Administrative law

  • May 14, 2012
    Guest Post

    By Melissa Rothstein, deputy director of the Equal Rights Center, and Megan K. Whyte, director of the Fair Housing Project at the Washington Lawyers’ Committee for Civil Rights and Urban Affairs. This is cross-posted at The Equal Rights Center’s blog.

    Fair Housing Month recently ended, and for most it was an opportunity to celebrate our country’s commitment to equal opportunity in housing for all people. Unfortunately, for some, it was instead another occasion for attacks on the crucial efforts to ensure enforcement of our country’s fair housing laws.

    In one such example, Congress launched an investigation into why the City of St. Paul withdrew an appeal in the Supreme Court that had the potential to eviscerate the validity of disparate impact challenges under the Fair Housing Act (FHA), despite the rulings of eleven federal circuit courts of appeal that uniformly held that disparate impact claims are cognizable under the FHA. In another example, Republican presidential candidate Mitt Romney suggested that, if elected president, he would consider disbanding the Department of Housing and Urban Development (HUD), an agency for which his father once served as Secretary.

    These actions come on the heels of a disturbing trend by federal courts of imposing additional hurdles on fair housing plaintiffs. Even in the face of efforts to make it more difficult for plaintiffs to enforce their statutory rights, the continuing role of fair housing organizations in enforcing the provisions of the FHA cannot be overstated. Private fair housing organizations and other civil rights groups investigate two out of every three fair housing complaints filed across the country – and their ability to enforce fair housing violations is critical to the promise of equal housing opportunity for all. These organizations are able to conduct investigations efficiently and effectively with little of the bureaucracy and overhead costs that may be associated with governmental agencies, and to gain the trust of disenfranchised community members who may not feel comfortable lodging a complaint with a government entity. 

    Officials at HUD and DOJ – the federal agencies with authority to enforce the FHA – recognize the importance and value of private enforcement, as they lack the resources to effectively enforce the FHA on their own. As detailed in our recent American Constitution Society Issue Brief, Congress intended for private enforcement to be a key component of ensuring FHA compliance, and the 1988 FHA amendments were largely intended to amend the law’s enforcement mechanism so that, in Senator Kennedy’s words, it would no longer be “a toothless tiger.”  

  • May 10, 2012
    Guest Post

    By Lisa Mottet, Transgender Civil Rights Project Director for the National Gay and Lesbian Task Force

    Though garnering less attention than North Carolina's disheartening constitutional amendment to ban same-sex marriage and President Obama's monumental announcement to support same-sex marriage, another recent piece of lesbian, gay, bisexual and transgender (LGBT) news deserves significant attention.

    In what is accurately hailed as a game-changing decision for the LGBT community, the Equal Employment Opportunity Commission ruled in April (Macy v. Holder) that transgender people are protected by Title VII’s prohibition on sex discrimination in the workplace.

    The precedential decision involved Mia Macy, a transgender woman represented by Transgender Law Center who was all but officially hired by the Bureau of Alcohol, Tobacco and Firearms (ATF) when, after she told them she is transgender, she was told the position had been cut due to funding. ATF actually hired someone else and Mia lost her home as a result of the lost job opportunity.

    When ATF discriminated against Mia she became part of the horrifying statistics on employment discrimination faced by transgender people. According to the National Transgender Discrimination Survey: 26 percent lost a job for being transgender; 50 percent were harassed at work; and many others face humiliation, have their privacy breached, and are denied access to appropriate restrooms. Overall, 78 percent have experienced mistreatment, harassment, or discrimination on the job.

  • May 9, 2012
    Guest Post

    By Ray McClain, Director of the Employment Discrimination Project at the Lawyers’ Committee for Civil Rights Under Law

    In late April, the Equal Employment Opportunity Commission (EEOC), under the leadership of Chair Jackie Berrien, approved updated Enforcement Guidance on Consideration of Arrest and Conviction Records by employers. The Guidance analyzes clearly and comprehensively the restrictions that Title VII places on an employer’s use of any employment screen that has the intent or effect of excluding minority workers disproportionately from being hired or retained by the employer.  

    This post addresses the broader significance of the EEOC’s updated Guidance and the additional actions that are likely to be necessary to persuade employers that the Commission’s action is not merely symbolic, but requires employers to change their practices.

    Significance of the Guidance

    Pundits try to persuade the White public that we live in a “post-racial America” because President Obama is of mixed descent – Black African and White American. Both the Guidance and the Commissioners in their remarks prior to the vote laid out a few of the many statistics that starkly demonstrate that America today is anything but “post-racial”; the Guidance recounted that:

    African Americans and Hispanics are arrested at a rate that is 2 to 3 times their proportion of the general population.  Assuming that current incarceration rates remain unchanged, about 1 in 17 White men are expected to serve time in prison during their lifetime; by contrast, this rate climbs to 1 in 6 for Hispanic men; and to 1 in 3 for African American men.

    Virtually all public employers and 80 percent of private employers check all new applicants for employment to see whether they have records of recent arrests or criminal convictions. Over 90 percent check on at least some applicants. From the EEOC’s statistics, it is clear that the practice of so many employers in excluding ex-offenders from equal consideration in hiring takes a heavy toll on minority workers, especially African Americans, and helps to keep African American unemployment at consistently twice the rate of unemployment for white workers. 

    Depression-level rates of unemployment have plagued the African American community since early in the current recession. Unemployment for African American men has recently been as high as 18 percent of those seeking employment and about 25 percent when the numbers include African American men who would work if they thought they could find anyone to hire them. The rate has been 40 percent for African Americans 19 and younger.  

    The EEOC’s updating of Guidance on this critical issue can be a major step in opening many doors to jobs that for too long have been closed to many minority workers.

    What did the Guidance do?

  • February 23, 2012
    The True Story of the Deadly E. Coli Outbreak That Changed the Way Americans Eat
    Jeff Benedict

    By Jeff Benedict, a best-selling author and journalist

    Before I wrote Poisoned, my wife Lydia spent two years trying to convince me to do a book on the food industry. I resisted, saying guys like Michael Pollan and Eric Schlosser did that. I write nonfiction stories, usually ones built around legal disputes. I couldn’t see how to do a compelling legal story around food. 

    Then something happened. Lydia revolutionized the way our family eats. This did not happen gradually. One week she cleaned out our cupboards and refrigerator, getting rid of everything from brand-name cereal to frozen meat to staple products like butter, flour, and sugar. Even the salt and pepper went. Then she restocked our kitchen with organic foods. We also started growing directly to small local farms to purchase our meat, poultry, and dairy products. 

    We didn’t stop here, though. We converted our 20-acre property into an organic fruit and vegetable farm. For a guy who grew up in a beach community in Connecticut, this was culture shock. But our four children loved it because we added horses, guinea fowl and chickens. We now collect close to twenty farm fresh eggs per day. On top of that we plant, water, weed, harvest and can. Now when we say grace, we mean it. 

    Besides improving the way I look and feel, this lifestyle change dramatically altered the way I look at food. The transformation got me searching earnestly for a food-related book topic.  That’s when I came across Bill Marler, a personal injury lawyer who has emerged as the country’s most influential advocate for food safety. Today, food safety is a serious public-health problem. The CDC estimates that food-borne disease causes about 48 million illnesses per year. Roughly one in six Americans get sick from bad food. Many of these cases are mild gastroenteritis, commonly referred to as the stomach bug. But too many food poisoning cases are more serious, resulting in approximately 325,000 hospitalizations and 5,000 deaths annually. The fatalities are often children and the elderly. 

  • February 10, 2012

    by Nicole Flatow

    Following sharp attacks from religious and conservative groups of the health care rule that would require insurance plans to cover contraceptives, the White House has announced a minor alteration to the rule that maintains free access to birth control.

    The change would shift the onus of providing the contraceptive services from the employer to the insurance provider. If a religiously affiliated employer objects to providing that coverage in its benefits package, the insurance company will be required to reach out directly to the beneficiary to offer full contraceptives coverage.

    “No woman’s health should depend on who she is or where she works or how much money she makes,” Obama said in announcing the change today. He added:

    I understand some in Washington want to treat this as another political wedge issue. But it shouldn’t be. I certainly never saw it that way. … We live in a pluralistic society where we’re not gonna agree on every single issue or share every belief. That doesn’t mean we have to choose between individual liberty and basic fairness.

    Today's shift, described by one official as an “accommodation” rather than a “compromise,” was quickly endorsed by the Catholic Health Association, one of the original critics of the rule, as well as Planned Parenthood and NARAL Pro-Choice America.

    But the announcement is not likely to satisfy some of the most committed critics. Just last night during a webcast, the Family Research Council blasted the contraception rule as “not only an attack on the consciences of employers and employees, but a direct attack on religious freedom.”

    Throughout the week, constitutional experts have reiterated that the contraception rule did not violate the Constitution’s religious liberty clauses.   

     "There isn't a constitutional issue involved," prominent litigator David Boies told MSNBC’s Lawrence O’Donnell. “There isn’t anything in the Constitution that says an employer, regardless of whether you are a church employer or not, isn’t subject to the same rules as every other employer.”

    “One thing I think is crystal clear — there is no First Amendment violation by this law,” Adam Winkler, a constitutional law professor at UCLA, told TPM. “The Supreme Court was very clear in a case called Employment Division v. Smith, written by none other than Antonin Scalia, that religious believers and institutions are not entitled to an exemption from generally applicable laws.”

    Atlanta Journal-Constitution columnist Jay Bookman highlights some excerpts from the Smith decision in which Scalia, “himself a devout and very conservative Catholic,” makes the case for Obama. Scalia wrote: