Monday, November 19, 2007

Blawg Review #135

[Transgender Workplace Diversity presents "Blawg Review", a weekly, peer-reviewed round-up of legal blogs (affectionately known as "blawgs"), hosted each week at a different site. Part Two of this week's Blawg Review is continued tomorrow on the Transgender Day of Remembrance at the Rainbow Law Center Blog of Denise Brogan-Kator. ]

On November 18, 1957, U.S. President Dwight D. Eisenhower proclaimed November 19 as Equal Opportunity Day, saying: "Let every citizen of the United States, whether an employer or employee, farmer or businessman, join in the effort to abolish all artificial discrimination which hinders the right of each American to advance in accordance with his merits as a human being and his capacity for productive work." (Obtained courtesy of John Woolley and Gerhard Peters at The American Presidency Project, University of California at Santa Barbara.) He was stumping for his recently-passed Civil Rights Act of 1957, the first modern civil rights act since Reconstruction. It established the Civil Rights Section of the Justice Department and empowered federal prosecutors to obtain court injunctions against interference with the right to vote. It also established a federal Civil Rights Commission with authority to investigate discriminatory conditions and recommend corrective measures. Interestingly, the final act was weakened by Congress due to the lack of support among the Democrats, a strange historical scenario which, as we will see below, occurred just last week in other civil rights legislation. And so, dear reader, let us move on to learn more about Eisenhower's legacy regarding "Equal Opportunity" in the blawgosphere as of November, 2007.

It's fascinating to me that Eisenhower's legacy in civil rights is so strong. He advocated in favor of the Supreme Court's rulings in Brown v. Board of Education, which recognized that "separate is unequal," and that the mere elimination of segregation laws was insufficient to create a society of equal opportunity in the face of a race-conscious America, ordering schools to take affirmative action "with all deliberate speed" to desegregate. Although the Supreme Court's opinions in Brown are today generally regarded as a bedrock of fair democracy, Brown was attacked by law professors when it first came out, including famously liberal ones like Herbert Wechsler, and over time it seemed as if racial advances for Blacks occurred only when they promoted White interests, as Derrick Bell famously argued on the 25th Anniversary of Brown. (Brown v. Board of Education and the Interest Convergence Dilemma, 93 Harvard Law Review 518)

If Eisenhower, a Republican five-star General, were alive today, would he still support the opinion expressed in Brown v. Board of Education? Today's Supreme Court, certainly, has taken a step back, holding that government action to battle race-conscious social discrimination must be color-blind (see PICS v. Seattle, slip op. at p. 23). The racial divide, however, remains strong in the U.S. As Justice Breyer noted in the Seattle case: "As of 2002, almost 2.4 million students, or over 5% of all public school enrollment, attended schools with a white population of less than 1%. Of these, 2.3 million were black and Latino students, and only 72,000 were white. Today, more than one in six black children attend a school that is 99–100% minority." (slip op. at p. 4)

This libertarian idea of ignoring race-conscious social prejudice as a means of remedying it is tremendously tempting. As Patricia Williams has said: "it is a dangerous if comprehensible temptation to imagine inclusiveness by imagining away any obstacles. It is in this way that the moral high ground of good intentions knows its limits. We must be careful not to allow our intentions to verge into outright projection by substituting a fantasy of global seamlessness that is blinding rather than just color-blind." (Seeing a Color-Blind Future: The Paradox of Race) Of course, we no longer have as much overtly racial discrimination, but taking its place is a kind of laissez-faire racism, as demonstrated by the work of Lawrence Bobo, along with his co-authors Kluegel and Smith: "The decline of full‑blown Jim Crow racism, however, has not resulted in its opposite...Laissez‑faire racism involves persistent negative stereotyping of African Americans, a tendency to blame blacks themselves for the black/white gap in socioeconomic standing, and resistance to meaningful policy efforts to ameliorate U.S. racist social conditions and institutions." (Laissez‑Faire Racism: The Crystallization of a Kinder, Gentler, Antiblack Ideology)

Moving this debate to this week's blogosphere, issues of racial justice remain with us. The Indiana Law blog looks at school districts in the historical Twilight Zone, where federal judges can make seemingly contradictory decisions regarding desegregation. Kevin Maillard at looks at "Cracking Down on Disparities in Drug Punishment", and asks "What You Know 'Bout Me?" CT Employment Blog discusses a case in which there was a triable issue as to whether an employee was disciplined more severely because of his race, arguing that Consistently Applied Policies and Discipline Are Cruicial to Avoiding Discrimination Claims. In "I Think It's Gonna Be A Long, Long Time," Workplace Prof Blog talks about a ruling in which Black workers will finally receive monetary awards stemming from a 2000 discrimination ruling, for being treated different from White worker, in what one of the employees said was "being treated like a criminal" when they were laid off 13 years ago. Diversity Spectrum reviews a federal employment discrimination claim against CNN, which could turn on whether it was legal for the network to designate specific on-air positions for minorities as it sought to increase the diversity of its news staff. It also highlights a study that shows there is "Little Diversity Among Senior Government Execs at Legislative Agencies." Law Librarian Blog reports on a law review article discussing some "highly questionable" legal advice to the detriment of some 587 plaintiffs suing Nextel Corp. for racial discrimination. Workplace Prof Blog discusses racial discrimination among NBA referees. Professor Bridget Crawford of the Feminist Law Professors writes: Why Subprime Lending is a Race and Gender Issue. Meanwhile, some people are still trying to figure a way around the rules, as discussed by HR World in "30 Interview Questions You Can't Ask And 30 Sneaky Legal Alternatives To Get The Same Info." In a similar vein, Workplace Prof Blog discusses a new article on cat's paw liability.

While racial disparities still exist, the movement for equal opportunity in the U.S. has expanded beyond race. This has prompted some controversy, particularly with regard to recent attempts to expand civil rights to gay, lesbian, bisexual and transgender Americans. Two weeks ago, the House took up the Employment Non-Discrimination Act, which was introduced to prohibit employment discrimination based on sexual orientation or gender identity. ("Sexual orientation" refers to one's choice of romantic partner, and "gender identity" refers to one's self-identification as male or female.) Some Democrats, just like those of Eisenhower's day, complained that they were not prepared to support the reference to "gender identity," which would have protected transgender Americans, and the bill was passed without it.

This move was controversial in the gay community because many gay advocates felt that transgender people are not part of the gay community, that "gender identity" is unrelated to the needs of gay people, and that the rights of millions of gay people should not be held up for the rights of transgender people. On the other hand, about 300 organizations protested the removal of "gender identity" from the bill because it undermined the fairness message of ENDA, because it might allow an interpretation that firing a gay employee because of his or her gender presentation remains legal under the law, and the vote was largely symbolic because the Senate probably will not take up the bill, and President Bush has vowed to veto it as an infringement of religious freedom. (This was the issue that brought me into controversy with The Volokh Conspiracy a few weeks ago.) Denise Brogan-Kator of Rainblow Law Center, PLLC, expresses her mixed-emotions about the passage of the bill in Mixed Emotions. In "Rebuttal To A Negro Conservative," Monica Roberts of TransGriot responds this week by quoting the Declaration of Independence to a Black conservative who protested that any comparison between transgender people and Blacks is "a disgrace and insult to every Black person in America." Questioning Transphobia Blog questioned the propriety of using "the language of bigotry" to separate transgender civil rights struggles from Black civil rights struggles in Keep Your Gender Struggles Out of My Race Struggles.

Discussion of sexual orientation and gender identity discrimination was a hot topic this week. Xpert HR Blog, which offers a British perspective on employment issues, discusses cultural differences between the US and Britain when it comes to banning discrimination on the ground of sexual orientation, in Discrimination Ban Could Be Hot Election Topic. Feminist Law Professors and Concurring Opinions discuss Hammer v. University of Michigan, in which the first openly gay professor to be considered for tenure at the University of Michigan Law School, who also happens to be the first man at that institution to be denied tenure, charges the University of Michigan Law School with anti-gay discrimination. New York Real Estate Law Blog takes aim at the brouhaha in California over Governor Schwarzenegger's signing into law a school anti-discrimination bill that includes sexual orientation and gender identity, characterized by the Campaign for Children and Families as a “sexual-agenda bomb dressed up as a child-caring Easter egg.” Diversity Spectrum reviews the case of a Seattle woman who claimed she was antagonized and harassed because of her sexual orientation at the Goodyear store where she worked and then was demoted after she complained about it has been awarded $4.4 million by a King County jury. Bilerico showcases Lambda Legal's Fair Courts Matter, A Democracy in Action Guide, which is a quick and pretty layperson-friendly civics lesson focused on the importance of maintaining a fair judiciary system at both the federal as well as all levels of state government. "Sexual Orientation and the Law Blog" discusses the recently passed "Montgomery County, Maryland Transgender Bill". And, of course, there is George's Employment Blawg, which has a guest post by your gracious host, discussing my recent book in Transgender Employees: What's an Employer to Do?

Aside from race, sexual orientation and gender identity, other issues of civil rights also held their place in this week's blogosphere.

Age discrimination: says that employers must curb their demands for fixed amounts of experience from job applicants to avoid falling foul of discrimination legislation. CT Employment Blog and New Jersey Employment Law Blog discuss a "noteworthy" (not!) age discrimination claim that discusses what happens when the wrong paperwork is filed in an ADEA case. Cleveland Law Library Weblog discusses a report from the Cleveland Plain Dealer that age discrimination plaintiffs are recovering more often locally, and the latest million dollar verdicts.

Americans with Disabilities: "Jottings By An Employer's Lawyer" talks about the proper causation standard for Americans with Disabilities cases. "Rush on Business" discusses how inaccurate descriptions complicate employee reviews and make accommodation under the ADA a daunting task. My Disability Blog discusses applying for social security disability in Michigan. Overlawyered discusses a case where a disabled woman is suing Disney for requiring that she use a powered wheelchair in its parks rather than a Segway scooter. Tim Titolo at Brain & Spine Injury Law Blog: Brain Damaged Lawyer Sues Bus Company.

Sex discrimination: Tort Prof Blog talks about a law review article that contends that tort reforn disproportionately affects female litigants. Pennsylvania Employment Law Blog and Ohio Employer's Law Blog look at EEOC v. V&J Foods, where an employer’s unreasonable sexual harassment policy invalidated the employer’s defense. Ohio Employers' Law Blog discusses another case that illustrates how not to respond to a sexual harassment complaint. Legal Pad with Roger Parloff of discusses "Judith Regan’s bizarre complaint against News Corp." New York Law Notes says "No on discrimation and harassment, but yes on retaliation." Campus ADR Tech blog links to a comic book series on real heroes, starting with women's rights activist Jane Adams. Carolyn Elefant at's Legal Blog Watch: Income Gap For Women Persists At Large Firms... Will It Change?

Veteran's rights: CT Employment Blog also highlighted some common issues that pop up frequently on USERRA issues, particularly as they may affect returning veterans. Be Spaficic notes that notes that a recent report shows a small increase in the number of armed forces veterans working for the Federal government.

Charities: Tax Prof Blog mentions a law review article on the anti-discrimination aspects of 501(c)(3).

EU: IntLawGrrls looks at "Europe's Brown v. Board of Education." Current Awareness discusses the possibility that alcoholic workers could receive protection from the Disability Discrimination Act despite the fact that alcoholism is specifically barred from protection. From the Inner Temple Library's blog Current Awareness: Woman sacked for being 'too young' wins landmark case

Canada: The blog of Daniel A. Lublin discusses the case of Canadian entrepreneur Sarah Desrosiers, who is facing a legal battle after she denied employment to Bushra Noah because Noah would not abandon her traditional headscarf and display her hair if hired to work in the salon.

New Zealand: Life at Work covers religion in the workplace in two parts: Part1: I can't do that it's against my religion and Part 2: It's the company uniform, mate and

Religion: Religion Clause and Blog From the Capital discuss H.R. 1429, the Head Start for School Readiness Act, which includes a controversial anti-discrimination provision. Religion Clause also looks at a case rejecting a religious discrimination claim brought by a school guidance counsellor who was denied tenure after she destroyed literature on condom use, replaced it with literature advocating abstinence, and asked students to pray with her. Settle It Now Negotiation Blog speaks out in "This Should Send an Icy Chill Down Your Spine: Los Angeles to "Map" Muslims."

And that wraps it up for Part One of this week's Blawg Review. Thank you all for participating. Part Two is continued tomorrow on the Transgender Day of Remembrance at the Rainbow Law Center Blog of Denise Brogan-Kator.

(Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues.)