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"FAIRNESS: The Civil Rights Act of 2004,"

by Ritu Kelotra In a historic year for the civil rights movement, with celebrations commemorating the 40th anniversary of the landmark Civil Rights Act of 1964, the 50th anniversary of Brown v. Board of Education, and what would have been the 75th birthday of Dr. Martin Luther King Jr., FAIRNESS: The Civil Rights Act of 2004 was introduced in Congress on February 11.March/April 2004 issue of Poverty & Race

In a historic year for the civil rights movement, with celebrations commemorating the 40th anniversary of the landmark Civil Rights Act of 1964, the 50th anniversary of Brown v. Board of Education, and what would have been the 75th birthday of Dr. Martin Luther King Jr., FAIRNESS: The Civil Rights Act of 2004 was introduced in Congress on February 11.

Sponsored by Senator Edward Kennedy (D-Mass.) and Reps. John Lewis (D-Ga.), George Miller (D-Calif.) and John Conyers (D-Mich.), the FAIRNESS Act, also called the Civil Rights Act of 2004—H.R. 3809 and S. 2088—is an effort to counteract the potentially devastating impact of several U.S. Supreme Court decisions regarding civil rights protections. Among other remedies, the FAIRNESS Act guarantees equal access to publicly-funded services; protection for older workers and workers returning from military service; viable remedies for on-the-job discrimination; and equal pay for women in the workforce.

The bill has the support of a myriad of civil rights and social justice organizations, including the Leadership Conference on Civil Rights (LCCR), AARP, the Mexican American Legal Defense and Educational Fund, the National Council of La Raza, the National Organization for Women Legal Defense and Education Fund, the NAACP Legal Defense and Educational Fund, the National Employment Lawyers Association and the National Women’s Law Center.

“In America, our individual rights are supposed to be guaranteed by the Constitution, but in case after case, the courts are taking those rights away and that’s just not right,” LCCR Executive Director Wade Henderson said. “The FAIRNESS Act sends a strong and clear message to the courts – trampling on the civil rights of the elderly, workers, women, the disabled and the poor is not what America is about.”

The last sweeping civil rights legislation to pass Congress was the Civil Rights Act of 1991, which reversed the Supreme Court’s 1989 decisions that narrowly interpreted job discrimination laws. The 1991 Civil Rights Act provided, for the first time, money damages to compensate victims of intentional job discrimination and to deter future employer wrongdoing. Prior to 1991, decades of social change prompted the enactment of laws to protect Americans’ civil rights in their homes, in the work place, at schools, in voting booths and in the courts.

Remedies for Older Workers

Although a jury in Washington, D.C., determined that Judy Jones’ employer had discriminated against her because of her age, Jones was never able to recover the damages she had been awarded because the Supreme Court held in Kimel v. Florida Board of Regents (2000) that victims of age discrimination could not recover money damages from state employers. As it stands now, older state employees who are victims of age discrimination have no meaningful remedy under federal law.

“We hear from tens of thousands of AARP members each year who seek assistance with potential age discrimination claims,” said Marie Smith, President of AARP. “Every day, we see the devastating impact of a decade’s worth of adverse decisions by the courts, limiting the rights of older workers and others.”

Historically, the federal Age Discrimination in Employment Act (ADEA) protected workers above age 40 from discrimination by any employer with more than 20 employees. Twenty years ago, in EEOC v. Wyoming, the Supreme Court said that state employers must comply with the ADEA, but the Court’s Kimel decision undermined that.

Although the ADEA has long prohibited employers from using practices that disproportionately harm older workers, the Supreme Court ruled in Hazen Paper v. Biggins (1993) that certain types of proof are not sufficient to prove age discrimination, which thereby opened the door for employers to utilize discriminatory factors when making employment decisions. Due to the Supreme Court’s ruling, lower courts have interpreted Hazen Paper to impose a much higher standard of proof for age discrimination than is required for other types of discrimination.

If passed, the FAIRNESS Act would provide state workers with the same rights under the ADEA as other employees, including the right to enforce the ADEA in federal court; would reaffirm that state officials may be sued under the ADEA in their official capacities; and would reaffirm the availability of the disparate impact standard of proof under the ADEA.

Discrimination in Publicly-funded Programs

Title VI of the Civil Rights Act of 1964 prohibits federally-funded programs from discriminating on the basis of race, color or national origin. In Alexander v. Sandoval (2001), the Supreme Court held that Title VI does not permit individuals to sue to stop an apparently neutral practice that has the effect of discriminating; individuals may sue only if they can prove the discrimination is “intentional.”

Title IX of the Education Amendments of 1972 makes it illegal for federally-funded education programs to discriminate on the basis of sex. In Gebser v. Lago Vista Independent School District (1998), the Supreme Court held that students subjected to sexual harassment must prove that school officials both had “actual notice of” and were “deliberately indifferent to” such harassment in order to receive any damages for violations of the law.

“Women were appalled at the hurdles erected by the Supreme Court for students who suffered sexual harassment at school and the barriers to enforcing the race discrimination prohibitions of Title VI of the Civil Rights Act,” said National Organization for Women President Kim Gandy. “By enacting this FAIRNESS Act, Congress can take a step toward insuring equality of justice for all. As the United States government seeks to enshrine basic freedoms under law for the people of Iraq and Afghanistan, we must not forget those whose rights have been eroded at home.”

The FAIRNESS Act, if passed, would confirm that individuals may obtain relief for practices in federally-funded programs. It also would address retaliation against individuals who oppose practices prohibited by the act or participate in an investigation or other proceeding under the act. Further, the Civil Rights Act of 2004 would allow suits in state and federal courts against recipients of federal funds by individuals who suffer discrimination.

The Right to Sue for Discrimination

Although an individual’s right to go to court to protect his or her right to fair treatment on the job, in school or in other public places has been the cornerstone of federal civil rights laws, the Supreme Court severely limited the ability of individuals to bring such cases into court. Under two recent cases – Circuit City v. Adams (2001) and Gilmer v. Interstate/ Johnson Lane Corp. (1991) – an employer may force its employees to give up their rights to sue as a condition of employment.

As an employee of Circuit City, Saint Clair Adams endured constant verbal harassment in the form of sexually lewd comments regarding heterosexual and homosexual acts. When his supervisors finally took his complaints seriously, Adams’ co-workers were made aware of the complaints and harassed him even further.

Adams ultimately filed a discrimination suit against Circuit City, citing his hostile work environment. However, as a condition of his employment, Adams had been forced to sign an agreement to arbitrate such claims. When the Supreme Court ruled in Circuit City, it said that the agreement was binding and threw Adams’ claim out of court.

The Civil Rights Act of 2004 would prohibit mandatory arbitration clauses in employment contracts that force workers to give up the right to sue in court.

Equal Pay for Equal Work

Although President John F. Kennedy signed the Equal Pay Act (EPA) into law 40 years ago, making it illegal for employers to pay unequal wages to women and men who hold the same job and do the same work, today women who make the same career choices as men and work the same hours still earn less than their male counterparts.

“Women have a major stake in making sure that the FAIRNESS Act is passed,” said Marcia D. Greenberger, National Women’s Law Center Co-president. “Women still do not earn as much as men for doing the same work and still do not receive adequate remedies for sex discrimination. For these reasons, and many others, Congress must act this year to strengthen our civil rights laws.”

Under current law, an employer may defend itself against a charge of gender-based pay discrimination by arguing that the pay differential is based on a “factor other than sex.” Some lower courts have interpreted this defense so broadly as to include factors that are inherently discriminatory and contradict the purpose of the EPA.

The FAIRNESS Act directs the Department of Labor to study ways to eliminate pay differences between men and women, and to provide employers, unions and the public with information on this subject. Further, the FAIRNESS Act directs the Equal Employment Opportunity Commission to examine available data regarding differences in pay and to determine whether enhanced data collection is needed to enforce federal pay discrimination laws.

Enforcing Fair Labor Standards

Juan Carlos Astudillo worked as a maintenance helper until 1994, when he was hit in the head, neck and back by a steel beam, and was rendered unconscious. He sustained a concussion, a mild head injury, and as a result, over the next few months he experienced headaches, dizziness, loss of balance, and upper and lower back pain. He was subsequently terminated from his job and filed for workers’ compensation, but the company Astudillo had worked for responded to his compensation claim by saying he wasn’t entitled to the benefits because he was undocumented.

Due to the Supreme Court’s ruling in Hoffman Plastic Compounds, Inc. v. National Labor Relations Board (2002), undocumented immigrants are ineligible to receive back pay for violations of the National Labor Relations Act (NLRA). In Hoffman Plastic, the plaintiff was wrongfully discharged because of his union activity.

“The only winners in this case are companies that break the law. And perversely, companies that both hire undocumented workers and violate labor laws are doubly rewarded,” said Raul Yzaguirre, President of the National Council of La Raza. “The losers are not just limited to undocumented workers. All workers will lose labor rights and protections that depend on the willingness of those who suffer abuse at the hands of unscrupulous employers to come forward and report violations.”

The Fair Labor Standards Act (FLSA) requires that workers receive a minimum wage and overtime pay, and protects them against unfair labor practices; and the NLRA guarantees workers the right to join unions without fear of management reprisal. Recent Supreme Court decisions, such as Hoffman Plastic, have substantially eroded the force of these two important laws, leaving many workers without any protection against unfair, exploitive and retaliatory practices by employers. Moreover, the enforcement scheme envisioned by Congress has been eroded for state employees.

In another Supreme Court ruling, state employees lost their rights to sue for money damages in response to violations of the FLSA, such as the denial of overtime pay. The Court’s ruling in Alden v. Maine (1999) left state employees without adequate protection against employer abuses of federal labor laws.

The Civil Rights Act of 2004 would give state workers in programs or activities receiving federal funds the same rights under the Fair Labor Standards Act as other workers and also would provide that a state’s receipt of federal financial assistance waives that state’s immunity from suits under the Act.

Obtaining Relief and Damages

Recent Supreme Court decisions have made it much more difficult for victims of discrimination to recover their attorneys’ fees, their litigation costs or a full measure of damages, even if they win their lawsuit. In addition, arbitrary limitations in current law force victims of gender, disability or religious discrimination to accept incomplete compensation for their losses.

In Buckhannon Board & Care Home v. West Virginia Dept. of Health and Human Resources (2001), the Supreme Court held that if a losing defendant “voluntarily” changes his or her conduct as a result of the plaintiff’s lawsuit, the plaintiff does not have the right to recover attorneys’ fees from the defendant—even if the lawsuit was the catalyst for the defendant’s change in conduct.

Residents of the Great Oaks Center, a Maryland institution for individuals with developmental disabilities, sued the state, alleging that they had been subject to abuse, neglect and unnecessary physical restraints and were denied medical care and services to prevent their deterioration. Four years after the suit was filed, the state closed Great Oaks, and within three years all but two of the residents were transferred to community placements.

Given that a good share of the relief sought by the plaintiffs had been achieved, the parties agreed to dismiss the case. The residents then sought reimbursement for their attorney’s work, which amounted to over $1 million. Although the courts agreed that the lawsuit had contributed substantially to the state’s actions, because of the Supreme Court’s Buckhannon decision, limiting the recovery of attorneys’ fees to instances where there was actually a judgment by a court or court approval of a settlement agreement, the plaintiffs could not recover any fees.

In Barnes v. Gorman (2002), the Supreme Court began to eliminate the effective enforcement tool of punitive damages for discrimination against persons with disabilities, no matter how egregious or intentional the discrimination.

If passed, the Civil Rights Act of 2004 would remedy both Supreme Court rulings.

Sending a Clear Message

Introduced in a historic year that celebrates equal rights for all, the FAIRNESS Act aims to remedy the potentially devastating Supreme Court rulings. “Treating some of us as second-class when it comes to rights guaranteed by the Constitution is neither moral nor just and is hardly a beacon for the rest of the world,” said LCCR’s Wade Henderson. “If we are to be that shining ‘city on the hill,’ then the Civil Rights Act of 2004 must become the law of the land.”

Ritu Kelotra is a program associate at the Leadership Conference on Civil Rights Education Fund, sponsor of a special report on FAIRNESS: The Civil Rights Act of 2004, "Realize the dream. Restore Civil Rights" at


The “Civil Rights Rollback”

The term “Civil Rights Rollback” has been used to describe a series of recent conservative judicial rulings in the Supreme Court and in the federal circuit courts that have widely different doctrinal origins but share the same 5-4 majority and have a shared harsh impact on civil rights enforcement. These rulings involve, for the most part, Constitutional restrictions on the power of Congress to act in the area of civil rights, using doctrines such as “separation of powers,” “federalism” and “sovereign immunity.” The rulings themselves are esoteric, involving restrictions on the federal power to authorize suits against state governments (
Univ. of Alabama v. Garrett, 2001; Kimel v. Florida Board of Regents, 2000); restrictions on the power of federal courts to enforce Congressional statutes and regulations where no “explicit” enforcement language is included (Alexander v. Sandoval, 2001); new limitations on suits to enforce Congressional spending statutes against the government using the basic federal civil rights statute, 42 U.S.C. Section 1983 (Gonzaga Univ. v. Doe, 2002); reinterpretation of the 1976 Civil Rights Attorneys Fees statute after nearly two decades to eliminate the award of such fees to plaintiffs who settle successfully without a written court order (Buckhannon v. West Virginia, 2001); and questioning the power of Congress to legislate civil rights at all, outside an increasingly narrow definition of rights protected by the 14thAmendment (U.S. v. Morrison, 2000).
These are not the most easily accessible judicial opinions, and the “Civil Rights Rollback” is thus a difficult issue to organize around. But at the same time, because these cutbacks cut a wide swath through different advocacy arenas — disability rights, racial justice, poverty law, women’s rights, older persons’ rights and even basic civil liberties — they present the possibility of a unifying coalition. Theis piece describes one of two current efforts to organize against the “Civil Rights Rollback.”


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