Womenstake

Coming Up in the Sotomayor Hearings: Ricci and More Ricci

by Fatima Goss Graves, Senior Counsel, 
National Womens Law Center 

This post is part of a series about the nomination of Judge Sotomayor for the Supreme Court.

On June 29, the Supreme Court issued a decision in Ricci v. DeStefano. This case would be an important one in any year – in a decision issued on the last day of the term, the Supreme Court established a new rule for an employer that seeks to set aside what it believes to be a discriminatory test or practice. That decision, and its ultimate impact on employment opportunities for women and people of color, is worthy of much discussion. As we’ve explained here before, the Title VII standard at issue in Ricci – in legal terms called “disparate impact” – has been critically important in helping to open doors for women into nontraditional (and well-paid) occupations, such as firefighting, police work and construction, by allowing challenges to a variety of recruitment, hiring, and promotion practices that adversely affect women.
 
But the reason that Ricci has been all over the press and will certainly be a central focus of the hearing is because Judge Sotomayor was a member of a three-judge panel that wrote the summary order reviewed by the Supreme Court.The Ricci case was already mentioned this morning in Senator Sessions’ opening statement. I expect that, like in the press, the Ricci case will continue to be distorted throughout the hearings. It will be called an affirmative action case (it is not); arguments will be made that New Haven wanted to hire unqualified individuals for important public safety positions (it did not – all the test takers in this case were already firefighters and the point was to find a fair test that accurately reflected merit); and some might even argue that after Ricci employers can no longer take steps to address practices that adversely impact their employees based on their race (or their sex, or their religion – you get my point). This last point is particularly important – even after the Supreme Court’s troubling decision in Ricci, employers must continue to take steps to address both intentional and unintentional, but still, discriminatory practices. The Court’s decision made the bar a little higher for employers to address discriminatory tests, but didn’t remove their obligation to do just that. 
 
As I’ve said, this is a case that would stand out in any term. And it’s worthy of a thoughtful discussion. Let’s hope that happens. 

Ricci comes down Monday – Stay Tuned!

by Fatima Goss Graves, Senior Counsel, 
National Women's Law Center 

Monday is the last day of the Supreme Court’s 08-09 term, and we’re still awaiting a pretty important decision – Ricci v. DeStefano. We’ve blogged about the stakes in Ricci before. As we’ve said, it is critical that the Court reaffirm that employers have the ability to voluntarily remedy discrimination in the workplace and eliminate barriers for employment and promotion. We’ll update you next week on Ricci and what the Court’s term as a whole has meant for women and girls.

Getting the Ricci v. DeStefano Facts Straight

by Fatima Goss Graves, Senior Counsel, 
National Women's Law Center 

In the next couple weeks, the Supreme Court will issue a decision in Ricci v. DeStefano. I’ve blogged about Ricci before, but it is worth expanding a bit on the facts and what is at stake in Ricci once again, particularly given how poorly it has been covered by the media.

The facts: The City of New Haven administered a test for promotions in its fire department. Although 27 black firefighters took the exam, none scored high enough to be promoted to captain or lieutenant. The New Haven Civil Service Board (the board that typically certifies results of civil service exams in New Haven) then held hearings and, following testimony that the exams did not actually predict who would make good fire captains or lieutenants, determined that it could not proceed with the promotions. Attempting to comply with Title VII’s mandate against employment discrimination, New Haven decided to freeze the promotions process so that it could determine whether there was a test that appropriately evaluated who might qualify for promotions without the adverse impact on minorities. Now a word to Frank Ricci, who has captured the media’s attention with his story: Frank Ricci studied hard for the test, even hiring a tutor to overcome his dyslexia. But, and this next point is really important, he may have scored high on the test but the high score is meaningless if it is a test that doesn’t actually measure who would be best-suited for a captain or lieutenant position.

Debating Pregnancy Discrimination in 2009

by Melanie Ross Levin, Outreach Manager,
National Women's Law Center

Should employers be allowed to discriminate against pregnant women in the name of less regulation? Last week this issue was debated on Fox News.

So, you might be thinking... what year is it? Did I just get beamed back a couple of decades when many women got fired just for showing a little baby bump or even just announcing their pregnancy?

As you can see from the video below our very own Fatima Gross Graves did an awesome job arguing in favor of increased enforcement of the Pregnancy Discrimination Act and other laws that protect pregnant employees.

Watch the video

News Flash: Diversity is a Good Thing

by Fatima Goss Graves, Senior Counsel, 
National Women's Law Center 

Recent print and television commentators have claimed that no white man need apply for the Supreme Court.  Correction – they also believe that people in their 60s also need not apply. The underlying assumption, as Benjamin Wittes wrote in the Washington Post over the weekend, is that “gender, ethnicity and age have, from the very start of the search for Souter’s replacement, placed off-limits many lawyers and judges who colleagues regard as some of the best in their profession.” I’m not sure when President Obama ever said he would not consider older, white males for the Supreme Court. In fact, here’s what we know about the President’s criteria for nominating justices. He is looking for people “who understand justice is not just about some abstract legal theory,” and who get that laws affect the lives of ordinary people. 

But let’s assume that President Obama is indeed looking for candidates who are women or people of color. This is something to celebrate, since many of these candidates are themselves “some of the best in their profession” – but have been foreclosed, for far too long, from selection to the nation’s highest court. Considering diverse candidates is not, as Wittes seems to assume, antithetical to finding high quality nominees. In fact, it is an essential component of that enterprise. 

To be sure, organizations like the National Women’s Law Center have urged the President to increase the number of women on the Supreme Court beyond the sole female justice – Justice Ginsburg – who herself has identified the need for company. There are numerous exceptionally qualified women who would bring to the Court the real world perspective that the President is seeking. It is only by taking these facts into consideration that the President can do his part to ensure that the Supreme Court complies with the motto carved over its front door:  EQUAL JUSTICE UNDER LAW.

Ricci v. DeStefano – Why Richard Cohen is Wrong

by Fatima Goss Graves, Senior Counsel, 
National Women's Law Center 

Last month the Supreme Court heard argument in Ricci v. DeStefano, and it is getting a lot of media attention. The piece this week in the Washington Post by Richard Cohen suggests that it may also become a key issue for discussion for the President’s Supreme Court nominee.

I’ll briefly recite the facts here because the Cohen piece does not clearly lay them out. The City of New Haven declined to certify the results of a fire department civil service exam because it believed that certifying the test would have a discriminatory impact on minority job applicants. The results of the exam at issue in Ricci were extreme – no black firefighters and only one Hispanic firefighter scored high enough on the exam to be promoted to any position. The City determined that, consistent with Title VII – which requires employers to avoid discriminating based on race and national origin, among other bases - it should take a look to see if there were an exam available that would meet its needs without shutting out candidates of color. Frank Ricci was not denied a job – the City simply put the process on hold while it investigated nondiscriminatory alternatives to its test.

Now that we have some additional facts, I can turn to Cohen’s piece. His column sets up a debate about the continued usefulness of affirmative action. This is an important debate, to be sure, albeit one that Cohen presents in a pretty lopsided fashion. But it’s simply not the issue here. The Ricci case addresses whether it is a form of reverse discrimination for an employer to voluntarily take action to avoid discriminating against people of color. This is not about when it’s appropriate to take race into account in making selections – it’s about making sure that promotion criteria don’t unfairly take race into account by screening out disproportionate numbers of a particular group of employees.

Cohen spends most of his piece focusing on the plight of Frank Ricci, who scored high enough on the exam to be promoted to lieutenant. Cohen emphasizes that Ricci studied hard (although he has no evidence that the other candidates did not also study) and that he deserved the promotion. Maybe so. But what Cohen never considers is that the exam may have been faulty. Or that the City of New Haven is entitled – indeed, it had a duty under Title VII – to see if there was an exam that better met its needs without discriminating. Ricci will have a chance to take any exam the City offers – and to prove that he is well-qualified under a test that measures qualifications fairly.

Fair Pay Act of 2009

by Megan Tackney, Program Assistant,
National Women's Law Center 

On this year’s Equal Pay Day, April 28, Senator Harkin from Iowa introduced the Fair Pay Act of 2009. A critical advancement in the fight for pay equity, this bill works to address pay differences between male and female dominated jobs.

As recently discussed in the post The Next “Fair Pay Act” by Fatima Goss Graves, if passed the Fair Pay Act would prohibit employers from paying wages in jobs dominated by women (or minorities) less than the wages paid in jobs dominated by men if the male and female dominated jobs are equivalent in value to the employer. Employers would also be asked to keep record of and publicly disclose their job categories and pay scales through reports to the EEOC. With increased transparency and new legal standards, women would gain stronger tools to fight pay discrimination in the courts and the workplace.

As the wage gap between men and women in the U.S. persists bills such as the Fair Pay Act are crucial to a movement towards equality. Women still make only 78 cents for every dollar that a man makes and that statistic is even worse for women of color. Learn more about the wage gap and bills such as the Fair Pay Act on NWLC’s Fair Pay site.

Equal Pay Day – 78 Cents and Still in April

by Fatima Goss Graves, Senior Counsel, 
National Women's Law Center 

Cross-posted from ACS Blog.

Today is Equal Pay Day. Advocates and policymakers mark this day around the country as a symbol for how far into the year a woman must work to earn, on average, as much as a man earned the previous year. With women making only 78 cents for every dollar paid to men, we have to wait all the way until April for Equal Pay Day.

This year, Equal Pay Day coincides with the close of the first 100 Days of the Obama administration. This is particularly fitting given that the first substantive bill signed by the president was the Lilly Ledbetter Fair Pay Act of 2009, which reversed the Supreme Court decision in Ledbetter v. Goodyear Tire & Rubber Co. and restores the right of victims of pay discrimination on the basis of sex, race, national origin, age, religion and disability to challenge the discrimination in court. There therefore is no doubt that we have something to celebrate this Equal Pay Day - passing the Lilly Ledbetter Fair Pay Act was a critical step in ensuring that workers can fairly access Title VII and other important antidiscrimination laws that bar pay discrimination.

Read the full post.

See who else is writing about workplace fairness for women on this Equal Pay Day.

The Next "Fair Pay Act"

by Fatima Goss Graves, Senior Counsel, 
National Women’s Law Center 

We hear that Senator Harkin plans to celebrate Equal Pay Day by reintroducing the Fair Pay Act. Now I know some of you might be thinking, “I thought the Fair Pay Act was passed and signed by the President in January.”  Not so – the Lilly Ledbetter Fair Pay Act was the first substantive bill signed into law by the President, but the Fair Pay Act, an entirely separate bill, is being reintroduced for the first time in this Congress.  And while the Lilly Ledbetter Fair Pay Act was designed to restore the law to the way it was before the 2007 Supreme Court decision in Ledbetter v. Goodyear Tire & Rubber Co., Senator Harkin’s Fair Pay Act would move pay discrimination law forward and address the discrimination reflected by the pay disparities between female-dominated fields and male-dominated fields. 

The Fair Pay Act would prohibit employers from paying wages in jobs dominated by women (or minorities) less than the wages paid in jobs dominated by men if the male and female dominated jobs are equivalent in value to the employer.  Like the Paycheck Fairness Act, that Act would allow victims of wage discrimination to recover to the full extent of their injuries.  It also prohibits retaliation against individuals who exercise their rights under the law.  And employers would be required to keep records of their wage-setting practices and report information about those practices to the EEOC.  Check out NWLC's Fair Pay site for more information on the next “Fair Pay Act” to move through Congress.

See who else is writing about workplace fairness for women on this Equal Pay Day.

Sugar & Spice – We Can Do Better, Right?

by Fatima Goss Graves, Senior Counsel
and Lara S. Kaufmann, Senior Counsel
National Women’s Law Center  

This week NBC’s Today Show profiled a single sex school located in suburban St. Louis. The segment began with a video showing boys engaging in calisthenics and the girls sitting quietly at their desks reading and writing. Boys were permitted to learn anywhere in the classroom – under their desks, in tents, standing on chairs… no similar alternative learning opportunities were provided for girls.  And the reading materials for the two genders were quite different – boys read stories featuring monsters while girls read stories featuring movie stars. Yet when the school administrator was interviewed, she insisted that the school avoided stereotyping in the classroom – huh? 

While we appreciate that the show provided more than one perspective – Latifah Lyles, VP of NOW, definitely provided an important public service by explaining that single sex schools are not a silver bullet for our educational woes. But there was a significant gap in the coverage.  Not once did the show mention that many of the programs in question (even potentially the one profiled in the piece) may not be lawful. This is no small oversight. It is critical that school districts take this into account when taking the plunge into single sex programming. 

Here’s the thing – we’re not saying we oppose all single sex programs. To the contrary, as we’ve said in the past, there are single sex programs that don’t operate based on stereotypes about the abilities and needs of their students and that may meet the very rigorous standards of the Constitution and Title IX (not to mention the many state laws that apply). But it makes no sense to engage in a debate about the value of single sex schools without even mentioning whether they are permitted under the law.  We’re convinced that the media can do better next time.