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Supreme Court guts key part of landmark Voting Rights Act

(Reuters) – The U.S. Supreme Court on Tuesday gutted a core part of the landmark 1965 Voting Rights Act and challenged Congress to come up with a replacement plan to protect blacks and other minorities in places where discrimination still persists rather than target former slaveholding states in the South.

In a 5-4 ruling with the court’s conservatives in the majority, the justices ruled that Congress had used outdated facts in continuing to force nine states, mainly in the South, to get federal approval for voting rule changes affecting blacks and other minorities.

The court ruled in favor of officials from Shelby County, Alabama, by declaring unconstitutional a section of the law – most recently updated by Congress in 2006 – that set the formula that decides which states and locales with a history of racial discrimination need federal approval to change voting laws.

President Barack Obama expressed disappointment with the ruling and asked Congress to pass legislation “to ensure every American has equal access to the polls.”

Representatives of the NAACP and other civil rights organizations speak to reporters after the U.S. Supreme Court struck down part of a federal law designed to protect minority voters, at the court's building in Washington, June 25, 2013.

Representatives of the NAACP and other civil rights organizations speak to reporters after the U.S. Supreme Court struck down part of a federal law designed to protect minority voters, at the court’s building in Washington, June 25, 2013.

“Today’s decision invalidating one of (the law’s) core provisions upsets decades of well-established practices that help make sure voting is fair, especially in places where voting discrimination has been historically prevalent,” Obama, the first black president, said in a statement.

The ruling upended legal protections for minority voters that were a key achievement of the U.S. civil rights movement of the 1960s led by Martin Luther King Jr. The Voting Rights Act as a whole was enacted to broadly prohibit poll taxes, literacy tests and other measures common in states with a history of slavery that prevented black people from voting.

But, writing for the court’s majority, conservative Chief Justice John Roberts said that America is not the country that it was a half century ago when the Voting Rights Act was passed to end a century of attempts by former slaveholding states to block blacks from voting.

“Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions,” Roberts wrote.

But Democrats have accused Republicans at the state level in recent years of enacting a series of measures intended to suppress the vote of minority groups likely to support Democratic candidates.

Just last week, the Supreme Court struck down an Arizona law that required people registering to vote in federal elections to show proof of citizenship, a victory for activists who said it discouraged Native Americans and Latinos from voting.

Tuesday’s decision placed the burden on Congress – sharply divided along party lines to the point of virtual gridlock – to pass any new voting rights law like the one sought by Obama.

‘I HAVE A DREAM’ REVISITED

Civil rights activists, looking ahead to August’s 50th anniversary of King’s famous march on Washington, hoped Tuesday’s ruling would revive the spirit of that event and prompt Congress to act. It was before a massive crowd in front of the Lincoln Memorial that King gave his era-defining “I have a dream” speech.

Wade Henderson, president of the Leadership Conference on Civil and Human Rights, predicted a “massive mobilization” for the anniversary.

Roberts said the formula that Congress used to determine what states and locales should be covered by the provision relating to approval for voting changes when it most recently re-authorized the law should have been updated.

“Congress did not use the record it compiled to shape a coverage formula grounded in current conditions,” he wrote. “It instead re-enacted a formula based on 40-year-old facts having no logical relationship to the present day.”

The coverage formula therefore violates the sovereignty of the affected states under the U.S. Constitution, Roberts said.

Congress could pass a new version, but it would have to reflect “current conditions,” he added.

The issue of voting rights remains prominent in the United States. During the 2012 presidential election campaign, judges nationwide heard challenges to new voter identification laws and redrawn voting districts, with some blocked before the election.

In February, Obama, a Democrat, decried barriers to voting in America and announced a commission to address voting issues.

Civil rights activists fear that the ruling could lead to an increase in attempts to deter minorities from voting. They said 31 proposals made by covered jurisdictions to modify election laws had been blocked by the Justice Department since the law was re-enacted in 2006.

NAACP Legal Defense Fund Director Ryan Haygood (L) and NAACP Legal Defense and Educational Fund President Sherrilyn Ifill (R ) speak to reporters after the U.S. Supreme Court struck down part of a federal law designed to protect minority voters, at the court's building in Washington, June 25, 2013.

NAACP Legal Defense Fund Director Ryan Haygood (L) and NAACP Legal Defense and Educational Fund President Sherrilyn Ifill (R ) speak to reporters after the U.S. Supreme Court struck down part of a federal law designed to protect minority voters, at the court’s building in Washington, June 25, 2013.

Sherrilyn Ifill, president of the NAACP Legal Defense and Educational Fund, accused the Supreme Court of leaving “millions of minority voters without the mechanism that has allowed them to stop voting discrimination before it occurs.”

Senate Judiciary Committee Chairman Patrick Leahy, a Vermont Democrat, on Tuesday pledged to move quickly to try to restore voting rights protections after the ruling.

“I intend to take immediate action to ensure that we will have a strong and reconstituted Voting Rights Act that protects against racial discrimination in voting,” Leahy said.

Republicans were largely silent on the court’s ruling. Neither House of Representatives Speaker John Boehner nor Mitch McConnell, the top Senate Republican, had any immediate comment.

The court struck down Section 4 of the law, which describes the coverage formula, and not Section 5, known as the preclearance provision, which is the general requirement that the covered states get approval from the Justice Department or a federal court before making election-law changes.

In her dissenting opinion on behalf of the liberal wing of the court, Justice Ruth Bader Ginsburg said Section 5 is now “immobilized” without a working coverage formula.

Congress approached the 2006 re-authorization “with great care and seriousness,” she added. “The same cannot be said of the court’s opinion today.”

The nine fully covered states under the provisions of the law at issue were Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia.

Tuesday’s ruling left intact Section 2 of the law, broadly prohibiting intentional discrimination in the voting arena.

The decision is likely to have an immediate impact on states previously covered by the preclearance requirements that are battling federal oversight.

Texas had been unsuccessfully fighting federal rejection of its most recent congressional redistricting and voter identification laws, both of which were rejected by federal judges. The high court’s ruling means Texas would no longer need to seek that approval, although there is other litigation taking place over the redistricting plan.

“Texas may now implement the will of the people without being subject to outdated and unnecessary oversight and the overreach of federal power,” said Republican Texas Governor Rick Perry.

The case is Shelby County v. Holder, U.S. Supreme Court, No. 12-96.

(Additional reporting by Joan Biskupic, Thomas Ferraro and Richard Cowan; Editing by Howard Goller and Will Dunham)

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ExxonMobil: Fortune 500 Spills and Discrimination

Residents in Mayflower, Arkansas, have recently filed a class-action lawsuit seeking more than $5 million in damages against ExxonMobil, the world’s largest oil company, after a pipeline carrying Canadian crude from Illinois to Texas ruptured, allowing thousands of barrels of heavy crude oil to flow into a residential area.  ExxonMobil has claimed that between 3,500 and 5,000 barrels of heavy crude leaked from the ruptured pipeline, however the lawsuit has claimed that more than 19,000 barrels were spilled.

Oil covers the water and underbrush in Dawson Cove on April 6.

Oil covers the water and underbrush in Dawson Cove on April 6.

There is yet another recent lawsuit which ExxonMobil has to contend with. This one, however does not involve oil spills.

In December of last year, the gay rights organization Freedom to Work and its founder, Tico Almeida, decided to expose Exxon’s anti-LGBTQ discrimination. Mr. Almeida used a legal strategy of resume audit testing, using two ghost applicants,  to expose its anti-LGBTQ bias in hiring practices. Last month, the LGBTQ group Freedom to Work filed a complaint with the Illinois Human Rights Commission contending Exxon Mobil violated a 2005 law in the state prohibiting discrimination against LGBTQ people.

Jennifer Priston and Michelle Caland are similar in many respects. They both live in Springfield, Ill., attended the same high school and graduated from the same local community college in 2011 after majoring in business administration. Jennifer Priston, however, was a candidate that a higher grade point average, more advanced office skills, a higher ranking previous position with a greater level of responsibility, and a longer work history. However, she was consequently outed as LGBTQ because of her volunteer experience working for the Gay and Lesbian Victory Fund. Michelle Caland, on the other hand, was less qualified in terms of work experience and education, but offered no indication that she was LGBTQ.

Even though Caland was less qualified, she received multiple call backs in response to her application. Priston never received a call back in response to her application even after Caland didn’t respond. “We know that they cannot credibly claim that they didn’t receive the LGBTQ resume and application because when they were submitted, they sent back to both applicants a receipt acknowledgement saying, ‘Thank you for your application from Exxon Mobil,’” Almeida said. “They can’t claim they didn’t see it.” In a press release announcing the complaint, Almedia claimed that, “Exxon broke the law, defies industry standards and continues to betray the American people’s sense of fairness.”

Exxon denies any wrongdoing and said it is reviewing the complaint, which was filed with the Illinois Department of Human Rights. Charlie Engelmann, a spokesman for the company, stated in an email that, “ExxonMobil’s global policies and processes prohibit all forms of discrimination, including those based on sexual orientation and gender identity, in any Company workplace, anywhere in the world. In fact, our policies go well beyond the law and prohibit any form of discrimination.”

However, for the 14th year in a row, shareholders of ExxonMobil have continuously rejected a proposal which would have added sexual orientation and gender identity to the company’s non-discrimination employment policy. Its current equal opportunity policy states it will provide equal employment opportunity to all individuals regardless of race, color, sex, religion and half a dozen other legally protected statuses, but sexual orientation and gender identity are not mentioned.

Civil rights groups have employed the strategy of resume audit testing with great success for decades, but this lawsuit marks the first time an LGBTQ group has tried it. To reach a settlement in the case, Almeida has said that he is asking Exxon Mobil to adopt a company-wide LGBTQ non-discrimination policy and train its workers across the country on implementation.

Freedom To Work's infographic that shows the discrepancies between Priston and Caland's resumes.

Freedom To Work’s infographic that shows the discrepancies between Priston and Caland’s resumes.

“We hope that we will shame them into settling this very quickly,” Almeida said. “If they agree to adopting and training HR people on it, we will settle the case as quickly as we can.” But if Exxon Mobil chooses to fight the lawsuit, Almeida said the case will go into discovery, which means Freedom to Work will subpoena internal documents from the company and depose staffers to expose anti-gay bias in hiring practices.

Illinois was one of two states in which Freedom to Work uncovered apparent anti-gay bias in hiring practices. Almeida did the same paired resume testing in Texas and uncovered similar results at Exxon Mobil. However, Texas does not have a statewide LGBTQ workplace non-discrimination law on which to base a lawsuit, and no federal non-discrimination protections are in place to help LGBTQ people. The Employment Non-Discrimination Act isn’t law, nor is an executive order in place prohibiting anti-LGBT bias among federal contractors.

In the 2000 decision of Kyles v. J.K. Guardian Security Services, the U.S. Seventh Circuit Court of Appeals in Illinois upheld the right of testers to bring these claims after two black testers brought a race discrimination action to federal court. They were allowed to proceed to a trial and later settled their claims.

The U.S. Supreme Court has previously validated lawsuits on the basis of paired resume audit testing in its decisions on earlier litigation. In the 1982 case of Havens Realty Corp. v. Coleman, the court held testers can sue to challenge housing discrimination and that groups conducting the testing can also file a lawsuit to remedy discrimination.

Also working with Freedom to Work on the testing was the Equal Rights Center, a D.C.-based advocacy organization, which has experience with resume testing for minority groups. Donald Kahl, executive director of the Equal Rights Center, explained the validity of filing employment discrimination lawsuits based on resume audit testing and their applicability to LGBT people.

“Based on the Equal Rights Center’s 30 years of testing experience, and nearly 2,000 tests conducted in the last year, our testing methodologies are recognized and accepted by the civil rights community, government agencies, and the courts,” Kahl said. “The type of testing we conducted with Freedom to Work is a critical part of objectively demonstrating why our LGBT community needs and deserves anti-discrimination protections.”

The legal team representing Freedom to Work in the lawsuit is Cohen Milstein Sellers & Toll PLLC, a group that has experience representing women who alleged gender discrimination in employment at the retail giant Walmart Stores, Inc. As the lawsuit proceeds, Almeida said Freedom to Work will continue testing for anti-LGBTQ workplace bias at other companies and take action as necessary.

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