Tagged: narrowed interpretation of Title VII

“Although the U.S. Supreme Court is the most diverse it has ever been – three of the nine justices are women and two are minorities – the elite bar that comes before it is strikingly homogeneous: Of the 66 top lawyers, 63 are white. Only eight are women.”

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Of course, zero [or one  if you count the man on the last row, second from the right] out of the 75 “elite” lawyers identified by Reuters as having the most “success of getting cases before the high court,” are African American. And of course, it is the group that benefits the most from America’s white supremacist system, that are quick to downplay the role of race and/or say to African Americans and other people of color that race/racism doesn’t matter/exist. Sdmh! Houston, we clearly have a problem!!

Source: Jan Biskupic, Janet Roberts and John Shiffman. “At America’s Court of Last Resort, A Handful of Lawyers Now Dominates the Docket.” Reuters. December 8, 2014. http://www.reuters.com/investigates/special-report/scotus/.

“In 1989, the Court interpreted Title VII to require a plaintiff to establish that a protected trait was a substantial factor or motivating part in a decision. Price Waterhouse v. Hopkins, 490 U.S. 228, 240-41, 250 (1989) (plurality); id. at 259 (White, J., concurring) (using a substantial factor analysis); id.at 265 (O’Connor, J., concurring) (using a substantial factor analysis). The Court held that an employer could avoid liability by establishing that it would have made the same decision absent consideration of the protected trait. Id. at 258 (plurality); id. at 259-60 (White, J., concurring); id. at 267 (O’Connor, J., concurring). In 1991, Congress amended Title VII by codifying the motivating factor standard, but altering an employer’s affirmative defense to liability. If the employer established the same decision defense, it would not escape liability, but would face a limited scope of damages. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 185 (2009) (Stevens, J., dissenting).”

Source: Sandra F. Sperino and Suja A. Thomas. Fakers and Floodgates. Stanford Journal of Civil Rights & Civil Liberties. pg. 226, f. 17. June 2014.

“Today, the Supreme Court continued that tradition in a pair of five-to-four decisions narrowly construing the scope of Title VII’s retaliation and employer liability rules. In University of Texas Southwestern Medical Center v. Nassar, the Court strictly interpreted a statute that Congress enacted to overrule a prior Supreme Court decision, holding retaliation claims to a stricter standard of proof than other forms of discrimination claims. In Vance v. Ball State University, the same majority narrowly defined who counts as a “supervisor” whose discrimination is automatically attributed to an employer. Justice Ginsburg, writing for the Court’s four more liberal Justices, invoked the history of congressional overruling of the Court’s employment discrimination decisions to call upon Congress to once again reverse both decisions issued today.”

There goes that word (“narrowed”) again! Smh! I’m curious to know since 2000, how many employment discrimination and civil rights cases has the Supreme Court ruled in favor of the employee? Given that majority of the justices on the Supreme Court were appointed by Republican Presidents, this  5-4 outcome in favor of employers and corporations will continue to persist in employment discrimination and civil rights related cases until the ideological makeup of the court changes. No matter what the Civil Rights Act of 1964 states or what one argues, the majority white justices always find a way to narrowly apply the statute to the facts of the case —  to the point that over time, the case law becomes ineffective in combating more institutional, systemic and insidious forms of racism and discrimination in the workplace. This is not accidental. Ultimately, the SCOTUS’s decisions in these cases are predetermined due to their overall ignorance and hostility to the civil rights laws of this country. How can this problem be corrected?

Source: Kevin Russell. Court Rules For Employers in Two Employment Discrimination Cases. June 24, 2013. http://www.scotusblog.com/2013/06/court-rules-for-employers-in-two-employment-discrimination-cases/.

yesterday, the DISHONORABLE Republican appointed federal judge P. Kevin Castel confirmed William Morris/Loeb & Loeb LLP’s Motion to Confirm the fraudulent Award issued by Timothy K. Lewis of the American Arbitration Association. In further violation of my right to due process, Castel issued a filing injunction against me to make it extremely difficult to file an appeal with the Second Circuit, prejudiced me by saying that the appeal would not be made in “good faith” and took away my in forma pauperis status although he’s aware that I’m living below the poverty level. Smdh!!

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Castel’s abuse of power and utter disregard for our nation’s antidiscrimination laws are unconscionable! We cannot expect the administration of justice to function properly when Presidents intentionally appoint ideologically conservative, racist and/or corrupt individuals like this to the bench for lifelong terms. They ultimately end up like Republican appointed federal judge Robert P. Patterson of the Southern District of New York. Institutionalized racism and corruption throughout our predominately all-white federal courts, help explain why many of the gains made during the civil rights movement have been eviscerated in less than 60 years. This is intentional and “not due to chance.” There is a conspiracy STILL taking place to interfere with the human rights of African Americans and we must collectively understand what is happening, before it is too late.

“The record is replete with facts to demonstrate violations of federal law. Booking agency defendants inadequately contest the facts and give tortured explanations to cover up their violations of plaintiffs’ rights. They seek to complicate what is actually simple (or at least straightforward). Defendants denied contractual opportunities to black promoters using their unique position in representing artists and their control of local markets. The record shows that when the booking agents and dominant white promoters act together, plaintiffs cannot get a contract. Moreover, the defendants continue to do so today.” — Bill Campbell of the Willie Gary Firm, Opposition to Def. Motion for Summary Judgment, April 24, 2003.

Since this case ended in 2005, the class of black concert promoters claims can further be proven by the fact that co-CEO of William Morris Endeavor Entertainment, also serves on the board for LiveNation…

“In Part II, I argue that the either-or framework applied by most courts to individual claims of discrimination is by no means required–and in fact is unwarranted–under Title VII. A close reading of the statute and the caselaw reveals that the either-or framework is more a judicial invention than a mandatory aspect of Title VII. Even if there would have been merit to the either-or approach under the original statute, such a reading is no longer permissible in light of the Civil Rights Act of 1991 and the Supreme Court’s 2003 decision in Desert Palace v. Costa. The 1991 amendments to Title VII made clear that a plaintiff could prove a violation of the law when more than one factor motivated the decision; in other words, a defendant can have both legitimate and illegitimate reasons for taking a particular action. Thus, honesty about the nondiscriminatory reason for a defendant’s actions cannot alone preclude the existence of a discriminatory motivation. In Desert Palace, the Supreme Court corrected the mistaken assumption of many lower courts that this mixed motive approach was available only when plaintiffs could provide direct evidence of a discriminatory motive. I argue that the Desert Palace decision allows plaintiffs to challenge decisions where there is evidence to suggest that the employer honestly believed it was relying on nondiscriminatory reasons, but other evidence points to racial or gender bias in the process.”

I conclude that the existing Title VII framework provides significant potential for challenging unconscious discrimination. In both individual cases and class litigation, plaintiffs have successfully challenged the use of the unfettered discretion that most commonly permits cognitive biases to infect decisionmaking. The very nature of these claims, however, often makes them the “hard cases.” This difficulty is compounded by the fact that, like employers, judges are subject to cognitive biases and may be unable to see beyond their own assumptions in evaluating the merits of a case.

I’m definitely looking forward to reading this article!

Source: Melissa Hart, Subjective Decisionmaking and Unconscious Racism, 56 Ala. L. Rev. 741, 743-745. 2005.