President K Myles discussing Wrongful Terminations

This is a brief video detailing our efforts to address Wrongful Terminations in Kansas through Legislative Advocacy...

The Senate stalls the Ledbetter Fair Pay Act with a procedural maneuver!

It was supposed to be a victory of both symbol and substance. Today, on Equal Pay Day, the Senate would take up HR2831/S1843 - the Lilly Ledbetter Fair Pay Act. This bill, which has already passed the House, would re-align the language and intent of the Civil Rights Act of 1964 with regard to ending discrimination in payments and salaries.

Under current law, Equal Pay protections are only enforceable if an individual files a complaint of discrimination within 180 days of the original discriminatory decision or act. Meaning, if you were to start a new job today, and I as your employer decided to pay you a lower salary because of your age, gender, race, or some other irrelevant factor, you would have to file a complaint within 180 days of your hiring or the statute of limitations would expire and you would lose your legal standing. Notwithstanding the fact that at the time of your hiring, you would have absolutely no way of knowing the relationship between your salary and the salaries of your co-workers.

.

That is precisely what happened to Lilly Ledbetter. The bill bearing her name (HR2831) was written in response to a lawsuit she filed against the Goodyear Tire Company and the subsequent ruling of the Supreme Court. Lilly Ledbetter had worked for Goodyear Tire and Rubber for 15 years. After discovering that for many years her pay had been 15 percent less than what the lowest-paid male employee in her position had been making, she filed suit. The Court rejected her lawsuit, noting that Equal Employment Opportunity Commission procedures require claims to be filed within 180 days of when the original act of discrimination took place. HR2831 would change the law that was the basis for the Court’s ruling. The bill would make sure that companies can be sued for wage discrimination whenever they issue a paycheck. The bill clarifies for the courts that every paycheck issued at a discriminatory rate shall be considered an individual act of discrimination. Therefore, the 180 day limitation would be recalculated from the date of any check issued at a discriminatory wage.

But when the bill came before the Senate, it was anything but simple.

The Senate version of the bill (S1843) introduced by Senator Ted Kennedy, clearly had the support of a majority of the Senate. However, when the motion was made to consider the bill, the legislators who opposed the bill utilized a procedural maneuver to require a Supermajority or 60+ vote. this was done through the employment of filibuster and cloture.

The filibuster is a Senate practice whereby a single Senator, or his minority party, can block full Senate consideration of a bill or nomination by extending debate on the proposal indefinitely. The resulting "filibuster" can ordinarily be stopped only by a "cloture" (or closure) vote, which requires 60 of the 100 Senators (a supermajority) to vote to end debate, and bring the bill or nomination to a final vote.

The Senators who opposed the bill knew that it had the support of the majority of the Senate, but they also know that they had enough votes to block a Cloture vote. So the motion to consider was made, the filibuster began, followed by a motion for Cloture which subsequently failed. What all of that means is that the bill has now been relegated once more to the proverbial 'back burner'. The Bill didn't actually "fail", rather, the filibuster/cloture maneuvers are 'sleight of hand tricks' whereby Legislators can deliberately block bills, resolutions, & legislation without it showing up on their voting record. In Cleveland where I grew up, we would call that a 'Hustle'. Since they never actually voted yay or nay (because they didn't allow the vote to take place) they are able to secure the interests of big business, yet still offer a 'truthy' assurance that they care about the issues of fairness and equality.

While I was greatly disturbed by the actions of this Senate, I do applaud the efforts of Senator Ted Kennedy and the other 43 co-sponsors of the bill, and I hope that you will continue to push for its eventual passage.

Below, I've posted the published votes on the Cloture motion:

Position YEAs ---56
Akaka (D-HI)
Baucus (D-MT)
Bayh (D-IN)
Biden (D-DE)
Bingaman (D-NM)
Boxer (D-CA)
Brown (D-OH)
Byrd (D-WV)
Cantwell (D-WA)
Cardin (D-MD)
Carper (D-DE)
Casey (D-PA)
Clinton (D-NY)
Coleman (R-MN)
Collins (R-ME)
Conrad (D-ND)
Dodd (D-CT)
Dorgan (D-ND)
Durbin (D-IL)
Feingold (D-WI)
Feinstein (D-CA)
Harkin (D-IA)
Inouye (D-HI)
Johnson (D-SD)
Kennedy (D-MA)
Kerry (D-MA)
Klobuchar (D-MN)
Kohl (D-WI)
Landrieu (D-LA)
Lautenberg (D-NJ)
Leahy (D-VT)
Levin (D-MI)
Lieberman (ID-CT)
Lincoln (D-AR)
McCaskill (D-MO)
Menendez (D-NJ)
Mikulski (D-MD)
Murray (D-WA)
Nelson (D-FL)
Nelson (D-NE)
Obama (D-IL)
Pryor (D-AR)
Reed (D-RI)
Rockefeller (D-WV)
Salazar (D-CO)
Sanders (I-VT)
Schumer (D-NY)
Smith (R-OR)
Snowe (R-ME)
Specter (R-PA)
Stabenow (D-MI)
Sununu (R-NH)
Tester (D-MT)
Webb (D-VA)
Whitehouse (D-RI)
Wyden (D-OR)

Position NAYs ---42
Alexander (R-TN)
Allard (R-CO)
Barrasso (R-WY)
Bennett (R-UT)
Bond (R-MO)
Brownback (R-KS)
Bunning (R-KY)
Burr (R-NC)
Chambliss (R-GA)
Coburn (R-OK)
Cochran (R-MS)
Corker (R-TN)
Cornyn (R-TX)
Craig (R-ID)
Crapo (R-ID)
DeMint (R-SC)
Dole (R-NC)
Domenici (R-NM)
Ensign (R-NV)
Enzi (R-WY)
Graham (R-SC)
Grassley (R-IA)
Gregg (R-NH)
Hatch (R-UT)
Hutchison (R-TX)
Inhofe (R-OK)
Isakson (R-GA)
Kyl (R-AZ)
Lugar (R-IN)
Martinez (R-FL)
McConnell (R-KY)
Murkowski (R-AK)
Reid (D-NV)
Roberts (R-KS)
Sessions (R-AL)
Shelby (R-AL)
Stevens (R-AK)
Thune (R-SD)
Vitter (R-LA)
Voinovich (R-OH)
Warner (R-VA)
Wicker (R-MS)

Not Voting - 2
Hagel (R-NE)
McCain (R-AZ)

Tech Tags: S1843 HR2831 Senator+Kennedy Lilly+Ledbetter Equal+Pay Fair+Wage Senate+Votes Civil+Rights NAACP Wichita+NAACP

2008 NAACP Law Fellow Program

The National Association for the Advancement of Colored People (NAACP) is the nation’s oldest and largest civil rights organization. The principal object of the NAACP is to ensure the political, educational, social and economic equality of all minority group citizens. As part of its mission, the NAACP seeks to enforce federal, state, and local laws securing civil rights and to educate persons about their constitutional rights.

Throughout its history, the NAACP has provided attorneys the opportunity to make significant, historic contributions to the field of civil rights law. Past NAACP attorneys include, Charles Hamilton Houston, Thurgood Marshall, Constance Baker-Motely, Robert Carter and Nathaniel Jones. The NAACP hopes to inspire attorneys to enter the field of civil rights law and to provide broad exposure to various strategies utilized by grass roots civil rights organizations.

The NAACP Law Fellow Program is designed to give students who have completed at least one year of law school the opportunity to work for the summer at the NAACP Headquarters in Baltimore, Maryland. Those selected for the program will:

• Work with civil rights attorneys on relevant issues concerning criminal justice, education, housing, voting rights and environmental justice;
• Read and prepare a research paper regarding strategies to advance the civil rights struggle;
• Attend the NAACP National Convention and Continuing Legal Education Seminar;
• Examine and evaluate citizen complaints of civil rights violations;
• Increase opportunities for minority lawyers to obtain judicial clerkships;
• Interact with civil rights leaders and attorney advocates;
• Review and obtain approval for direct action.

Law Fellows will be selected based on a number of factors including: recommendations; interest in civil rights law; and academic performance. Selected participants will be awarded a stipend of $­­­­­­5,000 to offset living and travel expenses while participating in the program. Fellows will be responsible for securing their own housing and transportation for the duration of the program. Fellows may also seek funding from outside sources to supplement the stipend. Based on funding, an additional fellowship opportunity may become available for a law school graduate to work with the NAACP Legal Department.

Questions concerning the program should be directed to Saundra M. Grice at (410) 580-5798. The application is available at http://www.naacp.org/legal/fellows/index.htm or by emailing sgrice@naacpnet.org. A complete application packet shall include:

• Completed application
• Law School Transcript
• Letter(s) of Recommendation (from one or two professors)
• 50-100 word essay describing your interest

By no later than March 20, 2008, please forward completed application to:

Angela Ciccolo
NAACP; Interim General Counsel
4805 Mount Hope Drive
Baltimore, Maryland 21215
(410) 580-5792
(410) 358-9350 (fax)

Stefanie L. Brown,
National Director
NAACP Youth & College Division

Tech Tags: Law, NAACP, Current+Events, Current+Affairs, Law+Fellows, Civil+Rights

URGENT: Immediate Community Action needed to move the Minimum Wage Bill (SB466) out of Committee

Literally within minutes of posting the information concerning Senate Bill 466 on the Kansas Minimum Wage, we received rumblings from the Capitol Building that opponents of the bill may try and keep it in committee without sending it forward. Holding the bill in that manner is a procedural method of defeating it without a negative vote.

Bills that begin in either Legislative House or the other must be considered and passed by their House of Origin (in this case the Senate) and sent to the other House for consideration no later than Saturday March 1st (also known as the "Turnaround date"). Bills not passed by their House of Origin by that date are essentially defeated for this session and would have to be rewritten and re-introduced the following year. Holding the bill in Committee past the turnaround date would effectively kill it for this session without forcing Legislators to go on record by voting it up or down.

If this bill is going to survive the session, we need an immediate showing of community support! We are asking that all of you who support this cause and this blog to contact the Chair of the Senate Commerce Committee right away and respectfully ask that Senate Bill 466 be passed out of committee THIS WEEK!

The Chair of the Kansas Senate Commerce Committee:

Senator Karin Brownlee (R) D-23

Room Number 121 East

State Capitol -136-N Topeka, KS 66612-1504

(785)-296-7358

HOTLINE: 1-800-432-3924

FAX: (785)-368-7119

EMAIL:brownlee@senate.state.ks.us

Senator Brownlee represents the City of Gardner, City of Olathe, City of Overland Park, City of Spring Hill, Johnson County: Gardner, Spring Hill, and parts of Olathe and Oxford Townships, Miami County: Marysville and Richland Townships

.

.

.

NAACP'ers, Raise the Wage Coalition members, Brother Scroggins and Bias Busters, and all other concerned Community Activists, we could really use your help on this one... A hundred well timed phone calls could be the only thing standing between us and a new minimum wage!

Kansas State Senate takes up the issue of raising the Minimum Wage!

For the first time in 20 years, more than 20,000 Kansans earning wages at or below federal minimum wage could see an increase in their pay checks.

Senate Bill 466, which was recently heard by members of the Senate Commerce Committee, would increase Kansas’ dismal $2.65 per hour minimum wage by bringing it in line with federal wages over two years. The first increase would raise minimum pay to $6.55 on August 1, 2008. In August 2009, the rate would be permanently set at $7.25.

A report by the US Bureau of Labor Statistics, which estimates the number of people working at or below the federal minimum wage rates in each state, found that in 2006, Kansas had 23,000 workers earning at or below the federal minimum wage of $5.15 per hour. This rate is lower than the rates in the US Territories of Guam, Puerto Rico and the Virgin Islands.

The legislature must start to take seriously the needs of hardworking Kansans. We owe it to these families to pass a wage hike. It’s the right thing to do, and long overdue. Kansas currently has the lowest minimum wage in the nation; nearly $2.50 per hour lower than the next closest rate. Neighboring states Nebraska, Oklahoma, Missouri, Arkansas, Iowa and Colorado all have minimum wage laws at or exceeding the federal rate. This bill would help our state remain competitive and to keep our workforce at home.

Senator Kennedy introduces "The Civil Rights Act of 2008": Further action still needed to address Racial Discrimination and Summary Judgements

Senators Kennedy and a host of co-sponsors introduced a bill being called the Civil Rights act of 2008. The bills co-sponsors include Senators Kennedy, Leahy, Dodd, Bingaman, Kerry, Harkin, Mikulski, Akaka, Boxer, Feingold, Murray, Durbin, Schumer, Cantwell, Clinton, Lautenburg, Obama, Menedez, Cardin, & Brown, along with 26 members of the House of Representatives including Congressmen John Lewis and John Conyers. The intent of this piece of legislation is to restore key enforcement provisions of existing Civil Rights laws that have been eroded or eliminated by recent court decisions and legislative actions. The bill seeks to:
.
Ensure that Federal Funds are not Used to Subsidize Discrimination
It allows individuals to seek relief when federal funds subsidize practices that have an unjustified discriminatory effect. Federal laws prohibit discrimination by recipients of federal funds based on race, national origin, disability, age, or gender. In 2001, however, the Supreme Court held that individuals may no longer challenge federally-funded programs that have an unjustified discriminatory effect, unless they also can meet the heavy burden of proving discriminatory intent. Thus, currently, only the federal government can bring such suits. This bill restores the individual right to challenge practices that have an unjustified discriminatory effect based on race, color, national origin, disability, age or gender.

It would protect students from harassment in schools that receive federal funds. It gives students the same protection from unlawful harassment in our schools as adults have on the job. Currently, schools that receive federal funds cannot be held accountable if a teacher or classmate harasses a child unless the school had actual notice of the abuse and did virtually nothing to correct the problem. This is true even if the school has turned a blind eye to clear signs of harassment.

Hold Employers Accountable for Age Discrimination
It seeks to make state employers fully accountable for age discrimination. Under a recent Supreme Court decision, state employers do not have to provide back pay or other monetary damages when they discriminate against workers based on age in violation of the Age Discrimination in Employment Act. The bill would require state employers to give workers full relief for age discrimination, including backpay.

It would clarify the standard for challenging employment practices that have a discriminatory effect based on age. It makes clear that the standard of proof in cases alleging an unjustified discriminatory effect based on age is the same as in cases alleging an unjustified discriminatory effect based on race, color, gender, national origin, or religion.

Improve Accountability for Other Violations of Civil Rights and Workers' Rights by:

• Prohibiting employers from requiring workers to give up the right to enforce employment laws in court in order to get a job or keep a job.
• Providing attorney's fees and expert fees in major civil rights and labor cases.
• Providing full, effective remedies for victims of discrimination based on gender and religion paralleling those available for race and national origin discrimination claims.
• Providing relief for undocumented workers who are victims of labor and employment law violations.

~~~~~~

The bill would clearly strengthen and restore remedies for various forms of discrimination to meet the original intent of the Civil Rights Act of 1964. And while I believe this proposed act is a very positive step forward, I hope that our Legislators will go one step further to deal with recent court decisions in cases of Racial Discrimination and how the burden of proof in such cases has been raised to an almost unattainable standard.

Racial Discrimination cases throughout the nation have become increasingly unwinnable due to the courts widespread dismissal of claims via Summary Judgement. When facing a possible Summary Judgement, plaintiffs have to present a prima facie case of discrimination to the courts. This means, the plaintiff must demonstrate that: (1) they are a member of a protected class; (2) they met the legitimate expectations of their employer; (3) they suffered an adverse employment action; and (4) similarly situated employees that were not members of the protected class were treated differently. The first three postulates are self-explanatory, however the fourth is a point of contention.

Courts currently may arbitrarily apply one of a multitude of divergent legal interpretations in defining the term "similarly situated" and can thereby include or exclude evidence or testimony germane to a racial discrimination claim. The exclusion of such evidence results in a finding that the plaintiff has failed to show a prima facie case of discrimination thereby allowing dismissal via summary judgement.

An example of two differing Standards in determining which employees are 'similarly situated' are:

(1) The Wheeler Articulation: Wheeler, 360 F.3d at 857 (8th Cir) which states the standard to be employees 'who are involved in . . . the same or similar conduct and are disciplined in different ways. '

(2) The Clark v. Runyon Standard: Clark v. Runyon, 218 F.3d 915, 918 (8th Cir. 2000) which states the standard to be employees who “have dealt with the same supervisor, have been subject to the same standards, and engaged in the same conduct.”

By shifting definitions to the more stringent Clark v. Runyon Standard, courts can rule that disparate treatment and workplace inequities do not meet the legal burden of 'Racial Discrimination' if the witnesses who may testify to the material facts of the claim are not similarly situated in ALL respects.

A perfect example of this is the case of George D. Phillip v. Ford Motor Company (8th Cir
No. 04-1735). In granting Summary Judgement in favor of Ford Motor company, thereby dismissing Mr. Phillp's claim, Circuit Judge Melloy penned their decision which stated:

After careful review of the record in this case, we conclude that Philip failed to establish a prima facie case of racial discrimination because he did not prove that employees similarly situated to him were treated differently. Philip cites the affidavits by the plant physician, Dr. Zubieda Kahn, and by a Committeeperson for the United Auto Workers at the Twin Cities Assembly plant from 1996 through 1999, Nancy Schillinger, as evidence that employees received disparate treatment. It is unnecessary to reach any conclusions regarding the admissibility of these affidavits because, even if they are admissible, they only show that disparate treatment may have occurred at the plant. They do not demonstrate that individuals who received disparate treatment were similarly situated to Philip.

Kahn testified as to a number of instances of possible disparate treatment by Ford. For example, Kahn testified that Human Resources Manager Jack Halverson would interfere with the medical placement of black employees and that the workers’ compensation representative used derogatory language towards a black employee. Kahn also testified that Ford personnel failed to follow her medical recommendations regarding the placement of black employees. However, Kahn’s affidavit does not provide any evidence as to whether those who were treated differently were similarly situated. It does not connect what Kahn observed to Philip’s situation.

Ms. Schillinger’s affidavit also suggests that black employees were treated differently. For example, she testified that two Caucasian employees were treated differently based on race when they sought reclassification to driver-inspector positions. The district court correctly concluded, however, that Schillinger’s affidavit offers no proof regarding the “comparability of the positions” into which the two Caucasians were place. It also did not offer proof regarding the comparability of the qualifications or seniority of the two Caucasians who received driver-inspector positions. Schillinger’s affidavit does not show how the grandfathering of the two Caucasians and the treatment of Philip by Ford are connected.

Although the Schillinger and Kahn affidavits may offer evidence of disparate treatment, they do not, on their face, establish the requisite showing of sufficient specific, tangible evidence that employees who were “similarly situated in all respects” to Philip received disparate treatment from Ford to sustain Philip’s claim. Gilmore, 319 F.3d at 1046. Accordingly, Philip failed to meet his burden, thus summary judgment was appropriately granted.

Judge Heaney dissented and wrote:

The positions of Philip and the white employees offered for comparison were reclassified, and should have been opened for bid and awarded on the basis of seniority. These employees are therefore similarly situated in all relevant respects. Applying the requirements of Clark v. Runyon to non-disciplinary claims like Philip’s places an inappropriate burden on plaintiffs to show similarities irrelevant to their claims.

So while we welcome the news of the bills introduction and strongly support its passage, we would also encourage our Legislators to take one more look at the the insidious form of discrimination that inspired the original Act. Let's work together to close that final loophole an grant some legislative relief to the victims of Racial Discrimination as well...

Washington, Can you hear me???

Tech Tags: Civil+Rights, Civil+Rights+Bill, NAACP, Current+Events, Current+Affairs

The NAACP Legislative Report Card for the 110th Congress: Was your Representative representing you?

Click Here to download the NAACP Legislative Report Card for the 110th Congress!!

.

.

.

.

.

Legal Update: The Missouri State NAACP & Ward Connerly's Anti-Affirmative Action initiative

Ward Connerly and his "Civil Rights" institute have been traveling the country trying to end Affirmative Action programs. Currently, he is attempting to place measures on the ballot in Missouri, Colorado, Oklahoma, Nebraska, and Arizona.

Connerly uses ballot petitions to amend State constitutions using misleading language and evoking Civil Rights imagery. The language he is attempting to amend into the Missouri constitution reads:

"The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity or national origin in the operation of public employment, public education or public contracting"

To place the language on Missouri's ballot in November '08, Connerly has until May 4th, to gather 139,000 signatures. His volunteers ask would be petitioners to sign a petition in support of a new civil rights initiative. Signatories are often unaware of the fact that the petition they've been presented is actually an anti-affirmative action measure, carefully worded to obfuscate its singular intent.

Thankfully, in the state of Missouri, the Secretary of State and Attorney Generals Office have to approve the wording of any ballot petitions. The Secretary of State did not accept the language submitted by Asher and Connerly and proposed new language that clearly describes the propositions intent. In response Connerly and Asher have filed suit to retain their obscure and misleading language.

The Missouri State Conference of the NAACP has been working through the courts to try and stop this latest effort. The following is an update regarding the litigation pending in the Circuit Court of Cole County involving the proposed anti-civil rights initiative petition. [Warning, this is a long post...]

~~~~~~

FACTUAL BACKGROUND
On June 15, 2007, Tim Asher ("Proponent Asher") and a group called the Missouri Civil Rights Initiative filed with Secretary of State Carnahan a proposed Initiative Petition to change Missouri's Constitution ("Proposed Initiative"). Proponent Asher is a representative of Ward Connerly and his American "Civil Rights" Institute.

On July 19, 2007, the Secretary of State certified the Official Ballot Title for circulation to voters. The Summary Statement of the Official Ballot Title reads:

"Shall the Missouri Constitution be amended to:

• ban affirmative action programs designed to eliminate discrimination against, and improve opportunities for, women and minorities in public contracting, employment and education; and
  
• allow preferential treatment based on race, sex, color, ethnicity, or national origin to meet federal program funds eligibility standards as well as preferential treatment for bona a fide qualifications based on sex?"

The Fiscal Note Summary portion of the Official Ballot Title prepared by State Auditor Montee reads:

"The total cost or savings to state and local government entities is unknown. Most state governmental entities estimate no costs or savings. Moreover, costs or savings related to future contracts are unknown. Some local governments estimate no costs or savings but prohibition of certain municipal policies may result in unknown costs."

~~~~~~

LITIGATION
A. Proponent Asher's Suit:

On July 26, 2007, Proponent Asher filed suit against Secretary of State Carnahan claiming that the Summary Statement prepared by her was insufficient, confusing and/or misleading. Proponent Asher is seeking a court order to change the Summary Statement to the following:

"Shall the Missouri Constitution be amended to prohibit any form of discrimination as an act of the state by declaring:

• The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity or national origin in the operation of public employment, public education or public contracting?"

[The title challenge is Proponent Asher's only claim.]

B. Shufeldt and Isrealite suit:

On July 30, 2007, Greg Shufeldt of St. Louis and Steve Isrealite of Kansas City (collectively "the Opponents") filed suit against the Secretary of State and the State Auditor regarding their preparation of the Official Ballot Title for the Proposed Initiative. On August 28, 2007, the Opponents amended their Petition. In their amended Petition, the Opponents raise six separate claims.

Count I alleges the Secretary of State's Summary Statement, while accurate, is legally insufficient as it is underinclusive and fails to summarize all material provisions of the Proposed Initiative. The Opponents' claim that the Summary Statement fails to mention the authorization for preferential treatment based on religion, disability, veteran status and age. The Opponents also claim that the Summary Statement also fails to discuss the effect of the proposed amendment would have on court orders. Finally, Opponents claim the Summary Statement fails to state that the Proposed Initiative authorizes new lawsuits for enforcement of its provisions and abolishes remedies currently available to minority and women victims of discrimination.

Count II claims that the fiscal note prepared by the State Auditor does not estimate the measure's cost or savings to governmental entities covered by its provisions. Count II also claims that the Auditor did not properly gather or verify information to make her determination.

Count III challenges the fiscal note summary as it fails to estimate the costs or savings and is based on a flawed fiscal note.

Count IV claims that the procedure used by the State Auditor to evaluate fiscal impact of the measure should have been promulgated as an administrative rule but was not.

Count V claims that the proposed measure violates the constitutional requirement that proposed initiative petitions not contain multiple unrelated topics.

Finally, Count VI claims that the Proposed Initiative exceeds the Initiative Power because its terms violate the Equal Production Clause of the United States Constitution. The Opponents claims the provisions of the Proposed Initiative which allows for preferential treatment for suspect classes and others in some circumstances but not for others in similar circumstances is an illegal classification without a sufficient state interest.

~~~~~~

LITIGATION UPDATE

On January 7th, Judge Callahan issued his ruling

DISCUSSION

A. Summary Statement Portion of the Official Ballot Title
Plaintiffs’ first complaint about the summary statement is the use of the term “affirmative action.” Although the proposed amendment does not use the term affirmative action, an examination of the purpose of the amendment, together with an examination of the definition of affirmative action, makes it clear that the purpose of the proposed amendment is to ban programs that fit the definition of affirmative action.

The equal protection clause of the Missouri Constitution, Art. I, Sec. 2, already severely limits any discriminatory practice by the State. Race, national origin and gender are suspect classifications that are subject to heightened scrutiny. See Powell v. American Motors Corp., 834 S.W.2d 184 (Mo. banc1992); State v. Stokely, 842 S.W.2d 77 (Mo. banc 1992).
The proposed amendment would therefore ban programs that are currently allowed under the state constitution’s equal protection clause and which are intended to improve opportunities or eliminate the lingering affects of past discrimination against women and minorities. These types of programs are commonly referred to as “affirmative action” programs. For example, Webster’s Third New International Dictionary defines affirmative action as “an active effort to improve employment or educational opportunities for members of minority groups and women.” Webster’s Third New International Dictionary of the English Language (Philip Babcock Gove, Ph.D. ed., Mirriam-Webster Inc. 1993). Black’s Law Dictionary defines “affirmative action” as “a set of actions designed to eliminate existing and continuing discrimination, to remedy lingering effects of past discrimination, and to create systems and procedures to prevent future discrimination.” Black’s law Dictionary 60 (7th ed. 1999).

The use of the term “affirmative action” allows those reviewing the ballot title to know the issue that the proponents of initiative seek to put before the voters. Regardless of whether a voter is for or against affirmative action programs, that voter will be aware of why they are being asked to sign the petition and what they may ultimately be voting on. The most significant provision of the amendment would ban affirmative action programs in Missouri, as the first bullet point in the Secretary’s summary states. Accordingly, the Court finds nothing “insufficient or unfair” from the use of the term “affirmative action programs” in the ballot summary.

The second bullet point in the Secretary’s summary states that the proposed
amendment will:

“allow preferential treatment based on race, sex, color, ethnicity, or national origin to meet federal program funds eligibility standards…”

It is this second bullet point which the Court finds troubling because it suggests that the proposed amendment is first going to do away with one class of preferential treatment programs, i.e. affirmative actions programs, and then replace the affirmative action programs with some other kind of preferential treatment programs. The purpose and effect of the proposed amendment is to ban certain preferential programs unless a particular program is necessary to qualify for federal funding. The federal eligibility exception, as well as the court exception, only serves as an exception to programs that are being banned by the amendment.

While the Secretary argued, and this Court agrees, that the term “affirmative action programs” may be utilized to describe in the first sentence what is being banned, the second sentence containing the exception must then grammatically utilize the same subject to which the exception applies. The Court finds no merit to the Secretary’s argument that it would be “confusing, unfair, and misleading to voters to state in one bullet point of the summary that the petition bans affirmative action programs; and state in the very next bullet point that it allows affirmative action programs”, pages 12-13 of Defendants’ Post-Trial Brief.

B. Fiscal Note
Plaintiffs Shufeldt and Israelite claim that the Auditor’s fiscal note fails to meet a statutory requirement that the note actually provide an estimate of the measure’s cost or savings.
Section 116.175.3 provides that the fiscal note must state the measure’s estimated cost or savings, if any, to state and local governmental entities. The fiscal note prepared by the Auditor meets § 116.175.3’s requirements. Each individual entry in the fiscal note states a particular entity’s estimate of the cost or savings of the measure, if any, as to that entity. The Auditor’s decision to have the fiscal note consist of a collage of estimates of costs and savings from individual governmental units is a choice of form of presentation for the Auditor. Given the time constraints and lack of subpoena power, this Court cannot say that her choice of form fails to comply with the statute. While the Auditor could have included a combined net estimate of cost or savings for all entities in the note, § 116.175.3 did not require her to do so.

Aside from form, Plaintiffs failed to show that the Auditor’s fiscal note was insufficient or unfair. In Overfelt v. McCaskill, 81 S.W.3d 732, 737 (Mo. App. W.D. 2002), the court held that establishing insufficiency or unfairness of a fiscal note required a plaintiff to prove “that a better estimate was available” to the Auditor. 81 S.W.3d at 737. “Without such evidence,” the court held, the plaintiff “could not establish that the [fiscal note] was insufficient or unfair…” Id.

Here, Plaintiffs Shufeldt’s and Israelite’s attack on the Auditor’s fiscal note fails for a lack of proof, just like the plaintiff’s claim in Overfelt. The testimony of their expert did not prove that there was available to the Auditor an estimate that was better than what the Auditor obtained from the state and local governmental entities. Plaintiffs’ expert did not have an opinion as to what the correct estimate of cost or savings of the measure would be and she also admitted that she did not know how the proposed amendment would affect any particular state and local governmental entity.

C. Fiscal Note Summary
Plaintiffs Shufeldt and Israelite failed to prove that the Auditor’s fiscal note summary was insufficient or unfair. Hancock v. Secretary of State, 885 S.W.2d 42, 49 (Mo. App. W.D. 1994), held that “[a]s applied to the fiscal note summary, insufficient and unfair means to inadequately and with bias, prejudice, deception and/or favouritism synopsise in [50] words or less, the fiscal note.” As with the summary statement portion of the official ballot title, the Auditor’s fiscal note summary is not required to present “the best language for describing the [measure’s] effect.” Id. The important test is whether the language fairly and impartially summarizes the fiscal note. Within the 50-word limit, the summary need not set out the details of the fiscal note. See Bergman, 988 S.W.2d at 92.

Here, the Auditor’s fiscal note summary fairly and impartially summarizes the fiscal note within the 50-word parameter. Indeed, Plaintiffs’ expert agreed at trial that the fiscal note summary accurately or fairly summarized the responses from the state and local governmental agencies that were listed in the fiscal note.

D. Requirement of a Rule (Shufeldt/Israelite Petition – Count IV)
In Count IV of their petition, Plaintiffs Shufeldt and Israelite make the claim that Defendant Montee was required to promulgate a rule for preparation of fiscal notes.

Plaintiffs cite no statutory provision that would require the Auditor to promulgate a rule for fiscal note preparation, and Chapter 116 does not impose one. As such, their claim fails as a matter of law. “An administrative agency need not promulgate rules … simply because it has the power to do so.” Missouri National Education Assoc. v. Missouri State Bd. Of Education, 34 S.W.3d 266, 287 (Mo. App. W.D. 2000), citing Artman v. State Bd. of Registration for the Healing Arts, 918 S.W2d 247, 251 (Mo. banc 1996). “In the absence of a statutory restraint the choice whether to develop policy by rule, ad hoc adjudication, or both, rests with the discretion of the agency.” Greenbriar Hills Country Club v. Director of Revenue, 47 S.W.3d 346, 357 n.32 (Mo. banc 2001).

E. Single Subject Violation
Plaintiffs Shufeldt and Israelite claim in Count V that the proposed amendment violates Article III, § 50’s single-subject requirement.
This claim is not ripe until petition signatures have been gathered and the Secretary of State certifies the petition for inclusion on the ballot. See Missourians to Protect the Initiative Process v. Blunt, 799 S.W.2d 824, 827 (Mo. banc 1990). Accordingly, the Court dismisses this claim without prejudice.

F. Federal Law and Equal Protection Violations
Plaintiffs Shufeldt and Israelite claim in Count VI that the proposed amendment, if adopted, would violate various federal statutory and constitutional provisions.
These claims are not ripe either. As the Missouri Supreme Court held in State ex rel. Dahl v. Lange, 661 S.W.2d 7 (Mo. banc 1983):
Until the people have voted on the initiative, judicial assessment of the constitutional validity of the proposal would be premature and an encroachment on the legislative function. Should the voters reject the amendment, the Court’s decision as to constitutionality would be an advisory opinion. Courts in Missouri will not render advisory opinions.
Id. at 8 (internal citations omitted). See also Missourians to Protect the Initiative Process v. Blunt, 799 S.W.2d 824, 827 (Mo. banc 1990) (Missouri courts do not “give advisory opinions as to whether a particular proposal would, if adopted, violate some superseding fundamental law, such as the United States Constitution.”).

~~~~~~

ORDER - of Judge Richard Callahan

IT IS HEREBY ORDERED that Plaintiffs’ request for alternative summary language is granted and the following Summary Statement portion of the Ballot Title is certified to the Secretary of State:

Shall the Missouri Constitution be amended to:

"Ban state and local government affirmative action programs that give preferential treatment in public contracting, employment, or education based on race, sex, color, ethnicity, or national origin unless such programs are necessary to establish or maintain eligibility for federal funding or to comply with a court order ?"

IT IS FURTHER ORDERED that the Fiscal Note and Fiscal Note Summary is certified as previously prepared by the Auditor and certified by the Secretary of State. Plaintiffs Shufeldt and Israelite’s claims with respect to the Fiscal Note and Fiscal Note Summary are denied.

IT IS FURTHER ORDERED that all remaining Plaintiffs’ claims are denied.

SO ORDERED THIS 7th Day of January, 2008.

~~~~~~

We in the Wichita Branch NAACP applaud the legal efforts of the Missouri State Conference and stand ready to assist you in any way requested or necessary. We recognize that while this ruling was favorable, this fight is far from over; Mr. Connerly and his group will continue gathering signatures and there is a real chance that this question could end up on the ballot. Hopefully, through this blog and the combined efforts of concerned members and friends, we can spread the word about the real intent of Mr Connerly and his multi-state faux civil rights initiatives...

Lockheed Martin to pay 2.5 Million to settle Racial Harassment Lawsuit

HONOLULU -- The U.S Equal Employment Opportunity Commission (EEOC) today announced a major settlement of a race discrimination and retaliation lawsuit against Lockheed Martin, the world’s largest military contractor, for $2,500,000 and other relief on behalf of an African American electrician who was subjected to a racially hostile work environment at several job sites nationwide – including threats of lynching and the “N-word.”

The monetary relief for former Lockheed employee Charles Daniels is the largest amount ever obtained by the EEOC for a single person in a race discrimination case, and one of the largest amounts recovered for an individual in any litigation settlement by the agency. Additionally, the Bethesda, Md.-based company agreed to terminate the harassers and make significant policy changes to address any future discrimination, the EEOC said at a press conference in Hawaii.

The EEOC’s suit, filed in August 2005, alleged that Daniels was subjected to severe racial harassment while working on military aircrafts as part of a field service team in Jacksonville, Fla., Whidbey Island, Wash., and Oah’u, Hawaii. The EEOC charged that Daniels was the target of persistent verbal abuse by coworkers and a supervisor whose racial slurs and offensive language included calling him the “N-word” and saying “we should do to blacks what Hitler did to the Jews” and “if the South had won then this would be a better country.” Daniels was also subjected to multiple physical threats, such as lynching and other death threats after he reported the harassment. Despite its legal obligations, Lockheed failed to discipline the harassers and instead allowed the discrimination against Daniels to continue unabated – even though the company was aware of the unlawful conduct.

Commenting on the settlement, Daniels said: “As an armed forces veteran who swore to defend the rights and interest of Americans around the globe, I find it sad that the U.S. government had to sue its largest defense contractor Lockheed Martin -- whose slogan is ‘We never forget who we’re working for’ -- to protect my rights here at home!”

Daniels added, “I am pleased that we stood up for justice, because it should help all hard-working Americans of every race and gender to know that we have rights and protections guaranteed under the laws of this nation.”

EEOC Regional Attorney William Tamayo said, “This is a very good resolution because Lockheed Martin agreed to terminate and permanently bar Daniel’s harassers from employment. It sends a powerful message that racism cannot and must not be tolerated.”

Raymond Cheung, the EEOC attorney who led the government’s litigation effort, added, “To combat the harassment and threats faced by Mr. Daniels is at the heart of why the EEOC was created. Despite concerns of retaliation, this man had the courage to stand up and make public what happened to him, in an effort to ensure that it would not happen to anyone else. It has been a once-in-a-lifetime honor to work on this case.”

The litigation and consent decree were filed by the EEOC under Title VII of the Civil Rights Act in the U.S. Court for the District of Hawaii (U.S. Equal Employment Opportunity Commission v. Lockheed Martin, CV-05-00479).

.
EEOC Honolulu Local Office Director Timothy Riera praised the agency’s lead investigator in the case, Gloria Gervacio, and said: “The overt harassment to which Mr. Daniels was subjected in Hawaii represents some of the most severe misconduct this office has come across. It is imperative that employers here take proactive measures to ensure that discrimination complaints are taken seriously and that all employees work in an environment free of harassment.”

Racial harassment charge filings with EEOC offices nationwide have more than doubled since the early 1990s from 3,075 in Fiscal Year 1991 to approximately 7,000 in FY 2007 (based on preliminary year-end data). Additionally, race remains the most frequently alleged basis of discrimination in charges brought to the EEOC, accounting for about 36% of the agency’s private sector caseload.

~~~~~~

On Feb. 28, 2007, EEOC Chair Naomi C. Earp launched the Commission's E-RACE Initiative (Eradicating Racism And Colorism from Employment), a national outreach, education, and enforcement campaign focusing on new and emerging race and color issues in the 21st century workplace. Further information about the E-RACE Initiative is available on the EEOC’s web site at http://www.eeoc.gov/initiatives/e-race/index.html

The EEOC enforces federal laws prohibiting employment discrimination based on race, color, gender, religion, national origin, age and disability. Further information about the EEOC is available on its web site at http://www.eeoc.gov

The Wichita Branch NAACP joins the campaign to Raise the Minimum Wage in Kansas!

The Wichita Branch NAACP stands with the Kansas Action Network in supporting an increase in the Kansas minimum wage of $2.65 an hour. We believe this figure is disgracefully low and should be raised to match the national level. According to the Department of Labor, there are now at least 27,000 Kansas workers who are covered by the absurdly low Kansas minimum wage rather than by the federal minimum.

We believe a job should keep you out of poverty, not in poverty. Because the Kansas legislature has refused to raise the minimum wage since 1988, it is time for us to act locally. We call upon the City of Wichita to use its home rule authority to establish a city minimum wage matching the federal level. Ultimately, in 2009, the federal minimum wage will rise to $7.25 an hour. Currently, the figure is $5.85. In 2008 it will rise to $6.55.

Kansas has the lowest minimum wage in the nation. We say: Keep up with the rest of the country. Raise the wage to the federal minimum wage level, and keep it there. Wichita is the largest city in Kansas and contains 21% of the state workforce. Our example can make a difference, not only here but for Kansas as a whole.

A minimum wage of $2.65 an hour is nowhere near enough for workers to afford basic necessities for themselves and their families. This figure amounts to less than $6,000 per year for someone working 40 hours a week, 52 weeks per year. This is a stark contrast with the federal poverty line of $17,170 for a family of three.

Raising the wage is an important step in helping workers support their families.Raising the wage is essential to healthy communities and businesses, and enduring economic growth.

The following Wichita-based organizations support the campaign to “Raise the Wage:”
Adorers of the Blood of Christ Convent - APWU #735 - Bricklayers Union Local 15 - Business and Professional Women of Kansas; Wichita Chapter - Childcare Providers Together/AFSCME - Church Women United; Wichita - Communication Workers Local 6402 - Heartland Quaker Meeting - Hope Street Youth Development - IAM & AW Local 639 - IAM & AW Local 733 - IAM & AW Local 774 - IAM & AW Local 839 - IAM & AW Local 2799 - IAM & AW LL 708 - IBEW Local 271 - IBEW Local 1523 - International Association of Fire Fighters Local 135 - Kansas/Oklahoma Conference of the United Church of Christ - The Wichita Branch NAACP - Labor Council on Latin American Advancement - National Association of Letter Carriers - National Organization for Women; Wichita Chapter - Peace & Social Justice Center of South Central Kansas - Plumbers and Pipefitters UA 441 - ProKanDo - Sedgwick County Democratic Party - Sedgwick County Federation of Women’s Democratic Clubs - SEIU Local 513 - Sheet Metal Workers Local Union 29 - Sisters of St. Joseph; Dear Neighbor Ministries - Society of Professional Engineering Employees in Aerospace Local 2001 - St. Elizabeth Ann Seton - Peace and Social Justice Committee - Teamsters Union Local 795 - United Food and Commercial Workers Local 2 - United Teachers of Wichita Local 725 - Wichita/Hutchinson Labor Federation of Central Kansas - AFL-CIO - Wichita State University; Campus Progress - Wichita State University; Political Science Club

Tech Tags: Employment, Minimum+Wage, NAACP, Current+Events, Current+Affairs