ACSBlog

  • July 23, 2014
    Guest Post

    by Veronica JoiceFried Frank Fellow, NAACP Legal Defense and Educational Fund

    *This piece was originally published at NAACP Legal Defense and Educational Fund.

    *Noting the 50th anniversaries of Freedom Summer and the Civil Rights Act of 1964, ACSblog is hosting a symposium including posts and interviews from some of the nation’s leading scholars and civil rights activists.

    Veronica Joice wrote a special introduction for ACSBlog:

    This year, we honor the 50th anniversary of the passage of the Civil Rights Act of 1964.  As we take time to recognize the work that went into getting the Act passed, and the important precedents set by the NAACP Legal Defense and Educational Fund, Inc. (LDF) and others who litigated Title VII cases in the years immediately following the Act’s passage, we also must look to the future, and recognize the continuing need for Title VII litigation to challenge a plethora of discriminatory employment practices.

    Title VII, one of the key components of the Civil Rights Act, outlawed employment discrimination for nearly all employers and created the Equal Employment Opportunity Commission (EEOC).  Today, unfortunately, Title VII is just as important a tool for combatting discrimination as it was 50 years ago.  Many black employees continue to face explicit race- and color-based discrimination, as in the case of Nicole Cogdell, a top-performing manager at a national retail chain who was fired after company executives expressed concern that, as an African American, Nicole did not fit the company’s “brand image.”  In other cases, African Americans never even have the opportunity to become managers at their jobs—the EEOC African American Workgroup, created in 2010, found that African-American employees were less likely to be offered supervisory opportunities than white males, which hindered their ability to later receive promotions to management-level positions.  And, perhaps most tellingly, the unemployment rate for African Americans is consistently no less than double that of whites—10.7 percent and 4.9 percent, respectively, as of June 2014.

    These examples leave no doubt that, from cases involving blatant racism to those where seemingly neutral policies effectively close many African Americans out of the job market, racial discrimination persists in the workplace today.  For every case like Nicole Cogdell’s, there are hundreds, if not thousands, of others who are excluded from employment opportunities due to poor performance on a test that has no bearing on the applicant’s ability to perform the required work or by an employer’s review of credit history before making a job offer. LDF helped set the precedent that states that such facially neutral policies are discriminatory and unlawful if they disproportionately exclude African American job applicants. Today, LDF continues to challenge both overt and hidden forms of discrimination, including recently testifying in support of legislation to limit the use of credit checks in hiring. During this year of reflection, we must remember that Title VII’s work is not done—employment discrimination lives on, and there are still precedents to be set.

  • July 22, 2014
    Guest Post

    by Arthur Bryant, Chairman, Public Justice

    *This post is cross-posted and was originally published at Public Justice's blog.

    Corporate America loves to trash trial lawyers because trial lawyers hold them accountable – when they break the law, cheat people, sell defective products, discriminate, mistreat workers, poison the water and air or maximize profit over safety and lives. We celebrate the work they do to make our country more just. This year’s finalists for Public Justice’s Trial Lawyer of the Year Award are the latest examples. The Award honors the verdict or settlement that made the biggest contribution to the public interest in the past year.

    Bookout v. Toyota

    When thousands of Toyota Camrys were suddenly accelerating, the company blamed floor mats, bad drivers, and sticky pedals. But the real problem was Toyota’s conduct: the Camry’s electronic throttle system was poorly designed and did not conform to industry standards. When Jean Bookout’s Camry suddenly accelerated in September 2007 and crashed, she was injured and passenger Barbara Schwarz died.

    Bookout v. Toyota Motor Corp. was the first suit to go to trial against Toyota tying sudden unintended acceleration to electronic throttle control problems. A team of trial lawyers —Jere L. Beasley, J. Cole Portis, R. Graham Esdale, and Benjamin E. Baker of Beasley, Allen, Crow, Methvin, Portis & Miles, P.C. in Montgomery, AL, with assistance from Larry Tawwater of The Tawwater Law Firm in Oklahoma City, OK, and Paul Martin of Martin Jean Jackson in Ponca City, OK — won a $3 million compensatory damages jury verdict. Toyota settled before the jury could determine the amount of punitive damages. Then it settled the hundreds of other personal injury and wrongful death cases pending nationwide.

  • July 22, 2014

    by Ellery Weil

    At Vox, Adrianna McIntyre explains today’s decision by the U.S. Court of Appeals for the D.C. Circuit in Halbig v. Burwell, the “greatest existential threat” to the Affordable Care Act since NFIB v. Sebelius. Abbe Gluck explains at Balkinization why the opinion in Halbig “does a disservice to textualism.”

    Katie McDonough takes to Salon and discusses the case of a nurse in Florida who is suing a Tampa-area medical center for religious discrimination after they told the nurse that her objections to prescribing birth control made her ineligible for a position with their reproductive health department.

    The Associated Press reports on Arizona’s decision to appeal to the Supreme Court a recent decision by the U.S. Court of Appeals for the Ninth Circuit which prohibited the execution of an Arizona death row inmate because the state refused to disclose the lethal injection drug cocktail it planned to use.

    Naureen Shah at Al Jazeera America discusses a report by Human Rights Watch and Columbia Law School which claims that not only are the FBI’s current counterterrorism stings violating basic rights, they are targeting the wrong people, sowing distrust of the government, and failing to stop legitimate threats.

  • July 22, 2014
    Guest Post

    by Remington A. Gregg, Legislative Counsel, Human Rights Campaign

    *Noting the 50th anniversaries of Freedom Summer and the Civil Rights Act of 1964, ACSblog is hosting a symposium including posts and interviews from some of the nation’s leading scholars and civil rights activists.

    As we pause to commemorate the 50th anniversary of the passage of the Civil Rights Act of 1964, one of the most important pieces of legislation ever passed into law, it is a perfect time to look at the many ways it paved the way for the lesbian, gay, bisexual, and transgender (LGBT) community.  Not only did passage pave the way for additional pieces of civil rights legislation, including Title II of the Americans with Disabilities Act of 1990 and Title IX of the Education Amendments Act of 1972, but it marked a sizeable shift in the use of the commerce clause.  To LGBT movement, however, the Civil Rights Act marked the beginning of the LGBT community’s own fight for equality. 

    The long march toward LGBT equality gained momentum with Romer v. Evans in 1996, where the Supreme Court held that an amendment to the Colorado state constitution that would forbid the state or its subdivisions from extending legal protections to LGB people violated the Equal Protection Clause.  In 2003, in Lawrence v. Texas, the Supreme Court ruled affirmatively for the first time on a due process claim brought by gay claimants that LGBT people “are entitled to respect for their private lives.  The state cannot demean their existence or control their destiny by making their private sexual conduct a crime.  Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.”  And last year’s critical decision in United States v. Windsor changed the whole landscape in the LGBT community’s access to important federal benefits.   The Court held that Section 3 of the “Defense of Marriage Act,” which defined marriage as a “union between one man and one woman as husband and wife” for federal purposes, was an unconstitutional infringement on equal protection as applied to the federal government under the Due Process Clause of the Fifth Amendment.  Now, LGBT couples have access to more than 1,100 rights, benefits, and obligations previously denied to them.

    Each of these cases has served as a vital building block in the fight for equality. These successes have been paralleled with incredible legislative and administrative victories, including the repeal of “Don’t Ask, Don’t Tell,” passage of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, and an LGBT-inclusive Violence Against Women’s Act re-authorization. And yesterday, President Barack Obama signed an important executive order.  First, it prohibits federal contractors from discriminating in employment on the basis of sexual orientation or gender identity.  Second, it protects federal employees from discrimination on the basis of gender identity.  (President Bill Clinton signed an executive order that provided protections with regard to sexual orientation.)

  • July 21, 2014
    Guest Post

    by Erwin Chemerinsky and Catherine Fisk. Chemerinsky is Dean and Distinguished Professor of Law and Fisk is the Chancellor’s Professor of law at the University of California, Irvine School of Law.

    *Noting the 50th anniversaries of Freedom Summer and the Civil Rights Act of 1964, ACSblog is hosting a symposium including posts and interviews from some of the nation’s leading scholars and civil rights activists.

    The fiftieth anniversary of the enactment of the Civil Rights Act of 1964 is an occasion worth celebrating. On July 2, 1964, President Lyndon Johnson signed into law the first major civil rights law adopted since the end of Reconstruction. Its provisions prohibit racial discrimination in some crucial areas of society.

    Title II forbids hotels and restaurants from discriminating based on race, ending a form of racial separation that existed throughout the United States and especially in the South.  Title VI prevents recipients of federal funds from discriminating on the basis of race, a provision that was crucial in forcing many school systems to desegregate. Title VII prohibits employment discrimination based on race, sex, or religion. Initially this was limited to private employers, but Congress quickly expanded its coverage to government entities.

    The enactment of the Civil Rights Act of 1964 was a political triumph for Lyndon Johnson. He appealed to the nation’s collective guilt over the assassination of President Kennedy and urged the enactment of the law as a tribute to the slain leader. A Southerner and a former Senate majority leader, Johnson was able to persuade opponents to end their filibuster and allow a vote in the Senate, which then joined the House of Representatives in passing the bill. Over two-thirds of the members of each house of Congress voted in favor of it.

    But what is often forgotten is that the opposition to the Act was not based solely on racism. Those who disagreed invoked the principle of freedom of association: owners of businesses should be free to do business with and employ whomever they want. The claim was that the owner of a hotel or a restaurant should be free to refuse service on any basis to anyone, including race. Similarly, the argument was that employers should be able to choose who they want to associate with in the workplace. Thus, opponents of the Act claimed that owners should be free to use their property however they want and it was wrong for the federal government to restrict their choices by prohibiting discrimination.