Economic, Workplace and Environment Regulation

  • 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?

  • May 2, 2012

    by Jeremy Leaming

    If one really needs another example of how out of touch or clueless some of the nation’s super wealthy are, Adam Davidson’s piece on a retired multimillionaire for The New York Times Magazine provides it.

    As Davidson notes the retired former partner of Bain Capital, the outfit that excelled in tearing down other businesses for a profit, is plumping a forthcoming book that extols alleged virtues of the filthy rich. Davidson writes that the “spectacularly wealthy guy” believes the “wealth concentrated at the top should be twice as large,” to spur slackers or “art-history majors” into pursuing outlandish wealth.

    Economist Paul Krugman, in his Times’ blog, says the former Bain Capital partner’s argument “might have some plausibility if the era when America didn’t have such overweening plutocracy – the 50s and 60s, when the top 0.01% received only about a fifth the share of income that it commands today – were a time of economic stagnation and low innovation. In fact, the postwar generation experienced the best economic growth – and the fastest productivity growth – of any era in the past century.”  

    Since discussion of the nation’s growing economic inequality, right-wing pundits have attacked or belittled studies showing that the middle class is dwindling, while a tiny few continue to become wealthier. In a widely cited article for Vanity Fair, Columbia University Business School Professor Joseph E. Stiglitz noted that the “upper 1 percent of Americans are now taking in nearly a quarter of the nation’s income every year. In terms of wealth rather than income, the top 1 percent control 40 percent.”

    While the former Bain Capital multimillionaire, Edward Conard, is no innovator, he’s not invented anything that has enriched the lives of Americans; he has invested in a company that uses less aluminum for soda cans. “It saves a fraction of a penny on every can,” he told The Times. “There are a lot of soda cans in the world. That means the economy can produce more cans with the same amount of resources. It makes every American who buys a soda can a little richer because their paycheck buys more.”

    This is the gibberish that passes for an argument that investors should be celebrated and indeed helped by economic policies?

    Dean Baker, of the Center for Economic and Policy Research, is unlikely to be persuaded. Last fall Baker scored economic policies that have catered to the super wealthy for far too long, and noted that those policies do redistribute the wealth – to the super wealthy.

  • April 30, 2012

    by Nicole Flatow

    Pop quiz: What is the central constitutional provision at issue in the Supreme Court’s review of the Affordable Care Act? If you said the Commerce Clause, you’re one step ahead of many of the tea partiers who protested outside the Supreme Court during oral arguments.

    Responding to questions from staff at the Constitutional Accountability Center, tea partiers bearing signs that read “Obamacare is unconstitutional” couldn’t name any part of the Constitution that they believe the law violates.

    “Well, I should know better. I should be able to answer that question and I can’t,” said one protester in a video produced by CAC, “Tea Party vs. The Constitution: ObamaCare Edition.”

    “If you read the Constitution, there’s nothing in there about health care,” said another.

    Others, when told that the Commerce Clause is what authorized Congress to pass the law, said the Commerce Clause was “added later” and was not part of the original Constitution.

    And when the interviewer tried to correct them by pointing out that the Commerce Clause is in Article 1, Section 8 of the original Constitution, one protester responded, “There’s no use in arguing about that because I don’t think either of us know for sure.”

    Watch the full video, including facts from experts who know what the Constitution actually says, below:

  • April 27, 2012
    Guest Post

    By Leslie Proll, Director of the NAACP Legal Defense & Educational Fund’s Washington Office


    The current foreclosure crisis constitutes a monumental civil rights issue. Communities of color were targeted for risky mortgage loans, have experienced disproportionately high foreclosure rates, and have been stripped of vast amounts of wealth because of discriminatory lending practices. From 2005 to 2009, median wealth fell by 66 percent among Latino households and 53 percent among African-American households, compared with just 16 percent among white households, largely due to declining home values. From 2009 through 2012, African Americans are projected to lose an estimated $194 billion in housing equity, and Latinos are expected to lose $177 billion.

    Unfortunately, there is reason to believe that the destructive effects of the foreclosure crisis on communities of color have yet to be fully realized. They face another devastating blow caused by further discriminatory treatment towards homes and neighborhoods by the very lenders who initiated the foreclosures. 

    The civil rights problems that permeate the foreclosure crisis are unfolding in stages. First, lenders targeted communities of color with subprime and other risky loan products that led to foreclosure. Last year, the U.S. Department of Justice (DOJ) announced the largest residential fair lending settlement in history, in which Bank of America agreed to pay $335 million to settle allegations that Countrywide Financial discriminated against African-American and Latino borrowers during the housing boom. DOJ found that Countrywide loan officers and brokers charged higher fees and interest rates to 200,000 African-American and Latino borrowers than to white borrowers who posed the same credit risk. Countrywide also steered borrowers of color into costly subprime mortgages when white borrowers with similar credit profiles received prime loans. Countrywide was not an isolated example. Other research has found that African-American and Latino borrowers were much more likely to receive subprime loans than white borrowers, even after controlling for income level or credit risk. 

  • April 24, 2012
    Guest Post

    By Adam Winkler, a constitutional law professor at UCLA School of Law


    The age of judicial activism - err, I mean "judicial engagement" - is upon us. Having realized that they don't always win with voters, leading conservatives are abandoning their traditional emphasis on judicial restraint and respect for the decisions of democratically elected officials. After years of berating liberal judges for overturning laws in the name of controversial constitutional principles, conservatives are now embracing the notion of an active, "engaged" judiciary. Only they want one that aggressively protects those rights conservatives prefer: property rights, rights of religious expression, the liberty of contract, the right not to buy broccoli - regardless of decades of established case law.

    For evidence of this trend, one need not look further than startling concurring opinion by D.C. Circuit Judge Janice Rogers Brown in Hettinga v. United States. Brown, who is often mentioned as a potential Supreme Court nominee in a Republican administration, used her opinion to audition for a leadership role in this new movement. The time has come, she wrote, to end the pernicious practice of allowing legislatures to regulate the economy. "America's cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers. And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s." The proof? The "Supreme Court allowed state and local jurisdictions to regulate property, pursuant to their police powers, in the public interest, and to adopt whatever economic policy may reasonably be deemed to promote the public welfare."

    Besides Brown’s Bizarro world premises in which things like consumer protection laws harm consumers, her ode to the Lochner era reminds us of the importance of judicial appointments. For decades, Republican presidents have used the lower federal courts as a farm team for the Supreme Court, smartly filling positions with potential stars to see how they perform. This is a smart strategy, though one Democrats haven’t followed. Instead, Democratic presidents have tended to name competent, diverse people who aren’t likely to be controversial. But in the current political climate, even these clear consensus nominees are held up in the Senate, leaving the federal courts with a critical number of vacancies and a troubling imbalance in our courts. To counter the newly “engaged” judicial conservatives like Brown, legal liberals need to be fighting for judges, particularly those judges with the intellectual fortitude to go toe-to-toe with the leading lights of conservative constitutionalism. Respect for our Constitution and settled precedent demands nothing less.