Supreme Court Upholds Affirmative Action Program at University of Texas

WASHINGTON — The Supreme Court on Thursday rejected a challenge to a race-conscious admissions program at the University of Texas at Austin, handing supporters of affirmative action a major victory.

The vote was 4-3. Only seven justices participated in the decision, as Justice Elena Kagan had recused herself for prior work on the case as United States solicitor general and the late Justice Antonin Scalia’s seat remains vacant.

Read the full New York Times story here.

View the complete text of the Supreme Court decision here.

4 Major Decisions To Expect From The Supreme Court Soon

Three months ago, this term was setting up to be a bloodbath for liberals. Public sector unions were going to be stabbed in the gut. Affirmative action was on life support. The Court’s conservative majority signaled that it was prepared to drastically roll back the federal government’s power to fight climate change.

Then that majority ceased to be a majority.

Read the story here.

Reverse discrimination case could transform hiring

The Washington Post
By JESSE WASHINGTON
The Associated Press Saturday, April 18, 2009; 3:57 PM

NEW HAVEN, Conn. -- Inside a burning building, fire doesn't discriminate between Matthew Marcarelli and Gary Tinney. Inside the New Haven Fire Department, however, skin color has put them on opposite sides of a lawsuit that could transform hiring procedures nationwide.
This week, the Supreme Court will consider the reverse discrimination claim of Marcarelli and a group of white firefighters. They all passed a promotion exam, but the city threw out the test because no blacks would have been promoted, saying the exam had a "disparate impact" on minorities likely to violate the 1964 Civil Rights Act.
Besides affecting how race can be considered in filling government and perhaps even private jobs, the dispute also addresses broader questions about racial progress: Do minorities and women still need legal protection from discrimination, or do the monumental civil rights laws that created a more equal nation now cause more harm than good?
Also, beneath the specific details of the firefighters' lawsuit lies an uncomfortable truth: On most standardized tests, regardless of the subject, blacks score lower than whites.
Reconciling that reality with efforts to ensure "justice for all" remains a work in progress _ one that will be molded by the Supreme Court.
New Haven's population is 44 percent white, 36 percent black and 24 percent Hispanic (who can be any race). At the time of the 2003 test, 53 percent of the city's firefighters, 63 percent of lieutenants and 86 percent of captains were white. Blacks were 30 percent of the firefighters, 22 percent of lieutenants and 4 percent of captains.
Tinney, a black lieutenant who has been a firefighter for 14 years, was seeking a promotion to captain when he took the exam.
He says both the test and his fire department have hidden biases against minorities: The department is historically white, with the first blacks joining in 1957, and jobs, relationships, knowledge and choice assignments are passed on from friend to friend and generation to generation.
"I just call it 'the network,'" Tinney says.
The white firefighters' attorney, Karen Torre, said they would not be interviewed for this story. In a conversation on Fox News' "Hannity" program, Marcarelli said it was "gut wrenching" to learn that he was No. 1 on the test but would not get promoted.
"It's something that shakes what you believe in. Because you believe if you work hard, you're rewarded for that, and that's not necessarily the case," Marcarelli said.

Full Story: http://www.washingtonpost.com/wp-dyn/content/article/2009/04/18/AR2009041801358.html

Supreme Court’s future may hinge on election

Christian Science Monitor
Washington
The next president is expected to name at least one new justice to the closely divided court.
By October 22, 2008 edition

Whoever is elected president on Nov. 4 is expected to name at least one new justice to the US Supreme Court, and perhaps as many as three.
With the nine-member court closely divided on hot-button issues like abortion, affirmative action, and the death penalty, a change in personnel could set the stage for big changes in the law. Despite such high stakes, the future of the court has yet to emerge as a central election issue.
The justices most likely to retire during the next four years, legal analysts say, are all members of the court’s liberal wing: John Paul Stevens, Ruth Bader Ginsburg, and David Souter. That means should John McCain replace a sitting liberal justice with a conservative justice, the balance of power on the court could shift decisively to the right on key issues. On the other hand, should Barack Obama replace a sitting liberal justice with a liberal nominee, the balance of power on the court would likely remain largely unchanged.
But Senator Obama’s first appointment need not be a mere place holder, some analysts say. He could use the nomination to appoint a relatively young, progressive justice capable of going head-to-head with conservative Chief Justice John Roberts for the next 20 to 30 years.
“The long-term trajectory of the court is in play,” says Richard Garnett, a constitutional law professor at Notre Dame. “[Obama] is going to want to appoint the next [William] Brennan or a left-leaning version of John Roberts.”
A list of those mentioned as potential Obama nominees is growing. Among the youngest on that list are Harvard Law School Dean Elena Kagan, Massachusetts Gov. Deval Patrick, Harvard Law Prof. Cass Sunstein, and Yale Law School Dean Harold Hongju Koh. [To read the entire story, go to: http://features.csmonitor.com/politics/2008/10/22/supreme-court%E2%80%99s-future-may-hinge-on-election/# ]

Supreme Court Hears Environmental, Employment Discrimination Cases

Thursday October 9, 3:02 am ET
Tony Mauro, Legal Times

The Supreme Court on Wednesday heard arguments in what may be its top environmental and employment discrimination cases of the term, and from the tenor of the debates, the verdict seems to be: whales, dolphins and employers will lose....

[I]n the employment case, Crawford v. Nashville and Davidson County, lawyers for a Nashville, Tenn., school employee and for the Bush administration appeared to persuade the Court that Title VII of the Civil Rights Act protects employees from retaliation even when they complain about sexual harassment during an internal investigation -- before any formal charges are made....

In the employment case, the Court has in recent years been favorable to claims by those who suffer retaliation for complaining about Title VII workplace discrimination in the context of Equal Employment Opportunity Commission investigations. But the case before the Court involves the firing of someone who complained about sexual harassment during an internal investigation before any EEOC charges were filed -- a not uncommon scenario.

Vicky Crawford, the Nashville school employee in the case, complained about a supervisor's lewd behavior in an interview with a human resources department official, but made no formal charges and was later fired. The 6th U.S. Circuit Court of Appeals ruled that she was not protected from retaliation because her complaints did not amount to the kind of "active opposition" to school policies that Title VII requires.

University of Washington School of Law professor Eric Schnapper, a veteran advocate for employees in civil rights cases, argued strenuously that the law covers Crawford's situation because in making her complaints, she was actively objecting to her employers' conduct....

Noting that Crawford had told her harasser to "get the hell out of my office," [Justice] Stevens said, "That's an active opposition, it seems."

[To read the entire story, go to: http://biz.yahoo.com/law/081009/dbaac6c927cec06355b5b592963bd0fb.html?.v=1 ]

Justice Thomas Says Constitution Forbids Racial Preference

Diverse Issues in Higher Education
By ASSOCIATED PRESS
Sep 10, 2008, 21:08

WASHINGTON
Supreme Court Justice Clarence Thomas said Tuesday that African-Americans are better served by colorblind programs than affirmative action.
Thomas, addressing leaders of historically Black colleges, said affirmative action "has become this mantra and there almost has become this secular religiosity about it. I think it almost trumps thinking."
A longtime opponent of race-based preferences in hiring and school admissions, Thomas said, "Just from a constitutional standpoint, I think we're going to run into problems if we say the Constitution says we can consider race sometimes."
Thomas, 60, has voted on the court to outlaw the use of race in college admissions and in determining which public schools students will attend. He wrote with evident resentment in his autobiography "My Grandfather's Son" that he felt he was allowed to attend Yale Law School in the 1970s because of his race and took a tough course load to prove he was as able as his White classmates.
"My suggestion would be to stop the buzz words and to focus more on the practical effect of what we're doing," he said Tuesday.
"I can tell you when you have fudge words, it leaves a lot of room for mischief," he said. "People have a tendency to read their personal opinions into fudge words. You want, when it comes to the issue of race, absolute words." [To read the entire story, go to: http://diverseeducation.com/artman/publish/article_11663.shtml ]

20 . . . and Counting

Diverse Issues in Higher Education
August 25, 2008
By V.I. King

A 25-year deadline is fast approaching; in fact, 5 years have expired, and there are only a short 20 years remaining.

In July, 2003, the U.S. Supreme Court issued landmark legal opinions in the two lawsuits filed against the University of Michigan. It held, essentially, that universities can continue to give preferences in admissions on the basis of race for the purpose of promoting diversity. However, in an opinion by Justice Sandra Day O’Connor, the Supreme Court gave our society a deadline. She wrote, “Race-conscious admissions policies must be limited in time . . . The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

Five years have passed. Time is running out fast, and—as unpleasant as the task may be—political leaders, public intellectuals, journalists, social scientists, and voters need to start a national debate about affirmative action — whether to keep it, how to fix it, and what it means for the future of the country.

Those who might believe that there is no urgent need to confront these issues now should bear in mind the long road to Brown v. Board of Education. The legal path to that decision in 1954 actually began 20 years earlier, when civil rights attorney Charles Houston joined the National Association for the Advancement of Colored People. The following year, in 1935, Houston and his protégé – the young Thurgood Marshall – won the first battle against the separate-but-equal doctrine of Plessy v. Ferguson, in the case of Murray v. Pearson (which forced Maryland to open its law school to African-American applicants). Nineteen more years of hard-fought litigation followed, including landmark cases such as Missouri ex rel. Gaines v. Canada (1938), Smith v. Allwright (1944), Morgan v. Virginia (1946), Patton v. Mississippi (1947), and Shelley v. Kraemer (1948), culminating in the issuance of the decision in Brown v. Board of Education.

To play a role in shaping how the U.S. Supreme Court will rule in 2028, higher education leaders and lawyers need to strategize – as Houston and Marshall did – about what test cases are emerging in all 50 states, how those cases will create appellate opportunities, and how each court decision can build upon a prior decision.

[To read the entire article, go to: http://diverseeducation.wordpress.com/]

V.I. King is President of the Board of Trustees at Glendale Community College and University Legal Counsel at California State University, Los Angeles.

A Supreme Court Victory for Older Workers

The New York Times
June 20, 2008

By LINDA GREENHOUSE
WASHINGTON — The Supreme Court ruled for older workers Thursday in a closely watched age discrimination case, placing on employers the burden of proving that a layoff or other action that hurts older workers more than others was based not on age but on some other “reasonable factor.”
The 7-to-1 decision overturned a ruling by the federal appeals court in New York, which said employees had the burden of disproving an employer’s defense of reasonableness.
The case was brought by 28 employees who lost their jobs during cutbacks at a federal research laboratory in upstate New York. All but one of the employees who were laid off were at least 40, the age at which protections begin under the federal Age Discrimination in Employment Act.
The issue in the case, while technical, is important for the litigation of age discrimination cases in which an employer’s action or policy that appears neutral on its face has a disparate impact on older workers. David Certner, the chief legislative counsel for AARP, praised the decision and said it would prove “vital to the creation and maintenance of a workplace that is fair and free of age bias.”
From a broader perspective, this decision, coming near the end of the Supreme Court’s term, completed a five-for-five sweep for employees’ rights in workplace discrimination cases that was little short of astonishing, given how far the court had appeared to be tilting toward business under Chief Justice John G. Roberts Jr. By comfortable margins, the court interpreted federal antidiscrimination statutes broadly to enable employees to overcome procedural hurdles and to pursue a category of claims not fully detailed in the statutes themselves.
Business lawyers, while pointing to victories in other parts of their agenda, were quick to acknowledge that the court’s apparent turnabout in the employment area was a big surprise.
“It’s been a clean sweep,” said Robin S. Conrad, executive vice president of the National Chamber Litigation Center, which handles Supreme Court cases for the United States Chamber of Commerce.
A year ago, Ms. Conrad proclaimed the court’s 2006-7 term “our best term ever.” Now “it’s back to the drawing board,” she said in an interview, adding, “To achieve our objectives, we’ll have to battle it out case by case.”
The National Federation of Independent Business, which represents small businesses, said the decision Thursday “will make it much harder for small-business owners to defend themselves against allegations of violations of the Age Discrimination in Employment Act,” particularly when it comes to responding to “market changes and new technology without fearing that any real change in their business plan will prompt a baseless lawsuit.”
In the case on Thursday, Meacham v. Knolls Atomic Power Laboratory, No. 06-1505, the employer was faced with laying off some employees after a voluntary buyout failed to produce the desired staff reduction. Managers were instructed to rate employees for how “flexible” and “retrainable” they were. Of the 31 who were eventually laid off, 30 were at least 40 years old.
The age discrimination law provides that an employment action that would be “otherwise prohibited” is lawful if “the differentiation is based on reasonable factors other than age.” The question in the case was what happens once an employer invokes this defense: does the employer have to prove, or do the plaintiffs have to disprove, the existence of the reasonable non-age factors?
The laid-off Knolls Atomic workers won their case before a jury, but the United States Court of Appeals for the Second Circuit overturned the verdict on the ground that the employees had not refuted the reasonableness of the laboratory’s selection process.
In his majority opinion overturning the appeals court’s decision, Justice David H. Souter said the structure of the statute made it clear that the defense was “entirely the responsibility of the party raising it.” He said that by using the phrase “otherwise prohibited,” Congress meant to offer employers “an excuse or justification for behavior that, standing alone, violates the statute’s prohibition,” but only if they could prove their entitlement to the defense. [To read the entire article, go to: http://www.nytimes.com/2008/06/20/washington/20scotus.html?_r=1&th&emc=th&oref=slogin ]

Justices Say Law Bars Retaliation Over Bias Claims

The New York Times
May 28, 2008
By LINDA GREENHOUSE

WASHINGTON — The Supreme Court on Tuesday ruled that employees are protected from retaliation when they complain about discrimination in the workplace, adopting a broad interpretation of workers’ rights under two federal civil rights laws.
By decisions of 7 to 2 in one case and 6 to 3 in the other, the court found that the two statutes afford protection from retaliation even though Congress did not explicitly say so.
The decisions are significant both as a practical matter and as evidence of a new tone and direction from the court this year, following a term in which there were sharp divisions and an abrupt conservative turn.
The new rulings were in distinct contrast to one of the signature decisions of the last term, a 5-to-4 decision that placed tight time limits on plaintiffs seeking to file pay-discrimination cases. Justice Samuel A. Alito Jr., who wrote the majority opinion almost exactly a year ago in that case, Ledbetter v. Goodyear Tire and Rubber Company, wrote one of the two majority opinions on Tuesday. Justice Stephen G. Breyer wrote the other.
One of the cases began as a lawsuit by a clerk for the United States Postal Service in Puerto Rico. The plaintiff, Myrna Gómez-Pérez, 45 at the time, complained that she had been denied a transfer to a different office because of age discrimination. Her lawsuit alleged that as a result of her complaint, she became the target of retaliatory actions by her supervisors.
The other case was brought by a former assistant manager of a Cracker Barrel restaurant, a black man named Hedrick G. Humphries. Mr. Humphries had complained that a white assistant manager had been motivated by racial discrimination in dismissing a black employee. In his lawsuit, Mr. Humphries claimed that he then lost his own job in retaliation for his complaint.
Retaliation complaints are a growing subset of workplace discrimination cases, because it is often easier for employees to demonstrate that they were retaliated against than that they were victims of discrimination in the first place. Retaliation complaints filed annually with the Equal Employment Opportunity Commission doubled in the last 15 years to 22,000 from 11,000.
Congress has provided explicit protection against retaliation in two major federal statutes. One is Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of race and sex. The other is the provision of the Age Discrimination in Employment Act that applies in the private sector.
However, there is no such explicit protection in the portion of the age-discrimination law that applies to federal government workers. Nor is there explicit language in a post-Civil War-era statute that gives “all persons” the same right “as is enjoyed by white citizens” when it comes to making and enforcing contracts, such as contracts of employment. Those were the two statutes that the court interpreted on Tuesday.
In both decisions, the majority relied heavily on precedent, reasoning by analogy from recent cases that dealt with claims of retaliation under other statutes. The most recent such case was a ruling issued in 2005, before either Justice Alito or Chief Justice John G. Roberts Jr. joined the court. By a vote of 5 to 4, the court held then that a law known as Title IX, which bars sex discrimination in schools and colleges that receive federal money, also prohibits school officials from retaliating against those who bring sex-discrimination complaints. The statute itself does not mention retaliation.
In his opinion on Tuesday in the federal age-discrimination case, Justice Alito said that the provision in question, broadly prohibiting “discrimination based on age,” was “not materially different” from the anti-discrimination language the court had interpreted both in the Title IX case and in an earlier decision from 1969, interpreting a Reconstruction-era statute that bars racial discrimination in property ownership.
“The context in which the statutory language appears is the same in all three cases,” Justice Alito said. “That is, all three cases involve remedial provisions aimed at prohibiting discrimination.”
In the Postal Service case, Gómez-Pérez v. Potter, No. 06-1321, the federal appeals court in Boston, which has jurisdiction over federal cases from Puerto Rico, dismissed the suit on the ground that the age-discrimination provision that applies to federal workers does not cover retaliation claims.
In his opinion, which overturned the appeals court and reinstated the lawsuit, Justice Alito said that understood in the context of its enactment, the provision did cover retaliation. He noted that while the basic age-discrimination law was passed in 1967, it was not extended to federal workers until 1974.
In the interval, the Supreme Court had issued its decision deeming that the 19th-century property-rights law covered retaliation. Congress was “presumably familiar” with that case, Justice Alito said, and “had reason to expect” that the new age-discrimination provision would be interpreted with similar breadth.
In a dissenting opinion, Chief Justice Roberts said that, to the contrary, Congress was “well aware” that the Civil Service Commission had issued detailed regulations protecting federal employees against retaliation. The chief justice said that Congress should be understood to have made a judgment that retaliation problems in the federal work force should be dealt with administratively rather than judicially.
Justices Antonin Scalia and Clarence Thomas joined the dissenting opinion.
[To read the entire article, go to: http://www.nytimes.com/2008/05/28/washington/28scotus.html?_r=1&th=&emc=th&pagewanted=all ]

Justices Let Age Bias Lawsuit Move Ahead

The Washington Post
By Robert Barnes
Washington Post Staff Writer
Thursday, February 28, 2008; A06

The Supreme Court yesterday gave the benefit of the doubt to a FedEx worker who claimed age discrimination, and said her case should not be thrown out because of mistakes made by the Equal Employment Opportunity Commission.
The court ruled 7 to 2 that Patricia Kennedy's suit could move forward, even though her employer had not been notified by the EEOC that Kennedy and others had made charges against it, as the Age Discrimination in Employment Act requires.
The act says that a formal charge must be made with the agency before a lawsuit can be filed, and that in that interim, the EEOC is to notify the company, investigate the claim and seek conciliation between the employer and employee before lawyers and judges become involved.
At oral argument, it became clear that the form Kennedy filed with the EEOC sometimes was considered by the agency to constitute a formal charge, and sometimes not. Justices criticized the government for the inconsistency, and it responded that it is changing its policies.
Justice Anthony M. Kennedy's opinion said that because of the lack of clarity on the part of EEOC, "both sides lost the benefits" of the informal dispute resolution process, and it again criticized the agency.
But the majority said that the form and documents Patricia Kennedy filed could be considered a formal charge and that she should be allowed to proceed with her lawsuit.
Justices Clarence Thomas and Antonin Scalia dissented, saying the court's "malleability" was wrong. [To view the entire article, go to: http://www.washingtonpost.com/wp-dyn/content/article/2008/02/27/AR2008022703130.html ]

Supreme Court weighs 5 age bias cases

By MARK SHERMAN, Associated Press Writer
Sun Feb 17, 11:09 AM ET

There is only one anti-bias law — the one against discrimination based on age — that would cover all nine Supreme Court justices, if such laws applied to them.
The justices, ranging in age from 53 to 87, are the last people to worry about such things in their own lives. They have life tenure and no mandatory retirement age.
Yet the justices are confronted by allegations of age discrimination in five cases this term. While the sheer number of cases probably can be explained away as coincidence, the topic is one of growing importance as more people work longer because of economic necessity or by choice.
"The importance of protecting older workers as the work force ages is enormous," said Stu Cohen, AARP's director of legal advocacy. "More older workers remain in the workforce and projections are that the percentage will continue to expand."
The percentage of people 65 and over who continue to work has grown from 10.8 percent in 1985 to 16 percent last year, AARP said. For people 55 to 64, the numbers also are up, from 54.2 percent in 1985 to 63.8 percent in 2007.
The Age Discrimination in Employment Act applies to workers who are at least 40. It prohibits discrimination based on age in hiring and firing, promotions and pay.
"Literally every employee at some point is going to be protected by it because all of us get older. It's true whether you are a male, female, minority or not. It's not true for any other statute. It's a very broad class of protected people," said Steven R. Wall, a partner at the Morgan, Lewis & Bockius law firm in Philadelphia.
The cases at the court this year include what kind of evidence an employee may present to bolster an age discrimination claim; whether retirement-age workers are entitled to disability payments; and whether federal workers who complain about age discrimination are protected from retaliation.
The last issue is the subject of oral arguments Tuesday in a case involving a postal worker in Puerto Rico who complained of both discrimination and retaliation. Federal courts dismissed the retaliation claim, saying there is nothing in the age discrimination law that allows such claims by federal employees.
Other anti-discrimination laws do provide protection from retaliation for government workers, said Eric Dreiband, former general counsel to the Equal Employment Opportunity Commission. The language in the laws are different "and it would appear deliberately different," Dreiband said.
The AARP and the National Treasury Employees Union are backing the employee.
The most important case from employers' perspective involves "me-too" evidence in a lawsuit filed by a woman who was 51 when she was laid off by a subsidiary of Sprint Nextel Corp.
The fight at the Supreme Court is over whether she should be able to introduce testimony from other employees who also say they were victims of age discrimination, even though they worked for other supervisors.
The employee, Ellen Mendelsohn, argued that such evidence is critical to establishing a culture of discrimination. [To read the entire article, go to: http://news.yahoo.com/s/ap/20080217/ap_on_go_su_co/scotus_older_workers;_ylt=AkUAEr7l1rht0V4USX6YyheyFz4D]

Settlement Leads to Supreme Court Dismissal of ADA Suit

Workforce Management
January 16, 2008
Settlement Leads to Supreme Court Dismissal of ADA Suit

The question of whether the Americans With Disabilities Act requires employers to offer disabled workers a vacant job if a more qualified applicant is available remains unresolved.
The U.S Supreme Court, which agreed last month to review a case that would have decided the issue, dismissed the lawsuit Monday after the parties reached a confidential settlement.
At issue was whether the ADA requires that an employer reassign a disabled employee to a vacant, equivalent position for which he or she is qualified or merely permit the employee to apply and compete with other applicants.
Appellate courts have ruled differently on the issue.
In this case, Pam Huber sustained a permanent injury to her right arm and hand while working at a Bentonville, Arkansas, Wal-Mart store as a dry grocery order filler. She sought reassignment to a router position as a reasonable accommodation under the ADA.
But Wal-Mart required her to apply and compete for the position with other applicants, and ultimately filled the job with a nondisabled applicant, explaining that Huber was not the most qualified candidate. Instead, it placed her in a lower-paying maintenance associate position at the time.
Huber then sued Wal-Mart in federal court claiming discrimination under the ADA and the Arkansas Civil Rights Act of 1993.
The court ruled in Huber’s favor. On appeal, the 8th U.S. Circuit Court of Appeals in St. Louis overturned the decision, holding that employers are not required to offer positions to less qualified, disabled workers. [To read the entire article, go to: http://www.workforce.com/section/00/article/25/31/76.html]

Supreme Court Case Could Expose Employers to More Age Bias Trials

Workforce Management
January 10, 2008

Deputy sheriffs are exposed to danger every day on the job. But in Kentucky, if they get shot and put out of work, the amount of benefits they can receive depends on when in their career the incident occurs.
Under Kentucky law, people who work in hazardous public service occupations can retire after 20 years of service or when they’re 55—as long as they’ve worked at least five years by that time.
But safety officers are ineligible for disability payments if they are 55 or older because they already qualify for retirement benefits. Younger colleagues who are injured can receive disability until they reach retirement age.
This situation produced a lawsuit by a Jefferson County Sheriff’s Department employee, Charles Lickteig, who was disabled at age 61 after 18 years of service and was denied disability benefits.
Lickteig filed an age discrimination suit with the Equal Employment Opportunity Commission, asserting that younger workers are treated better in the Kentucky system.
A federal district court ruled in 2003 that Kentucky did not discriminate based on age. But the full 6th Circuit Court of Appeals reversed the decision, 10-4, finding that Kentucky excludes workers from disability benefits because of their age. The state appealed to the Supreme Court.
In an oral argument before the high court on Wednesday, January 9, Robert Klausner, an attorney for Kentucky Retirement Systems, said that state policy does not violate the Age Discrimination in Employment Act. It simply fills in the gap between the time a younger employee is hurt and retirement.
“It’s about retirement eligibility, not about age,” Klausner said. “What this case is about … is being fair without regard to age.”
Malcolm Stewart, an assistant to the solicitor general who is representing the EEOC, argued that the Kentucky program is unfair to employees already working beyond retirement age.
“There is no reason to think that the older people … as a group will have fewer years in the line of fire than younger people,” Stewart said. “What [Kentucky] can’t do is use age as a proxy, as the basis for how many years that person would have worked if he or she had not been disabled.” [To read the entire article, go to: http://www.workforce.com/section/00/article/25/30/77.html]

Court To Rule On Wal-Mart Transfer Of Worker with Disabilities

ADA WATCH NEWS from the National Coalition for Disability Rights
Court To Rule On Wal-Mart Transfer Of Worker with Disabilities

By Mark H. Anderson, Dow Jones Newswires
WASHINGTON - In a case involving Wal-Mart Stores Inc. (WMT), the U.S. Supreme Court Friday said it will determine if a disabled employee, under federal disabilities law, gets preference over other employees for a vacant position even if they aren't the best qualified for the job.
The Wal-Mart case involves Pam Huber, a Wal-Mart warehouse worker in Clarksville, Ark., who injured her right arm and hand on the job. Huber worked as an order filler, a warehouse floor job pulling products from storage shelves, and requested a transfer to an open position as a router, a desk job.
Wal-Mart gave the position to a colleague with more seniority than Huber, however, and offered her a position at another company facility making significantly less money, court documents said.
Huber accepted the lesser-paying job and sued. A U.S. District Court ruled in favor of her. The 8th U.S. Circuit Court of Appeals in St. Louis in May 2007 reversed that holding and ruled for Wal-Mart.
Attorneys for Huber, in the high court appeal, said Equal Employment Opportunity Commission rules require employers to favor disabled employees under the Americans With Disabilities Act, a federal law on the rights of the disabled. "The Eighth Circuit not only disregarded the statutory text but also entirely ignored the EEOC's interpretation," the attorneys said, adding the ruling deepened a split on the issue in the federal appeals court circuits.
Wal-Mart, in court documents, said Huber's transfer was handled under standard company transfer policies where "vacant positions go to the most qualified applicant" and "Huber's disability had nothing to do with this decision."
Justice Stephen Breyer, who reported holding Wal-Mart stock in his most recent financial disclosure, recused himself from the case, opening the appeal up to a possible 4-4 tie.
The case is Huber v. Wal-Mart Stores, 07-480. Oral arguments will be held in the spring of 2008 and a decision is expected before July 2008.
_________________________________________________________
ADA Watch is a project of the National Coalition for Disability Rights (NCDR), and alliance of hundreds of national, state and local disability, civil rights and social justice organizations united to defend and strengthen the civil rights of children and adults with physical, mental, cognitive, sensory and developmental disabilities.
National Coalition for Disability Rights (NCDR)
601 Pennsylvania Avenue, NW, Suite 900S Washington, DC 20004
Telephone: 202-661-4722

Job Security for 50-Plus at Stake in Bias Case

By Allison Stevens - Washington Bureau Chief
WASHINGTON (WOMENSENEWS)--
Run Date: 12/04/07

Represented by her lawyer, Ellen Mendelsohn asked the U.S. Supreme Court Monday to ease the burden of proof for victims of age discrimination by allowing the "me too" evidence of other workers with similar complaints.But in the oral arguments Monday the justices did little to raise Mendelsohn's hopes.Chief Justice John Roberts and other justices suggested that allowing "me too" evidence could glut the court system with a preponderance of testimony."We'll have trials that last 1,000 years," warned Justice Stephen Breyer.Mendelsohn, a former midlevel manager at a Sprint subsidiary in Kansas City, Mo., lost her job in 2002 at age 51, when she was the oldest manager in her unit. She sued, alleging unfair treatment because of her age, and sought to bring evidence from fellow employees with similar complaints. Sprint argued that testimony from other witnesses would be irrelevant because it involved supervisors who were not involved in Mendelsohn's suit.A district judge refused to admit the "me too" evidence, but an appellate court judge disagreed and ordered a new trial. Sprint appealed to the Supreme Court, which agreed to hear the case last June so it could provide guidance on the issue to lower courts.More Men File ComplaintsAge discrimination is certainly not only a women's rights concern.In a book published in 2001 on the topic, "Age Discrimination in the American Workplace: Old at a Young Age," Raymond Gregory, a retired attorney who specialized in the issue in his New York practice, writes that nearly two-thirds of all age-discrimination cases in 1997 were brought by men.But even though women may file fewer complaints, Gregory says women start complaining of discrimination at younger ages.Loss of employment, meanwhile, can be harder on women, says Erica Williams, study director at the Institute for Women's Policy Research, a think tank in Washington, D.C.The combination of women earning less throughout their lifetimes, having less in the way of pensions or retirement accounts and having a longer life expectancy means that women in older age are more likely to be poor or disabled, to live alone, to rely on a single income or to depend on public service programs, says Williams.Important Implications for Women"All of that has important implications for older women who are trying to secure some employment in their retirement-age years," Williams said. "If they're also facing age discrimination, they may not be able to get a job to help them supplement Social Security benefits or what little retirement income they have."Women begin to report age discrimination at age 40, a full decade before men begin to complain about it, Gregory said in an interview. And women are filing complaints in greater numbers as they pick up parity in the workplace.Anti-ageism activists say both sexes battle the perception that midlife and older people are less productive and less able to keep up with technological advances in the workplace than younger workers.But while men are seen as more distinguished and experienced as they age, Nicole Porter, an assistant law professor at the University of Toledo in Ohio who specializes in employment discrimination, says women are more often regarded as obsolete. "We think of them as staying home to bake cookies. We have a hard time perceiving them as tough businesswomen or tough litigators, or whatever they may be."Such stereotypes put midlife and older women at greater risk for age discrimination when applying for jobs, Porter said.
[To read the entire article, go to: http://www.womensenews.org/article.cfm/dyn/aid/3408

Blacks More Pessimistic About Racial Progress, Study Finds

Diverse Online

WASHINGTON
by Associated Press
Nov 13, 2007, 21:02

Growing numbers of Blacks say they’re worse off than five years ago and don’t expect their lives to improve, a study released Tuesday shows. Black pessimism about racial progress in America, according to the study, is the worst it’s been in more than two decades.

The survey by the Pew Research Center, a Washington-based research organization, paints a mixed picture of race relations following Hurricane Katrina and the Jena Six case, in which six Black teens were charged with beating a White student at a high school in the town of Jena, La.

It found that just one in five Blacks, or 20 percent, said things were better off for Blacks compared with five years ago; that is the smallest percentage since 1983, when 20 percent also made that claim. In-between, the percentage of Blacks who said things had gotten better had grown, only to drop back to 20 percent.

Another 29 percent of Blacks said things had gotten worse as opposed to staying the same, the largest number since 32 percent made that claim in 1990.

In addition, fewer than half of all Blacks, or 44 percent, said they expected their prospects to brighten in the future. That’s down from 57 percent in 1986, during the height of the Reagan administration when the Justice Department actively sought to curtail affirmative action in favor of race-neutral policies.

Whites have a different view about Black progress, according to the survey. Whites were nearly twice as likely as Blacks to see Black gains in the past five years. A majority of Whites polled, or 56 percent, also said they believed prospects for Blacks would improve in the future.

“As disturbing as these findings are, in one sense it’s surprising they are not actually worse,” said Wade Henderson, president of the Leadership Conference on Civil Rights, a coalition of 200 groups including the NAACP and National Urban League. “Most African-Americans believe the government response to problems is one of benign neglect rather than forceful action.”

Since the Supreme Court’s Brown v. Board of Education decision more than 50 years ago that outlawed segregation in public schools, Blacks have seen substantial civil rights gains including the passage of laws in the 1960s and 1970s that sought, in part, to deter discrimination in housing and employment.

Decades later, Blacks and Whites are now at a crossroads, with the nation and even the Black community itself divided over the best approach to achieve racial equality, whether by affirmative action to foster integration or more race-neutral policies to promote ideals of a colorblind society.

[To read the entire article, go to: http://diverseeducation.com/artman/publish/article_10162.shtml ]

High Court Expresses Frustration With EEOC Charge Definition

November 7, 2007
Workforce Management

Regardless of its ultimate ruling in a case involving administrative processes at the Equal Employment Opportunity Commission, the Supreme Court has expressed deep frustration with how the agency files discrimination charges.
In the first oral argument for an employment law case this session on Tuesday, November 6, justices became irritated in trying to define exactly what constitutes a formal charge under EEOC procedures.
The case involves Patricia Kennedy, a FedEx courier who alleges that the pay policies the giant delivery company instituted in 1994 and 1995 discriminate against older workers. On December 3, 2001, she filled out an EEOC intake questionnaire and submitted a four-page affidavit with the agency.
On April 30, 2002, Kennedy and several of her FedEx colleagues filed an age discrimination lawsuit. Kennedy filed her own formal charge of discrimination with the EEOC on May 30, 2002.
Under the Age Discrimination in Employment Act, a charge must be filed 60 days before beginning a lawsuit in federal court. A district court ruled that the paperwork Kennedy filed with the EEOC in 2001 did not constitute a formal charge, and dismissed her case. The 2nd Circuit Court of Appeals reversed the decision.
Now the Supreme Court is trying to parse the EEOC’s charge system. The agency has created a formal charge document, called Form 5. It also provides an intake questionnaire, called Form 283. Sometimes the EEOC treats the intake paper as a charge and sometimes as an informal document.
FedEx’s lawyer argued that the company was not given timely notification of charges against it before Kennedy entered the lawsuit with her colleagues, denying FedEx the opportunity to settle the matter out of court.
A lawyer for Kennedy maintained that the content of the intake questionnaire qualifies it as a formal charge and that the person making the discrimination claim shouldn’t suffer because the EEOC failed to formally notify FedEx of the claim.
During the hearing, Supreme Court justices lost their patience while examining the EEOC process.
“I think the problem here is the EEOC, not anyone else,” said Justice Antonin Scalia. “What kind of agency is this?”
Later, Scalia said that if the EEOC process was clearer, courts wouldn’t be burdened with trying to figure out whether someone intended to formally file discrimination charges against an employer.
No matter how he and his colleagues rule on the case, Scalia wants to send a message to the agency.
“My main concern is to do something that will cause the EEOC to get its act together,” he said. “This whole situation can be traced back to the agency.”
It wasn’t just the conservative Scalia who became animated. At one point in the argument, Justice Stephen Breyer pressed a government attorney to provide the formal definition of a charge.
“Where do I read that?” Breyer demanded as he brandished a pencil with a flourish and jotted down the references.
[To read the entire article, go to: http://www.workforce.com/section/00/article/25/20/95.html ]

High Court Set To Take Up Pair Of Age Bias Cases

Workforce Management

As the justices convene October 1 for a new session, one of the employment law matters on the docket provides another opportunity for the bench to wrestle with workplace discrimination—this time age bias—in an era in which mistreatment is more often subtle than blatant. By Mark Schoeff Jr.

A controversial ruling on a wage discrimination case during the Supreme Court’s last term caused critics to assert that the majority ignored workplace realities.

As the justices convene October 1 for a new session, one of the employment law matters on the docket provides another opportunity for the bench to wrestle with workplace discrimination—this time age bias—in an era in which mistreatment is more often subtle than blatant.
In Sprint/United Management Co. v. Ellen Mendelsohn, the plaintiff alleges she was fired in a downsizing process prejudicial to older workers.
Mendelsohn lost her job in 2002 when the company laid off 15,000 employees. She was 51 and worked for Sprint/United since 1989. To support her claim, Mendelsohn wanted to call to the stand colleagues who believed age was the cause of their dismissal.
Such a move is typical, says William Deveney, a partner at Elarbee Thompson in Atlanta. "It allows an emotional argument to be made to the jury," he says. "That issue arises in just about every reduction-in-force case."
But the trial court didn’t allow the other employees to testify because they had a different supervisor. The 10th Circuit Court of Appeals, based in Denver, overturned the jury’s decision in favor of the employer.
The testimony of Mendelsohn’s colleagues may have been the best way to show that the layoffs unfairly targeted older employees, says Joseph Sellers, a lawyer with Cohen Milstein Hausfeld & Toll in Washington.
"Direct evidence of discrimination is increasingly rare," Sellers says. "Most often, evidence of discrimination comes from circumstantial evidence. It’s hard to claim that the experience of other workers who were subject to the same [layoff] policy is irrelevant."
Charles Craver, professor of law at George Washington University, says the Sprint case will be a difficult one for the court.

[To read the entire article, go to: http://www.workforce.com/archive/feature/25/13/88/index.php ]

New Paper Outlines Lessons Learned from Recent Supreme Court Decision on Affirmative Action in K-12 Schools

Sept. 11, 2007

The American Council on Education (ACE) has released a paper evaluating the implications for higher education of the recent Supreme Court decision regarding race- and ethnicity-conscious admissions policies in K-12 public schools.

In two closely-watched cases, the Supreme Court ruled on June 28 that public school districts may not use race and ethnicity as the predominant consideration in school assignment programs designed to promote diversity. In a 5-4 decision that combined the two cases Parents Involved in Community Schools v. Seattle School District No. 1 and Meredith v. Jefferson County Board of Education, the Court set a difficult standard for “narrow tailoring” of such policies in the future but did not completely rule out diversity as a compelling state interest in K-12 public education.
The new ACE paper points out that the most important implication of the K-12 cases is that the Supreme Court’s 2003 ruling in Grutter v. Bollinger “remains controlling law” for colleges and universities.

The decision in Grutter v. Bollinger upheld the affirmative action admissions policy of the University of Michigan Law School. In the court’s ruling, Justice Sandra Day O’Connor's majority opinion held that the United States Constitution “does not prohibit the law school's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.”
"Since Seattle and Louisville were the first consideration of principles taken from the 2003 University of Michigan cases, we have given the Court's decision a careful reading to analyze its impact on how colleges and universities use race as an aspect of diversity," said Ada Meloy, ACE's general counsel. "We remain cautiously optimistic that Grutter survives the change in Supreme Court membership."

Distinguishing the K-12 decision from its seemingly contrary decision in Grutter v. Bollinger, the Court noted that unlike the admissions plan it upheld in Grutter, “the plans here ‘do not provide for a meaningful individualized review of applicants’ but instead rely on racial classifications in a ‘nonindividualized, mechanical’ way.”

However, the ACE paper outlines, there are lessons to be learned for colleges and universities in these latest decisions, including:
Diversity is still a legitimate factor to consider in making admissions decisions. Colleges and universities will need to ensure that, if they are seeking to admit a diverse student body, they have both a clear mission with a definition of diversity and a process for reviewing applications to implement that mission.
Individualized and holistic review of applications. Colleges and universities need to make admissions decisions based on whether the totality of an application indicates that the applicant contributes to the school’s diversity goals, its overall mission, and its educational objectives.
Considerations of race must yield results. Although the Court does not explicitly state a college or university must achieve results if it is going to consider race, the implication of the Court’s reasoning is that results matter (and those results probably have to be more than minimal).
Caution regarding “critical mass.” The skepticism toward the use of numerical goals or broad ranges expressed by the Court in the cases suggests that institutions should use the concept of “critical mass” carefully and base it upon the educational benefits the institution seeks to obtain from enrolling a diverse student body.
Race-neutral alternatives must be considered. A college or university that wishes to create a diverse student body must seriously consider non-race-conscious means first. If those means do not accomplish the institution’s goal, the institution may then consider race to a limited degree.
Sense of institution’s mission. A college or university must have a strong sense of its mission and educational objectives and the role, if any, diversity plays in achieving both.

To download the full paper, see the ACE website. Also read ACE’s “friend of the court” brief filed in October 2006 in support of the Seattle and Louisville school districts.
http://www.acenet.edu/AM/Template.cfm?Section=20071&TEMPLATE=/CM/ContentDisplay.cfm&CONTENTID=23641

Fight or Flight

Diverse Online
Feature Stories
Fight or Flight
By Jamal Watson
Aug 23, 2007, 09:00

Ted Shaw and other diversity proponents retool while Ward Connerly gloats.
By Jamal Watson

Opponents of higher education affirmative action programs are gearing up to launch their largest attack in recent years. The planned assault comes in the wake of the recent U.S. Supreme Court ruling that severely limited the use of race in K-12 integration plans.
“I believe that we are now poised for a coup de grâce to say that race preferences in the eyes of the public should not be used,” says Ward Connerly, the chairman of the American Civil Rights Institute, a conservative organization based in Sacramento, Calif., that opposes racial and gender preferences.
It was Connerly who orchestrated Proposition 209, a California ballot initiative that outlawed race and gender preferences in state hiring and university admissions. A similar bill passed in Michigan last year.
Now, he is leading a national effort aimed at placing similar anti-affirmative action initiatives on the November 2008 presidential ballot in Arizona, Colorado, Missouri, Nebraska and Oklahoma.
“This is going to be Super Tuesday for equal rights,” Connerly says. “I think it’s very clear that we are witnessing an end to an era.”
The imminent assault on affirmative action has some wondering why more civil rights groups aren’t actively strategizing a defense. One possible explanation is that the groups simply don’t have the money necessary to mount an aggressive campaign. And a legal climate that appears increasingly hostile to affirmative action, combined with indifference from civil rights leaders and younger generations, could signal that the battle may be a losing one.
Dr. William F. Tate, the president of the American Educational Research Association and a professor of education at Washington University in St. Louis, predicts that Connerly’s well-organized and well-financed effort will likely pass in Missouri.
Connerly’s group has raised millions of dollars and is planning to launch public service announcements in the battleground states aimed at convincing voters to abandon state-funded affirmative action programs. Further weakening the ability of pro-affirmative action groups to engage in a serious legal fight is the fact that the highest court in the land is solidly conservative and unsympathetic to affirmative action. In the years since its 2003 Grutter v. Bollinger decision affirmed race-conscious admissions at the University of Michigan, the Court has added Chief Justice John Roberts and Justice Samuel Alito, both staunch conservatives. With five conservative-leaning Justices, most observers were accurately skeptical that the Court would rule in favor of race-conscious school segregation remedies in the recent K-12 cases.
“I think this was an illogical ruling, but no one was really surprised,” says Tate.
It appears that the NAACP Legal Defense and Educational Fund is the lone organization that has made this issue its main priority. Even its parent organization, the NAACP, which is a separate nonprofit group, seems to have taken a back seat in the battle. For decades, the NAACP aggressively took on the issue of unequal educational opportunities, but the major highlight of this year’s annual convention was the symbolic burial — with a casket and pallbearers — of the “N” word.
Ted Shaw says he isn’t willing to concede defeat to anti-affirmative action groups.
Observers generally agree that there appears to be a degree of complacency among some Blacks, particularly the older generation, who wonder whether affirmative action is the most pressing issue facing the community.

[To see the entire article, go to: http://diverseeducation.com/artman/publish/article_9203.shtml ]