly available data and resources to create innovative, easy-to-use apps that educate users about the pay gap and provide tools to combat it. The apps should improve the accessibility of pay data broken down by gender, race and ethnicity, and provide coaching on early career pay, pay negotiation or career mentorship. More information, including a complete list of the contest's rules and requirements, is available at

"Today's employers and employees are more resourceful and technologically savvy than ever before, but too many remain unaware of how the pay gap affects them," said White House Chief Technology Officer Aneesh Chopra. "By encouraging developers to help us solve this problem, we're leveraging the unique ability of the federal government to provide mountains of valuable data as well as the innovation power of the private sector."

Applications that best satisfy the criteria for the challenge will be eligible to receive one of eight prizes, including scholarships to attend an eight-week immersive program on digital product innovation and entrepreneurship hosted by General Assembly, a campus for technology, design and entrepreneurship. The challenge will be open for submissions from Jan. 31 until March 31. Judges will announce the winners in connection with Equal Pay Day in April at

To help facilitate this and similar challenges, the Labor Department last year launched, a website that helps software developers incorporate department data into online and mobile applications through published application program interfaces and software development kits. The website and contests are part of the Department of Labor's ongoing efforts to increase transparency, participation and collaboration through the administration's Open Government Initiative. Visit for more information.

The National Equal Pay Task Force was created in January 2010 in response to President Obama's pledge to crack down on violations of equal pay laws. In addition to the Labor Department, members include the Equal Employment Opportunity Commission, the Department of Justice and the Office of Personnel Management.
Read the Secretary's remarks

EEOC Unanimously Approves Final Rule Revising Federal Sector Complaint Processing Regulations

U.S. Equal Employment Opportunity Commission

WASHINGTON – The U.S. Equal Employment Opportunity Commission (EEOC) on Feb. 1 voted unanimously to approve changes to the regulations that govern the Federal EEOC process. With the bipartisan vote, the Commission submitted to the White House Office of Management and Budget (OMB) and all other Federal agencies its “Final Rule Revising its Federal Sector Complaint Processing Regulations”. This final rule is part of an ongoing review by the Commission of the federal sector EEO process in which the Commission is examining recommendations regarding the investigative function and other internal reviews of the Commission’s role in the EEO process.

The submission of the final rule to OMB and the other agencies represents another stage in the regulatory process. The inter-agency comment and coordination process with all agencies other than OMB ends on February 29, 2012. After OMB approval (usually 90 days after submission), the Commission will consider changes, if any, requested by OMB and the other agencies. Subsequently, the approved rule will be published in the Federal Register and on The final rule cannot be made public before that time.

The EEOC adjudicates discrimination complaints and monitors federal agency compliance with EEO laws and procedures. The Commission assesses the effect of agencies’ compliance with requirements to maintain continuing affirmative employment programs to promote EEO and to identify and eliminate barriers to equality of opportunity. The EEOC also provides leadership and guidance to federal agencies on all aspects of the federal government's equal employment opportunity program. The Commission assures federal agency and department compliance with EEOC federal sector regulations, provides technical assistance to federal agencies concerning EEO complaint adjudication, monitors and evaluates federal agencies' affirmative employment programs, and develops and distributes federal sector educational materials and conducts training for stakeholders.

Unlike its responsibilities in the private sector, the Commission does not process complaints of discrimination for federal employees. In the federal sector, individuals file complaints with their own federal agencies and those agencies are required to conduct an appropriate investigation of the claims raised in the complaints. Complainants can then request a hearing before an EEOC administrative judge (AJ) or file an appeal with EEOC’s Office of Federal Operations.

The Commission first published the Notice of Proposed Rulemaking (NPRM) on Dec. 21, 2009 for a 60-day notice and comment period. The Commission carefully considered all of the 35 public comments it received and made several changes to the NPRM in response to the comments.

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

Commission to Hold Feb. 15 Meeting on Pregnancy and Caregiver Issues

U.S. Equal Employment Opportunity Commission

Panelists to Present the Latest Research As Well as Best Practices for Employers

WASHINGTON – The U.S. Equal Employment Opportunity Commission (EEOC) will hold a public meeting on the subject of pregnancy discrimination and caregiver issues at 9:30 a.m. (Eastern Time) Wednesday, Feb. 15, at agency headquarters, 131 M Street, N.E., Washington, D.C. In accordance with the Sunshine Act, the meeting is open for public observation of the Commission’s deliberations.

At the meeting, the Commission will examine recent trends in discrimination against pregnant workers and workers with caregiving responsibilities, examining these two forms of discrimination as a continuum. The Commission is scheduled to hear from the following invited panelists:

Panel 1: Understanding Pregnancy and Caregiver Discrimination in Today’s Workplace
•Dr. Stephen Benard, Professor of Sociology, Indiana University (via VTC from our Indianapolis District Office)
•Sharon Terman, Senior Staff Attorney, Gender Equity Program, The Legal Aid Society Employment Law Center
•Maryann Parker, Associate General Counsel, Service Employees International Union
•Lynn Friss Feinberg, Senior Strategic Policy Advisor, AARP Public Policy Institute
•Deane Ilukowicz, Vice President for Human Resources, Hypertherm

Panel 2: Statutory Framework and Enforcement Efforts

EEOC’s General Counsel P. David Lopez will provide introductory remarks.
•Peggy Mastroianni, Legal Counsel, EEOC
•Melvina Ford, Senior Policy Advisor in the Office of the Administrator, Wage and Hour Division, U.S. Department of Labor
•Emily Martin, Vice President and General Counsel, National Women’s Law Center

Panel 3: The Way Forward: Implications for the Future
•Judy Lichtman, National Partnership for Women and Families
•Joan Williams, Distinguished Professor of Law, UC Hastings Foundation Chair, Director of the Center for WorkLife Law

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. Any matter not discussed or concluded may be carried over to a later meeting.

The Commission agenda is subject to revision. Additional information about the hearing, when available, will be posted at

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

Subtle Bias From Grade School to the Workplace

February 7, 2012
I grew up with Luis in Pittsburgh. We reconnected after he read my recent blog about learning grammar in the sixth grade. We exchanged a few Facebook messages. Then he called me. We had not spoken for several years and have seen each other just once since we graduated from high school, a long time ago.

Luis and I were in the same homeroom and took all the same classes for eight years. We belonged to Cub Scout Den 5, hung out at each others' homes and did projects together. We had a strong friendship.

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How Do We Train Managers to Welcome and Promote Diversity?

Workforce Management
January 3, 2012

Dear Workforce

How Do We Train Managers to Welcome and Promote Diversity?

We want our managers to play an active role in promoting greater multicultural diversity among our workforce. How might this magnify the challenges they already face in motivating their employees? What obstacles/resistance should they expect, and how could we train them to answer those objections?

—Proceeding, but With Caution, agency diversity manager, government, Phoenix


Dear Proceeding:

We presume your objective is not about creating a culturally diverse workforce, but rather how to manage one that already is diverse and becoming more so.

It's wise to anticipate the challenges you've identified. Managing those challenges with similar wisdom will go a long way toward leveraging the benefits of a diverse workforce, rather than allowing diversity tensions to become a distraction.

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