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Tuesday, June 30, 2009

Court Decision May Change Hiring Practices: White Firefighters Win Supreme Court Case

AP – Frank Ricci, left, lead plaintiff in the the 'New Haven 20' firefighter reverse discrimination case speaks …

By MARK SHERMAN, Associated Press Writer – Mon Jun 29, 2009

WASHINGTON – The Supreme Court ruled Monday that white firefighters in New Haven, Conn., were unfairly denied promotions because of their race, reversing a decision that high court nominee Sonia Sotomayor endorsed as an appeals court judge.

The ruling could alter employment practices nationwide and make it harder to prove discrimination when there is no evidence it was intentional.

New Haven was wrong to scrap a promotion exam because no African-Americans and only two Hispanic firefighters were likely to be made lieutenants or captains based on the results, the court said Monday in a 5-4 decision. The city said that it had acted to avoid a lawsuit from minorities.

The ruling could give Sotomayor's critics fresh ammunition two weeks before her Senate confirmation hearing. Conservatives say it shows she is a judicial activist who lets her own feelings color her decisions. On the other hand, liberal allies say her stance in the case demonstrates her restraint and unwillingness to go beyond established precedents.

Coincidentally, the court may have given a boost to calls for quick action on her nomination.

The court said it will return Sept. 9 to hear a second round of arguments in a campaign finance case, and with Justice David Souter retiring there would be only eight justices unless Sotomayor has been confirmed by then.

In Monday's ruling, Justice Anthony Kennedy said, "Fear of litigation alone cannot justify an employer's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions." He was joined in the majority by Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas.

In dissent, Justice Ruth Bader Ginsburg said the white firefighters "understandably attract this court's sympathy. But they had no vested right to promotion. Nor have other persons received promotions in preference to them."

Justices Souter, Stephen Breyer and John Paul Stevens signed onto Ginsburg's dissent, which she read aloud in court Monday. Speaking dismissively of the majority opinion, she predicted the court's ruling "will not have staying power."

Kennedy's opinion made only passing reference to the work of Sotomayor and the other two judges on the 2nd U.S. Circuit Court of Appeals who upheld a lower court ruling in favor of New Haven.

But the appellate judges have been criticized for producing a cursory opinion that failed to deal with "indisputably complex and far from well-settled" questions, in the words of another appeals court judge, Sotomayor mentor Jose Cabranes.

"This perfunctory disposition rests uneasily with the weighty issues presented by this appeal," Cabranes said, in a dissent from the full 2nd Circuit's decision not to hear the case.

Sen. Patrick Leahy, chairman of the Judiciary Committee, said Sotomayor should not be criticized for the unsigned appeals court decision, which he asserted she did not write. "Judge Sotomayor and the lower court panel did what judges are supposed to do, they followed precedent," said the Vermont Democrat who will preside over Sotomayor's confirmation hearings next month.

Leahy also called the high court decision "cramped" and wrong.

In New Haven, Nancy Ricci, whose son, Frank, was the lead plaintiff on the lawsuit, carried a large cake decorated with red, white and blue frosting into the law office where the firefighters were celebrating their victory.

The ruling is "a sign that individual achievement should not take a back seat to race or ethnicity," said Karen Torre, the firefighters' attorney. "I think the import of the decision is that cities cannot bow to politics and pressure and lobbying by special interest groups or act to achieve racial quotas."

At a press conference on the steps of city hall in New Haven, firefighter Frank Ricci said the ruling showed that "if you work hard, you can succeed in America."

Monday's decision has its origins in New Haven's need to fill vacancies for lieutenants and captains in its fire department. It hired an outside firm to design a test, which was given to 77 candidates for lieutenant and 41 candidates for captain.

Fifty-six firefighters passed the exams, including 41 whites, nine blacks and six Hispanics. But of those, only 17 whites and two Hispanics could expect promotion.
The city eventually decided not to use the exam to determine promotions. It said it acted because it might have been vulnerable to claims that the exam had a "disparate impact" on minorities in violation of the Civil Rights Act of 1964.

The white firefighters said the decision violated the same law's prohibition on intentional discrimination. The lawsuit was filed by 20 white plaintiffs, including one man who is both white and Hispanic.

Kennedy said an employer needs a "strong basis in evidence" to believe it will be held liable in a disparate impact lawsuit. New Haven had no such evidence, he said.
The city declined to validate the test after it was given, a step that could have identified flaws or determined that there were no serious problems with it. In addition, city officials could not say what was wrong with the test, other than the racially skewed results.

"The city could be liable for disparate-impact discrimination only if the examinations were not job related" or the city failed to use a less discriminatory alternative, Kennedy said. "We conclude that there is no strong basis in evidence to establish that the test was deficient in either of these respects."

But Ginsburg said the court should have assessed "the starkly disparate results" of the exams against the backdrop of historical and ongoing inequality in the New Haven fire department. As of 2003, she said, only one of the city's 21 fire captains was African-American.

Until this decision, Ginsburg said, the civil rights law's prohibitions on intentional discrimination and disparate impact were complementary, both aimed at ending workplace discrimination.

"Today's decision sets these paired directives at odds," she said.
Associated Press writer Katie Nelson in New Haven, Conn., contributed to this report.

Friday, June 26, 2009

Bank of America Sued for Gender Bias Over Bonuses

Thursday 25 June 2009
by: Jonathan Stempel and Elinor Comlay

Retention bonuses to brokers alleged. Plaintiff says white men fare better than women. Bank of America says bonus program was merit-based.

New York - Bank of America Corp was accused in a Manhattan federal lawsuit of discriminating against female brokers at the former Merrill Lynch & Co by offering them lower retention bonuses than male counterparts.

Thursday's lawsuit seeks class-action status, and contends that female brokers were typically eligible for lower bonuses because of gender bias at Merrill, including the brokerage's practice of steering wealthier clients to male brokers.

Because bonuses were based on "production," or fees earned on client assets, the bonus distribution authorized by Bank of America "disproportionately disadvantages women and advantages white men as favored employees," the complaint said.

Retention bonuses are often awarded to brokers who work at companies being acquired to keep them from defecting, and for top producers can reach seven figures.

Bank of America has said it has about 15,800 brokers, most of whom came from Merrill. Chief Executive Kenneth Lewis has called the brokerage business the "crown jewel" of Merrill. The bank bought Merrill on Jan. 1.

"The idea of a retention bonus is to retain the best and the brightest," said Linda Friedman, a partner at Stowell & Friedman Ltd in Chicago representing the plaintiff.

"Bank of America acquired a company that had a history of mistreatment," she went on. "Rather than acknowledge that, and be part of the solution to level the playing field, Bank of America picked up where Merrill Lynch left off."

A bank spokeswoman, Shirley Norton, said Bank of America will vigorously defend against the lawsuit.

"The adviser transition program was merit-based and implemented fairly and equally for men and women," she said. "We do not tolerate discrimination."

The case was brought by Jaime Goodman, who according to the complaint has worked at Merrill since 1992. It said she has been a top-quintile performer and "a $1 million producer for nearly a decade," but would have performed even better and gotten a higher retention bonus absent discrimination.

Goodman is seeking compensatory damages including the value of all compensation and benefits lost because of the alleged bias, as well as punitive damages and other remedies.

Last year, Citigroup Inc agreed to pay $33 million to settle similar charges in a federal lawsuit in San Francisco brought by about 2,500 female brokers at its Smith Barney unit.

Bank of America and Merrill had separately faced other bias lawsuits accusing them of steering business to white workers. Friedman is still pursuing a 2005 federal lawsuit against Merrill in Chicago on behalf of African-American brokers.

The case is Goodman v. Merrill Lynch & Co, U.S. District Court, Southern District of New York (Manhattan), No. 09-5841.

(Reporting by Elinor Comlay and Jonathan Stempel; editing by Bernard Orr and Gerald E. McCormick.)

Thursday, June 11, 2009

More workers accuse Lilly of discrimination

By John Russell, June 9, 2009

More than 100 current and former workers of Eli Lilly and Co. have stepped forward to accuse the Indianapolis drug maker of racial discrimination, claiming it denied equal promotional opportunities, training and compensation, according to motion filed this morning in federal court in Indianapolis.

The employees, who are African-American, say they worked at numerous Lilly sites nationwide over the past three decades. Some continue to work at the company, the documents say.

The motion was filed by nine employees and the NAACP's head office, seeking class certification on behalf of "an estimated 2,000 members of the class." That number represents the number of black employees who have worked at Lilly since 2002.

Attorneys for the plaintiffs say 108 of the workers have filed declarations about their experiences at Lilly.

A group of plaintiffs, along with lawyers and NAACP officials, planned to rally on the steps of the Birch Bayh Federal Building and U.S. Courthouse in Downtown Indianapolis at 11 a.m. today.

Lilly is Indianapolis' largest private employer, with about 12,000 workers at its headquarters and laboratories south of Downtown.

Lilly spokesman Mark E. Taylor today said the company has asked the court to deny class certification in this case.

"This case should not proceed as a class action because policies at Lilly ensure that respect and fair treatment of people are the cornerstones of Lilly’s corporate culture," he said in an e-mail. "We do not tolerate discrimination, which would be behavior contrary to our code of ethics. Lilly takes any allegations of unfair treatment very seriously. Lilly has investigated the allegations in the previously filed complaints and believes this lawsuit is without merit. We are prepared to vigorously defend the company."

The move is the latest twist to a lawsuit originally filed by Cassandra Welch, who said she was fired in 2004 in retaliation for complaining to the company's human resources department, accusing several managers of discrimination.

Welch had worked at Lilly for 12 years and said the company's minority-friendly policies were rarely applied. She said she found a black doll with a noose around its neck after raising complaints. Lilly has said it dismissed Welch for falsifying e-mails sent to a co-worker about non-Lilly business.

As of 2007, about 50 plaintiffs had joined the case. They included sales representatives, production workers, office workers and professionals from Lilly locations that include Indianapolis, Dallas, Atlanta, Memphis, Tenn., and Charlotte, N.C.

With today's filing, the number of employees stepping forward grows dramatically.

“As these individual and collective employment experiences make clear, for several decades Lilly has intentionally engaged in discriminatory practices with indifference to the federally protected rights of its African American employees,” said Ms. Ciccolo, General Counsel of the NAACP, in a statement. “This company’s longstanding policies and patterns of discrimination have injured and damaged these nine class representatives and all of the other African-Americans it employs. The legal actions we are taking in Indianapolis federal court are required to bring that injury and damage to a prompt and permanent end.”

The plaintiffs seek undisclosed damages, including declaratory and injunctive relief, back pay, front pay, and attorneys’ fees, costs and expenses.

Watch for updates on this story.

Contact Star reporter John Russell at (317) 444-6283.

Thursday, June 4, 2009

EEOC Sides With Mississippi Black Troopers


The Equal Employment Opportunity Commission has found legitimacy in allegations the state Department of Public Safety has discriminated against black troopers.

The EEOC issued a determination today finding that the DPS has violated Title VII of the Civil Rights Act of 1964.

The department "discriminated against blacks as a class because of their race within respect to assignments, demotions, discharges, discipline, harassment, hiring, intimidation, hostile work environment, promotions, and the overall terms and conditions of their employment," according to the determination.

DPS said much of the alleged discrimination occurred long before Steve Simpson became commissioner last year.

In a timeline released to the news media, DPS spokesman Jon Kalahar notes that Simpson took steps to investigate and address issues raised in an anonymous letter to Gov. Haley Barbour in October — months before the EEOC complaint was filed on Jan. 6. Simpson became commissioner on May 1, 2008.

Simpson appointed a special committee of former Supreme Court Justices Reuben Anderson and Jim Roberts and College Board member and lawyer Amy Whitten to hear black troopers’ complaints. But none of the troopers would come forward.

There are more than 607 state troopers in Mississippi of which 208 are black.

"Discrimination in any form should not be tolerated, especially in state government," Derrick Johnson, state president of the National Association for the Advancement of Colored People, said in a statement.

The EEOC will begin "conciliation efforts" between the department and the black troopers to resolve the situation.

It has drafted an agreement that includes a notice to employees stating the department will comply with federal laws and, among other things, "will not discriminate against any employee on the basis of race" or in retaliation.

The department has to respond to the invitation within 14 days.

Simpson said DPS takes the EEOC report seriously but views its findings as vague and lacking in specifics. "DPS will continue reviewing any potential merits of the allegations and any action, if necessary, that need to be taken," he said in his statement.

To comment on this story, call Natalie Chandler at (601) 961-7075 or Marquita Brown at (601) 961-7059.


$1.5M to Black Miss. Troopers Said Unlikely


Mississippi Public Safety Commissioner Steve Simpson said today that his agency isn’t likely to agree to a suggested $1.5 million settlement to resolve allegations of racial discrimination without more specifics from the federal government.

Simpson said he plans to contact the U.S. Equal Employment Opportunity Commission this week and request a meeting over a report the commission issued last week. The EEOC issued a determination that found substance to allegations DPS has violated Title VII of the Civil Rights Act of 1964.

Simpson, who took over DPS about 13 months ago, said he’s "fairly certain" that as it stands today, the agency won't agree to a drafted agreement that includes a recommendation the state pay $1.5 million in damages, back wages and legal fees to troopers who have alleged racial slurs and being passed over for promotions.

DPS "discriminated against blacks as a class because of their race within respect to assignments, demotions, discharges, discipline, harassment, hiring, intimidation, hostile work environment, promotions, and the overall terms and conditions of their employment," according to EEOC findings.

DPS has 14 days to respond to the recommendations. But Simpson said, "It's got to be a bigger, longer procedure than that .. to identify that class, and first, to verify that they were indeed discriminated against and then to identify what remedies, if any, are justified."

"That can't be accomplished in the next 10 days," he said at a meeting of The Clarion-Ledger editorial board.

The Mississippi Central State Troopers Coalition, a group of black troopers, has called for the removal of Col. Michael Berthay, the demotion of nearly a dozen other high-ranking DPS officials and 21 other suggested changes.

But Simpson said, "I think it's a larger question than getting rid of one person. I think the real question they have raised .. is whether or not this merit promotion system can be abused and manipulated."

Simpson said he is studying a system used in Alabama whereby troopers from other states administer tests and conduct interviews for promotions.

To comment on this story, call Natalie Chandler at (601) 961-7075.