Womenstake

Civil Rights Can't Wait: Confirm Thomas Perez

by Arlene Brens, Fellow, 
National Women's Law Center 

The Senate Judiciary Committee voted today to approve the nomination of Thomas Perez to be Assistant Attorney General for the Civil Rights Division with a bipartisan vote of 17 to 2. The National Women’s Law Center strongly supports his nomination.

The Division enforces many laws that women depend on (such as Title IX, Title VII, and the Freedom of Access to Clinic Entrances Act), and it is in desperate need of new leadership: the number of Title VII employment discrimination cases filed under the Bush Administration decreased dramatically as compared to the Clinton Administration. As a result of the Division’s severe shortcomings over the past 8 years, the Division needs Mr. Perez to restore its moral conscience.

As a lifelong civil rights advocate and public servant, Mr. Perez is no stranger to enforcing civil rights protections. He prosecuted hate crimes among other things while at the Civil Rights Division and led the Office of Civil Rights in Health and Human Services (HHS) where his passion became eradicating racial and ethnic disparities in health care.  Mr. Perez recognizes the challenges women face in our society; for example, he stated that despite the progress made since the passage of the Civil Rights Act, “the earnings gap between men and women” still persists. Currently, he serves as Secretary of the Maryland Department of Labor, Licensing, and Regulation where he works to enforce laws that protect consumers. In his capacity as Secretary of DLLR, Mr. Perez has supported implementing the recommendations of the Maryland Equal Pay Commission which helped ease the passage of a 2008 pay disparity data bill that later passed in Maryland.

Only the Lonely: Women on the Bench

by Arlene Brens, Fellow, 
National Women's Law Center 

Over the past three decades, an increasing number of women have joined the legal profession. In recent years, law schools have seen the number of female students increase, so that they now make up nearly half of all law students. In 2008, one-third of lawyers were women. But the federal judiciary has a long way to go before it reflects the current face of the profession.

Since Justice Sandra Day O’Connor retired in 2005, the Supreme Court counts a single woman among its nine Justices (a measly 11 percent). Forty-seven of the 164 active judges currently sitting on the thirteen federal courts of appeal are female (almost 29%). Although this overall percentage is consistent with the current percentage of women lawyers, in some of these courts the numbers are much more daunting:  for example, the Eighth Circuit has only one female judge among its eleven members, who is the only woman ever to have been appointed to that court. Women are also vastly underrepresented on the Tenth Circuit (where they make up about 17 percent of judges), First Circuit (20 percent), and the Federal Circuit (25 percent). In addition, around 25 percent of United States trial court judges were women in 2008.

For minority women, the numbers are even smaller. In total, there are forty-six minority women serving as active federal judges: 25 African-American women, 18 Hispanic women, and three Asian-American women.  There are no Native American women federal judges.  Eight of those women of color are seated on the federal courts of appeals, as follows:  three minority women sit on the Ninth Circuit Court of Appeals, two sit on the DC Circuit, and one minority woman sits on each of the Seventh, Fourth, and Second Circuits. This means there are eight federal courts of appeals without a single judge who is a woman of color. 

Just a little background about why we strongly encourage President Obama to nominate a woman to replace Justice Souter on the Supreme Court.

Iowa Supreme Court Unanimously Upholds Same-Sex Marriages

by Arlene Brens, Fellow
National Women’s Law Center

In 1869, Iowa became the first state to admit a woman to the practice of law. And on Friday April 3, 2009, Iowa became the first state in the Heartland to allow same-sex marriages. In a unanimous decision, the Iowa Supreme Court ruled that an Iowa statute limiting civil marriage between a man and a woman violates the equal protection clause of the Iowa Constitution. This decision also affirms the lower court’s decision to allow six gay couples to marry in Polk County, Iowa. When the court discussed the history of its equal protection cases on segregation and women’s rights, it recognized that the issue of same-sex marriage “comes to us with the same importance as our landmark cases of the past.”

Although Iowa is only one out of three states to recognize same-sex marriages (Massachusetts and Connecticut), this huge victory presents an opportunity for civil rights advocates to bring similar legal challenges in other Midwestern states. Three other states, including Vermont, Maine, and New Hampshire, recognize civil unions or domestic partnerships that grants some or all of the benefits that are granted to married couples. 

Without the legal right to marry or to enter into civil unions, gay couples do not enjoy basic legal rights, such as the inability to make life and death decisions relating to health care and burial arrangements. Preventing gay couples from marrying denies them of their rights to important federal and state benefits, including the right to share in their partner’s state-provided health insurance, public employee pension benefits, and many private employer provided benefits and protections. Most recently, in March 2009, Gay & Lesbian Advocates & Defenders (GLAD), a New England based legal advocacy group, brought a lawsuit in federal court challenging the federal government’s denial of federal benefits to eight same-sex married couples in Massachusetts under the Defense of Marriage Act (DOMA).  One of the plaintiffs in this case, a 21-year-old postal employee, was not allowed under DOMA to add her spouse to her health insurance plan, vision plan, or flexible spending account because her spouse is of the same sex. Thus, for the gay and lesbian community, gaining the right to marry is not just a political issue—it’s a personal issue.  After all, the personal is political.

Professor Johnsen Testifies No One is Above the Law

by Arlene Brens, Fellow
National Women’s Law Center

The Senate Judiciary Committee held a hearing yesterday on the confirmation of Dawn E. Johnsen for Assistant Attorney General of the Office of Legal Counsel (OLC). In her opening statement, Professor Johnsen stated that “the officials who lead the government are not above the law.”  With that statement, Johnsen set a different tone for the future of the OLC. She also emphasized that the purpose of the OLC is to provide accurate, unbiased legal opinions to the President and that her personal views on a particular legal subject would not influence her legal analysis if confirmed.  Moreover, Johnsen indicated that the OLC should favor releasing legal opinions unless there is, for example, a compelling national security interest. This indicates that, if confirmed, Johnsen would lead OLC in a dramatically different direction than the OLC under the Bush Administration -- when infamous legal opinions that justified the use of torture in interrogations and argued for the expansion of presidential power were issued. As a former student in Professor Johnsen’s Constitutional Law class, I can think of no other person more qualified to provide the President with legal advice on matters of national security and the constitutional restraints on executive power.

While much of the questioning at the hearing focused on the role of the Office of Legal Counsel and limits on executive power, questions pertaining to abortion and judicial nominations were also raised.  Senator Specter accused Johnsen of equating pregnancy with slavery.  In response, Johnsen said explicitly that she has never argued that abortion restrictions or forced pregnancy violate the Thirteenth Amendment. She thought that Senator Specter might have been referring to some language in a footnote in an amicus brief Johnsen had written almost twenty years ago. The larger point of the brief (filed in Webster v. Reproductive Health Services, 492 U.S. 490 (1989), which the National Women’s Law Center signed) was that limits on abortion affect women’s equality, and the footnote (number 23 if you’re interested) merely stated that forced pregnancy is “disturbingly suggestive of involuntary servitude” because of the physical demands involved.   

Mr. Holder’s To-Do List

by Arlene Brens, Fellow
National Women’s Law Center

Today, we await the Senate’s confirmation of Eric H. Holder, Jr. as Attorney General of the United States. Last week, the Senate Judiciary Committee approved the nomination of Mr. Holder with a bipartisan vote of 17 to 2. We are expecting that Mr. Holder will be confirmed and know that when he takes the oath of office, he will be inheriting a challenging set of problems from the closing of detention facilities in Guantanamo Bay to revitalizing the Civil Rights Division.

Women have suffered from many of the problems created in recent years, and cry out for prompt attention. For example, during the Bush Administration, the Employment Section of the Civil Rights Division filed fewer sex discrimination actions on behalf of women than under the Clinton Administration. In fact, the Employment Section filed only 27 sex discrimination actions while approximately 50 such actions were filed under the Clinton Administration. The Department also took positions in key Supreme Court cases that stripped away women’s rights to secure equal pay and cut back on women’s pension rights. In addition, the Department failed to give adequate resources and attention to enforcing laws like the Violence Against Women Act and the Freedom of Access to Clinic Entrances Act, which protect women and their constitutional rights. We hope that today’s expected confirmation of Mr. Holder marks a dramatic shift in the policies put forth by the Department of Justice on a number of fronts, including making enforcing laws vital to women a top priority.

Holder Demonstrates Commitment to Protect Civil Rights at Confirmation Hearing

by Arlene Brens, Fellow
National Women’s Law Center

The Senate Judiciary Committee held hearings January 15-16 on the confirmation of Eric. H. Holder for Attorney General of the United States. From his opening statement, Mr. Holder emphasized the importance of defending the civil rights of every American, how vital federal laws designed to protect civil rights have been undermined in the Department of Justice by improper political hiring, and that he intends to change these practices as Attorney General.

Much of the questions at the Holder confirmation hearings pertained to the closing of the Guantanamo Bay Detention Camp, the Marc Rich pardon, and the politicization of the Department of Justice. Notably, Senator Cardin (D-MD) asked about the decline of cases filed by the Civil Rights Division under the current Administration and mentioned how there have been no voting rights cases brought on behalf of African-Americans. In response, Mr. Holder described the Civil Rights Division as the “conscience” of the Department. Mr. Holder also noted that the Civil Rights Division has not received the resources or attention it deserves, but he affirmed his commitment to revitalize the Division. 

Even more, in response to Senator Brownback’s (R-KS) question regarding the application of the Americans with Disabilities Act to prevent the abortion of fetuses with Down Syndrome, Mr. Holder recognized this as both a difficult decision and a legal determination “based on what the Supreme Court has said in essence are personal decisions tied to the right to privacy.”

America deserves someone like Mr. Holder who demonstrates the commitment and experience to bring change and restore justice to the Department in order to safeguard the civil rights of all women and Americans. Mr. Holder demonstrated in his hearing that he is ready to tackle those challenges and he is dedicated to the mission of the Department — “to ensure fair and impartial administration of justice for all Americans. This is why the National Women’s Law Center urges the Senate to swiftly confirm Mr. Holder for Attorney General.

Women in the Legal Profession: Underpaid and Underrepresented?

by Arlene Brens, Fellow
National Women’s Law Center

Despite the influx of women into the legal profession, female attorneys continue to face pervasive problems.  A new survey conducted by the National Association of Women Lawyers (NAWL) and the NAWL Foundation reported on the status of women in law firms. Unfortunately, the survey confirmed what I already suspected:  women are significantly under-represented in the highest levels of the profession. In 137 of the 200 largest law firms, only 6 percent of law firm managing partners, 16 percent of equity partners (i.e., partners who hold an ownership interest in the firm), 27 percent of non equity partners, and 34 percent of those who hold counsel positions are women. The problem does not lie in recruiting women to firms. In fact, 48 percent of first and second year associates are women, and nearly 97 percent of law firms have implemented women’s initiatives designed to develop women lawyers. Rather, the problem is the retention of women. 

For women of color, the picture is even bleaker. Women of color comprise only 11 percent of associates, 3 percent of non-equity partners, and a meager 1.4 percent of equity partners.

And not that’s all, folks -- turns out that retention is not the only problem. The gender wage gap in the legal community is, quite simply, staggering. The NAWL survey also reported that in 99 percent of law firms, the highest paid partner is a man. On average, male equity partners earn over $87,000 more a year than female equity partners. 

State Court Protects Domestic Violence Victims from Losing their Jobs

by Arlene Brens, Fellow
National Women's Law Center

The Washington State Supreme Court ruled on October 3, 2008, that it is against state public policy for employers to fire victims of domestic violence for taking time off work to protect their families. Ramona Danny, a former employee at Laidlaw Transit Services, took two weeks off to care for her son, who was beaten by his father. When Danny returned to work, her employer demoted her from manager to scheduler and then fired her two months later. Danny alleged that her employer fired her in violation of public policy and Washington’s Law Against Discrimination. The court determined that there is “a clear mandate of public policy of protecting domestic violence survivors and their families and holding abusers accountable.” As a result of this ruling, Danny can now proceed with her claim in court.

In 2008, the Washington Legislature also passed legislation which requires employers to provide reasonable time off for victims of domestic violence, sexual assault, and stalking. Other states, such as Illinois, Florida, California, and the District of Columbia, have passed similar pieces of legislation. These states have recognized a great need to provide those affected by domestic violence reasonable leave and protection from losing their jobs. Absent such leave, the consequences for women are severe. According to Legal Momentum, between one-fourth and one-half of domestic violence victims reported losing a job due in part to domestic violence.

It’s past time that the federal Family Medical Leave Act (FMLA) was amended to provide that same protection to employees across the country. In its next session, Congress should act promptly to amend the FMLA to, among other things, expand the number of covered employers, provide mechanisms for paid leave, and allow time off for employees to deal with the effects of domestic violence, sexual assault, and stalking.

The effects of domestic violence affect every facet of a woman and a child’s life. We cannot erase the physical and emotional pain that victims of violence experience, but we can certainly implement protections in the FMLA and other state leave laws to ensure that domestic violence survivors have the leave they need to deal with the effects of violence. Like many other women’s issues, this is a family issue. A woman caring for her family should not have to choose between protecting her family and protecting her job.