CIVIL RIGHTS LEGAL TRAP DOORS
The New York Times has at least THREE learned articles yesterday on a U.S. Supreme Court Civil Rights ruling (Ricci v. DeStefano) delivered this last Monday. The white guys won. Minority rights lost. All the Times' commentators provide useful information from on high. Here you will get the real dirt. The civil rights view from the street. It is very different. Let me begin at the beginning.
It was the winter of 1968, a seminal year; the coldest winter on record in my home town. I picked winter term to graduate and as a brand new college graduate I was desperately looking for a job. My first real job. I was not being picky: Selling clothes at J.C. Pennys as a management trainee, a bill collector at United Finance, a claim adjuster at Nationwide Insurance, a deputy sheriff for the County Mounties. The lucky employer would just have to wait in line. Every employment application required that one take the test de jour -- The Wonderlic intelligence test. Then suddenly it was withdrawn. Something about the test improperly discriminating against minorities. That was deemed a bad thing to do. Employers were paying attention because the Civil Rights Act of 1964 was almost brand new.
Forty years (40) later, The City of New Haven, Connecticut decided their employment test also improperly discriminated against minorities and did the same laudatory thing Wonderlic did -- they threw the test out. So far, so good.
Yesterday, in another 5-4 decision, the United States Supreme Court said New Haven was discriminating against White Boys when The City decided their test wasn't fair to minorities. Huh?
But, that wasn't what I came here to talk to you about. What I want all citizens to know is how difficult it is for anyone to SUCCESSFULLY assert a civil rights case at all. From the Street Level. It is a mess. Moreover, the politics of the thing is against you regardless of what President Lyndon B. Johnson and Congress did for the good of the cause in 1964.
Federal court judges are mostly conservative and do not like civil rights plaintiffs (unless they are White Boys). State court judges don't understand civil rights cases and it is impossible to get into either court anyway. Why? First, because of the Lilly Ledbetter problem. Second, because there is a Byzantine process one must go through before you even get to court. Before getting into court you have to go through the ‘right to sue' administrative process either at the federal Equal Employment Opportunity Commission or the State Bureau of Labor and Industries.
Once you have gone through all that, there is the Summary Judgment trap door. A Motion for Summary Judgment requires the Plaintiff to put on their case before they are ready. Keeping track so far?
- The Lilly Ledbetter Trap Door
- The Judge Trap Door
- The Administrative ‘Right to Sue' Trap Door
- The Summary Judgment Trap Door
- The Disparate Impact/Disparate Treatment/Business Necessity Trap Door
Now we are down to the Disparate Impact/Disparate Treatment/Business Necessity Trap Door. This means that regardless of your proof of discrimination the employer can still kick you loose by stating that their actions were necessary due to their unique business situation. This is known as the Business Necessity Rule. You can discriminate if business requires it. Huh?
Let us take a familiar case to show how these trap doors work at the street level. The Lilly Ledbetter trap door penalyzes you for what you don't know. In Lilly's case it turns her employer was paying others (The White Boys) better than gender minorities but she didn't know it. The U.S. Supreme Court said too bad. The Judge trap door says your judge was appointed by Ronald Reagan and he just doesn't like minorities very well. He likes the employer's large attorney law firm better. The Administrative ‘Right to Sue' trap door means there are about 100 state employees in the Department of Labor whose job it is to make sure you don't get past first base when they are supposed to be your champion. Some of these state employees are even surly. The Summary Judgment door to nowhere flies in tandem with the Judge trap door. The employer's large law firm lawyer belongs to the U.S. District Court Historical Society and has drinks and dinner with Ronald Reagan's Judge on a regular basis. In fact, they often even give awards to each other. Your civil rights attorney on the street doesn't even belong to the local ‘Public' Country Club.
The Disparate---Disparate---Business Necessity trap door decides who has the burden of proof. It is you. Whoever has the burden of proof loses. At the street level then there are at least five trap doors between you and a jury. There are many trap doors between you and justice beyond that.
At the ‘Hood' level minorities lose their civil rights cases because we have not improved our attitudes nor our judges in keeping with cultural changes. At the U.S. Supreme Court level minorities lose because we have not improved our attitudes nor our judges in keeping with cultural changes. The Civil Rights Act of 1991 attempted to change the law to implement the Congressional intent of 1964 which was corrupted by judges over the intervening years.
None of these laws nor changes have resulted in justice for the civil rights victim nor replaced judicial fiat. This analysis from the street level tells you why minorities lose their civil rights cases. The analysis from on High does not. It is high time for legislators on high and at the street level to eliminate the multiple trap doors standing between civil rights victims and justice.
By the way; I didn't get the job at J.C. Pennys because my unwashed face could not answer the most basic interview question of them all. My inquisitor asked, "Why do you want to work for J.C Pennys?" I stammered, I stuttered, and showed myself the way out. I took the Nationwide job where all the adjusters were White Boys.