The Freedom of Information Act

A popular Government without popular information or the means of acquiring it, is but a prologue to a farce or a tragedy or perhaps both. Knowledge will forever govern ignorance, and a people who mean to be their own Governors, must arm themselves with the power knowledge gives.--James Madison

The Freedom of Information Act (FOIA) gives Americans the right to request and obtain documents and information from any agency of the Executive Branch of the U.S. government. The right to access to Federal records is enforceable by law. The information is usually provided for free or for a nominal fee.

Agencies such as the Equal Employment Opportunity Commission are subjected to FOIA requests for information.

The FOIC has certain exemptions, such as classified documents, trade secrets, and documents that are related solely to the internal personnel rules and practices of an agency.

You may have to be nuanced when making a FOIA request. Looking at the exemption against releasing information that is solely related to internal personnel rules, it would be important to request information in a manner that shows the need for the public to be aware of certain practices because there is likely an impact on the public based on those internal policies. This doesn't guarantee a request such as this would be actionable, but you should present the best argument for your needs.

Even with its exclusions, the passage of the FOIA shifted the burden of proof from the individual to the government. Those seeking information are no longer required to show a need for information. Instead, the ``need to know'' standard has been replaced by a ``right to know'' doctrine. The government now has to justify the need for secrecy. Above all, the statute requires Federal agencies to provide the fullest possible disclosure of information to the public.

FOIA applies only to federal agencies, but, all of the states (and the District of Columbia and some territories) have enacted similar statutes to require disclosures by agencies of the state and of local governments.

FOIA requests are expected to be completed in 20 days.

Below is part of the signing statement recorded by then President Bill Clinton, when signing the Electronic Freedom of Information Act amendments on October 2, 1996:

In this Act, the Congress recognized that with today's limited resources, it is frequently difficult to respond to a FOIA request within the 10 days formerly required in the law. This legislation extends the legal response period to 20 days.

More importantly, it recognizes that many FOIA requests are so broad and complex that they cannot possibly be completed even within this longer period, and the time spent processing them only delays other requests. Accordingly, H.R. 3802 establishes procedures for an agency to discuss with requesters ways of tailoring large requests to improve responsiveness. This approach explicitly recognizes that FOIA works best when agencies and requesters work together. (end of excerpt from signing statement)

The Privacy Act is a companion to FOIA. As a result, the access provisions of the FOIA and the Privacy Act overlap in part. The two laws have different procedures and different exemptions. As a result, sometimes information exempt under one law will be disclosable under the other.

In order to take maximum advantage of the laws, an individual seeking information about himself or herself should ordinarily cite both laws. Requests by an individual for information that does not relate solely to himself or herself should be made only under the FOIA.

If you would like to file a FOIA request for a specific agency, you can visit that agency’s web site and look for the FOIA and/or privacy page for more information on making requests, including what types of information can be requested and other guidelines.

For a look at the full text of the FOIA, visit this link: http://www.law.cornell.edu/uscode/5/552.html

Other general sources of information about how to make a FOIA request include:

"Your Right to Federal Records," available for one dollar per copy from the Consumer Information Center, P.O. Box 100, Pueblo, CO 81002. This publication also can be accessed at http://www.pueblo.gsa.gov/cic_text/fed_prog/foia/foia.htm

"A Citizen's Guide on Using the Freedom of Information Act and the Privacy Act of 1974 to Request Government Records." This report is published by the Committee on Government Reform and Oversight of the House of Representatives. It is available for sale from the U.S. Government Printing Office, stock number 052-071-012-30-3, and can be accessed at http://www.fas.org/sgp/foia/citizen.html.

Sources: http://www.fas.org/sgp/foia/citizen.html, http://www.law.cornell.edu/uscode/5/552.html, http://www.eeoc.gov/foia/hb-1.html, and http://en.wikipedia.org/wiki/Freedom_of_information_act

Types of Damages

Let’s take a very quick look at two types of damages:

1. Compensatory Damages

Compensatory damages refer to damages that are recovered in payment for injury or economic loss.

2. Punitive Damages

Punitive damages are damages that are added due to malicious or grossly negligent action. Punitive damages may be awarded in a lawsuit as a punishment and example to others for malicious, evil or particularly fraudulent acts.

In a disparate treatment case, the statute (Title VII) allows the following remedies (as applicable): injunctive relief*, reinstatement, front pay (until or in lieu of reinstatement), back pay, attorney’s fees and costs, compensatory damages for any past or future out-of-pocket losses and any emotional harm, and punitive damages if the employer acted with malice or with reckless indifference to the individual’s federally protected rights. Punitive damages are unavailable against a federal, state, or local government employer.

The law places caps on the sum of compensatory and punitive damages for which an employer may be liable. The caps are based on the size of the employer’s workforce:

Employers with 15 - 100 employees: up to $50,000
Employers with 101 - 200 employees: up to $100,000
Employers with 201 - 500 employees: up to $200,000
Employers with 501 or more employees: up to $300,000

The caps apply to the sum of: punitive damages, and compensatory damages for emotional harm and future pecuniary losses (financial losses). The caps do not apply to back pay and interest on back pay, front pay, or past pecuniary losses.

Section 1981A(a)(1) and 706(g) of Title VII.5 allow for compensatory and punitive damages to be recovered.

Source: www.eeoc.gov

* Injunctive relief refers to a court-ordered act or prohibition against an act or condition which has been requested, and sometimes granted, in a petition to the court for an injunction. Injunctive relief is not a judgment for money. It is sometimes part of a lawsuit for damages and/or contract performance. (Source: www.law.com)

Cracker Barrel Restaurants Argue that U.S.C. 1981 Doesn’t Recognize A Right-To-Sue on Retaliation

This is how far employers will go to protect their right to target and terminate complaining employees…

The case in question is CBOCS West Inc. v. Humphries. CBOCS West Inc. runs the Cracker Barrel chain of restaurants. The case raises an issue that remains unresolved in the Civil Right Act’s (1866) nearly century and a half of history: does the Act’s first section, now codified as 42 U.S.C. 1981, guaranteeing equality in the right to make a contract, forbid reprisals against an individual who complains of discrimination against others.

Cracker Barrel Restaurants has filed an appeal to the Supreme Court, in which they are essentially arguing that Federal anti-discrimination statutes do not protect employees from being fired for retaliatory purposes under U.S.C. 1981. To state this plainly, Cracker Barrel is arguing that it is not okay for an employer to fire an employee for discriminatory reasons (based on existing statutes), but that it is okay to fire an employee for complaining about the discrimination. According to the Cracker Barrel appeal, retaliation is not specifically mentioned in U.S.C. 1981.

The worker involved in the CBOCS case, Hedrick G. Humphries, is a black man who was fired from his job, allegedly as a retaliatory gesture. He filed his case under Title VII and Section 1981. His Title VII claims were dismissed for procedural reasons. So, his case became solely a Section 1981 claim.

A District Court ruled that Section 1981 does not cover retaliation claims. But, the Seventh Circuit Court disagreed, sending the case back for a trial on whether Humphries was fired because – as he claims – he had complained about the firing of a black employee who was a food server. He also had complained earlier about a supervisor’s remarks to white workers that he was there to take care of their interests.

CBOCS West Inc. appealed this case to the Supreme Court, on April 25 of last year, raising this question:

“Is a race retaliation claim cognizable under 42 USC Sec. 1981?”

The company, noting that Section 1981 does not include the word “retaliation,” argued that there is a basic difference in the concept of a firing based on retaliation and one based on discrimination. A retaliatory discharge, it said, is motivated by the worker’s complaint, not by his or her race.

If the worker had not complained, it added, there would have been no firing – whether the worker is white or black. By contrast, a discriminatory firing is based explicitly on that worker’s race; if it were not for the worker’s race, there would have been no discharge.

Cracker Barrel is arguing that Congress did not put retaliation rights in Section 198, while they had done so with other civil rights laws. In other words, Cracker Barrel says there is no right to a retaliation claim under Section 1981.

A number of Supreme Court Justices — at least a strong nucleus of a potential majority — on Wednesday showed fairly strong attachment to an idea that definitely would reduce the chances that an old civil rights law could be used to protect workers against a modern form of punishment at work. In the oral argument on CBOCS West v. Humphries (06-1431), those Justices implied that the Court could prevent claims of retaliation for complaining of workplace racial bias, under a law that dates to 1866, by simply concluding that the law gives no one the right to sue to raise such an issue. The Justices who seemed fascinated with denying a “cause of action” for retaliation under so-called “Section 1981″ said they could find nothing in that statute to permit such a lawsuit.

The Supreme Court will render a decision in this appeal by late Spring.

Stay tuned! For more details, see the links listed below.

Sources: http://www.usdoj.gov/osg/briefs/2007/3mer/1ami/2006-1431.mer.ami.html and http://www.scotuswiki.com/index.php?title=CBOCS_West_v._Humphries

The No FEAR Act of 2002

The Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (also known as the No FEAR Act) was signed by President George W. Bush on May 15, 2002. The No FEAR Act requires that Federal agencies be accountable for violations of antidiscrimination and whistleblower protection laws and requires that each Federal agency post on its web site certain statistical data relating to Federal sector equal employment opportunity complaints filed against the agency.

The Findings of the 107th Congress under the No FEAR Act included the determinations that Federal agencies cannot be run effectively if those agencies practice or tolerate discrimination and that Congressional testimony from individuals, including representatives of the National Association for the Advancement of Colored People and the American Federation of Government Employees, pointed to chronic problems of discrimination and retaliation against Federal employees.

Federal agencies have specific obligations under the No FEAR Act, including:

--An agency must provide annual notice to its employees, former employees, and applicants for Federal employment concerning the rights and remedies applicable to them under the employment discrimination and whistleblower protection laws;

--At least every two years, an agency must provide training to its employees, including managers, regarding the rights and remedies available under the employment discrimination and whistleblower protection laws; and

--An agency must submit to Congress, EEOC, the Department of Justice, and OPM, an annual report setting forth information about the agency's efforts to improve compliance with the employment discrimination and whistleblower protection laws and detailing the status of complaints brought against the agency under these laws.

For the full text of the NO FEAR Act, you can visit the Government Printing Office web site link at: http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=107_cong_public_laws&docid=f:publ174.107.pdf

For more general information about the NO FEAR Act, take a look at the EEOC’s No Fear Act Question and Answer Sheet at http://www.eeoc.gov/stats/nofear/qanda.html.

To see No Fear Data on Federal Agency web sites, take a look at the EEOC web page: http://www.eeoc.gov/stats/nofear/nofear_urls.html for links to many agencies.

The Federal Rules of Civil Procedure 23

The Federal Rules of Civil Procedure (FRCP) 23 are the rules that govern civil cases in U.S. District Courts (Federal courts). As I mentioned in a recent post, this would include civil cases filed against an employer in a class action lawsuit or with a sole complainant.

Even though federal courts are required to apply the laws of the states as rules of decision in cases where state law is in question, the federal courts almost always use the FRCP as their rules of procedure.

The FRCP contains a list of the prerequisites for filing a class action complaint. For instance, the FRCP states:

One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder* of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

In other words, one or two employees filing suit against an employer can do so on behalf of all of the participants in the suit because:

1) There are a large number of participants that make individual suits impractical;
2) There are similar legal issues and facts among the participants;
3) The arguments/defenses of the representatives are similar/typical of the participants in the class action suit; and
4) The representatives will look out for the best interests of everyone involved in the class action suit in a fair and equitable manner.

The FRCP contains 86 rules, which are grouped into 13 chapters. These chapters include:

I. Scope of Rules--One Form of Action

II. Commencement of Action; Service of Process, Pleadings, Motions, and Orders

III. Pleadings and Motions

IV. Parties

V. Depositions and Discovery

VI. Trials

VII. Judgment

VIII. Provisional and Final Remedies

IX. Special Proceedings

X. District Courts and Clerks

XI. General Provisions

XII. Appendix of Forms

XIII. Supplemental Rules for Certain Admiralty and Maritime Claims

If you’re trying to find specific information about the rules governing civil lawsuits, the Cornell Law School web site contains the rules for each chapter of the FRCP. The link is: http://www.law.cornell.edu/rules/frcp/

There is also a permanent link to the FRCP in the Links section of this blog.

· Joinder is a legal term which refers to the inclusion of additional counts or additional defendants on an indictment.

The Affirmative Defense

If you file a charge against your employer alleging some form of race discrimination (violations of the Federal statutes of The Civil Rights Act), your employer will have to determine how to respond to the allegations. Whether you have filed a complaint with an organization such as the Equal Employment Opportunity Commission (EEOC) or you have sought the assistance of an attorney, your employer isn’t very likely to instantly assume full responsibility for any infractions of Federal statutes.

One option your employer has is to file an affirmative defense. With an affirmative defense, your employer won’t have to deny any charges that have been brought. However, the employer will be able to raise extenuating or mitigating circumstances in order to avoid responsibility in a civil case.

An example of an affirmative defense would be an employer arguing that it exercised reasonable care to prevent and promptly correct harassment. Reasonable care generally requires an employer to establish, disseminate, and enforce an anti-harassment policy and complaint procedure and to take other reasonable steps to prevent and correct harassment.

Despite the attempt to rely on having written policies in place, it’s important to remember that there are no "safe harbors" for employers based on the written content of policies and procedures. However, this doesn’t stop an employer from using this argument in their defense. And, it doesn’t stop the complaining employee from proving that the employer did not take steps—or took inadequate or delayed steps—in preventing and/or correcting harassment.

Another example of the affirmative defense would be an employer arguing that a complaining employee did not take the reasonable and necessary steps to avoid harm from race-based harassment, retaliation, etc. by not reporting the abuse to management or taking advantage of any preventive or corrective opportunities.

An employer who can prove they exercised reasonable care may not be liable for unlawful harassment if the complaining employee could have avoided all of the actionable harm. If some but not all of the harm could have been avoided, then an award of damages will be reduced accordingly. The complaining employee doesn’t have to prove they showed reasonable care…that burden falls on the employer. The employer must show that the employee’s failure to complain of abuse was unreasonable.

Keep in mind, even if an employee doesn’t complain the Federal statute recognizes that there may be legitimate reasons for silence on the issue. For instance, if an employee has seen other complaining employees subjected to retaliatory actions (e.g., fired, demoted, subjected to a hostile work environment, etc.), the employee would reasonably fear making a complaint. Additionally, if illegal abuse is so prevalent in the workplace that many people knew about it, the company would be liable for not addressing the problem because the abuse was so widely known that it is reasonable to expect that someone in authority knew of the problem.

Finally, if an employer files an affirmative defense, the employer must prove the validity of the defense. The employer can’t just state an affirmative defense and hope someone buys it. They must prove this defense.

Source: www.eeoc.gov

I Just Want To Work With Someone Like Me!

A friend of mine (Black) went on an interview and called me afterwards because of a comment that was repeatedly made by the interviewer (White). The interviewer kept saying: “We really like our culture here. We like how things are.”

Why did my friend feel this was worth repeating? The company she was interviewing for had about 11 employees. Out of 11 employees, only one was Black…and she was the receptionist. It was also worth repeating because she went in to interview for a senior research analyst job, but as soon as the interviewer got a look at her…all of a sudden the job was being down-graded one component at a time. The more the interview went on, the more junior the job became. Finally, it was to the point where my friend would have wound up having research-related note-taking and word-processing as major components of this potential job. She was also told she would have to take a salary cut.

I remember working for an employer, where—more than anywhere I’d ever worked—I’d hear staff talking about finding people that “fit” or saying that someone was a perfect “fit” on the job. In fact, there seemed to be a high concentration of staff in one department, who were more likely to make theses comments than employees and managers in other departments. The department? Conference Services. The employees and managers making the remarks? White women.

And, boy, did they ever “fit.” They shopped at the same stores, talked about their nannies and housekeepers, gave tips on doing window treatments and Martha Stewart style home improvements, bragged about their homes and their husbands, and they dressed like carbon copies of each other. Heck, they even got to the point where many of them spoke the same way. If you closed your eyes, you really wouldn’t know who you were dealing with. They were so similar, generalizing works pretty well on them. They were elitist, sarcastic, arrogant, and dismissive. And, they each had a say in hiring decisions because they were part of the mid-level and senior management structure in their department.

Whenever it came time to bring anyone new into their department, they only cared about one thing…finding someone that “fit.” When minorities interviewed, they could never quite put their fingers on it, but something just wouldn’t be right. The more people got hired, the more you could easily see that to “fit,” you had to be just like them--White, from money (or married to money) and female. They wanted someone else to go to DSW with, someone else to get margaritas after work with, and someone else, who could keep an eye on their cat, when they were out of town.

Some would argue: Maybe these people weren’t stereotyping and maybe they weren’t racist. Maybe they were just looking to create a great team that worked harmoniously and efficiently. Maybe they just hired the best interviewees. Maybe the Black or other minority candidates weren’t the best “fit.”

I say this…if you are a White interviewer or someone who has input into hiring decisions and you can’t imagine many circumstances in which a minority applicant would “fit” in at your company or within your corporate “culture,” then you are probably a racist and—based on that—you should not be rewarded with the power to impact anyone’s livelihood. If you are prone to thinking that a minority staff member will disrupt the harmony, efficiency or any other aspect of department, group, etc…again, you are probably a racist. And, you don’t deserve the ability to have a say so about any employment decisions.

Let me tell you about those women, who were preoccupied with “fit.” They went out of their way to make a Black, male Meeting Planner appear to be incompetent. They would go to the director of the department and claim that he botched nearly every assignment—by leaving steps out, skirting away from instructions, and displaying other performance deficiencies. They even went as far as to start the rumor that he had a learning disability. He was a college graduate. And, he didn’t have a learning disability. They also routinely called him lazy. This Black man was never eligible for promotion, based on their attacks on his work performance, work effort, knowledge, etc. He was a dumb, lazy Black man—according to them.

You want to know the real issue? They didn’t want this Black man promoted to their level, making the same or similar money, having more of a voice within the department, etc.

Within 2 years of resigning his position and working for a new employer, this Black employee was promoted twice—something that hadn’t happened once in the nearly 5 years he was at our job. And, he became a manager. Clients were requesting him for projects. He was traveling around the world, far surpassing anyone of these women. Still, when he worked at our job, they fixed him good. They made a coordinated effort to stifle his career and they succeeded. Stopping his opportunity to advance hindered his overall employment opportunities (and his pay) and probably represented intentional discrimination.

According to Title VII of the Civil Rights Act, intentional discrimination occurs when an employment decision is affected by the person's race. It includes not only racial animosity, but also conscious or unconscious stereotypes about the abilities, traits, or performance of individuals of certain racial groups.

And, as far as the question about whether or not it’s okay to hire people or assign people to projects based on who people would like to work with, report to, be served by, etc., Title VII also says this: Basing employment decisions on the racial preferences of clients, customers, or coworkers constitutes intentional race discrimination. Employment decisions that are based on the discriminatory preferences of customers or coworkers are just as unlawful as decisions based on an employer's own discriminatory preferences.

It is illegal to hire people simply because they look like you or are perceived to be like you or who are perceived to “fit,” while intentionally denying employment to minority candidates. It isn’t okay and is illegal to deny someone a promotion, raise, etc. in favor of giving these things to people who are like you, look like you, and who “fit.”

You should listen to the language being used at your job and look at who is benefiting from policies, practices, unofficial guidelines or tolerated attitudes and behaviors (stereotyping, etc)., which may be illegal. If you believe you are the victim of unequal treatment, intentionally or unintentionally, you should consider your options. You may want to pursue the issue by filing an internal or external complaint.

Education Requirements

One of the easiest ways to keep certain workers in their so-called places is to use education as a qualifier for certain positions—whether or not an advanced degree has anything to do with a person’s ability to perform a job and to be successful. Just look in the classified ads section of the newspaper or perform a job search on a site like Monster.com. Isn’t it amazing how many administrative assistant positions or other low-level or entry level jobs now require a Bachelor’s degree, when for decades they often did not?

In the past, Black workers primarily represented the laborers or we represented the administrative staff at many companies. Historically, many Blacks and other minorities have been denied promotions or have been told we could not transfer into other jobs because we lacked a college degree. Despite this, some Blacks have been able to rise to the level of mid-level management. But, fewer have been able to actually rise to the high-level or executive branches at their companies.

In order to keep the workplace haves as the haves and the have-nots as the have-nots, some supervisors, managers or companies—as a whole—have played the education card to their full advantage. Using education as a justification for refusing to hire, promote, transfer, etc. certain employees is a pretty good bet for a racist supervisor, manager or a company—as a whole—to wager. How many applicants or employees are actually going to officially or legally challenge a workplace claim that they are unqualified for a job because they lack a college degree or an advanced degree?

Furthermore, how many applicants or employees will challenge a claim that they do not have the “right” degree? Yes, there are people who aren’t promoted or hired because they don’t have a Master’s degree…“only” a Bachelor’s. That’s the new workplace game. It involves pushing the education envelope to the point that a Bachelor’s degree is now the basic equivalent of a G.E.D. A Master’s degree is the new Bachelor’s degree (and the minimum required to stay competitive at an ever increasing number of companies). The Ph.D. is the real prize these days. Again, how many workers are going to challenge an employer’s claim that they must have a Master’s degree in order to be promoted or hired for a certain job?

As I’ve written before, I believe the reason for the shift had to do with the fact that more and more Blacks (and Hispanic/Latinos) began to receive college degrees. So, over the years, the ability to stifle certain employees based on education requirements became less effective. And, as a result of increased education by many more minorities, competition during the hiring and promotion process began to become a bit more vigorous. It became tougher to justify why minorities weren’t being placed in certain jobs. The education excuse was watered down to a certain degree. But, that hasn’t stopped some employers from trying, hence the shift in the types of desired degrees for applicants and employees.

Now, I would never argue that employers shouldn’t want the most educated employees they can find. But, the fact of the matter is, many jobs don’t require a college degree. And, anyone who’s spent any amount of time in the workplace can tell you that some of the worst employees have the best education. Receiving a degree (pick a subject) doesn’t give you common sense, doesn’t mean you can work well in teams or lead a team, doesn’t mean you can communicate well (verbally or in writing), doesn't mean you won't violate employment law, and it doesn’t mean you are strategic, forward thinking, a quick learner, etc.

Having a degree doesn’t even mean that you’re extremely knowledgeable in your field—if you were a poor to mediocre student, cheated your way through college or are working outside your area of study. But, as I’ve stated, almost every job these days—no matter how menial or entry level—is requiring a college education. As I was reading up on race and color under Title VII of the Civil Rights Act, I came across this:

Educational requirements obviously may be important for certain jobs. For example, graduation from medical school is required to practice medicine. However, employers often impose educational requirements out of their own sense of desirable qualifications. Such requirements may run afoul of Title VII if they have a disparate impact and exceed what is needed to perform the job.

As the Supreme Court stated in one of its earliest interpretations of Title VII: “History is filled with examples of men and women who rendered highly effective performance without the conventional badges of accomplishment in terms of certificates, diplomas, or degrees. Diplomas and tests are useful servants, but Congress has mandated the commonsense proposition that they are not to become masters of reality.”

And, that's where I stand on the issue. Diplomas shouldn't dictate reality or a person's opportunities in the workplace--not without a LEGITIMATE reason. If your supervisor, manager or other authority at your job is seeking to block your desired career path, deny you a promotion, etc. based on education requirements, please keep in mind that those requirements can be challenged! Two questions you can ask about education requirements are:

1. Is the requirement for a degree out of a business necessity? A business necessity is a practice necessary for safe and efficient organizational operation. For example, an employer can require that an employee have a high school diploma, but that employer must also be able to prove that this is essential to performing the job. Is there some essential element related to a degree that legitimately prevents you from being hired for a specific job, being promoted, being transferred, etc.?

2. Is the requirement for a degree based on job-related factors? Job-relatedness deals with the skills or other qualities that employers say are a requirement for a job. For instance, an employer can legitimately argue that applicants pass a math test in order to get a job working as a cashier because math skills are a job-related necessity for succeeding in that position. Based on the job you are applying for, seeking a promotion for, requesting a transfer to, etc…is their a job-related reason for requiring a degree? Is there a skill gained or other quality only obtained through earning a degree in a specific field (vs. actual experience, for example)? Would the lack of degree automatically prevent you from doing this specific job?

More on Race and Color Discrimination

All Black workers should be aware of the Federal statutes that currently exist because the statutes are designed to correct the historic disadvantanges and racially-based attacks that Blacks have always been subjected to in the workplace, in our communities, etc. Continuing the theme of the previous post, below is a summation of prohibited actions associated with race and color, under Title VII of the Civil Rights Act:

-- Title VII prohibits the denial of equal employment opportunity because of the place of origin of an individual or his or her ancestors, or because an individual has the physical, cultural, or linguistic characteristics of a national origin group;

-- Title VII prohibits discrimination not just because of one protected trait (e.g., race), but also because of the intersection of two or more protected bases (e.g., race and sex). For example, Title VII prohibits discrimination against African American women even if the employer does not discriminate against White women or African American men;

-- Title VII is violated if race was all or part of the motivation for an employment decision. Racially biased decision-making and treatment are not always conscious. Therefore, Title VII covers not only decisions driven by racial animosity, but also decisions infected by stereotyped thinking or other forms of less conscious bias;

-- Title VII also does not permit racially motivated decisions driven by business concerns. For example, concerns about the effect on employee relations, or the negative reaction of clients or customers. Nor may race or color ever be a bona fide occupational qualification under Title VII. (See the archives for a previous post on bona fide occupational qualifications);

-- Title VII forbids not only recruitment practices that purposefully discriminate on the basis of race but also practices that disproportionately limit employment opportunities based on race and are not related to job requirements or business needs. For example, recruiting from racially segregated sources, such as certain neighborhoods, schools, religious institutions, and social networks, leads to hiring that simply replicates societal patterns of racial segregation;

-- Under Title VII, employers cannot treat persons of different races differently in the hiring or promotion process. Nor may employers use selection criteria that have a significant discriminatory effect without being able to prove that the criteria are job-related and consistent with business necessity;

-- Under Title VII, employers must apply the same selection criteria to persons of different races, and apply them in the same way, giving the same weight to each criterion for each person. The reasons given for selection decisions should be credible and supported by the evidence; and

-- Under Title VII, it is unlawful to disqualify a person of one race for having a conviction or arrest record while not disqualifying a person of another race with a similar record. For example, an employer cannot reject Black applicants who have conviction records when it does not reject similarly situated White applicants.

I will continue to provide a summary of prohibited actions under Title VII throughout the week (for race and color discrimination).


Source: http://www.eeoc.gov/policy/docs/race-color.html#N_136_

Race and Color Discrimination

Race Discrimination

Title VII of the Civil Rights Act prohibits employer actions that discriminate, by motivation or impact, against persons because of:

-- race;
-- racial or ethnic ancestry;
-- physical characteristics associated with race (skin tone, hair, height, etc.);
-- race-linked illnesses, cultural characteristics (names, grooming, etc.);
-- perception of race (making a guess about a person’s race);
-- association with a particular race of people (Whites associating with Blacks, etc.);
-- subgroups of people of a particular race (Black single mothers, etc.); and
-- reverse race discrimination.

Color Discirmination

Courts and the EEOC read “color” to have its commonly understood meaning – pigmentation, complexion, or skin shade or tone. Therefore, color discrimination occurs when a person is discriminated against based on the lightness, darkness, or other color characteristic of the person. Even though race and color clearly overlap, they are not synonymous. So, color discrimination can occur between persons of different races or ethnicities, or between persons of the same race or ethnicity

Multiple protected bases of discrimination can be raised by the same set of facts, both because negative stereotypes and biases may be directed at more than one protected basis at a time, and because certain protected bases overlap considerably. Therefore, a discrimination complaint by an “Asian Indian” can implicate race, color, and national origin, as can, for example, a complaint by a Black person from an African nation, or by a dark-skinned Latino. For Title VII purposes, the question is whether any prohibited factors led to an adverse employment action, alone or combined.

All bases of discrimination that are reasonably implicated by the facts should be included in a complaint of discrimination (e.g., race, color, national origin, religion, sex, etc.). Failure to include all possible bases may result in a court dismissing a legitimate claim. For instance, a person complaining of being subjected to race discrimination may not be able to later bring a suit alleging color discrimination.

Source: http://www.eeoc.gov/policy/docs/race-color.html#N_136_

Employment Law Research Links

When a person comes under attack at work and decides they want to know more information about employment law and their overall rights, they often don’t know where to turn. From personal experience, I know what it’s like to go on a mad Internet search to find out what applicable laws and statutes are relevant to a race-based complaint at work.

If you are making complaints about race-based workplace abuses, in many cases you aren’t going to necessarily trust your company’s HR department to be extremely truthful. After all, the company HR department isn’t automatically going to behave as a neutral party and may be assisting in efforts to silence your complaint about illegal mistreatment.

I came across an interesting resource. The NOLO web site (a legal resource) has a great research tool that will allow you to look for specific employment law statutes and cases. The site allows you to input key search terms or the title number and section number of a specific U.S. Code—if you already know what you are looking for. The more specific your search terms are, the better your returned results will be.

For instance, the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex and national origin. The Civil Rights Act is contained in U.S. Code 42 starting at section 2000e. There is also equal rights information at U.S. Code 42—section 1981. To research these examples on the NOLO site, you would input 42 as the title and 2000e or 1981 as the section.

You can research Federal laws, state laws, U.S. codes (laws made by Congress), the U.S. constitution (you can search the constitution or browse the Bill or Rights), and the Code of Federal Regulations (rules made by federal agencies and executive departments). There are also other links on the site, such as a link to find bills that have not yet become laws and recent laws (called "Public Laws") that have been approved by Congress and signed by the President, but are not yet included in the U.S. Code.

The link to the site is: http://www.nolo.com/statute/federal.cfm

LEGAL BRIEFS: BREAKING NEWS!

This isn't work related, but it fits perfectly with issues of race being covered on THE BLACK FACTOR blog...

The Associated Press is now reporting that a judge has declared that Genarlow Wilson should be released from prison. Many of you may be familiar with the case of Genarlow Wilson (Black), who was sentenced to 10 years in prison for receiving oral sex from a 15-year old girl, when he was 17 years old. Yes, 2 teens engaged in consensual sex led to one of the teens being labeled a rapist! But, Georgia state law said that Mr. Wilson committed an aggravated sexual act.

Genarlow Wilson was a good student, an athlete, and had never been in any legal trouble—before this incident. Yet, he was sentenced as though he were a rapist. In addition to the 10-year sentence, Mr. Wilson was to be put on a sex offender registry FOR LIFE! His lawyer has been arguing that his sentencing was unconstitutional and grossly disproportionate to the crime.

After Mr. Wilson received such a ridiculous sentence, the Georgia state legislature changed the law, so that no one would ever again receive such a stiff sentence (under these circumstances—not to be applied to pedophiles).

Mr. Wilson has been appealing his case and trying to get his conviction overturned because the crime he was convicted for was reduced to a misdemeanor. However, this occurred AFTER he was sentenced. Despite the change in the sentencing guidelines for the sexual contact, Mr. Wilson—now 21 years old—was told he still had to serve a 10 year sentence according to the previous guidelines.

Intense media scrutiny of the case and pressure from the community likely led to today’s recommendation.

The judge changed Mr. Wilson’s sentence to 12-months with credit for time served. Since Mr. Wilson has already served 2 years in prison, he should be a free man!! The judge’s decision included this: “The sentence is void.”

If the state files an appeal, Mr. Wilson will probably not be able to get out of jail. The state has 30 days to appeal the judge’s decision. Hopefully, Mr. Wilson will be walking out of jail today!!

Reader Recommended Resource

A reader submitted a good web site for getting the latest news and regulations in EEO/Affirmation Action. Check out The OFCCP Blog at http://ofccp.blogspot.com/

LEGAL BRIEFS: Workplace Discrimination and the Word "Boy"

This post serves as an FYI that the offensive use of the word “boy”—in reference to an adult Black male—can be used to help build a case alleging race discrimination, harassment, etc. in the workplace.

The U.S. Supreme Court became involved in a 2006 discrimination lawsuit vs. Tyson's Food, Inc. in which 2 Black men said they were denied promotions by a white manager, who referred to them as “boys.” The Supreme Court unanimously overturned an appeals court decision that said the term "boy" alone was not evidence of workplace discrimination. The Supreme Court also ordered the lower court to reconsider the matter.

The Supreme Court stepped in because a jury awarded Anthony Ash and John Hithon $1.75 million apiece in damages, but a judge had thrown out the decision. The two Black complainants had 15 years and 13 years of experience, with Tyson’s Food, respectively. BUT, a white man, with less than 2 years of experience, got a management job they sought at an Alabama plant.

Eric Schnapper, a law professor at the University of Washington who represented the men, told the justices that the term "boy" is offensive and had been considered a slur by other courts. "This form of verbal abuse has its origins in the slave era," he wrote in the appeal of the decision.

In sending the case back to the 11th U.S. Circuit Court of Appeals in Atlanta, the Supreme Court released an unsigned opinion. Supreme Court Justice Alito wrote: "Although it is true the disputed word will not always be evidence of racial animus, it does not follow that the term, standing alone, is always benign."

Source: http://www.abqtrib.com/news/2006/Feb/20/supreme-court-renews-racial-discrimination-case/

Employment Discrimination by a Federal Contractor or Subcontractor

A presidential order (Executive Order 11,246) forbids employment discrimination on the basis of race, color, national origin, sex, or religion by companies that hold contracts or subcontracts with the federal government and by firms working on construction projects that receive federal funds.

In addition, the Rehabilitation Act of 1973, as amended, forbids employment discrimination on the basis of disability by companies that hold contracts or subcontracts with the federal government. Employers holding contracts or subcontracts with the federal government are also barred from discriminating against qualified disabled veterans and veterans of the Vietnam era.

If you think an employer who has discriminated against you holds a contract with a federal agency, contact the Office of Federal Contract Compliance Programs (OFCCP), Department of Labor listed below, or one of the OFCCP regional offices.

U.S. Department of Labor
Employment Standards Administration
Office of Federal Contract Compliance Programs
200 Constitution Avenue, NW, Room C3310
Washington, DC 20210
1-866-4-USA-DOL
Fax: (877) 889-5627
www.dol.gov

Complaints must be filed within 180 days of the date of the alleged discrimination, unless an OFCCP director extends it for a good reason. If you are disabled or a Vietnam era veteran, you must file within 300 days, unless filing is extended for good cause. If your complaint is an individual complaint of discrimination against an employer, it will probably be referred to EEOC. If it is one of systemic discrimination or if there are several complaints, or if many other persons are also affected by a pattern and practice of discrimination, the Labor Department will generally take the lead in processing the complaint.

If you are a federal employee, or an applicant for federal employment, and think you have been discriminated against, contact the equal employment director of the agency involved within 45 days of the alleged discrimination. That person will provide information about filing a complaint. If the agency rules against you, you should ask the equal employment opportunity director what appeal rights you have and what the time limits are for filing an appeal.

Source: U.S. Commission on Civil Rights, Getting Uncle Sam to Enforce Your Civil Rights, http://www.usccr.gov/filing/flndx.htm