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said he did not see,Mattespn'scam:so':tar, propert)" v~iues nave not'
paign as "at all exdu~iOriary,"
declined in Matteson; where the av
. Given the nation's history, Mr. Lueragehome costs about 5117,000 and
kehart said, "if we. don't have amr-· the average household income is
mativekinds of approaches to undo$55,000, according to village officials.
ing discrimination and segregation,
From 1986 to199.4,as the blackpopu
we are kidding ourselves." 1
laiion grew tq close to 50. percent,
.
property. 'values.increased.. anaver- .
"You see ali'too few communities
, . doing proactive typesofthitigs to
ageofS.3.percent.a'Ye~r·., :0:::'. .'
:;, encourage diyersity;" 'he said, '~and
B,ut the white flight hashardened a
that is troubling to me.".
division in .Matteson. Most of the
Don DeMarco, executive director 'blacks, Iiveln the newer area ,on the
for the Fund for an OPEN Society, a. westslde.and most of the whites live
in the' older section ,on the east side,
nonprofit: pro-integration'grpup in
Philadelphia, said Matteson had
where.houses are often sold·by word
probably started its effort to: malnof moutt!:"" '
,.
tain diversity too late. Mr. DeMarco
The village itself has to overcome
said he had helped prepare a :report a level of mistrust.
At Alnerlcan Legion Post 474,It
for Matteson, warning the village
that something had to be done "if was .time for<the, 'Friday fish fry.
Down,in.thebasemeilt;',St.Pathck's
they were to enjoy st~ble housing"
and avoid resegregation:
i
Day decorations ,were already up as
That was 16 years ago.',
John Dunham. 33, a white plumber,
Many of Matteson's residents are who grewupiri Matteson, explained
refugees from the Civil wars of C~I- why he h1id moved .away ~woyears
cago, one of the most segregated bIg ago be.causeof"theblack.s."
cities in the country.
,
"I saw the' hanqwriting,on " the
Memories of block busting, raCial wall;" he said: "They're going ,to
steering, restricted covenants and desperate measures to get whites
panic peddling back in the old;days, back, but it won't work." ' . , '
in the old neighborhood are stili
OutSide in the sunshine; though,
fresh.
I
James Randolph, 49, black, postal
Rosemary Lomax, who is \>Iack, worker, waited to pick up his son
remembers those days w.ell·an:d she from his integrated elementary
supports the marketing camJ)algn. school.
.
'
She moved here in .1969 fo~ the
"When we came here 'it was be
schools and the smell of the c0l;lntry cause it was mixed, we have ,all
in the fresh air. She said sh~ has rraces," Mr: Randolph saiq .. "I think
never felt discriminated against In . it's a-good thing'to move whites back.
Matteson and does not now.'
- They:1I .come back because there
"They're requesting that n:J~.;. really is no place for them to run any
Caucasians come to the area and I more."
don't ha\'c a problem with that,"
Then his son, Trevon, 7, came out,.
Mrs. Lomax said. ·:I~'s .. no.t ~bo~t -ready·to start his weekeri~r.wii:h his
'·-'''making>Mattes~n: hly. ~hlte'i 1~,S'black and white and Hispanic play
." ··aooiJ(keetiing property values t,lp.
mates,oblivious to the adult world of
-'
I
property values and race and ·fear
based on the color of someone's skin.
Mr. Randoiph helped Trevon into
their car and before driving down the_
tree· lined streets of Matteson, he
said: "The thing that gets me, is the
black peopl~ who live here are pretty
good people. We have jobs, we .::an
afford' these neighborhoods."
a
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35
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PHOTOCOPY
~ReSERVATION
�~_fI"'
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PAGE: _-'-fl ~/..,....1_ _
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DATE: ---=:3::;....·_/0..,....
Louisiana High .Court Finds
Minority$et-Asides meg~1
the only state in the nation where the drinking
age is under 21. .
.
.. WQrd of the !=hange spread quickly. Bourbon
Street bars; .a!reaaYfuUof'-students iii New
NEWORLEAN~It is uncoristitutionaha . Orleans f'Or the Southeastern Conference bas
. cialdiscriminationforLouisiana to.gUarantee a
. share of public works jobs .to minoritYc!>ntrac ketball tournament,' qUickly put up signs say
ing IS-year..olds could .Iegally buy and drink
torS, the state Supreme Court'has ruled.' .
booze.
.
The 6 to 1 ruJingFridayuphelda district
judge's decision lastyear'to throw o~t the 1984
law without a triaJ.
"1 think it bears out sort' of what Ith9ught:
quotas are illegal," said Gov~ Mike Foster,
whose firSt act ciIter taking office in january
was to hand o();,m an. executive order agairist
state set-aside..,nd affinnative action programs.
justice Bemette johnson, the panel's only
.black person; was the sOle dissenter.
:
. TheruJing does not affect construction pro
jects funded entirely With f~eral money. iI'hese
are governed by federalset-aside.iules arid reg
ulations. However, the justices'said Louisiana's .
constitution ·forbids it to impose racial quotas
even if that would. force the state to withdraw
from federal programs. that require such pref
erences.
.'
. . ;l
In a separate ..ruling, the state's high court
lowered the drinking age to 18 when it struck
down laws making it illegal for peopleuiJder 21
to buy or consume alcohol. ..
:
The 4 to 3 rulipg, wruchwas ba.sed on an ar
gumentof age discr:iiniriation, makes Lou,isiana
~1il,1'i#J ',. ..... ~. '.'!'";~
,
~ .....
I"
,.:.
'.""'"
""",
'.'
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PHOTOCOPY
PRESERVATION
�€fJc l1laofJiugtUll€imco
iJ
q~t()_
DATE: ----:--'I;:---Cf_'
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t1HOMAS SOWELL
Playing
a weasel
word game
I
ne ofthe sure signs of a bad
policy is that it is impossi
ble to defend it honestly in
plain English. Af'firinative
action is a classic example. :
From the president of Stanford
University to the president ,of the
United States, defenders of affirma
tive action have said they do not mean
to accept "Wlqualified" people. Just
what does that mean - if anYt/l.ing?
You can set the qualifications level
anywhere you wanUo. You can set it
so high that' only Einstein: could
q!)alify ouo low that Fbrrest Gump
would saifthrough'witli flyfug Colors.
Saying you will take only "qualified"
people is saying nothing - I while
pretending to say something.:
Even if the term had some real
meaning, the prinCiple is ridiculous.
If you were running a baseball team
that was behind in the bottom; of the
ninth inning, would you be just as
willing tosend,a, "qualified" batter up
tli>'the plate asm send Mark McGwire?
Wboyouneed a new car, are you
just: as, willing to buy any ",quali
fied'.' car or do you want the best you
can' get for'your money?
'
What.we do in,real life is try to get
the' mos!' bang fur.' the' buck. That
means yuu:compare One, indiVidual
with anotlier, not with some Will 0'
the ,wisp standard in whicfuall i'qual
ified" people are equally eligible.
That is not a standard; that is the
pretense of a standard, a phony. It is
a way of hiding double standards by
camouflaging them as a single stan
dard - "qualified." ,
'
The other great pretense of affir
mative action is that it is somehow
making up for the past Let's talk'sense,
like adults. Whatever you or I may
think about the past, it is gone.jNoth
ingyou do is going to make up, for it.,
O
,
,
'i
I
Whatever was wrong in the past
will remain wrong forever. It will
deserve to be condemned a thou
sand years from now. Nothing you do
today is going to change that, though
it may create new problems.
If we are going to talk about his
tory. the least we can do is to learn
Something from it. If discrimination
was wrong then, it is wrong now.
Repeating ,the same wrong with a
different cast ofcharacters changes
nothing about the past and poisons
the present and future.
Then there is the notion that a
quota isn't really a quota if it is called
a "goal" or "diversity." Someone once
asked Abraham Lincoln how many
legs a dog has, ifyou COWlt the tail as
a leg. Lincoln said four - because
your calling the tail a leg doesn't
make, it a leg. If it looks like a quota
and acts like a quota, it's a quota.
The phrase "affirmative action"
itself has become slippery. Some say
it is very "complex" concept and
includes such things as "outreach"
programs to make minority peoples
aware of what opportunities are
available in institutions from which
they may once have been excluded.
If this were a serious argument, then
there would be no need for the advo
cates of affirmative action to be
going ballistic over such things as
the California Civil Rights Initia
tive, which would just ban prefer
, ences and quotas.
You can still do all the "outreach"
your heart desires if the California
voters enact the Civil Rights Initia
tive into law. But, whatever validity
the "outreach" argument may have
had a quarter-century ago, when
affirmative action began, it is hard to
take seriously the notion that minor
ity peoples don't know today they
can now apply for jobs or college
anywhere they want to.
All these insults to our intoelli
gence hide the greatest insult of all
- that there are some morally
anointed people who should be pre
scribing end-results for all the rest
of us. This js the truly dangerous
mind-set, which goes beyond affir
mative action or any other policies
of the moment.
Back in the days of the Woodrow
Wilson administration, when blacks
were beirig systematically displaced
from whatever modest positions
they had once been pennitted to
reach in the .federal bureaucracy, a
federal offiCial said that blacks did
not belong in.postmaster'sjobs they
belonged in the Cornfields.
~
The racism of this remark was
only part of the. dangers it repre
sented. The danger that is still with
us today isthe notion that some peo
ple think it is their anointed role to
decide where other people belong
whether that is in the cornfields
, in the corporate suites.
AffirnMtiveactionisonlythelarest
example of this arrogance. The dis
honesty with which it is discussed is
only another aspect ofthat arrogance.
0;
Thomas Sowel~ an ecorwmist and
a senior fellow at the Hoover Institu
tion, is a nationally syndicated
columnist.
�DATE:
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{agreed with aBush appointee. Should I be impeached?
. Here we go again. Paul Craig
Roberts ("Using tactical fright to
intimidate;' Commentary, Oct.~) is
calling for my impeachment again..
He should get his facts straight ffrst.
Mr. Roberts cites cOmplaints by
San Diego Mayor Susan <rt>lding
about Justice Department cases
involving group homes for disabled
·residents, that supposedly have
"chilled the exercise of free speech
in San Diego." Odd. The Justice
Department has brought no group
home cases in San Diego. Not one.
He then turns to a matter, in
Palatine, Ill., where he alleges that
"federal agents have descended on
a neighborhood" to investigate
charges of housing discrimination.
Also odd. Law enforcement is our,
!
job. And in this case; we conduct
ed interviews to find out the facts,
That's what we do. By the way, the
home is operating quite peacefully
today in Palatine, with the city's
embrace and full support.
Mr, Roberts' article is misleading
in many other respects as well. He
also neglects to teU his readers that
the Justice Department has an
obligation under the Fair Housing
Act to protect people with disabili
ties who have been subjected to dis
crimination, including illegal efforts
to prevent them from moving into
their neighborhood. Citizens have
every right to express their views or
petition their government in oppo
sition even if their views are dis
criminatory or odious. But. as the
Supreme Court has recognized, cit
izens do not have a First Amend
ment right to file baseless lawsuits
that seek illegal objectives.
•
There is one other fact that Mr.
Roberts misses. The Justice Depart
ment has been involved in all of four
matters that involved the intersection
of the Fair Housing Act and the First
Amendment, three of which were
initiated in the BUSh ai1nili1istration.
Is a Clinton appointee's willingness to
agree with a Bush appointee's deci
sion an impeachable offimse?
DEVAL L. PATRICK
Assistant Anorney General
Civil Rights Division
U.S. Justice Department
Washington
,.
�.. '
PHOTOCOPY
PRESERVATION
��PHOTOCOPY
PRESERVATION
�PHOTOCOPY
PRESERVATION
�SOCIAL POLICY
i
,i
'
A 3!O-Year Experiment
I
has
roughly three decade~ since'the nation
experimenting with speciali
I tbegan been "affirmative action." programs known
term embraces
collectively as
~he
an array of initiatives, including spe~ial recruiting and
hiring goals, designed to help racial minorities and
women become full participants in 'the nation's eco·
I'
nomic life.
The effort came initially from the executive branch.
In 1961, President John F. Kennedy ordered federal
contractors to make special efforts to ensure that work~
ers were hired and treated without tegard to race or
ethnicity. President Lyndon B. Johnspn expanded the
directive significantly, requiring contractors who do
business with the federal government to adopt affirma·
tive action plans for all their operations - including
goals and timetables for increased m~nority hires. He
later enlarged federal affirmative action rules to include
women.
But it was President Richard M. Nixon who ushered
in a markedly more aggressive
and \controversial form of affirmative action. Nixon in 1969 initiated the
"Philadelphia plan," which required minimum levels of
, minority participation on federal construction projects
, in Philadelphia and three other cities.: The next year,
similar standards were adopted for virtually all federal
:
contractors.
The 1964 Civil Rights Act
I
Congress, meanwhile, had weighed ih with the 1964
Civil Rights Act, which marked a huge advance for the
principle of non-discrimination in emploYment. The law
did not establish or explicity require affirmative action
programs. In fact, sponsors assured critics that the law
would not force employers to use hiring: quotas or give
preferential treatment to blacks or othet groups.
, But Title VII of the law did set out principles of
employment non-discrimination and a !mechanism to
redress violations. Courts have since interpreted the law
to allow or even require various types: of affirmative
action. And many private and state employers adopted
voluntary affirmative action plans. ((i:ourt rulings,
~IMU
I
These policies continually drew somel criticism, but
they survived key court challenges and became standard
I '
operating procedure.
At the request of Senate Majority Leader Bob Dole,
R·Kan., the Congressional Research Service compiled a
list this year of more than 100 federal programs that
could roughly be categorized as affirma~ive action programs as precise as setting aside a fix~d percentage
of crime assistance grants for minority or female·owned
institutions, and as general as urging recipients of fed·
eral agriculture or housing assistance to Use minority·
owned banks.
I
I
i
I
.
The first major political assault on affirmative action
came from the Reagan administration, ~hich vocally
opposed most affirmative action programsi as examples
Backlash in the Reagan Era
i
Presidents Johnson, left, and Nixon worked to Increase
minority participation in federal construction projects.
of reverse discrimination and unwarranted preferences.
Reagan weakened enforcement of some programs and
challenged others in court.
However, advocates and their congressional allies
withstood his administration's attempts to undo many
affirmative action requirements for federal contractors
- a testament to the effort's ongoing support and,
perhaps, .reluctance to take on the debate's volatile ra·
cial politics.
"Nobody wanted to make' an issue of it. because
you're opening yourself to charges of racism or sexism,"
said Seymour Martin Lipset, a public policy professor at
George Mason University who has written about affir
mative action.
The Fatal Quota Label
As recently as 1991, Congress indirectly endorsed
some of the principles of affirmative action when it
passed civil rights legislation (PL 102-166) that made it
easier for workers to sue for job discrimination. (1991
Almanac, p. 251)
Still, an earlier version of the bill was defeated amid
bitter arguments over whether it was a "quota bill" that
would force employers to hire by the numbers.
Fixed hiring quotas are unlawful in virtually all con
texts and were not called for in the 1991 bill. But critics
for example,
said some aspects of that legislation
requiring employers who are sued for employment
discrimination to show why workplace demographics did
not roughly track that of the available labor pool
amount to de facto quotas as nervous employers seek to
avoid discrimination lawsuits.
Former Sen. John C. Danforth, a Missouri Republi:
can who struggled to pass a version of the bill, recalls the
opponents' initial success. "It was very clear at that time
that if something could be successfully labeled quota
'legislation, it wasn't going to go anywhere."
Danforth and other supporters eventually prevailed,
but uneasiness about the nation's affirmative action
policies has lingered and grown, feeding into the current
critical mood.
.
-Holly Idelson
I
CQ
JUNE 3, 1995 -
1519
�SOCIAL POtl,CY,
Courts Establish Boundaries
I
.
of the
action have been
written
in Congress, but in the
M anycourtsnot rules for affirmativeevenfederal courts.
The
have sanctioned, and
em
r~quired,
ployers to take race or gender into account to promote
equal opportunity. But they have sprinkled this legal
path with strong caveats and marked some forays into
the world of race and gender preferences as loff-limits. A
case pending befpre the Supreme Court could change
some of those rules once again:
,I
.
. General axioms have emerged from more than two
decades of complex and often clOsely decided affirma·
tive action rulings by the U.S. Supreme CoUrt and other
federal courts. They can be summarized as follows:
• "Preferences maybe, quotas no."
.
race or gender 'as a "plus
factor" in certain cases,
but are almost always for·
bidden from employing
strict, numerical quotas to
fill jobs.
• A.ffirmative action pro·
grams should be temporary
efforts to correct past
wrongs - specific or gen
eral - rather than perma·
nent features of the employ
ment landscape. No one has
:
.. .
defined temporary, however, prompting disputes over how
much affirmative action is enough.
'I'
• Employers must take into account the burden any
affirmative action program WOUld. place on l workers or
.
potential wor~ers outside the plan.
Current Law.
I
.
Private employers are governed by rulings on Title VII
of the 1964 Civil Rights Act, which prohibits employment
discrimination on the basis of race, gender or ethnicity.
That language might appear to preclude taIting race or
gender into account in workplace decisions; and some
affirmative action programs have been struck down as
violations of Title VII. Overall, however, courts have ruled
. that affirmative action is consistent with Title VII goals
and may even be required to remedy past violations.
Employers can undertake affirmative action pro
grams voluntarily if they aim to erase entrenched racial
or gender imbalances in job categories. For example; the
Supreme Court in 1979 upheld a steel marlufacturer's
voluntary:program'to reserve half of the tr~ining slots
for skilled craft jobs for African-Americans. At the time,
virtually
such jobs were held by whites.!
..'
But these programs cannot unduly impinge on other.
workers or prospective workers: A company's recruiting'
program would probably pass muster but r~serving all
job openings in a given category for women 011 minorities
probably would not. Also, a program must be a transi
tional scheme to break down longstandirlg barriers
rather than a permanent preference or a guatantee of a
certain level 'of minority or female representation.
If an employer is found guilty of discrimination under
I
all
Title VII, the courtS may order the company to adopt an
affirmative action program. Here, hOwever, the court
would have to establish, that discrimination had taken
place, not simply that a pattern of segregation existed.
When the government does the hiring - directly or
by contracting work - the legal ground rules for affir:
mative actio~ are set by the Co~stitution as well as Title
VII. Governments can adopt affirmative action policies
through legiSlative or executive branch action. Ulti
mately, such programs must square with the Fourteenth
Amendment guarantee of "equal protection" under the
. law to all people. ' .
'
State or· local affirmative action policies must meet
"strict scrutiny" by the courts: They must serve a com
pelling public policy goal and take targeted action to
achieve that goal. This has been translated into showing
that such plans are making up for past discrimination in
a particular field, not for societywide biases.
The Supreme Court has accorded the federal govern
ment a little more latitude than the states to undertake
affirmative action in the ~ame of broad social goals such
as diversity. The high court in 1990 upheld a controver
· sial Federal Communications Commission policy that
gives minorities. preference for broadcast licenses to pro
mote diverse viewpoints on the airwaves - not specifi
cally to remedy past discrimination.
On Trial
A case pending before the Supreme Court, Adarand
Constructors Inc. Q. Pena, could alter the rules for affir
mative action - at least where the federal government
is concerned.
At issue is a Transportation Department policy de
signed to steer some federal contracts to "soCially and
economically disadvantaged" businesspeople. The pol
icy gives contractors a bonus if they hire a disad
vantaged subcontractor. Minority-owned businesses
automatically qualify for "disadvantaged" status (sub
ject to an income cutofO, while others can petition for
the designation. A white contractor. says the policy is
discriminatory. If the. high court agrees, it could curtail
federal affirmative aCtion in the contracting arena. A
ruling is expected in June.
A New Jersey case before a federal appeals· court is
generating even more political fireworks and could fur
ther refine' the parameters of affirmative action. Two
business education teachers - one black, one white
· were hired on the same day by the Piscataway school
board. When the board was forced to fire one eight years
later, it dismissed the white teacher rather than her
black colleague, who was at the time the only black
teacher inthe 10-member department. In the past, the
.decision· would have been settled by a coin toss.
. Sharon Taxman, the white teacher, filed a reverse
discrimination suit with the support of the Bush adminis
· tration Justice Department. But under President Clinton,
the department switched sides and argued that the school
· district could take race into account in this instance. .
-Holly Idelson
CQ
JUNE 3,1995 -
1581
�, 't
sociAL POLICY
I
ers are hostile or at least questioning.
"The difference is the perception
in political circles," says Linda Cha
vez, president of the Center for Equal
Opportunity, a conservative thi'nk
tank, and an opponent of affirmative
action. "A lot of politicians seem! to
have suddenly discovered' that these
programs are preference programs.i'
Alternately, some defenders of affir
mative action say critics are distorting
the facts - falsely equating affirmatiye
action with quotas and overstating t,he
incidence of reverse discrimination
to exploit public apprehension.
I
Rep. John Conyers Jr., D-Mich.! a
senior black lawmaker who supports
the~programs, puts it' this way: "It's
just people making the most of a seln
sitive issue that people can get some
political mileage out of."
rI
New Attitude
!
Some of the current tensions ab06t
affirmative action surfaced durhlg
congressional debate on the 1991 ci~il
rights legislation (PL 102-166) that'
made it easier for workers to sue for
Job discrimination. An early versi6n
l
went down amid criticisn:i that it was a
"quota bill" that would force employ
ers to hire women and minorities ac
cording to strict ratios. (1991 Alm~
, nac, p. 251)
:
The 1994 elections brought la
clearer opportunity to challenge affir
mative action, simultaneously signa~
ing a more conservative electorate an'd
putting some affirmative action skep
tics in charge of key congressionat
posts. (Weekly Report, p. 819)
i
Presidential politics have helpea
prod opponents into high gear, as
Clinton and the Republican contend
ers jostle for position on the issue. The
controversial ballot proposal to undp
affirmative action programs in Cali
fornia - a key electoral state in na
tional politics - ensures that the i~
sue will figure in the 1996 presidential
race.
I
The Republican Party has long in-'
cluded strong critics of affirmative ac
tion, so it is not surprising that mem:
bers' success in the 1994 elections would
embolden them to attack. Even Sena~
Majority Leader Bob Dole, R-Kan., who
has supported affirmative action, is no,J.,
critical and may sponsor legislation 1.6
'undo most federal efforts.
. I
Many Democrats have been strong
supporters of the policy, reflecting its
importance to minority and women's
groups, which are among the party's
most steadfast allies.
Yet elements of the Democratic co,
I
1580 ...;.:,
JUNE 3,
1995
"I think the current system
cannot stand.t1
-Sen. Joseph I. Lieberman,
D-Conn.
alition, such as working-class whites,
have been uncomfortable with affir
mative action for years. And now Clin
ton and other key Democrats seem to
be struggling to find a proper stance
on the issue.
Clinton has said he still supports
affirmative action and is looking to
improve rather than abandon it. Even
that is considered a betrayal by some
within the party, where liberal politi
cians are bracing to defend the embat
tled programs. Key Democrats, such
as House Minority Leader Richard A.
Gephardt of Missouri and Sen. Chris
topher J. Dodd of Connecticut, while
publicly welcoming the review, have
pledged ongoing support for affirma
tive action.
But Lieberman, who chairs the
centrist Democratic Leadership Coun
cil, said he and some colleagues are
increasingly hard put to reconcile the
notion of group preferences with the
ideal of individual opportunity.
. "That inconsistency has become
more and more evident over time and
has become less and less tenable po
litically," he says. "I think the current
system cannot stand."
Pressure Points
The term "affirmative action" em
braces a range of initiatives, including
special recruiting, goals and timetables
for hiring or promoting minorities and
women, as well as rules to allot a portion
of government contracts for minority
or female-owned companies.
There is little dissent over recruiting
and outreach programs for women and
minorities, which make up a large por
tion of affirmative action efforts. On the
other end. policy-makers also unite
against fixed hiring quotas, which are
unlawful in virtually all contexts.
The friction comes over whether
race or gender should factor into hir
ing and firing decisions. For example,
is it sometimes appropriate to look be
yond pure test scores and give an ex
tra plus to a diversity candidate?
What about set-asides in government
grants or procurement rules?
Lawmakers' differing responses to
such questions reveal large gaps in the
way discrimination and affirmative
action are perceived.
. Studies indicate that affirmative
action has helped to move women and
minorities into traditionally segre
gated professions, although these
studies differ on the impact of the
gains. Yet Chavez and other critics in
sist that the ,policies have taken a far
greater toll on individual fortunes and
societal values than can be set off by
any gains they may have provided.
They see affirmative action as a
departure from principles of meritoc
racy and individual striving and 'as a
policy that costs white men who may
have had no part in any past or
present discrimination.
Hiring quotas are illegal, but crit
ics say managers are nonetheless "hir
ing by the numbers" to avoid discrimi
nation lawsuits. And over time, such
perceived or real abuses have accumu
lated. "I think' more and more people
are being impacted by affirmative ac
tion," says House Judiciary Commit
tee Chairman Henry J.Hyde, R-IlI.
Critics also charge that many affir
mative action programs benefit only a
few, privileged minorities or women
rather than helping the truly disad
vantaged. Early in 1995, Republicans
eagerly attacked a tax credit for com
, panies that sell television and cable
stations to minorities. The tax break
figured in plans by Viacom, a media
and entertainment giant, to sell its TV
systems to a black-owned company
and defer millions in taxes - a sce
nario many lawmakers decried as far
removed from the guiding aspirations
of the civil rights movement. (Weekly
Report, pp. 1016, 602)
These criticisms appear to reso
nate with voters, white men in par
ticular. Some women and minorities
also have voiced ambivalence toward
affirmative action, arguing either that
. it is unneeded or that it is harmful
because personal achievements may
be attributed to "preferences" rather ..
0)
CQ.
...
�.
.
SOCIAL POLICY
i
vantaged. Civil rights advocates say
than merit.
. But some policy-makers are bitter
such efforts should be made in addition
, about calls for a meritocracy in which
to affirmative action, not in place of it.
"Affirmative action was never
race and gender would play no role. It
is precisely because the qualifications
meant to be an anti-poverty program,"
of some women and minorities have ,says Ralph G. Neas, a veteran civil
'rights lobbyist who is coordinating a
been slighted, they say, that affirma
tive action is important. "How do we i pro-affirmative action campaign for the
go back to this colorblind society when , i Leadership Conference on Civil Rights.
we didn't have it in the first place?"
l"lt enabled people who were discrimi
! nated against to have an equal opportu
asked Rep. Donald M. Payne, D-N.J.
Advocates say affirmative action
inity."
forces employers to scrutinize the ex
I
plicit or hidden biases that can close
opportunities for women and minor
ities. They say everyone benefits from
\ "It's easy to think things are
this broadening: Employers get a more
diverse workforce, and white men may
better than they are."
have more opportunities when employ
ers go beyond the "old boy network" to
-Rep. John Conyers Jr.,
hire based on objective factors.
D·Mich.
I
To a great extent, the current fight
revolves around whether that kind of
hiring has become the norm and ~ould
'Muddied Field
exist without affirmative action.
American Telephone & Telegraph,
During the 1991 legislative debate,
civil rights groups had positive mo
for example, has been under a consent
mentum as they sought to overturn or
decree since 1973 to promote more
women and minorities. Spokesman
testrict the effect of several Supreme
Burke Stinson says what began as an
Court decisions that were seen as un
exercise in court-ordered compliance
fairly burdening plaintiffs in job
discrimination suits.
.
has now become a way of doing busi
ness. "The concept of including peo
I This round, they are on the defen
sive while affirmative action critics
ple, no matter their race, creed or
color, is now pervasive," he says.
appear to have the upper hand.
, Rep. Harris W. Fawell, R-Ill., who
'tClearly the ground has shifted," says
has conducted hearings on affirmative
Chavez.
action as chairman of the Economic
~ Just throwing a spotlight on affir
and Educational Opportunities Sub
mative action may help generate op
position to the programs.
committee, says most employers today
look for the most qualified worker, re
: Seymour Martin Lipset, a public
gardless. of race or gender. He says
policy professor at George Mason Uni
that while his grandparents undoubt
~ersity, says that many politicians in the
edly discriminated, "my children and
past avoided the issue for fear of open
my grandchildren don't.... They just
ing themselves to charges of racism or
can't be held accountable for those so
s~xism. Now that events like the Cali
cietal wrongs" of earlier generations.
fornia ballot initiative have placed affir
But,Conyers says many critics are , rilative action on the table, political sen
too quick to see discrimination as a . timEmt favors at least some retrench
thing of the past. "It's easy to think
ment. "The politicians now find it hard
t~ings are better than they are."
16 resist," Lipset says.
'
Deval Patrick, head of the Justice
I But opponents' newfound momen
Department's civil rights division,. told
tum does not automatically translate
iIho legislative success.
members of a House panel that they
would be "astonished and saddened" by
i The simplest action' would be to
the egregious cases that' continue to
scale back or .eliminate federal pro
land on his desk. In 1994, Patrick says,
grams that give special consideration
tl;1e Equal Employment Opportunity
t6 women and minorities. These in
Commission received 91,090 complaints
cllide hiring requirements or incen
of job discrimination. And a recent
tives for federal agencies, grant recipi
ertts and federal contractors.
" study by the Glass Ceiling Commission
'.'. indicated that white men still hold the
! These federal programs affect
vast majority of upper· level jobs.
. m:any jobs and serve as a signal to
Supporters do not embrace propos
other employers on affirmative action
issues. Many. lawmakers and policy
als to recast affirmative action to help
those who are economically disad- . a~alYsts consider'.it.likely that Clin
1----------------
1------
i
1582 -
JUNE 3. 1995
CQ
ton, Congress or both will support
some adjustments in this area.
Canady's bill would eliminate such
programs and also would seek to restrict
programs ordered by the' federal courts
in respOnse to proven discrimination.
However, Congress cannot alter
voluntary affirmative action programs
in the private sector or by state and
local governments unless lawmakers
are prepared to rework the 1964 Civil
Rights Act.
Hyde and others say that is a com
plicatedproposition and one that
Congress may not have the stomach
for - especially absent a strong, orga·
nized lobbying effort.
That sort of. campaign has yet to
materialize. Religious conservatives
are more focused on other social is
sues, such as school prayer and abor
tion. Nor is the business community
clamoring for lawmakers to act.
Women, who arguably have bene
fited more than minorities from affir
mative action, also represent a large
political force to block or limit revi
sions. 'Many national women's groups
have expressed vehement opposition
to a rollback of affirmative action, al
though polls suggest women voters are
more equivocal.
Such political uncertainty - and a
packed legislative calendar
have
raised hurdles for the issue in Congress.
However, the issue is heating up in the
race for the Republican presidential
nomination - a race that includes Dole,
Sen. Phil Gramm of Texas and Sen.
and
Richard G. Lugar of Indiana
could easily spill over into the Senate.
Jesse Helms, R-N.C., has introduced
bills to outlaw preferential treatment on
the basis of race or gender. Canady's
legislation should help focus attention
on the matter in the House.
Clint Bolick, a conservative activist
who has been working with lawmakers
on the issue, predicts that legislation to
end federally sponsored affirmative ac
tion will pass both chambers.
For their part, affirmative action
supporters acknowledge that they
have plenty of work ahead to bolster
political and popular support for their
cause, but remain optimistic their po
sition will improve as the focus shifts
from the abstract to the specific.
"I am confident that a bipartisan'
majority will defeat efforts to undo
affirmative action," says Neas.
Chavez, from a different viewpoint,
says Neasmay be right. "I've spent
too many years in this to think it's an
easy battie," she says. "This is a long
haul."
_
��E'EOC News Clips
for
March 1 - 3, ·1997
PHOTOCOPY
PRESERVATION
Compi/edby
The Office ofCommunications and Legis/ative Affairs
l.:
�THB NBW YORK TIMBS! SUNDAY, MARCH 2, 199'1
After the Talk or the Touching Get:
Too Personal, Where to Turn? '
I
. .
: environment. These often involve unwel· er heads a comp~y or IS In management.
COllle, repetitive and subtle harassment, follow·up and action become less likely."
, smd P,aullne T. Kim, an associate professor i Jeffrey Liddle, a lawyer with Liddle 8.
EING the victim of sexual harass
at the Washington UniversitY School of Law ' Robinson in New York, said: "H.R. person·
ment Is bad enough. But what do you
in St. L o u i s . .
nel represent management. not employees.
do when the offender Is a member of
"Your boss might call you a slut once or '
senior management? Will your complaint
! 10 times, but a court might not consider it
Even when they say, 'Yes, this Is awful: you
end your career? And Is there really anyone
harassment because It doesn't affect your may find the harasser in your face the next
in your company to whom you can realisti
! abilitY to perform your job," said Laurel day, or subtler discrimination, such as your
cally complain? '
Bellows, a Chicago lawyer and the president work criticized."
Sgt. Maj. Brenda L. Hoster asserts that
, of the American Bar Association'S CommisWhat do you do if you have been har·
she was harassed last year by her boss,
Gene C. McKinney, the Sergeant Major of , sion on Women in the Profession. "But if the assed? Here are experts' recommenda
person brushes up agairist you 'several tions:
the Army who was named last fall to a
times, that may be viewed differently be• Read your company!s policy. "Know
commission charged with reviewing the
cause it's not what's considered reasonable what procedures It offers to voice com
Army's sexual harassment poliCies. Ser·
behavior/'
plaints," said Marcia L. Worthing, senior
geant Major Hoster said that when her
In its suit against Del Laboratories on vice president for human resources and
complaint was Ignored, she felt compelled to
behalf of Ms.,'DiXon and her co-workers, the corporate affairs at Avon Products. "Know
retire. The Army suspended Sergeant Ma
Equal E;mployment' Opportunity Commis- how it defines sexual harassment and un·
jor McKinney last month.
sloncontended that Mr. Wassong had sexu~ derstand what such behaviors are."
Mary Dixon also quit her job, after con
ally harassed employees by blatantly seek·' \ • Speak directly to the harasser. Immedi
tending that she was harassed by Dan K.
ing sexual favors in return for job benefits ately tell him or her that a comment or
Wassong, the chief executive and president
, and by more subtly creating an intimidating action is unacceptable and you want it
of Del Laboratories, a cosmetics company
or hostile work environment. '"
stopped. "Be specific rather than general ..
In Farmingdale, L.l.
'"
'Ms. Dixon now works from her home in said Joann Keyton, an associate professor ~f
"When I complained to my boss, he said,
Commack, L.I., filing medical billing claims communication at the University of Mem·
'Find another job: " said Ms. Dixon, a for·
phis. "Say, 'I feel uncomfortable when you
mer executive assistant who sued the com
panyand eventually shared a $1.19 million
,for doctors and consulting for supermar· touch me unprofesslonaUy,' rather than say
'
settlement with 14 colleagues. "There were ." kets. She said she would never feel safE 'I don't like the way you treat me.' ..
working again outside her home.
so many incidents over the 19 months I
• bocument al/ actions and comments. If
' Many who have filed harassment claims ~o:ds and actions persist beyond a few
worked there that I was in absolute terror,
but I needed the job. I was newly married
c~ncur with Ms. Dixon that even when they inCidents, keep notes of what was said, how
Win, they lose, because of the emotional and you responded, who was present, where the
and had a mortgage. I finally quit after he
financial toll of the process. Because those conversation or incident took place and how
grabbed my buttocks."
who complain may be labeled troublemak- you felt, Ms. Bellows advised. Some states
Howard Rubenstein, a spokesman for Del
permit tape-recording of conversations In
ers, they often decide to find another job.
Laboratoi-les, said Mr. Wassong and the
,which y~u are a partiCipant, though some
company deny wrongdoing and the compa·
UCH is the case, ,Of a 3s-yea,r-old for· companies prohibit taping, said Bradley
ny settled "only to avoid protracted litiga
mer professional at a Fortune 50 Kafka, a lawyer with Gallop, Johnson 8.
tion and extraordinary publicity." He said
company who 'quit her' job two Neuman In St. Louis.
the company had also changed its poliCies
• Speak up to company management.
months ago after what she described as a
on sexual harassment to make it easier for
year of enduring remarks like "How is your Tell the appropriate supervisor about the
employees to seek help.
sex life going?," harassing calls to heli home harassment and follow up the conversation
and an inabilitY to obtain a transfer because with a memo. If he or she Isn't responsive
WYERS say the corporate environment
'
her harasser was protected by upper man go to others until you get a response.
for women has improved since Anita
If the company has a harassment policy
agement. The company settled out of COUrt.
Hill accused Clarence Thomas of sex
Single and unemployed, she vaclllates be· and fails to investigate, it may be liable.
ual harassment in 1991, but the process of
tween feeling good about speaking up and Conversely, If you don't give the company a
fil1ng charges is still daunting, especially if .
feeling terrible. "It's not like my life is c~ance to investigate your complaint, you
the accused offender is the chief executive.
ruined, but depending on your work life and risk lOSing In a lawsuit. Even though the
Still, there are smart steps that workers can
community, you can be perceived as a pari· human resources department represents
take to win a claim.
ah and a woman who wants to shake down management, you may have no choice but to
The Equal Employment OpportunitY
an organization," she said. "There's a lot of file your first complaint there.
Commission, the Federal agency responsi·
gUilt by association." The terms of her
ble for enforcing diSCrimination laws, said
settlement prevent her from revealing her
that since the Civil Rights Act of 1991 al
name, her employer or the industry in Which
lowed plaintiffs in these cases to sue for
she worked for a decade.
compensatory and punitive damages, the
Lawyers say the burden rests on the
number of charges filed with the agency had
worker to prove a claim, which requires
more than doubled. to about 15,000 last year.
following a long list of steps that differ by
Trisha Brinkman, of Brinkman 8.
company, but that often Involve going to a
Chersky, a consulting firm in San Francisco,
human resources supervisor, who investi·
said companies tended to settle quickly and
gates the complaint.
quietly in qUid pro quo claims - involving
And therein lies the problem. "It's an
supervisors who seek sexual favors in re
oxymoron to think that an H.R. person can
turn for job benefits - because they fear the
keep a complaint confidential.when Investi·
liabilitY and adverse publicitY_
gating," said Freada Klein, a consultant in
More difficult to prove, but more com
Boston who advises COmpanies on their sex
monplace, are complaints of a hostile work
ual·harassment poliCies. "When the harass·
By BARBARA B. BUCHHOLZ
B
.
I
S
IA
�THB NBW YORK TIMBS, SUNDAY, MARCH 2, 1997
.-~-------.-
• Get emotional and legal support. Be
cause those who complain often feel - and
sometimes are - ostracized, tell someone
you trust at work. Also have a confidant
outside of work. Consider hiring an employ"
merit lawyer to walk ,you through the pro
cess, read docl,lmentsyou may be asked to
sign and weigh any company-offers.
• Refrain from the urge to sue. A lawsuit
should be a last resort because of the time,
money and emotiCmE!1 distress fuvolyed, said
Nina Stillman, a lawyer with Vedder Price
Kaufman & Kammhoi~ in Clli~ago.
Before suing, be slJfe to file a charge
within the equal employment commission's
statute of limitations ~180 days, unless the
agency has contracts with a state or local
agency, which extends the p.erjod to 300
days, said Michael Widomski,: a spokesman
for the agency. A commission ~mployee will
investigate imd issue a hitter of determina
tion to the company. If conciliation fails, the
agency may file a suit:
.
• Move on. If you
a complamt and ihe
company begins passing you over for pro~,
motions or plum assignments;)~wyers say
it is difficult to prove that this is retailiation.
Dale Winston, chairman and ,chief executive
of Battalia WiIistonJnternatiorial, an execu
tive recruiting firm in Manhattan, says it is
better to simply leave the. company and
start over someplace else. And the quicker
the better. "Put your resume on the market
and get out C)f there," Ms; W~ston said. By
moving quickly, she said, t,hete will be no
gap in your resume th~t will have to be
explairiediduring job int~rvi~vis. But if you
are asked about why you'l~ft/don'tUe.
file
• Don't, bank
on 0 bigmonktary award.
The Civil Rights Act of 1991 capped punitive
and ,compensatory damages based on the
number of employees ::at the company. A
company with 500 workers would have to
pay a maximum of $300,000; one with 100 or
fewer would pay up to $50,000, said Mary
Stowell of the Chicago law firm of Lang
Stowell Friedman & Veron.
.0
Fewer Cases, More Money
FILINGS ARE LEVELING OFF •••
Number of sexual harassment complaints
filed each year.
20.000 -----:;:;;-:;:;:-----_ _
16.000---
12.000---
8,000---
4.000
o
'90' '91
'92
'93 '94
'95 '96"
• •• WHILE SETTLEMENTS KEEP RISING
Total settlements from sexual harassment
cases brought by the Equal'Employment
Opportunity Commission.
'
$30 million, - ' - - ' - - - - - - - - - -
25-----
20-----
15-----
10---
5
o
'90
'91
'92
;93
'94
'95 '96"
"Estimated.
Source: Equal EmplOyment OPPortllflily Commission
The New York Times
PHOTOCOPY
P,RESEAVATION
�Opening Doors by Enabling the Disabled
') ,En,tr(3pr~neurs Find aNiche in Providing Seroices to Meet the Demands ofthe Disabilities Act
0"
, •
•
By JaJ Mathews
more likely to benefit people with disabili- ment Group, which promotes entrepreties, they say, if the business owners them
neurship for people with disabilities, said
selves have similar perspectives and life self-employment offers flexibility, such as
avid s. Birnbaum deaf experiences.
the freedom to work all night on a project if
,
since birth was 'doing
The President's Committee on Employ
necessary. He cited a man who makes den. : co.mputer co~suJting in Sil
ment. of People With Disabil~ties, a .50
t.al apPI.janc.es in hi.s. base~ent and is de
. : ver Spring when he no
year-old federal agency ba~ m. Wash'!"g
!Ighted to make a hvmg WIthout ever hav
;~ iieed' how much his deaf
ton, has begun to recogmze pIOneering 109 to leave home.
. ,friend!iand.clients were business owners who are disabled. Last
Van Amem. 30, said she started her
paying for sign language'interpreters . summer it pre~nted the first ~~an Kemp ~ravel business after she ~ad difficulty find
$40 to $60 a hour,oftenj,iith:a two-hour. Entrepreneurship Award to Heidi Van Ar
109 anyone who would hire her. She was
minimum; "I thought they were being nem, a Birmingham, Mich., t.ravel agency . ~ralyi~below the neck in a shooting ac
ripped off," he said.
owner who uses a wheelchair. The com-· cldent when she was 16. After college and
Americans with disabilities are accus
a bit of law school. she was not sure what
mittee also gave the Justin Dart Achieve
tomed to such frustrations and often blive. ment Award to William J. Mal\eris, a Na
she wanted to do, and found many potential
to live with them. But Birnbaum, 48 is a perville, III., housing developer who has a employers uninterested.
,natural entrepreneur who had been ckeam
neuromuscular disorder and gets around
She enjoyed travel and noticed the ar
ing up business· ideas for years. He saw on a motorized scooter.
rangements made by professional agents
ways to cut the inconvenience and cost of
Starting a business is a frightening pros
often were. disappointing. She tried to ar- .
interpreting and make money for himself. peet for most people. It is not something range some trips herself and found she
Two years ago he opened Birnbaum Inter . that family, friends or service agencies could find better bargains th<\n the agents
preting Services to do just that;
. ,.. . usually encourage disabled people to do. had. Abusiness was born.
His pursuit of the dream is an emblem of :.., But Mal\eris says it is worth exploring. An
It was difficult. she said, to run a compa
a new approach to widening job opportuni- entrepreneur, he said, "can pick and choose. ny when she was totally dependent on oth
ties for the disabled.
.
what he wants to do. You are entirely in ers for transportation; but her firm, Travel
Since the Americans With Disabilities the area where you want to be."
Headquarters Inc., now has six employees,
Act was signed in 1990, disability rights
Urban Miyares, president of the .San with one other disabled person besides her
activists have sought to use the Jaw to Diego-based Disabled Businesspersons As- self. The. secret, she said, "was sticking
make more jobs available to disabled peo-sociation, said "finding a good job is often with my priorities and working hard."
pie, with some success. The Census Bu
difficult, so self-employment may be a good
Ma\leris,41, said he wore out four tires
reau says the percentage of severely disa
option for some."
on his scooter while overseeing construc
bled people in the work force grew to 26.1
Federally funded, state-managed voca
tion of.his first 48-unit apartment building,
percent in 1994 from 23.3 percent in tional rehabilitation programs have money designed to. attract both disabled and non1991. although employers continue to .ad
to help people who want to run their own disabled tenants. He completed the project
just to the law's provisions and disabled job businesses, said Randee Chafkin,. a pro
in nine months and fllled·.the building with
seekers still are learning how to exerCise gram manager for the president's commit
tenants in 35 days. "My banker was very
their new rights.
tee, "but the counselors for whatever rea
pleased," he said.
Now several organizations are trying to son have never really pushed it as an
Birnbaum's comp.1ny grew out of his ef
help the disabled not just to work for busi
option."
forts to expand his computer services busi
nesses, but to run them, as Birnbaum has,
Cbafkin estimated that nearly' 3 million ness. He had long been accustomed to tak
!n many cases using the setvicesand meet~ disabled Americans work for themselves, ing the initiative in his career. He was, he
mg the needs created by the disabilities many running very small businesses from said, the first deaf taxi cab driver in New
act. They say opportWlities are abundant their homes. Morris Tranen, president of York and one of the first deaf people to set
despite downsizing, Entrepreneurs are the Columbia-based Partnership Develop-See DISABLED, page 6
Washington Post Staff Writer
D
~*:+;~'WN'~·.Wt""~.,.,.,·,,···
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QUJeWasl)ingtontJost
MARCH 3, 1997
II$
e
�,
.
~
It
MONDAY,: MARCH 3, 1997
Eriabling the· Disabled Entrepreneur
DISABLED, from page 5
(TTY) to the hearing person on the
other end, and then type the hearing
up his own company. The Silver person's words back to, the deaf per
"
Spring interpreting cQmpany he son.
Harvey Goodstein, professor of
founded in early 1995 now has a
staff of 30, two others deaf like him mathematics and computer science
self, and annual sales of $1.5 million. at Gallaudet University and vice
president of the National AssOciation
He is placing much of his expan
sion hopes on a new concept: video of the Deaf, said trY conve~tions
remote interpreting. Along with a poke along at no more than 50
few other entrepreneurs in the field, words a minute while an American
: be is developing a system that would Sign Language chat. conveyed over
allow a deaf person to caD up a sign a computer screen using camera and
language interpreter on a computer , special telephone line, could breeze
saeen at 'a moment~s notice. People ,along at 200 words a minute. '
Birnbaum said that entrepreneurs
using the system would be charged
by the minute,not the hour, perhaps with disabilities not only have a
less than $2 a minute, a rate that chance to provide extra services to
would save both money and time, people, with disabilities, but can un.;
Birnbaum said. He said he plans a derstand the subtleties of deaf and
demonstration of the system later disabled culture that ~ometimes
,elude others. A sign language inter- ,
this month.
To communicate with people who preter working for a company ,that is
do not know sign language, deaf pea not managed by a deaf persOn inay
leave a school' board meeting after
i p1eoften must write things down.
Telephone systems mandated by the 20 minutes if there is ,rio one sitting
in the seats normally reserved for
Americans .With Disabilities Act re
deaf people who want to be near an
lay conversations through speCial op
interpreter or close enough to read
erators who read what the deaf per
son has typed on a teletypewriter lips, Birnbaum said. He trains his in
terpreters tQ recognize that many
,deaf people prefer t9,sit in the 'gen- ,
era! section, and may. like any other
busy citizen, arrive late.
Chaikin said the president's com
mittee is working with the depart
ments of education, treasury and
commerce, the Small Business Ad
ministration and some banks and
loan companies to arrange more op
portunities for businesses run by
people with disabilities. Howard Mo
ses, deputy assistant secretary of
special education and rehabilitative
services for the Education Depart
ment, said officials there want to
make "micro-loans" of a few hundred
doUarseach available to help start
such enterprises.
"I know some folks with disabili
ties who are as totally clueless
about running a business as I would
be," Chaikin said. "But we want the
information out there. What per
sons with disabilities need is what
everyone else needs-tecbiUca1 as
sistance regarding development
and irnplementation of a business
,plan, access to capital and informa
tion on resources.It
•
PHOTOCOPY
PRESERVATION
�MO~iDW, MARCH
3, 1991
THE WASHINGTON POST
R
1beIrstart-up capital comes from:
A HELPING
Family
or relatives
HAND
The Americans
With Disabilities
Act, which
became law ;n
1990, is designed to
end discrimination
against disabled Americans in jobs,
public accommodatiOltS,
tranSportation; telecommun;catuntS,
a~,d state and local government
services. It requires private
busiilesses mid public agencies to
make their offices, goods and services
accessible to disabled people.
Employers must make reasonable
accommodations to allow disabled
employees to tkJ theirjobs and ca1tnot
deny employment to otherwise
qualified people with disabilities.
Personal
funds
P.A.S.S.*
19%
.
'.
. Statelfederal ~
low-interest loans .~ 9%
. Vendors II!IIi!J!iI! 7%
or licensees . .
Investors'1I 4%
Banks
13%
Business. Aj~~~
(13%
Grants' 3%
12%
Federal business 1
2
programs
State business
programs ...
&1
It
Public ~ock
offerings
1%
1
And they are entering many
different fields:
Services
.~
(2
22,88%
Retail trade
14.10
Finance, insurance,
real estate
13.34
Construction
12.66
Manufacturing
11.21
Wholesale trade
10.14
Tra nsportationf
public iJtilities
5.95
Agriculture, forestry
and fishing
3.90
Nonprofits
3.70
Mining
2.12
*Program lor Achieving Self·Support, funded by Social
Security to provide seed money to disability recipients
who want to start a business.
NOTE: 01 the entrepnmeulS surveyed, 18 percent said
they had more than one source 01 c:apital.
�.'
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THE WASHINGTON POST
II
S,\1TRIJW. MARCU
1.1997
.~.
USDA Moves Against Agency Discrimination
(;lickman u"unches Initiatives to. Address Complaints of Widespread Racial Hostility
,
.
"
~
.
man said. "For far too .•long USDA
employees and mjnority farmers' plans to appoint a committee to look
has been ignoring serious, pervasive
have.complained;about the ineff~- into. the p~oblems of"small farmers
, problems within our civil rights sys
t!veness of US!)~'s. anti-d.iscri~~- struggling~to .cQmpete·'with large
\
tem."
~ ~~ponding to complaints of wide
~on effor~s. Ev~rfl~mstanc~s wheregrowersacro~ the country.
m>re$d racial bias, Agriculture Sec
Gli~,kman said ~e would be.gin to
mte~al mvestlg<JtlOns;have1.uphel~
. Glickritaii~sactions were applaud
retary Dan Glickman yesterday address the problem throughirtitia .
f~rm~~ . or .employee compl~mts of ed by .lawmakers and 'activists who
tives 'designed to better. respond to
dlscnmmatlon, no ~ompensatlon was . have been attempting to draw atten
mo~ to strengthen USDA's civil
rights enforcement procedures to disCrimination complaints,' Also, he
a~~rded ~o complamants an~ no pu- tionto what they call the poisoned
:dtinge the culture" of an agency said he he would attempt to fire ent
mtJve ,aCtion was taken agamst per- racial atmosphere in the'90,OOO-em
plagUed for decades 'by ch~ges of ployees foupd'participating in repri
petra tors.
I:.. .
U·SDAi , Be"d \; h dred
"Too many managers ...,are !lot .plVyee.
. '., Sl, e~ tile. un
s
<\isb:i:mination.
'
, sals againsfthose who make discrim
committed to and are not being held of p~nd!ng dls~r:lmlnatlon com
:. The complaints were summarized ination'complaints..
accountable for their actions on civilplamts, the, ~gen~y ·for years ~as
tit ~::rePort by a task forCe of top
rights," the repOrt said.
",
been ~ddled\:)~ sevel7!l class-action
USDA officials who traveled toe
The report also found farmers fre- l~ws~lt~ c~arglDg rac.lal ?r sexual .
Q>thtiry listening to employees de
Quently complain that local USDA dlscnnunationa~ retnbutlOn.
~b.ea climate of racial hostility in
staff members who make loan deci
"The expression of these concerns .
many' of the nation's 2,500 USDA
sionsoperate in "a .bigoted fashion. . no longer Seems like a cry into the
dmces~ The group also heard from
But. the report said,. the estimated wind,"said Lorette . Picciano, execu
ftttipers who charged the agency has
be~ause
12.000 local staff members often are tive director of the,Rural Coalition, a
~paiticipated i~ a conspiracY" to
not held accountable because. tech
farmer advocacy :group. "The de
foreclose on thell" land.
~: Black farmers, in particular, say .
nically; they are not federal employ
partment . itself hasjssued a plain
Q1eir' numbers .have been dwiridling
ees or under control,of top USDA of
spoken, clearly written, honest and
because of discrimination by local
ficials.. Instea~. they report to their highly critical report.
OSDA officials. For years, black
coun~y commlt~ees.
Black members of the House Ag
larmers across the, country have
In an effort to clear what the re
Glickman said· he plans to offer riculture Committee said in a state
dlarged. that' USDA officials unfairly, port caned blurry lines of authority federal !egislation t~ make all local ment that'the report underlined the
discouraged, delayed or rejected ap
on civil rights issues, Glickman also USDA e'!'ployees ~ctly account
need for fundamental-change at
plications for federal loans, or sub
named long-time USDA administra
able ~o hIm. He ~ also se~k cp~- USDA. and they promised speedy
'. , . ' , ....
G.
j~cted them to stifling stantiCirds
tor Pearlie S. Reed acting assistant gresslonai author!ty to ~ppomt nuwhen loans were approved. Blacks secretary for administration. In that nori.tiesand women to locarUSDA con~res,s~ona.1 'h~~~~n~s on hck
now make up .fewer than .1j:lercent . job; Reed becomes the agency!s top loan committees. which are now man s legJlIlative lDltiatiyes..
..Lawr~nce>C.: ~ucas, ~resl~ent of
df the nation's 1.9 million farmers. civil rights. enforcer and has been staffed overwhelmingly by white
'\1ld their ranks have-been declining cllargedwith resolving hundreds of men. Similar legisl,ation failed in the USDA'CoahtlOn:of Mmont;y ~mpl?y;es.. ,was ~aut!ous concern.mg
at three times the rate of white discrimination complaints, many of .Congress in recent years.. .
"For the· (:o"nty committee, pro
Ghckma~ s action. ~retary: G~ckfarmers.
which haye langiiis~ed for years.
: "Our actions today are meant to Reed, whtF headed 'the' civil rights cess to worl(. the members have to man has uttered thenght words, he
~dress both the problems and per
task force. 'said he hoped to clear the reflect the communitieS they serve," said. "Now he. must follow up with
ceptions ;that are out there," Glick
backlog within 120 days. For years . Glickman said. Glickman also said he deeds that make a difference."
. By Michael A. Fletcher
WllIhingtm Pm SIaff Writer
Black farmers say
their.numbers have
dwindled
of
local officials'
actions.
-0"0
:tJ:r;
rna
gjd
~()
-10
5~
2:
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,
II
•
�8NA's DAILY LABOR REPORT
Civil Rights .
3-3-97 ' .
1418-2693/97/$0+$1.00
. .>; ... :,( .
... :
Glickman Relea~ Action TeamRe~rt .
With Promise 10 Clear Up .EEO· Backlog
~p~erit of Agriculture Secretary Dan GUckmazi
./
:.';,;
D
:
Fe!.>. 28 announced a series of actions "mflant to'
ad4.resS Doth the problems arid. perceptions" .
discrimination arid civil righl$ aouse against customers
and employees within USDA.
' . ..
The. remarks were broadcast to USDA employees
across· the CountIy via satellite. The. speech was. fol
. lowed by a press conference where GUckman released
copies of a repoI't, Civil Rights at the United states De
partment of Agricu.lture, submitted by. the agenCy's
.
.. ' . ,
Civil Rights Action Team. . . . ".
Glickman announced the appointment of Pearlie S:
Reed, leader of the CRAT, to the position of'acting as
sistant secretary for administration"Reed, a 27-year ca
reer employee at USDA, was' associate chief of the
Natural Resources Conservation Service;
In accordance with the CRAT report's recommenda
tions, Glickman said, Reed's new position "has, been
beefed up and vested with all authority and responsibil
ity for civil rights programs throughout the depart
ment." He added that "The b.uck wil18Jways stop with
me, but PearIie will be my full-time enforcer."· .
Glickman also said he would issue a "new nussion
stateme~t;; that makes it "a condition' of employment
for every USDA employee to treat every customer and
co-worker fairly and equitably. with dignitY and re
spect."
.
"We also start tOday with a: zero-tolerance poUcyf9r
reprisaIs," he, said; "Those who choose retaliation
should be more concerned 'about keeping their 9wn
jobs."
......,.
ot
Eliminating EEO Bacldog. The CRAT report contains 92
recommendations for change, Glickman said. UMost
are feasible; some may need further review. I've set a
deadline of six months from now for implementation of
those recommendations that can move forward imme
diately." In cases where congressipnal approval is
needed, it may tak.e longer, he said.
Specifically, the CRAT report calls for "elim~nation
of the backlog of discrimination and equal employment
Opportunity complaints at USDA within 120 days," ac
cording to GUckinan. Although the plan is "ambitious;!'
Gliclarian said, he would give !teed "the resources I!ec
essary to go for it....
' . ' ... " . ' ,
To help resolve complaints, Glickman also said he
would make all EEO compla~nts filed before Jan. 1,
1997, eligible for alternative' dispute resolution' and
would ask Reed to develop a process for.,resolVing dis
putes in a "mo,J;"e timely, respectful, arid fair man!le.r."
. Other CRAT recommendations to be implemented,
Glickman said, include: . : .' ..
.• annual civil rights training for all USDA employees;
• a department-wide workforce planning and recruit~
ment effort; and
. '"
• creation of an outreaC:h. office to ensurE! "that we
reach all the people who need.or can benefi:t fro~ our
.
.
servIce. " .
. ,., .'.
..
The most dramatic change at USDA ~,;::,me.from
efforts to "deal with and reign in authonty, w~ch is
"the only way to ensure accountability," GlicJanan said.
Specifically, Glickman said he would ~k;Congress
for authority to convert abC):I;1t 12,000 nonfederal county
positions in the Farm ServIces Age~cy to federal em·
ployee statuS'. "This action wiU put us in a b~~er posi.
tion to bring uniform civil rights acc.ountabili~ to these
jobs· while preserving what's good about ()ur county
field office .struct\,tre~ which is a strong, loc~ USDA
presence," he said. The change would applY,()nly to po
sitions currently paid for by the federal government, he
.
ad~~.
secretary also promised to revise the "perfor
mance review process to make civil rights a high prior
ity:As assi~tant secretary, Reed will have the ;,luthority
"to review the civil rights'records of agency heads and
sub-Cabinet officials to make sure they are held fully ac
countable fortheir operations," he said.
'Don't Kn~ ~f' Anyone Penalized.~Lawrence Lucas,
president of. the USDA Coalition of Minority Employ
ees told BNA after the press conference that "we've
..
,
seen these reports. be fo r e . . .
'.
.
The pressure is on Glickman to take acti~n ag!U~st
those individuals who have been found ~ilty of ~lS.
crimination at USDA, he said, The zero-toler~nce policy
has been in place for a year, Lucas said, but "we don't
know of anyone who pas been penalized under that
.
. .,
policy to date," .'
Lucas also called for more structural changes. S~e
cifically, he said, his group "woul~ like to see an asSiS
tant secretary or director of civil nghts that reports dl·
rectly to the secretary and is independent of person
ne1."
.
"People who administer EEO at l!SDA have been
'part oUhe problem:~ he added,pointmg. to. a 1996. re~ ..
port by the U.S. Commission on Civil Rights .that "made
it clear that mixing civil rights and personnel is not
good for civil rights and is not working."
<
By JOAN M. FLYNN
The 122-page report, Civil Rights at the Unite~ ~tates .
Department ofAgriculture: A Report by the Civil .
Rights Action Team. is ':Wailable.on the Internet at
http://wwW.usda.gov.·
.'
•
t.'
�l
It!lI)tbl~post
SA11lRDAY, M4ROI1,1997.
'
.
:-.....;...
.3 Women Sue Monumental Insurance Alleging Harassment
:
By ,Kirstin Downey Grimsley
,
,
_
..
.' •
they ,could not discuss the compJaiilts, be-pulled her into an office and demanded that
she strip fOr them.
company strictly enforces its policy forbidMolinary, now of Clifton, NJ., ,.aDeges
cause of the titigation. They also said the
w....... r.t SbdIWriter
.
Three women recruited mto an msurance ~s ~t training ~
gram bave~ ~ lawsuit al1egiJ]g ,~,~
ding sexual harassment Attorneys for the
vwo male employees named as co-defendants Said their clients deny all theallega-
'i semaIIy~~.by ~.~,imd t:ion\..,.
.'.
.
co-workeIs ~t~.~."f!lliOOtt;CitY,:C?fIice:.In,theirl;lwsmt,:fijed,m December m.fedThe ~ hiredm 1995 ,by ~:aatll- era! court in BaltimOre, the three women, ,mo~ Mon~~~ta1 LifeIq~~ .. WaJ}~~olinary, 30, La~Von Lopez, .~,
· Co. s Top'G~tralJ!ll1g[program,auege an~tJ~DeGuzman, 2S-describebeing
.:tbeywere subjected to o~,~, frightenedtand humiliated by some of their
touched, rubbed,.grabbed and threatened ,maleco-workersand~rs.
· by male supervisors andco-workersLope;, ofPikesville, aUeges,she was
· treabDent that one of the plaintiffs called dragged across the floor by a rope that bad
."by far the most traumatic experience" of been tied around hedmds. DeGuzman; of
ber life.
.
Cohnnbia, alleges that once she was hoisted·
:. Monumental, in court papers, bas denied into the air by two male co-workers, and
tbe aIIegatioos. Company executives Said that at another time, two male sales agents
.
""CJ
:0=0
m:r;;
~~
::DO
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0-(
Z
Lopez Said she felt she bad been treated
"like,a subhuman." She Said, '1.bis will II
ways]~a part ¢~.lwill never forget it"
In theirb.wsuit; the women say that after
.they a:iIiipJained;tljey were fired, demoted
.qr ~:Qptof the co.tjany. TheYIIay the
that once when she entered a maJe colleague's office where three men were talking: a male supervisor suggestt4;the(~ of
them could enga~ in.~~,~ MoUnarY: COD,!P,a!ly/'knew~or,_shol,ll~.~ve ~own"
allegesthatwJlellft'tried w.,.rim out of,the, ~~}~)~~g at th,e~ City ofroom, the.. superVisor pushed he{into,<'9I1e ,~,~useo(Com,p1ain.ts by:Jive different
man's1ap, and that she bad to punch ,and, ~;~g;@.Plaiqtiffs,but cboee ~
push her way out ,of the office '
do~;Jbeth~,wbofi1ed theJawsuit
The women Said they were recruited into . are no.longeremployed at MomunentaL .
.the.$45.00Ora-yearjobs by Moqumental
Monumental executiVes said company
while they'were completing their MBA de- poIicyprevents'them from disc,ussing~
grees. They aDege that ~ ;mung the ing litigation. Monumental's atromeY, Ein
training program, they entered a workplace mettF•.McGeeJr., Said.the insurance c0m
. where they were questioned about their panyc "'is firmly committed to a poticy of
sexu.ill preferences and propositionedfre. equalopportunity and does not tolerate sex
quently and pubtic1y.
See MONUMENTAL, .D7, CoLa
IlL
�2
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s
TIlE WASHINGTON PosT
SA11lRDAY, M~RCIII,
1997
--.-~
Monumental 'Insurance Faces ,Sexual Harassment Suif:L
~
,
~
.:
MONUMENTAL, From 1h
,.
ual harassment or any other fann of discrimination."
The lawsuit names as co-defendants two Monu
mental employees: David,Cox, of,CoIumbi8, then the
. district sales manager who headed the Top Gun train
ing program, and N"1Cholas J. Disipio m. of Mmmt
Airy, then amanager,in,the same office, but no longer
employed at Monumental
.
Cars attorneys said he would not comment But in
a statement. one of Cars attorneYs, Joseph,S. Crocia-,
ta, said,Cox bas ~cate~.denied the. allegations
ofpenmal,~ on JUs,part." though he has
=~=~~~astotheoon-,
Crodata said that ,Cars attorneys are investigating
the allegations "to determine thI! extent to which they
hlrIe any merit.It He said Cox "looks forward to the
opportunity to clear hiniseIf of the allegations against ,
him in a court of law'"
Disipio relerred requests for comment to JUs'attorDeY, ~ J. Bartolini, who said his client denies all
the allegations in the lawsuit. and intends to fight it
vigoromly'in court "He's got right to defend him
self, and he'll come out swinging hard," Bartolini said.
Bartolini,aIso said the women's allegations that Di
sipio tauntecHhem in sexual terms in, Spanish were
implausible because Disipio does not speak Spanish.
MdJee said Cox sti1l works at Monumental, but Di·
sipio 'doesnotAa:oidingito;~f·Miryland'~
ment~tion appeals "learing report issued in '
July, Disipiowasfired by Monumental1ast April, but
his termiDation letter did not Specify why.
Two former co-workers rontacted separately by
a
1996 in which four w()men. including the three:.
The Washington Post corroborated the women's ac
counts. Mike Balderson. of Arnold. Md.• also was a . plaintiffs, told Cox of the sexual harassment they:' ,
.
.
Top Gun management trainee. and started work were facing on the job.
there in August 1995. He said he witnessed numer
"Mr. Cox came out of the meeting and told me ,,'
ous acts of sexual harassment at the insurance office he wanted discharge papers on all of them. be-,:
, in Ellicott City. particularly verbal abuse of women.
cause,' he didn't like ".what they said, regarding:,';;
'1t was just incredible;" Balderson said. "•.. What I their, complaints about the .,TopGun program, '?
observed there was totally out of line and overlooked training. unprofessionalism.etc.... Henry told the'!
EEOC.
.
"
,
.;
at all [management] levels."
He said he observed, the incident in which several,
Monwnental, founded in 1858. has more than '.~
men dragged DeGuzman into an office. and $3 billion in assets and emplays2.100 people. ':
Monumentaljs a subsi4iarY,ofAegon :USA Inc•• ';1
the U.S. branch ola Dutch conglomerate.
'~'
Monumental firsLestablished.the Top Gun
management training program in 1994, as a way ~
to, build and professionalize its staff. It recruited :
,
. MBA studeitts around the Northeast; offering ::
them an intensive instruction program and prom- ,~,
t~lerate s~""ual
lJI,i
~"
ising to promote them to $ales manager within six .:
months and to district ,manager within a year.
:
Molinary said she stayed 'in the' job for 17 ,;
months, despite the harassment. because it was ,:
he recalled that the men graphically' described what her first job, and she hoped to succeed. and be- :
they intended to do to her sexually as they pulled her cause the company kept delaying its teimburse- .' i
ment of her travel expenses and she wanted to be ,':
inside.
repaid.;
"It was awful. awful." Balderson said.
Lopez said she stuck it out for 17 months be-:i
Rose Henry, an administrative assistant in the
cause she kept believing they would eventually !
same office. declined to discuss the other wom
en's allegations in detail, but said she had records recognize her good work. and that if she left. she .~
that would back up' many of thei1: claims. Henry would have been defeated by the harassers in the ,;:
med a lengthy ,and detailed sexual harassment office.
complaint with the U.S. Equal :Employment Op , "In some twistei:l way. I didn't wimt to give
them the satisfaction that they could dismiss us so
portunity Commission in Septem~r. ':
Henry said she attended a meeting in January , easily," Lopez said.
Monu11l:erital's attorney said
·
,'
the znsurance comJXlny, "does
not
'
harassment•"
":.~
/
/
�~1lJRDAYtMARCH
1. 1991
It
Tenant, Paid·
Harassment
Settlement
"
:,'.
Oause in Housing Act '
Allowed'FederalOaim
By Judith Evans
w.sbinetCn Poiii SUff writer
case
Williams suffered no
missea,
discrimination und~r the federal hQusing law
becau¥!' sh.e', waS. neyer· denied housing~. U.S.
District Judge aitlierine C. Blake in Balti
more ruled last October that the case should
proceed."
..
.
. The Settlement and' court decision Hmakes
an impOfiaiies~iefuentthat thistype of dis
.cri.inina'tion not60Jy' isa clear"Violation of
law, as the
held, butit's elcpenioive,"
said JohnR~,a laWyer;vho WOrked on
the case for)M. W . . gtQn Lawyers Com
mittee for CiVil
and Urban AffairS.
. Poretsky's 'i~wYer,'t:f~flna!l Schneider:
said his
settled, the case'to avoid the
, costs of
litigaiioii. IDsclieriis, Sclulei
der said, werell't;willing to,riskhavinn i .... ~ay
,ci>#t,
willia'mS's:legclJ!COstS iilthe' event
The Poretskys were Mreluclant to
; 'that a jury award~her damages.
fire him [Little) because it's an un
"It was a
business decision,"
Scliheidersai~: ~e felt,; although,
proven chaige," Schneider said. ~e
she didn't have a verY strong case,
feel very sorry for him." He said if the
ownerS failed to terminate Little, they
'for'darqages'; she nught get some
would be left open to extortion from
· thing. Then, we would be on the
poSsible 'fut!1ie claiins. .,"
...:.. hook for her attorney's fees. which,
"If they thought th~ [court) decision
could Pe 12 times what she might
were wrong, they were free to ap~
, .receive.". .
. ,
· . Rehnan declined to say how the.
it," Relmail sai4: Blake's' decision~ol- ,
, lawyers 'and Williams woUld split the,
lowed the majority view that creation
· award. She declined as well, but said,
of, a hostile living environment does
•.she woul&use part of the money for ·constitute a denial of housing,"
'. Williams, a pre-kindergarten school
; a down paym!!nt on a house and
, partfor her 9-yea:r-old son's educa ·,teacher, said>' after the incident she
: tion and has gIven her mother some · Was afraid to leave her apartment and
· ride in the elevator. She alleged in the
· :money to buy a truck.
. suit that Little,oC frierids.of his, ha
: Schneider continues to argue that
and threatened her: after she
· Williams's case didn't meet the re
reported him to nianagem~t. .
· ' quirements of.sexual harassment un
, The experience Hchanged every
: der the law. Williams wasn't denied
,thing for me, per:iOt;l,~ said Williams,
who now lives in Forestville with her
son; "I'm constantly watching over my
shoulder all the time. When it hap
pened I was devastated. It was com~
pleteIy unexpected."
. The 32-year-old woman said she
.' Used to Smile and greet strangers, but
~
will never do that agclin. "I Couldn't
smile at people becituseI Was verY un
comfortable with mygelf. I gave him
[Little) no suggestions at all,' and ~
happened because I smiled and spok~.
-Lisa Williams,
But Williams said she wants other
plaintiff in sexual harassment suit
women to know that it pays to fig~t. I
"If it's happened to me, I'm sure it's
the right to rent her apartment and
happened to other women. I can see
: she even used the building's party,
why a lot of women don't come for- :
,room to throw herself a birthday'
Ward. But it's worth it when you can
· party after the incident occurred. He
lnake a difference."
: said Williams never filed a police
~ complaint about the inci~e~ts.
I
For four years, Lisa Williams hasn't been
able to shake the fear that has overcome her
since the night she says that her' building's
superintendent allegedly sexually·'harassed
her. But Williams believes her futiJre is
brighter now that' she. has settled ~. federal
complaint against th~'biliiding's managetand
owner that forced them to paYhet $200,000
in damages and fJr,e the employee .. ,
"I'm very ple~sed with the settlem~rit be·
cause 1 actually got what I wante.d and that
was for him [the superintenden,tJ fbbe
fired," Williams said. "It sends a message to
management that:this was going on and you
can't not do anything abqut it."
Williams sued Poretsky Management and
its owners, Lester and Sehna Poretsky, for
sex discrimination under the Fair Housing
Act when she lived in Chevet Manor Apart
ments in Oxon Hill for the last eight months
of 1993. She alleges that flrih's supermten
dent, Harry Little, 'grabbed hec'inthe build
ing's elevator and later in the sa,me evening
pinned her again~t a table in the basem~nt
laundry room and rubbed himself against her
while attempting tokiS!; her.
. ,
Poretsky agr~t() theJa~. 31 settlerii~pt,
but denied any wrongdoing. Little also. de
nied that the harassment incident ever oc
curred.
'.
But the case brought attention to a little
known provision under the Fair Housing Act
. that allows complaints to be rued in cases
where individuals believe they have' been a
victim of sexual harassment. Only six 'other .'
federal courts nationwide have heard similar
~ses, including two that resulted in rulings
favoring women who had alleged harass
ment, housing advocates said.
Williams claimed that Poretsky Manage
ment created a hostile living environment at _ ..'
the building when the company failed to fife
or reprimand Little after she reported her,
account of events that occurred July 23"
1993. Lawyers for Poretsky and Little un-'
clear
,rassed
::"It send.s,a message
:to management that
'this was going on
'and you can't not do
.' 'anything about it."
I
PHOTOCOPY
PRESERVATION
�THB NBW YORK TIMBS
NATIONAL MONDAY, MARCH 3, 1997
New Attention to Women in Military
By JAMES BROOKE
tion has usually worked behind the
scenes. yo,lUI'Iteer lawyers hav~pro
DENVER, March 2 - In a one
room law office In a converted house vided legal advice to women in cases
ag$st the. military and advised tlle
here,the scourge of male traditional
ists In America's military sits In a Pentagon on writing regulations for
green wicker chair on a flowered . h~~lirif c!l~plaints .alxmt .sexual
harassment: The lobbying arm, Wan
cushion.
das Watch,· has prOvi~ed military
As complaints of sexual harass
ment and rape rock Army bases witnesses for Congie"ssioniil; hear
mgs and has helped Congress 'draft
from Alabama to Maryland to Ger
many, much of the legal and public bills to speed the processing of har
.
relations advice for female soldiers aSsment complaints.
"We have' been information bro
can be traced to a group headed by
Susan G. Barnes, Women Active in kers," Ms. Barnes said of her. work
Our Nation's Defense, their Advo
arrangIng televis1o.n appearances
cates and Supporters, or Wandas.
and lle'\Vspaper interviews for mili
Since founding the group four tary women who are willing to talk
years ago, Ms. Barnes has kept a low about sexUal harassmeh{
profile for her loose network of mili
Virtuaiiy unknown to the general
tary women, partly out of fear of public, Wandas is well-known to con
jeopardizing their careers, partly to servative groups. They say Wandas
avoid being swamped by calls about wants to push American. female sol·
sexual harassment.
"the .women, . don't want their
names on any membership list,"
said Ms. Barnes, a former criminal
court judge in Denver. "So we took
their names off the computer, put it .
on a floppy, and put the diskette in an
underwear drawer or somewhere."
But she said there were hundreds of
members.
Until recently, military women,
largely officers, circulated the tele
phone number for Wandas by word
of mouth. But three weeks ago, the diers into all combat roles and is
discreet profile was compromised promoting witch hunts against male
when Ms. Barnes emerged as the officers who stand in the way.
lawyer for Brenda L. Hoster, a re
"It is bad for national defense to
tired Army sergeant major who said have some outside group swooping in
a superior officer sexually assaulted and saying the woman is always
her last year While she was on duty. right," said· Elaine Donnelly, presi
In response, the Army suspended
dent of the Center for Military Readi
the accused man, Sgt. Maj. Gene C.
ness, a conservative policy group in
McKinney, its highest-ranking enlist·
Michigan. ,
ed soldier.
Wandas members "scare the
"The calls have gone crazy," said brass to death:' Ms. Donnelly said.
Ms. BaI'Qes, who is also president of "They have a pnictice of going after
the Wandas Fund, the group's legal people in the military who don't sup
port the' feminist agenda sufficient
services aim, which is run by volun
teers. "It's taken over my life in the ly."
Wandas grew out of the ashes of
last three weeks; We are gOing to
Tallhook, the 1991 convention of na
have to take Wandas professional~"
val aviators where women ran a
Without a budget for lawyers, lob
.byists or counselors, the organiza· gantlet of drunken officers in the
A discreet source
of legal and public
relations help for
female soldiers.
corridor of a hotel in Las Vegas, Nev.
Simmering over conservative' at~
tacks on the.~omenwhomade·'com
plaints, Ms. Barnes met here with
former Representative Patricia
Schroeder, who represented Denver
and was a memoei of the House
Armed Services COInmittee.
"Pat saJd there weren't any advo
cates out there for the military wom
en," Ms. Barnes saJd. '''The second
we put the word out, they were call
ing us from allover.
"Loss of career and retaliation are
constant themes among the wom.en
who call:' she said. "We are often a
last resort," a reference'to a military
tradition of squelching whistle-blow
ers. "Some have had a career de
railed by a rape or by asexual come
on that was turned. down and then
resented:' she added,
'''What we ~reseeing now is the tip
.. of the .iceberg. ,The Army has tradi~ .
tionally handl~d these cases with ad
ministrative punishments that don't
cost anybody their career."
Contending that a quarter of the
870 Army soldiers convicted in mili
tary courts of rape and other sexual
assaults from 1990 to 1996 received
sentences of less than Ii year in jail,
she said. "If I had a' sentenCing
record like that when I was judge,
the good citizens 'of Denver would
have run me off the bench." .
Women account for 13 percent of
the nearly 1.5 million soldiers, sail
ors, marines and fliers. But women
now account for. 20 percent of the
recruits who enter military service.
Often overlooked in the debate
over men's and women's roles is the
fact that many military women seem
to like their work. In two surveys in
the early 1990's, 47 percent of black
female soldiers saJd they were satis
fied with ,their work, compared with
25 percent of black women polled in
civilian jobs.
Black women account for almost
half of female soldiers. Among white
women, the military edge was small
er: 46 percent expressed satisfac
tion, compared with 41 percent in
�THB NBW YORK TIMBS
,
' • •<.
KeVIri Moloney for The New Yorl< Times
Susan G. Barnes heads WomehActive in Our Nation's Defense, their
Advocates and Supporters.~or Wandas, which helps military women.
civilian life.
More than half of the 47,000 mili
tary women ,surveyed by the Pen~~
gon last year said they had been
subjected to some form of sexual
harassment in the previous year.
"Why don't women report these
incidents In a more timely fashion?"
. asked Charles Moskos, a military
sociologist at Northwestern Univer
sity. "The military has to consider a
distinct female chain of complaint."
To Ms. Barnes, that smacks of
"separate but equal."
.. Army women do not want a spe
Cial chain of command," s~e said,
because they think male officers and
judges shC\uld be able to handle such
complaints.
Mrs. Donnelly contends that sexu
al harassment in the military will
decline when the Pentagon d~clares
that "the 'social experiment is not
workiitg" and withdraws women
from joint training and joint housing
with men.
"The coed tents started in Haiti,"
she said of the new housing policy.
"We have 18- and 19-year-olds far
away from home, thrown together in
coed tents, and then wonder what
happens? Well, in Bosnia, we now
have a soldier getting pregnant ev
ery three days/'
Wandas, Mrs. Donnelly said, fos
ters a "P.C. mentality in the mili
tary" that seeks to ban Playboy
magazines from bases, that puts
black marks in the personnel files of
officers who attend strip shows and
that considers accused soldiers
guilty' (if seXual harassment until
proven not guilty.
.
"What really bothers the Army
wives about the coed-tent situation is
nolthat their husbands are going to
be fooling around, but that a woman
soldier may lodge a false allegation,"
Mrs. Donnelly said. "In the military,
tPe ultimate dangerous thing now Is
,a ~~xual harassment charge. You
canJ'!ave. your career blown away in
an instant." '
To Ms. Barnes, those statements
are red herrings intended to divert
attention from the real harassment
and abuse of women and from a
"brass ceiling" that blocks the entry
of women into the highest echelons.
"My military women COUldn't care
less about strip parties or girlie mag
azines," she sald. "They just want a
fair shot at a career."
PHOTOCOPY
PRESERVATION
�\\
ASSOCIATED PRESS -- FEBRUARY 28, 1997
.\
Harassment fallout: Americans pessimistic, still would let
daughter serve
AP POLL MILITARY SEX
By HOWARD GOLDBERG
Associated Press Writer
NEW YORK (AP) - After a serie.s of sex scandals, Americans
.'
.'.
are not afraid to have th~ir young women serve in the military
even though 55 percent say 'sextlalharassment is ingrained there,
according to an Associated Pre'ss poll.
The number who think the.armed forces could root out sexual
harassment, 42 perc'ent, sh9WS less confidence than for doing away
with sexual assault,at 53 percent, or hazing, at 50 percent.
Since several driLl sergeants were cqarged with rape and
harassment of young trainees' at ~erdeen Proving Grounds in
Maryland, the Army has come under pressure to reconsider its
policy of training men and women together.
Defense Secretary William Cohen is examining the.issue this
week during his first base visits since joining the Cabinet last
month.
'
At Lackland Air Force Base in San Antonio, Cohen said
Thursday that he has yet to see strong evidence for changing the
current gender makeup of military training.
"I frankly think the services, at least initially, should
make the determination as to what works best for their service,lI
Cohen said, noting that the Marines and certain Army combat units
do not train men and women together.
In the poll, 53 percent support the joint training, to 39
percent for separate training. Some groups are more evenly split:
veterans, Republicans and women. Age is an even bigger factor,
with Americans born before World War II tending to favor separate
training.
The poll of 1,010 adults was taken by phone Friday through
Tuesday by ICRof Media, Pa. Results have a margin of sampling
error of plus or minus 3 percentage points.
A pollster who has been tracking public conf,;.dence in U. S.
institutions for many years said the military often tops the
list, compared with organized religion, medicine, the media and
various branches of government. But the public's confidence in
the military is volatile and is being hurt by sex scandals, said
Humphrey Taylor, chairman of Louis Harris and Associates.
lilt is important to the military leaders themselves, II Taylor
said. lilt affects their standing in the world, how they are
treated by Congress, how they are treated by the media and the
difficulty they have in trying to recruit good people. II
The AP poll asked people how they would react if they or a
friend had a daughter who was thinking of joining the military.
By 65 percent to 31 percent, they said the allegations of sexual
misconduct would not be sufficient reason to tell her to stay out
of the military.
.
PAGE ONE OF TWO
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�ASSOCIATED PRESS -- PAGE TWO OF TWO
The number who think sexual harassment will always be present in
the military runs at the same SS percent whether the respondent
served in the armed forces or not, or had a family member in the
service.
Cohen has repeatedly promised "zero tolerance for sexual
harassment." A P¢ritagqn spokesman said Thursday that the poll
reflects the; public's confidence in the military's ability to
deal quickly with its problems.
"I also believe they know in their hearts that no matter
what, .we take our obligation to their sons and daughters serving
in uniform very, very seriously," Col. Dick Bridges said.
[sexual&harassment]
PHOTOCOPY
PRESERVATION
�COPYRIGHT 0 1997 BY THE BUREAU OF NATIONAL AFFAIRS. INC•• WASHINGTON. D.C.
. Dl.R
J SexU41 :'ment
i'
Claim Against Spumed. Girlfriend
Can Go to Trial, District Judge Decides
Colorado man can proceed to trial with a sexual
harassment claim against his employer over the
actions of his second-line supervisor..;....a former
gir~friend of his who began taking increasingly hostile
actIOns and eventually fired him after he ended their ro
mantic relationship.
Rejecting a motion by E.G.&G. Rocky Flats Inc. to .
summarily dismiss the case, Judge Lewis Babcock of
the U.S. District Court for the District of Colorado de
termined that plaintiff Michael Schrader submitted
enough evidence of a "causal connection" between his
discharge and his spurned girlfriend's alleged harass
ment to bring the case to trial (Schrader v. E.G.&G.
Rocky Flats. Inc., DC Colo,95-B-870. 2nl97).
The court also found that Schrader'S evidence re
garding the woman's conduct and treatment of him re
sulted in a wor.k environment that "couldre2$opably be.
perceived and was perceived by plaintiff as abusive or
hostile." The fact that Schrader had not filed a formal,
internal equal employment opportunity complaint over
the situation was not enough to dismiss the claim at the
summary judgment stage, the judge concluded.
A
Rocky Romance at Rocky Flats. Schrader, who had
worked in the communications department of Rocky
Flats for 10 years, began a romantic relationship with
Janine Wilson, his second-line supervisor, in the fall of
1991. When he broke up with Wilson a year later.
Schrader testified, she began visiting his office on a
regular basis, discussing the relationship and how diffi
cult it was to move on with her life-often becoming
both emotional and angry.
Wilson's hostility increased when Schrader began
dating another co-worker in early 1993. and, he
charged, she glared at him at the office, radiating hostil
ity and refusing to speak to him. She. left an obscene
message on his answering machine at home, and at one
point, she told Schrader "it wasn't going to be her thar
left Rocky Flats."
Schrader's immediate supervisor said that he noticed
Wilson's continuing hostility and told Schrader that he
believed she was harassing him; However, the two de
cided not to file a grievance because of concern that she
would retaliate against her former boyfriend.
.
Schrader was terminated in April 1994 for falsifying
a time card the previous August, for failing to accom
plish goals during a·week the previous October, and for
failing to disclose private enterprises in compliance
f
.,
with co~pany poli~.\V'tlson Initiated the investigation
culminating In the dIScharge and waSil member of the
manageme~t.gro!1p who decided to'tire him. Schrader
sued, chargmg his employer and W'llson With sex dis
crimination and sexual harassment in Violation of Title
VII of the 1964 Civil Rights Act. He also brought a claim
for outrageo~ condu~. While the cOurt grltnted the de
fendants' motion to dismiss the sex discrimination and
outrageous conduct claims, it allowed tile harassmerit
claims to proceed to trial. ..
.
....
.
.
HostUe Environment, QUidPro Quo. Judge Babcock de
termined that Schrader submitted sufficient evidence of
both hostile environment and quid pro quo sexual ha
rassment by his spurned girlfriend. ... .
.
"Wilson made it clear thatshe wanted to continue
her intimate relationship with [Schrader]" the court
said. "and that 'it wasn't going to be he~ [who] left
Rocky Flats,' " the court said. "A reasonable fact finder
could infer from this evidence. that· Wilson thereby
threatened to have plaintiff fired if he did not resUme
their relationship. Plaintiff resisted Wilson's advances
. '
and he was fired."
The court rej~cted the c.ompany's a:rguments that
Wilson had n~thing to do !'lth the termination, noting
that she had Signed both hIS suspension and discharge
p~pers and was part of the team that investigated his
dIscharge. Schrader "presented sufficient evidence that
a reasor:ab1.e juror could find a causal connection be- ..
tween his discharge and Wilson's alleged harassment"
the court said. The court cited statements from Schrad
er's supervisor that employees were routinely allowed
to take compensatory time off and that Schrader had
never falsified his time card, and that Schrader was the
subject of a "witch hunt" and was fired because he did
not want to continue his relationship with Wilson.
The court also found evidence of a hostile work envi
rC!nment when Wilson came to Schrader's office called
his house and left an "obscene and angry mess~ge" on
his answering machine, and either ignored or was rude
to Schrader at work. "Looking at the totality of the cir
~mstances, a. reasonable juror could find that plain:
tiff's work en,?ronment could reasonably be perceived
and was perceived by [Schrader] as abusive or hostile ..
the court said.
. ,
. The fact that Sc.hrader did~ no! file a formal grievance
d~d not preclude him from bnngmg the hostile work en
ytronrr:ent claim, the court said, since "many factors,"
mcluding. conc~r:n over retaliation, could have contrib
ut~d to hIS deClSlon. Fact finding of that sort. the court
satd, must be determined at trial.
�,
as head of Consumer Affairs. Walker previously serveq
as an assistant allorney general and general counsel at
Discrimination
the Office of Elder Affairs. '
: :In its 'annual report for 1996,teleased Feb. 27,
New Chairman, of Massachusetts. Commission MCAD said that case filings rose to a record 5,200 and
Outlines Plal1sror lfand'Iin,g'sias'Cha;.ges .
that.'4,900 cases were resolved laSt year. Monetary
s~ttle~ents obtained by complainants rose to a record
OSTON-Citlng a' record n~mb~~. f·dis~mina. $14 million·from $~.~,.mnIiO~ the year before., '
. Ti'a.
tion cases filed in 1996, the new chairman of the
J~lng High on Agetida. W~ker siild he is in the pro
.
k' f
'
,
Massachusetts Commission .Against Discrimina
' ,. ,
tion says that he is, committed to', ordering remedial ' ces(6fassembliilg a tas 'orCe of consultants, chief ex
measureS in awards issued by the agency. , ' , ' !:,; , ,eeutjve officers, in-hoUse investigatorS arid compl~ce
In a Feb. 25 interview with BNA;l€harles E. Walker offi~rs~and attorneys to 'assist MCAD' in becoming a
"clearinghouse" for developing methods of "discrimi
J
.r. said that two other goals he will pursue are resolv '.~atiqn,prevention. training." Walker said the group
mg more cases than the agency takes in each year and ' ',,' ' ld f
" . .•
'I
h
h .
expanding the role of municipal human rights agencies wou." oeus on traimng emp oyers on ow to, treat t elr
d' h'
d
I
worken;. not just ,on hiring and firing. '. '. ..'
,'
thr h t th tat'
.,l'h,',c!.team will also assist in "helping craft more. re
. oug ou e s e In con ucting eanngs an reso v
mg charges of dIscrimination. ", ',' . ' . . ," ','
.' . ,
Walker, an MCAD commissioner since 1994, became m~Bl ,measures .to .be included' In ,my decisions,"
'It.'er said. He., .,.cited a, ,rete.nt decision reqw.·.ri.n,g.' a
chairm!ln last November after Michael Duffy was ap
pointed by Gov. Wllliam Weld (R) to a Cabinet position t!>'Yl1'S en~re police force to, go through training on race
rela~o~s and a model anti-sexual harassment policy is,:,
sued,by MCAD 18S,tyear (209 DLRA-3,l0/29/96) as ex
aInples of remedial steps. He said he ~ants more moni
toring.of compliance ~ththese types of measures.. , ,
',Walker also'supp<#ts the agency's gtound~breaking
program of alternative dispute resolution announced a
year ago (33 DLRA-l, 2/20196). "I'm.teaIly pushing ar
bitration hard,"he commented. .
,. .
.,' .
Administered by the A.J;nericanArbitratlon Associa
,tion., the progra~offers.voh.intary mediation or arbitra
tionof employment discrimination d.sputes after the
agency has iSl;u,eda. probable calJs~ findipg. So far,
Walker said, 29'cases have been referred to AM. Some
have been completed and some still are pending,' he
said. Walker said eventually. he would IiJte to see "100
percent" of cases re,solved in thi.s manner~.
'
B
0.'
I
w .at.
{
, uSe of Testers Will Continue. MCAD will continue its
program of using agency testers to root out discrimina
tion. The agency has tested for age and race bias in hir
ing by retail businesses and last month released results
of a test that found subtle race bias but·no violations in
mortgage application procedures in. Boston area banks.
Some test results have surprised MCAD staff, Walker
said. Employment. testers who applied for jobs at area
car dealerships discovered. that employers were eager
to hire women, he noted. The Ilgency is currently "fine~
tuning" results of (me test that has produced evidence
of discrimination, while another test that is near conclu
sion demonStnited "no problems whatsoever," he said.
Testing is "e~mely·. effective . in broadening the
...
awareness of th~publi,c," said Walker. "
Major classes' of complaints 'in'1996 were neady
equally divided among sex (21percent), disability'(21
percent) and race (20 percent), according to the MCAD
report. Age a~ounted for 1~ percent of complaints,
while ancestry and retllli.ation each accounted for 10 .
percent. Ninety percent of the agency's case load in
volved allegations of employment discrimination, while
housing flccounted for 6 percent and public accommo
dations for 4 percent. ;
.
Ruling Against Attorney. On' Feb. 25, Walker also is
sued a controvC;,rSial decision assessing $5,000 in puni
tive damages against a female attorney on grounds she
had violated the law against sex discrimination in pubINA'S DAILY LABOR REPORT . 1418-2693/97/$0+$1.00
=
PHOTOCOPY
PAf§fAVA i 16N
�/
\
'1
"
lic.accommodations.:rb.e attorney had refused to repre
senta man.in a.divorc;e c;ase:(StTOpnicRyy.•. .tVathal1Son;
MCAD, 2!2~/9"!)..
. : ..... ,.' :::"'; ~. ':.", ~: C':";"'':
Walker told BNA he believed that whUe an attorney
has discretion in deciding which cases to ~ake; it is un
lawful. to flatly refuse to represent a person based on
". : '.: ... '..
.
" .....
gender.· ., ~.
Walker's elevation to M~ chairmailleft a vacancy
on the three-member cOnll1lission that h~ go~e unfilled
for three months. One reason for the delay in filling the
post; he said; is' that 17 people h~ve applied for the po
sition. ' .
,..
........,.
.....
Discrimination
Former' Stati~n Manai~r Loses B,..s Claims.
\
her when it chose younger and white employees to\. . , ~~ ... ,
manage high-volume stations in 1992 and 1993. '. '.. . ''\_
\
. ,:However, in an affidavit, Candies'Jormef,s~.RervisQr,· .
Joe Gummersbach, said: "[Candies1 waS'g~rie~tlycom.
.
petent to. manage the stations tOWhiCh.r SH."·8"'''was,;as.'. \.
signed: however, management believed that Ms. Can
dies did not have management skills compatclbleto the
.
,indi'l1'iduals .we assigned to manage large volume sta
"tions with car washes." Her stations had shortages o{
, thollSands of dollars !lDd cashier scheduling problems.
aCcording to Gummersbach. Candies .worked'too few
hours and her stations were cluttered, he saia. .
."Gummersbach thought the people selected instead
of Candies would do a better jobot handling the addi
tional personnel. inventory, and cash involved with a
larger station," the court wrote. "Candies has no expe
rience [with stations open for 24 hours or which had car
washes1. and the people chosen did."
...a.,.r
Will Seek Rehealfni. "The Eighth Circuit ig
nored some very significant issues, including the fact
that Texaco has never promoted an African-American
to manager of a high- volume station," said attorney
Jerome Dobson, who. represented Candies. He told
BNA that it was not uncommon for Texaco to transfer a
white manager with only one year of experience to a
high-volume store.
.
"The court failed to analyze whether Texaco's prac
tice of selecting less-qualified, less-experienced white
employees to manage high-volume stations constitutes
a genuine issue of material fact for consideration by a
jury," said Dobson. a partner with Weinhaus & Dobson
inSt. Louis. "The court should not usurp the role of the
jury," he said, contending that Candies would have had
a 90 percent chance of winning had the case been heard
by a jury.
Dobson said he plans to file a motion for rehearing
on behalf of Candies.
Mark G. Arnold of Husch & Eppenberger in St. Louis
represented Texaco on appeal.
Regarding Texaco's Refusal to Transfer Her
•
•
•
•
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••
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4
•
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:
"
•
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.:, ...
T. LOUIS""';'A federal appeals panel Feb. 21· re
jected a former Texaco :5ervice sta,tion manager's
claims that she was passed over for prom~tion to
high-volume stations because of her age and ~~e.
. In affirming' summary judgment. for Texaco, .the
Eighth Circuit found that plaintiff Denova Candies pro
duced no evidence of discrimination based on race or
age. "Because no reasonable jury c~uldfinc1 Texaco. dis:
criiriinlded' against Candies' on the basis. of age or race,
we affirm," wrote Judge George G. Fag in an opinion
joined by Judg~~Floyd R. Gibson and James B. Loken
(Candies v. Texaco Refining and Marketing Inc., CA 8,
No. 9S-1S04EM. 2/21/97).
Candies, a 47-year-old African American gas station
manager, sued Texaco in the U.S. District Court for the
Eastern District of Missouri in September 1995, claim
ing that Texaco denied her transfer requests because of
her age and .race. She had been hired by Texaco as a
manager in 1986. Texaco managers are paid a salary
and are eligible for quarterly bonuses of up to $1,500
based primarily on sales, according to the Eighth Cir
'.
.
cuit.
. The court said that Candies was' "given a' second
chance" by Texaco management after filing false pay
roll reports in 1986 for her son who was away at college
so that a second son; whO was working at the station,
could continue to collect unemployment compensation.
She was transferred in 1987 and 1989 after stations she
managed were closed because .of poor performaqce. ~
Candies' request, she Was transferred to. a higher vol
ume station in 1992 where she could-and did~
generate higher bonuses. ,
Station managers consider being transferred .to a
high-volume:store a promotion even though ~hejob de
scription .remains the same, according to the ~urt~ In
late 1993, Candies lost he.r job. when Texaco. exited the
St. Louis retail market, selling out to Weste~ on~ At the
time, she was earning the second-highest ~al.ary of. all
Texac.o stati9n managers in .St. Louis, accorqingto. the
court.·
.
S
Plaintiff lacked Needed Skllls.l~her suit against Tex
aco under Title .VII of the 1964 Civil Rights Act, the Age
Discrimination in Employment Act, and.lvfiSsQurl state
law, Candies claimed that Tex!1cO discriminated agairiSt
.
3-3-97
.
.
.
COPYRIGHT ill 1997 BY THE BUREAU OF NATIONAL AFFAIRS. INC•• WASHINGTON, D.C.
DLR
�Disabilities DiScrimination
..
.
"
,
-....
Pe,,~. •po.,~;.Y~J~wfu{lj,~~:,~learance
.
Tef APpliCant Wrth History o( ~pression
he Peace Corps discrimiIiated against a volunteer
applicant by deferring her medical clearance and
telling her she could not serve 8$ an overseas vol
u.nteer until she showed she was not at risk of depres
Sion, the u.s. District Court for the Northern District of
California has ruled.
' '. ,
.' :
Judge Thelton E. Henderson found the Peace 'cOrps
violated the Rehabilitation ACt of 1973 by deferring Le
slie Mendez's mediCal clearance because she has dyst
T
hymIa, a chronic form' of mIlg. depression (Mendez \1"
Gearan, DC NCaUf, No. C 95-4075, 2/13/97).
....
Henderson ordered the Peace Corps to re-evaluate'
its decision to defer:Mendez'. application, including an
individualized examination of her qualifications based
on her medical and work history 9ut declined to halt the
Peace Corps from .using dysthymia in itS screenirig'
..:...
guidelines f(lr medical eligibilitY.
.
"The record' clearly.' demonstrates that, the Peace'
Corps failed to meet'Its dutY to' make a thorough inves~
tigation into the reasonable probability of substantial
harm if plaintiff were placed in a position overseas,":
Henderson concluded. "The evidence further reveals
that the Peace COrps made 'no' effort to examine'
whether th~ plaintiff could be protected from a reason';
able probability of harm by some reasonable accommo~
dation," he wrote.'
. '.
. '-.
. Mendez.applied·to the Peace Corps ~n; 1994 and was
tentatively offered a position as an enVironmental edu
cator in Panama, contingent upon Ii final medical and
legal clearance, the court wrote.
. {.. ,
',
Applicant Asks for Medication. She filled out a medical
history form and said she had no, hist9ry ofp~chiatri'c
treatment, but later, Mendez asked a Peace Corps medi
cal screening nurse for the antidepressant, Zoloft,
Henderson said. A su~sequent evaluati~n by a P~ace
Corps mental health consultant said that Mendez had
dysthymia, had takenZoloft in the past, and had been .
.
in therapy for depression:'
A Peace Corps nurse and mental health .consultant
decided to defer Mendez' medica. clearance and told
her "she would not be able to serve as a Peace Corps
Volunteer until she could demonstrate that there was
no risk of her experiencing depresSion;" Mendez was
~ven the name and adqress ofJhe Peace Corps medical
director, to whom ..s he was told she could appeal her de
cision, but she did not contact him, and instead filed
suit.
.
.
.
The Rehabilitation Act· bars the exclusion of other
wise qua1ified individuals with disabilities from posi
tions that exist as part of a program that receives fed
eral funding.··.. "
,.
.:, ','
The court concluded that dysthymia and recurrent
depression are mental impairments under the Rehabili
tation Act but declined to find that Mendez's depression
substantially limited one or more of her major life ac
tivities.
Henderson noted that although she had suffered
from periods of' depression when she had difficulty
waking up, studying, and concentrating, Mendez ex
celled academically, speaks three languages, and suc
cessfully lived and studied abroad. According to the Le
gal Aid Society of San Francisco, which represented
M~ndez, she recently graduated from Brown Univer
sitY:,
. -, .
..
,
(
Peace Corps Fals to Accommodate. Therefore, Hend
erson ruled Mendez was not an individtiaJ. with a dis
ability' recognized by the Rehabilitation Act, but found
she was "regarded as" having a disability. and there
fore still came under the law.'
'i! .
• Noting that the Peace Corps decided Mendez was
:not,q~ed to s~~ beca\1~e positioning.her overseas
woU1~ expose· ~er ~o an unreasonable nsk of harm.
Henderson cOncluded that "the Peace Corps made Uttle
.e!fort to 'gather all the relevant information regarding
the' plaintiff's history and no effort to determine what
accommodations were necessary to allow the, plaintiff,
to perforin her job·safely." .,'
. ; '.' ',':
The court ruled that the psychological assessment of
Mellde.z's conc#tion was "sparse" and that no effort was
made to evaluate her wor~ historY and capacity to func
tion..
.
'
Finding a Rehabilitation Act violation. the court or
dered the Peace Corps to .reconsider M~ndez' medical
eligibility, but de¢ed Mend~'cs request lo enjoin the
Peace CorPs from using dySthymia under its screening
guideUne to deCide medica1,eligi~ility.. ' ..'. .
.
Henderson wrote that' he· Was "troubled" "that the
Peace Corps does not make a professional's.individual
izea review of an applicant'simpaIrmerit and possible
accommodation mandatory after a nurse discovers. by
applying guidelines, that an applicant is not medically
eligible f6t'sei:'Vice,. Nonetheless, the judge decUned to
find that the Peace Corps" m~cal screening process
violates the Rehabilitation Act "whenever it evaluates
an applicant with dysthymia."
.
PHOTOCOPY
PRESERVATION
�u.s. Equal Employment Opportunity c.;olnmJrtu::lt
I
Richard' 'R. 'Truj
Regional Attorney
,
Phoenix District Office
Telephone: (602) 640-5041
FOR IMMEDIATE RELEASE
February 24, 1997
EEOC SETTLES LAWSUIT AGAINST
SHAMROCK TOWING, INC.
Phoenix, Arizona - - The Phoenix Office of the Equal Employment
Opportunity Commission (EEOC) and Arizona Professional Towing and
Recovery, Inc., whose trade name is Shamrock Towing, have resolved
an Americans with Disabilities Act (ADA) lawsuit in the United
States District Court of Arizona.
The federal lawsuit alleged
Shamrock Towing terminated the employment of one of its tow truck
operators, Donald Lorimor, because of his back impairment.
Under the terms of the consent decree, Shamrock Towing will
pay Donald Lorimor in the amount of $6,066.00 in lost wages.
Shamrock Towing is enjoined from engaging in any employment
policy or practice that discriminates on the basis of disability
and retaliating against any employee who exercises his or her
rights under the ADA.
In addition, Shamrock Towing is required to provide training
to its employees on the ADA and other employment diRcrimination
laws and will post a notice to all employees regarding their rights
under the ADA.
It will also report in writing any changes in
policies and procedures that concern employment discrimination.
The EEOC enforces Title I of the Americans with Disabilities
Act,
which prohibits
discrimination aga.inst people with
disabilities in the private sector; Title VII of the Civil Rights
, Act of 1964, which prohibits employment discrimination based on
sex, race, color, religion, or national origin. ,The Commission
also enforces the Age Discrimination in Employment Act of 1967; the
Equal Pay Act; and the provisions of the Rehabilitation Act of 1973
which prohibit discrimination affecting people with disabilities in
the federal sector.
# # #
�".
~.
~
s·
.~.
,
9 ..
~
:.,
..
','
.
EEOC PRESS RELEASE
EEOC WINS $157,500 AWARD AGAINST
WAL-MART STORES, INC.
FOR IMMEDIATE RELEASE
DATE:
February 25, 1997
ALBUQUERQUE, NEW MEXICO -- The San Antonio District Office of the
U.S. Equal Employment Opportunity Commission (ItEEOC It ) announced a
federal court jury has awarded an Alamogordo, New Mexico man
$157,500 in an employment discrimination case against Wal-Mart
Stores, Inc. brought by the EEOC. On Friday, February 21, 1997, a
jury empaneled in the court of U.S. District Judge James A. Parker
of the District of New Mexico, found that a Wal-Mart Store in Las
Cruces,
New Mexico,
intentionally discriminated against an
applicant for employment by refusing to hire him because of his
disability, a missing right arm.
In addition, the judge granted
summary judgment th.at, Wal-Mart asked an unlawful. preemployment
medical inquiry in violation of the Americans with Disabilities Act
of 1990.
The jury awarded $7,500 in compensatory damages and
$50,000 in punitive damages for discriminatory failure to hire. The
jury also awarded $100,000 in punitive damages for the unlawful
inquiry,' finding that the inquiry was made with reckless
indifference to the applicant's federally ,protected rights.
The trial was remarkable in a number of respects.
First, by
accepting the EEOC guidance on unlawful inquiries as authoritative l
the judge created new law in ADA jurisprudencie.
In addition, the
$100,000 punitive damage award is believed to be the largest award
in history for an unlawful medical question.
Second, this case
represents the second EEOC San Antonio District Office victory
against Wal-Mart f~r employment discrimination in recent months.
In September 1996, a jury awarded $117,000 in damages to a woman in
Brownsville, Texas who was not rehired because of her race and in
retaliation for an earlier complaint 9f race discrimination, in a
case brought by the EEOC. In addition, the instant case follows on
the heels of a sexual harassment trial against Wal-Mart in Santa
Fe, New Mexico in December 1996 brought by two private plaintiffs,
where the jury awarded nearly $2 million to the plaintiffs.
The
common thread in all three cases was evidence that Wal-Mart made
little or no attempts to train its managerial employees in ::;
compliance with the anti-discrimination laws. In the instant case,
Wal-Mart produced evidence that it drafted an ADA Manual in March
1992. However, the evidence showed that, to this date, no manager
at Wal-Mart's Las Cruces, New Mexico store had read it, and Wal
Mart made no efforts to implement any ADA training at that store.
Wal-Mart did not inf6rm the interviewer that the law prohibited
disability-related inquiries during job interviews.
Ironically,
PHOTOCOPY
PRESERVATION
~~
�CQ Monitor
MONDAY MARCH 3,1997
FUMe r-Jtings
FV98 COMMERCE-JUSTICE-STATE
APPROPS
•
Conunerce, Justice, State and Judiciary Sub
committ~e (ChaiI:man Rogers.R-Ky.) of House
Appropriations Committee will hold hearings
on FY9S appropriations for programs under its
jurisdiction. . .
.
2prn 2226 Rayburn Bldg. March 4
lOam & 2prn 2358 Rayburn Bldg. March 5
lOam & 2prn H-310 Capitol Bldg. March 6
'Witnesses scheduled:
March 4 Janet Reno - atrome)' general; Doris
Meissner - commissioner, lmmigration and
Naturallzaion Service
NOTE: Reno and Meissner ",iU be asked to
answer "serious allegations regarding the
activities of the INS, Including atlempts to
deceive Congress, gran! cltizehship to crimi
nals and fabricate data.•
Marl:h 5
lOam: Madeleine K. Albright - secretary of State
2pm: Louis Freeh - director, Federal Bureau
Investigations
Much 6
lOa.m: Bill Reinsch • under secretary, Bureau of
Expon Administration; representative from
Dep8rtment ot Commerce
2pm: Representatives
Federal Judicialy
or
from
• Revised Listing
�(No. 41)
3
l'nThis·IS5Ue
Lead Report I Page AA-l
Economic News I Page D·l
News I Page A-l
Text I Page £·1
STm Weirton Steel and union conclude pact for
LEAD REPORT
4,000 at West VIrginia plant .................................... A·l
LABOR LAW Senate panel rejects Kennedy
amendments, will resume markup of TEAM Act
March· 5 ............................................................ AA-l
ECONOMIC NEWS
NEWS
AIRLlNES'1WA flight attendants in an NMB vote
choose representation by Machinists union ............... A-8
CHILD LABOR Child labor conference calls for system
to monitor elimination of worst abuses ..................... A-4
GDP Fourth quarter GOP revised down to 3.9
percent. Commerce Department says ....................... 0·3
Plenty of strength left in economy going into spring.
analysts say ......................................................... 0·1
CIVIL RIGKTS Glickman releases action team report
with promise to clear U,P EEO backlog ...................... A·9
DISABILmES DISCRIMINAnON Peace Corps
unlawfully deferred clearance to applicant with
history of depression ............................................. A· 7
TEXT
DISCRIMINAnON Former station manager loses bias
claims regarding Texaco's refusal to transfer her ....... A·4
New chairman of Massachusetts commission
outlines plans for handling bias charges ................... A·3
Decision of the Second Circuit in Board of Trustees
of the CWA/ITU Negotiated Pension Plan v.
Weinstein ............................................................ E·l
ERISA Pension plan need not disclose actuarial
reports to plan participants .................................... A·I
Text of decision of the Second Circuit in Board of
Trustees of the CWA/ITU Negotiated Pension Plan
v. Weinstein .......................................................... E·l
HOm EMPLOYEES Japanese labor group says
dispute at Los Angeles hotel "tough to settle" ........... A·5
NEWSPAPERS State court holds newspaper has right
to fire lesbian activist ............................................ A·8
NLRB Member Margaret A Browning dies of cancer
at age 46 ............................................................ A-IO
pouncs Businesses challenge Montana law
banning issue· advocacy contributions by companies .. A·2
SAFElY AND HEAlTH Trucking group urges court to
forbid OSHA's use of data gathered in survey ........... A·5
SEXUAL HARASSMENT Claim against spumed
girlfriend can go to trial, distt:ict judge decides .......... A-S
B~'S DAILY LABOR REPORT
1418-2693/97/$0+$1.00
TABLE OFCA,SES
American Trucking Associations Inc. v. Secretary of
Labor (DC DC) ................................................... A·5
Board of Trustees of the CWA/ITU Negotiated
Pension Plan v. Weinstein (CA 2) ........................... A·l
Carl'dies v. Texaco Refining and Marketing Inc. (CA
8) ...................................................................... A-4
Mendez v. Gearan (DC NCalif) ............................... A· 7
Montana Chamber of Commerce v. Argenbright
(DC Mont) .......................................................... A·2
Nelson v. McClatchy Newspapers (W'ash SupCt) ....... A·8
Schraderv.E.G.&G. Rocky Flats, Inc. (DC Colo) ....... A-S
3-3-97
PHOTOCOPY
PRESERVATION
�\~
1
THE FEDERAL DIARY\
\.
THE FEDERAL DIARY!.,
\ THE WASRfNCrt)N Pm
£',Trouble With NepQtism
-
-.
1
. ..
,
t
central Florida. NepOtism was the
•
cause of the Situation but not the
w..i.;..g.... PastStolfw';""
•
reason she was turned into a .
f rules against hiring family
flexible clerk. The case was
i
:... members were strictly
reported by the UpDate newsletter, ;
·.... enforced in Washington, lots
published by FPMI
'
pf people would be out of work.
Conununications, Hunts\iIJe, Ala.
::::. If near nepotism (hire my
It started when the personnel j
""'dllughter; I'll hire your husband)
office got the job application.
I!
: were illegal, unemploj11lent in
Because of family ties, the
.
: Washington- especiaI\yon
application wasn't c.arefully
: Capitol Hill-would jump.
. reviewed. Had it been, it would
:: : Connections help everywhere. have sho'wn an "unexplained"
\
: Government is not the only place conviction that might have
,
::"there connections count. But it
delayed or scuttled the hiring•
.. is one of the few places where
\\Then the situation became
: uSing them improperly can get
known to higher authorities, the
:;{ou in a heap of trouble.
.
personnel officer was demoted
..:: Nevertheless, this is a tOYo'll
because of"improper conduct. ~
:: where the kin of VIPs often get
Upon apPeat, the demotion was
: very preferential treatment,
reduced to a 30-day suspension
~'en if they dOll't ask. That's
because ofher long service and
.. true whether the applicant is the
clean record. The manager and
:; relativ~of a senator Or simply
tier daughter, who soughfto dodge
::; born into a clan headed by a
nepotism rules, weren't punished.
:XO\'ernment supervisor.
NTEU Rally
,
....... For the record, nepotism is
You know it is springtime
~ against the law. So are murder and
(almost) in Washington wlren
.:: jaywaJking, but both happen.
federal and postal unions
:;"Public officials can't "appoint,
organize rallies here so
:;.eJllp!OY, promote or advance, or
..':!d\'ocate the appointment,
rank-and-file members can lobby
! emplo~'Illent, promotion or
Congress. Tomorrow through
:-: ad\'ancement of a relative in the
Wednesday, members of the
:. agency in which the official is
National Treasury Employees
sening or ove.r whim he or she
Union \vill be in town to talk with
:: exercises jurisdiction." Relatives
key legislators. NTEU President
a· include the usual suspects:
Robert Tobias is upset b~' the
:;; parents, spouses, siblings and
president's proposed 2.8 percent
: children-plus nieces and
pay raise for 1998 and about
=: nephews, stepbrothers and
administration plans to delay
': stepsisters and baH brothers and
cost-of-Iiving adjustments for
- ha If sisters. Cousins you can hire!
retirees.
: Nepotism rules don't apply to
NFFE Protest
. ~ couples living \\ithout benefit of
James CllIlDiDgham,
· clergy or couples who got their
president of the National
.; jobs before the wedding.
Federation of Federal
: Man}'long-term federal
Employees, Says the White
• personnel people have horror
House plan to increase employee
:: stories about being asked to find a
contributions to their retirement
place for the relative of a boss or
plan is 'nothing more than anew,
official of another agency. Not all of
one-half perCent Payroll tax on
the candidates are dogs. But such
government workers. He also
r~uests can cause problems for the
says that plans for a 1.5 percent
: Middleman (or woman) being used
increase in agen,cy contnlrutions
: fOr an end run aro~d ~
to the retirement plan \\ilJ make
: Mes. Example:
workers more expensive and
: Two years ago, a Postal Service
probably forCe agencies to fU'e
:-e'l1lployee with 14 years as a
eroployees simply to save money
•. "hwnan resources associate~ was
.and not in response to any
~. demoted for a while (the penalty.
justified strategic plan.
was reduced 011 appeal) to a less
SU'fday, Marr:h 2. 1997
desirable job as a part-time ."iIexible·
derk." That means awful hours, at
FOR MORE INFORMATION e:dJ
" Iowerpa\'.
To read two nlf?i!ks 0/the FedertJI
:: ; Her crime: gi\ing priority
: handling to the job application of the Diary, dick on the abotie symbol 011
tlle/rollt page o/The Posl's Web
: daughter of a woman who was a
~-ite at /CU'w:washillglolljJosl.colI;
: district operations manager in
=
B,· Mike Causev
Consent for Advice?
\
~
relati,'ely high investment
returns that stocks sometime,;
pro\ide while lessening the
ederal workers have
effect that the poor periormance
taken to tax-deferred
of an indiVidual st9.Ck or industry
paj'rOU investing in a big
will have. • , '. The risk of
way. Most are investing in the
investing in the C-fund is that
stock, bond or Treasury funds of the value of the stocks can
their 401(k} plans. But a few,
decline sharply, and the total
such as today's first Monday
return ••• could be negative,
resultiJig in a loss."
Morning Quarterback, would •
appreciate more aggressive
"The F-fund ••• tracks the
investment advice from Uncle
Lehman Brothers Aggregate
bond index ••. high Quality
Sam.
.
• Pat Murphy says "the agency
fixed-income securities
representing the government.
refuses to give advice on .
investment options, I think this
corporate and mortgage-backed
is a disservice. Why should
securities sectors of the U.S.
anyone have to get outside
bond market. The F-fund offers
fmancial ad\ice oil a
the opportunity for increased
government-backed program
rates of returns in periods of
• • • that should be part of
generally declining interest rates.
pre-retirement counseling? An}'
At such tinIeS the values of .
. longer-term bonds held in the
comments?"
.. Firstsome background: Over - F-fund should increase. imlike
the life of the thrift sa\ings plan
those of the short-term securities·
(TSP), the C-fund(stocks) has
held in the G-fund ••• The F-fund
had an annual rate of return of
carries credit risk and market
15,9 percent. The F-fund (bonds) risk. Like the C-fund it has the
has returned 8.4 percent, and the poteiltiillfor negative returns,
which woilld result in losses."
G-fund (Treasury securitieS) has
• Robert Gardner asks: "With
returned 7.7 percent. That's
RlFs [reductions in force]
where the funds have been, not
possible, we have been debating
necessarily where they are
the merits of severance pay o\'er
going.
buyouts. Someone said
No federal benefits officer in
severance is a better deal. Any
. his or her right mind would give
specific investment advice. Most thoughts?"
Buyouts, when,available, are
are too smart to risk angering
the lesser of the employee's
employees by advising them to
severance entitlement or
pick what could turn out to be
$25,000. Buyouts are paid in a
the "Wrong" fund. Choices .
Jump sum. After taxes, the
depend on an investor's age,
typical employee taking a
goals and tolerance of risk.
$25,000 buyout \\'ould recei\'e
Unions representing postal
$14,000 to $16,000•
workers have been the most
Se\'erance is for people who
aggressi\'e ill encouraging
investments in thrift sa\ings plans. .ha\'e been fired, except for
When it comes to fund risks, this is . cause. It is one week's par for
each of the first 10 rears of
'how the magazine Postal
service, then two week's pay for
. Supenisors e).1>1ains the choices:
each year of senice thereafter.
"Your sa\ings in the G-fund
, (Treasury securities) are secure. There is a 10 percent age
allowance add-on for each year
There is no credit risk (risk of
the employee is over age 40.
non-payment of principal or
Severance is paid in biweekly
interest) ••• and market risk
increments, like salary.
(the risk that investments mar
Se\'erance, for a 10ng-seniC'e,
fluCtuate in value) is eliminated
high-income employee. would be
by the TSP bOard's current
worth much more than a
policy of investing the G-fund in
$25,000 buyout.
short-term, rather than .
Monday, Marcll3,l991
.longer-term, securities,
"The Cfund (common stock
.index) is invested in the S& P
FOR MORE INFORMAnON .&J
500 stock index, •• made up of
To rcad tWo weeks' worth 0/
aU the companies represented in
Federal Diary columns. click 011
the S&P index. This fWld gives
tile above symbol Oil lite/rolll
.
}'ou the opportunity to diversify
page o/The Post's Web sile at
your investments and earn
u,'U1lt'.u'aslz;lIgI0Ilposl.coll1
Bv Mike Causev
w.~ Past StoIfw';""
F
"
�EEOC News Clips
for·
February 22 - 24, 1997
PHOTOCOPY
PRESERVATfON
Compiled by
The Office ofC01f'lmunications and Legislative Affairs
�,
USA TODAY' MONDAY. FEBRUARY 24. 1997' 3B
Judge won't reopen
Texaco bias, lawsuit
to add' plaintiffs
Associated 'PreSs
A fed~ral Jl.ldge refused FJiday to
reopen the' Texaco ,rac~~rimina
tion case to h~r from l~r·p~~dJ
black hourly employees who'thought
they should, have been' included in
the $176 million settlement
Judge Charles Brieant denied it
motion from six black employees
who said they were led to:believe
their interests wer~~ing represent·
ed in the class-action laWsuit Not un
til a settlement waS reached, they
said, djdthey learn 'th~i only certain
black employees 'Y0u~d bert!Ceiving
money from Texaco;
, ' , ,," .
The judge said 'it was impractical
at this point to renegotiate thesettle
ment to add, people. "They can sim
ply bring their own lawsuit," Brieant
said.
Texaco settled the discrimination
lawsuit in November. soon after the
disclosure of embara,ssing ~ret
tape recordings on'which executives
were heard demeaning black em
ployees and discussing tampering
with evidence sought by the plain
tiffs.
Texaco, one of the nation's biggest
oil companies, endured a boycott, re
vamped its workplace procedures.
fired one executive and pun~hed
three others. A criminal investiga
tion continues.
The proposed settlement limits
the class to "African-Americans em
ployed in a salaried position subject
to the Texaco Merit Salary Pro
gram" between 1991 and 1996. If ap
proved by Brieant, it would include a
payout of $115 million - less law
yers' fees and expenses - to 1,342
people. They could get average pay
ments of about $60,000. A final hear
ing on the settlement ~ scheduled for
March 18.
S..\TlROW. Ff:BR(:.\HY 22,199:
•
DIGEst
A federal judge refu:;ed to reopen
the Texaco race discrimination case
to hear frollliesser-paid black
employees who thought ther should
ha\'e been included in the $176
million settlement. The judge said
the contention that the class was
defined too narrowlv is no reason to
hold up "hard-fought benefits" to the
original plaintiffs. Texaco settled the
suit in NO\'ember, soon after the
disclosure of secret tape recordings
on which executives demeaned black
employees and discussed tampering
\\;th e\;dellCe sought by the
plaintiffs.
PHOTOCOPY
PRESERVATION
'
�·"ews
· -· · · · ·
N
-
."'."
'.: .
.
~
gvil Rights·,
,
Enforcinc ntle VII. Ruling on an issue of fi~t impres'
sion for the circuit, the court also held that private
plaintiffs'can sue tinder T.itle VII to enforce a predeter
mination settlement agreement of an EEOC charge. The
court cited with approval the _~eventh Prcuifs 1982
opinion in Eatmon v. BriStol Steel & Iron Works, .769
F.2d 1503, 38 FEP Cases 1364; in which that court said:
"All the reasons that support Title VII jurisdiction over
such actions when, brought by the EEOC apply w:?-th
equal force to actions brought by the aggrieved employ
ees to enforce conciliation agreements entered into by
the EEOC, ,their etpployers. and themse1ves. ' ,
"The congressional goal of enforctng Title VII
through conciliation' and voluntary compliance would
be hampered if employees could not seek to enforce in
federal courtsconciUation agreements' between thelp
selves, their employees and the EEOC."
,~
In a 1982 decision holdirig that EEOC could sue to
enforce a predeterminatiori settleptentunder Title VII.
the Seventh Circuit had said it saw no relevant distinc
tion between concilia~on agreementS and predetermi
. nation settlement agreements whe~ it comes to jurisdic>
tion under Title VII (EEOC v. Liberty Trucking Co., 695
F.2d 1038,30 FEP Cases 884).
Judges Michael S. Kanne and Thomas E. Fairchild
joined in the opinion.
"
,
S. Anthony Long 'of Boonville, 'Ind .• represented th,e
plaintiff.
David E.Gray of Bowers. Harrison. Kent & Miller of
Evansville. Ind., represented the defendant.
Court Reinstates'Tltle VII Suit
for Alleged Breach of EEOC ~ttleinent
.
,
n employee who alleged that her former employer
retaliated against her and breached a predetermi
nation settlement of a prior discrimination charge
by contacting her subsequent employer may proceed
with both retaliation and bre~.ch-of-se_t:tlement claims
under Title VII of the 1964 Civil Rights Act, the U.S.
Court of Appeals for the Seventh Circuit has ruled..
Allegations of retaliatory acts that impinge on "fu
ture employment prospects or otherwise have a nexus
to employment" m!lY' b~. pu~ued under Title' VII, the
Seventh Circuit said. It also held that a predetermina
tion settlement of'it. charge filed with the Equal Employ
ment Opportunity Commission is enforceable in the
same manner as conciliation agreements reached after
EEOC has investigated the charge and found cause to
believe a Title VII violation has occurred·(Ruedlingerv.
Ja"ett, CA 7, No. 96-2098; 215197).
.... .
The appeals panel reversed a ruling by the U.S. Dis
trict Court for the Southern District of Indiana, which
had dismissed both claims.
A
Confidentiality Breached. Plaintiff Mary Gossman Rue
dlinger alleged that ~er former employer re'taliat~d
against her by contactmg her subsequent employer m
violation of the settlement of her EEOC charge. She
claimed that as a result of the contact, she was fired by
the second employer.
.
RuedUnger and Robert L Jarrett d/b/a Jarrett Man
agement Co. had entered into a predetermination settle
ment agreement that resolved, a discriminati(m charge
against Jarrett brought on, her behalf by EEOC. As part
of the settlement, both parties agreed to keep ,confiden
tial all information relating to the EEOC charge; How
ever, Ruedlinger alleged that Jarrett contacted her sub
sequent employer and discussed matters that were sup
posed to remain confidential. As a result, the plaintiff
-alleged that she was fired by the second employer.
Covers Post·Tennlnation Events. On appeal, Jarrett ar
gued that Ruedlinger's retaliation claim should fail be
cause the alleged actions took place after her employ
ment had ended. However, the Seventh Circuit cited its
1996 decision in Veprinsky v. Fluor Daniel Inc., which
held that Title VII covers alleged'retaliation that occurs
after employment has ended. The U.S. Supreme Court
recently reached the same conclusion in Robinson v.
Shefl Oil Co. (33 DLRAA~I, E-l, 2/19/97). .
Ruedlinger "has alleged retaliatory acts that impinge
on her 'future employment prospects or otherwise have
a nexus to employment' within the meaning of Veprin
sky, and, as a result, plaintiff's allegations regarding de
f~ndant's contact with her subsequent employer may be
pursued" under Title VII, Judge Walter J. Cummings
wrote for the Seventh Circuit.
BAA'S DAILV lABOR REPORT
1418-2693/97/$0+$1.00
"
NADYAAswAD
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�2·24-97
COPYRIGHT -1997 BY THE BUREAU OF NATIONAL AFFAIRS, INC., WASHINGTON, D.C.
DLR
1418-2693/97/$0+$LOO,,'
Discrimination
Court Denies Employer's Request for Data
On All EEOC Charges Mailed in One Month
~
•
•• I '
•
n'eml?loye~ that fired an e~pl~yee.allegeqIy on the
A
same day It received a notice from the EqualEm
ployment Opportunity Comtriission- that he' had
filed a discrimination charge cannot force EEOCto pro
duce all notices of charges mailed from th~ same dis~
trict office over a four-week period, a federal district
.
court in Pennsylvania has ruled. .
~
Group, the employer,. wanted <the information <
to supp~rt its ~ontention that EEOC did 'not ev~nmail
the notice until at least the day after plaintiff Doh8Id
Hillgen was fired. It argued that comparing the date on
the charge notices with the date of their receipt by other
employers would show that EEOC's district office rou.
tinely mailed notices several days after the date appear.
ing on the notice.
.
However. the court observed that ~OC, which
knowledged that the date on a given notice is not a· reiI.
able indicator of when it Was mailed, does not have a
regular record-keeping procedure that could ~tablish
when a notice was mailed. Given EEOC's inability to
state when any notice was mailed, the parties would
have to investigate the circumstances surrounding the
mailing and receipt of each notice, expanding this sub
sidiary issue into multiple mini-trials, Judge Eduardo C.
Robreno wrote (Hillgen v. PMA Group, DC EPa, No. 96
147,2/3/97; 72 FEP Cases 1808).
ac.
Not Admissible Evidence. In his suit under Title VII of
the 1964 Civil Rights Act, Hillgen alleged in part that he
was fired in retaliation for filing a discrimination charge
against the company. According to HiDgen. PMA fired
him on June 6. 1994, the same day it received a notiCe
of his charge from EEOC, which was dated June 2•
. In defending against the retaliation claim; PMA con
tended that EEOC did not even mail the notice of the
charge until at least June 7. In an effort to prove its de
fense, PMA sought access to all notices of charges
mailed from EEOC's Philadelphia district office arid
dated from May 19, 1994, through June 16, 1994. PMA
asserted that by comparing the date on its notice to the
dates on notices received by other charged employers,
it would be able to establish that EEOC routinely mailed
such notices several days after the date stamped on
them.
.
Robreno. denied PMA access under Rule 26(b)(1) of
the. Federal Rules of, Civil ProcedlJre on the grounds
that it would not lead to the discovery of· admissible evi
dence. He found it unnecessary to address EEOC's ar
gument that forced disclosure of other notices of
charges would violate the Privacy Act•.
"Even assuming that [PMA's] hypothesis will yield
, some probative evidence, the Court finds that the infor
<mation sought < [PMA] will neither be admissible at
by
trial, nor does it appear reaSonably calculated to lead to
the discovery of ~dmissible evidence," Robreno wrote.
. He noted that under Rule 403 of the Federal Rules of
EVidence. the court can exclude relevant evidence if its
proba~ve Wlue is "substantially outweighed' by the
lijteUhOod that it would confUse or misle~d the jury, or
waste time~"
.
Obseiving that both sides admit that EEOC lacks a
regular record~keepitig procedure that could establish
when a given .notice ,was mailed. the court said that to
.make the showings proposed by PMA would require in
vestigation of the ci,rcumstances surrounding the mail
ing of. doiens of charges peripheral to this case. "This
exercise would expand this subsidiary issue into veri
table multiple mini-~als." said Robreno in ruUng that
PMA's request failed to meet the criteria of FRCP Rule
26(b)(1) becaqse FRE Rule 403 would preclude the in
troduCtion of such evidence.
. Broce J. Kasten and Robert J. Bohner of Duane, Mor
ris & <Heckscher in Philadelphia represented PMA
Group.
Judith A. O'Boyle of. EEOC's district office in Phila
delphia represented the commission.
William B. Hildebrand of Feldman & Hildebrand in
Cheny Hill, N.J., represented Hillgen.
PHOTOCOPY
PRESERVATION
�THB NBW YORK TIMBS
""<!'"....
NATIONAL SUNDAY, FBBRUARY 23,1997
Openly Gay Marine Gains Retirement Benefits After Long Fight
By The New York Times
JACKSONVILLE, N.C., Feb. 21
The first openly gay marine to chal
lenge the military'S policy on homo
sexuals has won his four-year court
battle and is being discharged with a
$30,000 early retirement bonus.
A relieved Justin Elzie, a medical
supply clerk stationed at Camp Le
jeune here, received his retirement
papers on Thursday, fou.r years after
announcing he was gay and challeng
ing the military on his right to retire
ment benefits.
Calling It a matter of dignity and
personal integrity, Sergeant Elzie
declared his homo~xuality on the
later backed off his stand under pub
ABC nightly news on Jan. 29. 1993
the day that President Clinton or lic pressure, and compromised with
dered the military to stop asking . the "don't ask, don't tell" policy,
recruits about their sexual orienta which allowed homosexual men and
tion.
women to serve in. the military if
Sergeant Elzie had been accepted they kept their se~ual orientation to
Into an early retirement program .. themselves. Last month theeMarine
but the Marine Corps removed him Corps agreed to give Sergeant Elzie
from that program and discharged his retirement benefits before the
him after his announcement. A Fed case could go to cpurt for a final
eral eDistrict Court judge· later de judgment On Thursday, the paper
clared it unconstitutional for the Ma work was finished.
rine Corps to discharge him and or
Lieut. Charles Campfield, public
deredthe corps to keep him on active affairs officer for Camp Lejeune,
said the matter had been settled "in
duty while the case was litigated.
. The case worked its way through order to come to a mutual agreement
the court~ while President Clinton that avoided any further delay, ex
pense and inconvenience for all par
ties involved."
While waiting for the case to reach
an end, the 15-year"veteran has
served .for four years as an openly
gay Marine.
c"At times over the last four years
it's been basically a feeling of. being
in limbo, of knowing I was at a glass
ceiling, that I was never going to go
anywhere else in the;Marlne Corps,
but still keeping a positive attitude,"
Sergeant Elzie, 34, said.
Sergeant Elzie's announcement·
fueled the. debate over President
Clinton's early proposal to lift the
military's ban on homosexuals, and
( / 2
�"]"'/2.
THE NEW YORK TIMES
NATIONAL SUNDA Y, FEBRUARY 23, 1997
set off anti-gay talk among his co ent's last four years of service have
workers, making it difficult at times helped prove their point - that sexu
to show his face in public, he said. al orientation does not affect a per
Still, his declaration gave him a·new son's ability to serve in the military.
found freedom and a life that didn't During that time he has received
require him to look over his shoulder, praise from, his commanders and
he added. He said he hoped other glowing fitness reports. He also was
homosexuals in the military would awarded an official commendation
come forward and take up where he for service 'and was recommended'
'for promotion three times.
left off.
..At ,a minimum what Justin's case
"I think that's one of the frustra
tions I've had," Sergeant Elzie said should show is that you can fight
in an interview in Jacksonville, back, that you can stay in ,the mili
where he still lives, "is coming to tary, you can remain on active duty
realize that I couldn't alonf! change while you litigate your case and that
the organization. I can't do that at the end of the day you can win,"
alone. I'm just one cog in the whee!." Mr. Sipes said. "Sadly there is no
Sergeant Elzie's lawyer, Christo shortage of outstanding service
pher, Sipes of the Washington firm members who 'are being discharged
Covington & Burling, believes his cli because of their sexual orientation."
.':'~~-.
TnE WASHINGTON POST
S,\T1JRDAY. FEBRUARY 22,
1997
Gay:Marine SeHles Lawsuit
• A Marine who announced he was gay 011 national
television the S<lme day President Clinton announced
his "don't ask, don't tell" policy was given an honor
able discharge and retirement benefits to settle his
lawsuit over the rule.
"I thin\{ what we've proved is that a Marine who
happens to be gay can serve just as well as a Marine
who's straight with no detriment to morale or lack
of mission operation," said Sgt. Justin C. Elzie, a
medical supply clerk at Camp Lejeune in Jackson-
N;C.
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Elzie, who received his walking papers Thursday,
said he got a $30,000 check as part of his retire
ment benefits.
Elzie, 34, had already been accepted into an early
retirement program when he declared on ABC's
"World News Tonight" that he is gay. His announce
ment came on Jan. 29, 1993. the sameday Presi
dent'Clinton agreed to the policy on gays in the mm·
tary.
The next Illonth. the Marine Corps placed Elzie
on standby reserve and tried to deny him early re
Iirement aud discharge him without benefits. He
:-;ued the military in September 1993 and. a month
later. a federal judge ordered him placed back on ac
tive duty.
E1zie's lawyer, Christopher Sipes, said the honor
able discharge after 15 years of service is part of
last month's settlement of the lawsuit.
- Associated Press
.,
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�March 3, 1997 FEDERAL UMES·
Discrimination Claims Grow
Four Join Complaint Against Forest Service
By Meg Walker
• A hostile work environment for black employees.
Federal Times Staff Writer
•
Discrepancies in selectil1.g a)Vard recipients,
. Four employees in Mississippi have joined a com particularly in the supervisor's office:
.. .
plaint claiming the Forest Service's Southeast re
• Discrepancies in the number of jobs held by mi
gion bypasses blacks for promotions, awards and norities in natural resource areas.
training.
The employees, their representatives and man
Three men and one woman from the Forest Ser agement were scheduled to meet at a mediation
vice office in Jackson filed a complaint last Septem session in mid-February. The two sides were to
ber with the Equal Employment Opportunity office have tried to settle some of the issues in the com
alleging discrimination.
plaint.
About a month ago, the complaint was merged
. After a mediation session last fall with the em- .
with one filed by four black women at the Francis ployees in South Carolina, Forest Service represen
Marion-Sumter National Forests in South Caroli tatives agreed to provide more training for black
employees.
.
na.
"They have got very similar issues," said Gary
But the second session, scheduled to last three
Brown, the lawyer for the complainants.
days, was canceled after an official in the Agricul
The employees hope to get the complaint certified ture Department's general counsel office decided
as a class-action lawsuit representing more than not to proceed until it is known whether the com
300 black employees in the Southeast region. An plaint will be certified as a class action.
"This was an opportunity to resolve things early
administrative judge will consider the matter at
on," Brown said. "Just sitting down at the table
the end ofFebruary.
Brown said a key impetus for the Mississippi shows a mentality that is different for USDA. This
claim was a surplus list that would have eliminat would have sent the right message. but now it is
back to the normal USDA stonewalling."
ed a large number of positions held by blacks.
Jobs that will be eliminated at some future date
Gina Jones, a class agent inthe South Carolina
are placed on a surplus list, and the agency tries to complaint, said: "It sounds like the agency just
find another vacant position for the employees who wants to work this through the system. We wanted
hold them.
.
to work toward a mutual agreement," to avoid
In the past, "they have seen so much retaliation going through the long, drawn-out discrimination
.
and laid low. But when it looked like their jobs complaint process.
A Forest Service spokeswoman in Atlanta said
were on the line, they started speaking out," Brown
said.
.
management still plans to meet with the complaint
The Mississippi claim also alleges:
members individually to see how to improve work
' . Bias in the decisions hiring and retaining mi ing conditions.
nority employees in the national forests in Missis
"We are committed to doing what we can to ad
sippi, particularly in the supervisor's office. .... . - 'dress these issues," the sp6lCeswoman said. .
�March 3, 1997
RDaw. nltflS.
,'
Court O~/aY$· RIF
For Emnlqyee .
WifhBiss Suit
"
~~.
7'l'he' court -decided .Bonds,
By Christy Harris
Federal Times Staff Writer.
now GS·14 assistant directOr
A 40-year Smithsonian In- . for finance and administra
tion at the' NatlonruPcistal
stitution employee succeeded
Museum, met the higli'erstan
in gettiiig a court temporatiIy'
dard by snowirig "eXtraordi
to stop the agency from letting
ri8.rY\ irreP!'lXable injury," and
her go during a reduction in
so it grantedibei request' to
force.
temporarily. • st;Op .the RIF~
She says the RIF was in re
pending th~ OUtcotne Qf!l trial:
taliation for her pending dis
No trial daw has been set.
crimination lawsuit againSt
. Bonds has no~ollege edrlca- .
the agency.
tio.n, but worked l1er way up
But the case also will make
it more difficult for many .from a typist~ ,a program an
alyst. If she lost her job" it
other employees trying to do
would be unlikely she could
the same thing.
Under a '.1974, Supreme· find· similar· worK,':theeourt
Court decision, federal em
said.
.
ployees asking a court to in
True, she could retire and
tervene when their agency receive almost as much in- .
has taken action against them come as she;doesnow - near::
must meet a higher standard Iy 80 perceI.lt of her "high
of proof than private-sector, . three" salary !lverage :..- phis
workers th~t they would be ir
continued health and life bim
reparably harmed if the court. efits; the court said.
'
did not step in.
But she does'nat'want to re
Now a district court has de" nrenow.
cided the higher standard for
"The fact that she could re
federal employees applies, tire, and be nearly as weil off
even in civil rights cases.
firtancially without having to
"Injunctive relief is by its lift a finger, shows just how
very nature an extreme inva
much of her life is tied into
sion of an employer's preroga
her career,"Lamberth said.
tives, and must be considered
The. Smithsonian argued it
carefully," U.S; District Judge should not be forced. to keep
Royce Lamberth said.
Bonds on because her position
"The need to root out invidi
was eliminated, and there is
ous discrimination from' the no work for her to do. The gov
workplace is' Clearly as impor- ' ernment should' not have to
tant in the public workplace pay Bonds to do' nothing, ~e
as it is in the private sector," Smithsonian said, and the
the judge said. "But this does court should not stand in the
not mean that courts should way of agencies' reorganiza
be as willing to exercise their tions.
.
equitable powers to accom
, The court, said it doubted
plish this on an interim the agency had absolutely no
basis."
use for Bonds because it could
Patricia Bonds, 58, who is detail her elsewhere. But the
black, had sought promotion coUrt would not order the
to a GS-14 program analyst Smithsonian to use Bonds'
position. The Sinithsonian skills, saying ,it is the agency's
filled the job with a younger,
prerogative to waste money.
white male.
Bonds has been on paid ad
Bonds did not have a chance ministrative leave since No
to compete.
vember 1996, when the same
court issued a temporary re
straining order, stopping her
from being laid off.
, "The public interest does not
favo.rcourts forcing the gov
eminent to retain dead
, weight employees, nor does it
favor having employees sit at
home watching 'Oprah' and
muneli4tg Cheetos at public
expense"" Lamberth said.
But neither eXtreme is the
~ase here, the judge'said.
~~t i,s surprising ... that the
Sniithsonian has gone to such
I,engths to terminate mem
, ployee . who actuBlly has
. shown ilwillingiless' to
, and to do so" ~,ompetently
perhaps an unusual combina
tion in the federal bureaucra
cy," Lamberth said.
Two other people were af
fected by the RIF, but they
were moved into other posi
. tions, according to the deci
sion.
Patricia Bonds us. Ira
Michael Heyman, Smithson
ian· Institution, 95·0044, U.S.
District Court, District of Co
lumbia, Jan.. 14, 1997.
work··
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PHOTOCOPY
PRESERVATION
�THE NEW YORK TIMES, SUNDAY, FEBRUARY 23, 1997
"
,
Harassment Complaints and Cutbacks
Trouble Washington's Libraries
By PETER T. KILBORN
WASHINGTON, Feb. 22 - Grace
M. Kelly reveres the Martin Luther
King Memorial Library, the biggest
of the 27 In the District of Columbia's
system. "You can learn anything you
want just reading a book in the. li
brary," she said as she struck the
"FI" key on one of the electronic
card catalogue's computer termi~
nals so she could start her search.
..I've been coming here since I was
in kindergarten," said Ms. K;ell~, who
is 36. She struck the key again, and
again, trying to clear the screen.
"It's the greatest university on
earth," she said, now pounding the
key likeajackhamriler.
"Th~se machines aren't working,"
she Said and went to try another and
then another. The last one worked.
Unlike most of the public institu
tions In this caSh-strapped city, the
library has worked well enough to
retain the affections of patrons like
Ms. Kelly. With 404,000 card holders
and 2.7 million books, records and
videotapes, and with Friends of the
Library groups supporting each of
the branches, the District's public
libraries have long compared favor
ably with those of many other' cities.
But the library system,' estab
lished 101 years ago, is now reeling
along with the rest of the District's
public services. Sexual-harassment
charges against the former director
have stunned the system, and dec
ades of frugality - reduced hours
and staffing, improvements post
poned for years, the new constraints
imposed by the District's Financial
Control Board - are taking a toll.
Four of the branches had to be
closed during the January chill be
cause of broken furnaces, and the
roofs over at least" three branches
leak. One branch' is infested with
rats, and another. with mice and
birds. A tiny kiosk branch has been
shut because the toilet is broken and
there is no money to fix It. Technol
ogy has passed the branches by;
Most ~tiII use rotary telephones.
Purchases have stalled for even
little things: tape to repair books,
ribbons for printers and typewriters,
A beloved but
timeworn
institution is falling
behind.
toner ·for copiers, rubber stamps.
And because of foul-ups and delays
by the procurement office, the librar
les even had to return $899,000 that
ther could not spend .by the legal
cutoff,date at the, end of the last
fiscal year.
Ti1estaff is In turmoil. The head of
procurement reSigned in December.
Th~ liJ:>rary director, Hardy R.
Ftilnklin, 67, retired unexpectedly at
their stuf!." But Mr. Hurwitz is also a
the end of January. Three weeks
patient man. He asks the card cata
la~er" Dr. Franklin's deputy and I)eir
logue terminal for Katharine Gra
apparent, Andrew A. Venable Jr., left
ham's memoir, "A Personal Histo
to 'become deputy director of the
ry," a roaring best seller in Washing
Cleveland public library.
ton. The computer shows six copies.
The president of the libraries'
board, Joyce Clements-Smith, said' .Alas, it lies.. ·The 'books have been
keyed into the computer, but Mr.
Dr. Franklin had left because of fail
ing health. And now the public has
Hurwitz finds that they still have not
learned of 'accusations that Dr.
Franklin had· been sexually harass
been put on the shelves.
ing senior female employees
In addition, when these terminals
thrpughout his nearly 22 Years as
fail, recently published books cannot
director. Two womell have filed for
be.found because six years ago, man
mal complaints and also say that he
agement stopped making catalogue
denied. them promotions because
cards for new acquisitions.
they had denied him sex. They could .
Like libraries everywhere, this one
not complain earlier, said their law I
is plugging into the Internet But it
yer, Sharyn DanCh, "because he con
has only four terminals, and none is
trolled their jobs."
connected to a printer. And these
These charges trOUble many pe0
machines, too, often fall. "We have
ple more .than last winter's un
four terminals, but we don't have
plowed snow. "Libraiies are places
four working at the moment," said
that touch everybody; regardless of
Kathleep A. Wood, the head librari
age, race, sex, Income," said Philip
an. "We have one that's working and
Pannell, a community leader and
one that's partially working."
former District human rights com
The sexual· harassment accusa
missioner who joined the system's
tions have rattled the library more
nine-member board In September.
then the money problems. The wom
"To see this happening Is so heart
en who brought the complalnts
breaking. It's another glowing eXam
ple of how dysfunctional things have
gotten in this city."
Still, the Martin Luther King main
library, near the convention center
is a serene and pleasant place wher~
Washingtonians seem. to suspend
their rage over the city's deteriorat
ing services. Like Ms. Kelly, patrons
say they can read In comfort and
with the help of the professionai
staff, find most of what they want
"The service Is terrific here," said
Edward Hurwitz, a recently retired
Foreign Service officer. "The staff In
the individual sections rt~ally know
, (""L
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,laWyer, s8.Jd he had advised the former director not to discuss the accu·
sations. But Mr. Lattimer called
them "unadulterated nonsense."
But the city's Department of Hu.
man Rights Investigation found the
complaints credible enough to war
rant a conclilatlon procedure.
"The sheer number of additional,
similar complalnts submitted by
'sworn witnesses leads the depart
:ment to suspect mendacity on the
part of the ,respondent," the letter
,said of Dr. Franklin. "It Is significant
that many of the sworn witnesses
clearly do not appear to have any
. motive to fabricate evidence against
~Dr. Franklin."
",,' The women said In Interviews that
lPley had coped by creating a net
',work of women who would warn one
~another when Dr. Franklin was head
)&1 for their offices so they could be
~8.ssured that he would not catch one
-of them alone. "We had a kind of a
;Code," Ms. Sweeny said.
~:; The Human Rights Department
}sent -Its findings to the women and
,the library In August, but nothing
'. )'Ias made public. until January. Evl·
i'Qently, only Dr. Franklin, Mr. Vena
ble; a few other senior library offi
Unlike most public institutions in Washington, the'libraries have worked well. But they are breaking down.
cials and Ms. Clements-Smith knew
Dat Phan, 12, explored the Internet at one of two working computers at the Martin Luther Kin.~ public lib~.
of them. Mr. Pannell, though a mem
ber of the board, said he had learned
-
of them In the newspaper.
Brenda V. Johnson, assistant dlrec-,
Thewomen.went pubUc, however,
tor for library services, and J,une ., whenMs. Johnson, the third-ranking
Sweeny, head of branch,:servlces -officer &fter Dr. Franklin and Mr.
gave the city's Department of Hu- Venable, learned that she had been
man Rights long lists o!;,unpleasant passed over for promotion to acting
encounters with Dr. Franklin, start· director In favor of the fourth-rank
SUNDA Y, FEBRUARY 23, 1997
'..."
ing In the 1970's, and named at least Ing officer, Mary E. Raphael, assist
eight supporting witnesses.
.
ant director for program and supMs. Johnson listed 10 eplsOC!es. She -port services. Ms. Johnson said she
~
said ;Dr. Franklin had grabbed her had been passed over In retaliation
breast; 8!lked her to take hotel rooms fpr th~ cOmplalnt. But Ms. Clements
with him, grabbed her and kissed her Smith. said, Ms. Raphael' was the
on an elevator and .glven a lewd most qualified.
suggestion for how she could ~arlk
Flnan~lal and other problems
him for a promotion. Ms., Johnson aside, the Ubrary stm attracts eru
said she wanted the libraries to dUe Washingtonians. "In a previous
adopt firm anti-harassment policy life," begins one of the few graffiti
and to pay her and. Ms. Sweeny messages on the wall around the
comPensatory,damages.
IIbrary'slong-defunct fountains, "I
Dr. Franklin's laWyer, Gregory L. was a jigsaw puzzle made of Ivory."
ebeNew lork einttll
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�B",'S DAILY LABOR REPORT
141&2693/97/$0+$1.00
2·24-97
Sexual Harassment
Court Holds 1batSame-Se~ Harassm~nt
Unlawfui DiscriITlination Under state Law
,
,
OSTON.....;.A divided Massachusetts Supreme Judi
.
cial Court has ruled that sexual harassment by a
male stIp'ervisor of other male employees violates
the state's fiUr emp~oyment practices law, even if all the
parties involved are heterosexual males.
. ,
, In a case of first ~mpressiori, the' stat~ Supreme Court
upheld a 1994 superior courtnllillg that held 84 Lum
ber Co. liable for sexual harassment based on the ~on
duct of a male supervisor who engaged in unwa~ted
verbal and physical conduct ofa s~X?al nature agalnst
three male employe~s. In a 5-2, ruhng, the Supreme
Court upheld damages of $144,000 agai!1stthe lumber
store in West Springfield, Mass., plus mterest, costs,
and attorneys' f~es (Melnychenko v. 84 Lumber Co.,
Mass SupJudCt, No. SJC-07029, 2/18/91).
The superior ,cQurt had fo~nd that sup~~sor Rich
, ard Raab engaged in "revolting and pos~tl,:ely out:a
geous" conduct agains! the t~ree male p~alnti!fs, which
included grabbing thelr gemtals, exposmg hlmself to
them pretending to have anal intercourse with them,
and telling other employees he had had sex with the
plaintiffs. Raab's behavior was hostile environm~nt
sexual harassment prohibited by state law, !he ~upenor
court decided, even though all of the parties mvolved
B
~m.
"
Orientation Not Disposm:e. Springfield attorney Jay
Presser, who represented 84 Lumber, had argued that
sexual harassment is only actionable as, a form of sex
discrimination and that, alleged same-sex harassment,
therefore, is not actionabl~ unless the alleged harasser
is homosexual.
.
"
, .
Writing for the state Supreme Court, however, Chief
Justice Herbert P. Wllkins said that ,the 10,wer .c~~
properly found that same-sex h~smen~is prohibltea
.' .
by state law regardless of seXUal onentatio?
He noted that in this respect, state law differs Slgnifi··
cantly from Title VII of the 1964 Civil Rights Act. Sexual
harassment as defined under Massachusetts law is "not
limited to the con9~u.g of a supervispr aimed at a subor
dinate of tile opposite sex, .nor is it .liq1itedto ~lUIle-sex
conduct' oruy where the' harass~r: ~ a hpmosexual,"
W"llkins<wrote; "Rlither, any phySiCal ()rverbsJ conduct
of a sexual ria~re,which,isfouri,c;I t~,interfere u~ason
ably with ail emp,J6y~e!s wo* .performance.thro~gh the
creatiorrof ~ hum.iliating or seJCu~y off~nslVe 'Y~rken
viro~erircim be seXUal haraSsment" under the state
StatUte. . . ','.' .
. .
Th~ court added", that sexual harassrilentunder the
state law; as defined by: thelegislatl1r~, is aformofsex
discririlinati9:Q; "~ciwhe~. is' ~scriWi~·ati.o~. because ,of
victim's sex made an essential element of a sexual ha
rassment claim iIi MaSsachusetts," Wlll?ns pointed out.
.. " .
.
"
a
'"
.'
.'
Not Motivated biGender. In,di~s~nt, J\1S~~e', Francis
O'ConnQr~ed tpat, the plli,in~sha4 f!!ile.~ t() prove
they: were ,~exuallr ~~s,e,dbe~use Clf ~th~~r '~en~er
and, the~fore, they~did not est~bPsh sex discnmmation
as, required undert!t~ state s~at11.~e ..~
"
,'. O'Connor said {that 'the Massa,ch~.se!tS law, is pat
tern~d after Title VIf arid thati(is, i~tehd~d:!!leliminate
wor~lace dis,critriin,~~on QriS~dOn,: race;c910r,~re~~,
national origin, s~~, ,sexual ~.n~l!tatioJl, or ~nc~st1!. It
is significant in this case, th~tefore. tha~ the,i,tra,t Jud~e
found the. def~ndant~s agent's'conduct to h~ve b~en m
tended sometimes as'ho,rseplaY' and s()metimes tode
grade ~Q,d humiliate't~e plai~tiffs. but. not to have been
motivated by the pJaintiffs' gender;" O'CoI1por wrote.
Both Pressertmd plaintiff's attorney,Tiip,Ryan told
BNAth~t the~ling i~'nofe'm~f1~q, ~(j, hav~"~~Li'Pp!ict
outside of Massachusetts because ltslmplyproY1geS ~he
stat~ ~upreiIle cOGit;s'1ewqn th~:m~ng ,of~,~sa
chusettSlaw. HoweVer~-1t does notifye~ployery:m the
State that gender40es notm*etwhen it C9in~s to h~
rassment Presser, said. "If the conduct, fits the defini
tionof h~sment and is s~xually" related, cit doesn't
matter what the'orientation of the parties is;" he 'said.
is am(!mberof the fmn of Ryan, Martin and
CosteUoin Spririgtield, Mass., ,
. ','.'
Presser is with Skoler, Abbott & Presser in Spring
field; Mass.
"
,RYan
�she,.was forced to quit. During an exit interview, Mais'
offered Kimzey other jobs but she turned them down'
because of the unfavorable, working hours; 'accordin~ to
thecourt.·;, '-'" " .... ,', , .",:' ,:.
' ..:,.;
~thougn Kirzlzey tried to use Wal-Mart's open-door ,
policy to complain about the harassmet}t, ,manageinent:
generally ignored. her complaints,· aCcording to'· the.
court;'··" ,!." ' .. : .. '
8",'5 DAILY lABOR REPORT
Sexucil Harassment.'
_;'cln;..il' C~' $5 Million Award
,0
'..
"
,
he U.S; Court' of Appe.'als for the. Eighth Circuith.'as
,
reduced from $5 mUllon to $350,000 a jury aWard
of punitive damages,to a former Wal-Mart Stores
employee who alleged that she, was sexually h,arassed
by her, supervisor, and the company failed to' do any
thlng'to,stop the harassment.' .
.
The Eighth Circuffs. reduction'of what it called an
"excessive" aw&rci' further .~t •il. pwuUve damages'
award that waS origin8uy se.t!it $50 riliUioi:i• .Theap~·
peals, ~~I ~iq affJnn tJ:te low~r,~~prt:~ finding tJ:!.at
Wal-Mart 15 liable for sexual harassment and an aWard
of comPensatory damages. to plaintiff· Peggy Kimzey
(Kimzey v. Wcil~Mart Stores InC., CA 8, Nos. 954219
and 95-4220, 2/20/97).
Writing for the Eighth Circuit, Judge Diana E. Mur
phy said the o,ffensive conductJhat Kimzey experienced
"was certainly objectionable but waS not the most egre.
gious t)ye of semal harassment." In an opinion Joined'
by Judge George G. Fagg, Murphy observ4!ld that "there
,w~ no serious' sexUal as~ault or physical touching, no.
. q\1ld pro quo harassment, [and] no retaliation for com
plaints·"
.•.
'.;
'.
'., .
'
In partial dissent. Judge Gerald W. Heaney siUd that
red,:cing damages t~ $~50,OOO does no~ adequately
purush Wal-Mart for Its conduct.,"Nor will it serve to
deter Wal~Mait or o'ther. similarly situated companies
from Violati~g tlleir eriiploye~~. civil rights," ~~ ~am~d;
The jury's $50 million award earlier' had', been re
duced to $5 million by the U.S. District Court for the
Western District .of Missouri (23~ DfR,M-l,'12n/95)•.
T
Harassment finding Affinned; Kimzey alleged that she
was subjected to sexual innuendoes and comments
from her supervisor and the Eighth' Cirtuit agreed that
sufficient evidence exists to supportafindlng:ofa sexu
ally hostile work environment in violation of Title VII of
'.
the 1964 Civil Rights ~ and state law. . ,
Supervisor Henry Brewer and Michael Mais, the
store m~ager; instig8:ted,~dparticipated in 'many of
the ·inCldents. of tl,arassment,·against Kimzey, who
worked for Wal-Mart in Warsaw, Mo. Mais commented
about Ki~~ts bn!as~ apd. he~,,:~tight~as,s.~jeans and
on one occasion, told a co~wofk.er that "he had found a
,place to' punus screwdriver" while g¢stl.,1rl~ toWard
Kimzey's buttocks, accorqing to. the·court. MBis alSo al
legedly kicked', femlile employees in' the legs
he
walked past them. .
, . "
..
,Kimzey also presented evidence that Wal-Mart man
agement knew that she had been haraSsed throughout
her tenure at the store and that she complained more
frequently as Brewer's benavior became more abusive,
according to tile appeals court. '.
.
The district court did not err in submitting Kimiey's
constru~ve discharge claim to the jury, Murphy wrote,
because a reasonable JUry could have' found ,that
Kimzey's working conditions were so intolerable that
as
•
it
~a~ PolICY. it MlUgating Factor,
th~ugh
held ~at th~ ~de~ce supports a ve~dict ,I!-gainst WaI
Mart. the Iilghth C~t :added, "No rea.$onable jury
cOu!d have . a~~d $5 'Dilllion in punitive damages.
based on the eVIdence and the application'of the rel
evant factors under MisSouri law.'.' '.
.
".
. The"distrlct:cotilt abused;iis dlscretlon'byn'ot ied~'~~
ing the aWard in light·of all the relevant factors in the'
case, the Eighth Circuft said. Careful review of'the evi
dence, in .light, of Missouri law and other similar cases'"
shows that the $5 mUllon aWard is "still exceSSive," said
. ,
',.
, , , ' , " •.;.... :" .'
the.;tpurt. ,.,'
:' For example, there was no serioussexuiil assault or
physical touching",retaliation for. complaints, or' quid
pro quo harassment against Kimzey. Wal-Mart had an
appropriate corporate policy against harassment, and
there ~ ,Ii? e'Il4ence that anyorte 'outside the Warsaw
st~re Was a~ of the incidentS occurring tilere, said·
the·. c()urt•. Although: there was conflicting testimony
&:bout whether theanti-dis,criminati.onpolicy was effec- .
tive, a witness for Kimiey testified that the poliCy·
worked foran~ther employee and that she had been en
couraged to \lSe it. ....
". .'
.
.
"
"Considering all the aggnivating 'and initigating cir-'
cumstances, including the nature of the harassment,"
an,award of $350,000 would be, reasonable under Mis
souri law, the court said; observing that the' amount' is
proportionate to other damages awards in Missouri;' ; ..'
.' The court .noted that it is unclear whether the district'
cou~submitted the punitive damages issue to the jury
under Missouri law, federal law (which plaCes a cap on
damages), or both. Sufficient evidence existed to send
Ki~ey's claims to the jury under either state or federal
law, .the court said.
.
~e Eight.h Circuit pointed out that the jurY assessed
low. ~ctual da,mages of $35,000 and $1 in back pay eveJ;l
thou~h Kimzey requested damages for emotional pain,
inconvenience, humiliation, embarrassn'\ent, 'and degra
dation and her expert had 'testified that she lost over
$300,000 in mcome.
'
EV,e.n
Agai~st Wal-Mart Stores to $350.,000
.,
,
Reduced Award 'Slap on Hand,' The mere existence of
a policy against harassment "camesvery little weight
• _'. when Wal-Mart failed to train any of itS supervisors
about the policy," Heaney objected in diSsent. That no
olle ()~tside the Warsaw store knew about the conduct
"is further eVidence that the open-door policy was:not '
followed," Heaney wrote. The company's failure to take ,
actionagainst Mais or Brewer ~~may well have indicated,
a greater need. for· a severe punitive award," said;'
......
"
.
,:,,' •
Heaney_
Wal-Marfs response of offering Kimzey other posi
tions with und~irable working hours "essentially pun·'"
ish~~ tpe~ong party and condoned the illegal behav~
tor, the dissent said.· '.
.'
.... '.
,; .
.A $350,000 award also fails to reflect seriousconsid- '
erilti()n of V/al-Mart's total assets, Heaney added. At:,
trial, the company's net assets were placed at $32 bU
lion~ The reductiof.l .in damages "constitutes less than
one-thousandths of 1 p~ent of Wal-Mart's het
.
worth;" he pointed .out. .
"Such a minuscUle penalty hardly represents more'
than a slap on the hand for a company of Wal-Marfs
size. In purely economic terms, it would be far more
beneficial for Wal-Mart to payout this size aWard than
to implement a companywide training program on
p
sexual harassment," said Heaney.
two.
. .
HOrOCOpy
PRESERVA
�Disabilities Act
In a systeniimique among men's retailerS,sales as
soclates must hand letter a bill a sale, with notations of
the customer's name and address, at:id other details in·
"
.
cluding the credit card number. Salesmen are also ex-'
a~d with cases involving a variety of'alleged infir
pected to maintain Contact with. customers through
miqes, federal courts in Michig(lll, II.lii1ois, and
handwritten thank-you notes.
Georgia have tried to d~t'ine c:Usability for purposes
Meny filed a coDipUunt with EEOC hi June 1995 'al
involving
of the ~ericans with DlsabilitiesAct in
leging ~at SUlIta failed to accommodate his disability
.
.'
a comP.uteI' saIe,s~an with a facial sCar,.a clQthing sales.
and then fired him~
man WIth dysleXIa, and a grocery store clerk who was
Shadut cOncluded that Whether dyslexia is disabling.
forMeny presents,issues of fact requiring resolution by
no longer. able to perform heavy lifting as a result of a
.' the jl.1ry. The court observed that Merry completed a
neck !)urgery.
.
.
The U.S. District Court for the Eastern District of' four-year liberal, arts college'witha' 3:0'grade'average,
Michigan held that although a scar might qualify as. a ; b~t it. c!ted4i!ficulties' the 7~nditio~ po~es in dealing
WI.th anthmetic, (lr.' transcnbIng phone numbers and
handicap, under the facts of the case, the employee
credit card account numbers. .
. ...,' .'.
failed to show any nexus between the scar and uiariage
. Shadurcited testimony that Merry cannot follow' i
ment's decision to terminate him (Van Sickle \I. Auto.
maae Data Processing Inc., DC EMich, No. 95-CV
c!3bking ieclpe,: that he skiDls magazines rather than
10335-!BC, 2n197).
'.
reads thein, and that his limitations worsen when he is
fatigued~ .;:
",
.,;' .,',' ..... ' :
The U.S. District Court for the Northern District of
The' Couri: remarked that it could not' conclude' as a
illinbis foUnd that the case involving the dyslexic sal~smatter of law that management mad:e a g90d faitheff()rt
man must go to trial before a jury. J::ven if the paper
.. ~ "':
record seems weak, the plaintiff might prevail based on
to accommodate him.
... : " .
the jurors' assessment of the Witnesses' credibility, said..
Clerk Suffers Neck Injury. The Georgia case involved a
frozen foods clerk ata Piggly Wiggly·store in Macon. ' .
the court (Merry v. A. Sulka & Co. Ltd., DC NIu, No. 95
Milton Bivins was hired as a bag clerk in January 1974,'
C 6179, 2nl97).
.
..
,',.
"
and became a clerk in 1989, but was fired four years
The U.s. District Court for the Middle District of
. ' ;. ,
later. . - '.
Georgia said. that the clwm' of the grocery Clerk whose'
!leck had been injured must fail. Given the dutieS olthe
!h~ job requires the movement, of wheeled pallets
Job, there was no reasonable accommodation that man·
Wel~~ng up to 1,800 pounds each. Packages and boxes
agement could be expected to make; according to the
particularly large bags of ice, may weigh up to 48
court (Bivins v. Bruno's Inc., DC MGa, No. 5:95-cv
pounds.
,..,
... ' . '
,
400-4,2/10197).
....'
Bivins injured his neck in 1986 when a case of ;Cor.
feemate f~llon his head. He underwent surgery in 1988
. Scar Comments Not SufficlenL Bradley T. Van Sickle
to..fuse Jomts in his neck and back. He refnjured his
sold:omputer systems to auto dealerships throughout
nec~ in September 1991 and undeIWent a second op
Michigan. In April 1994, he was in a car accident that
e~tion. F!e then wore a brace at work that severely re
left several injuries,including a siX~inch scar along the
stricted his movements.
.'
.
c!Un. Van Sickle claimed ,that on three 'occasions super
Bivins so~g~t to return to light~uty work with a'
sors called him "Scar Face." On~ s\,\pervisor allegedly
'Yl
pound restriction, but management said it would prefer
JQked that on tough accounts they would send in "Scar
that h~ return only when fully recbvered. He was termi
Face Van Sickle."
.
. .' ~.
..,'
n~te~ I~ December 1993 under a policy ofpermanently
Judge Robert H. Cleland found that a scar can be a
dismiSSIng an~one who fails to return to work within a
~sabi1ity. if it subl)tantially limits his major life activi.
year.
' .
ties., But he foqnd that the. employee must present evi
.Th: store manager urged him .to reapply but his ap
~e~ce t~at .man~~ement treated, ,him as substantially
plication for a .stock clerk position was denied in midli~ted In. his ability to work. The comments about the
February because of a lack of vacanCies.
'
scar, or even the subsequent termination, are not suffi
Owens held the evidence insuffi
. 'Judge Wllbui
cient, according to the coUrt. Van Sickle's "beliefs
Cl~nt to get t~ the Jury on either the termination or the
about why he ,was terminated do not s\if1ice as proof as
f~ure to r:ehire. The court found that the crux of the
to the reaso~ he v.:as fired," said Cleland, finding that
ease is the refusal to allow Bivins to return to the job
the empl?yer IS ~ntitled to summary judgment.
'.
and p,erform llght~uty work.
. The. coUrt held !hat. ~i:vms was not a qUalified iridi
learning DI~blltty Cited as Handicap. Judge Milton I.
VIdual under the DISabilities Act because he waS unable
Shadur of the U.S. District Court for Northern Dlinois
to perform some 50 percent of the duties of Stock clerk.
held that .with reasonable inferences drawn in favor of
The ~A '~was not iptended to force the employer to
plai~tiff lI10rgan Meny, h~ m!g~t' prevail before a JurY
sub~l.dize dis~ble~ peo~le by keeping them in their paid
on his cl~m that he was ~cnmmated against because
' '.
"
.. '
of dyslexJ.a.
pOSItions v:hile s~ h~Vlng to hire someone else to actu
ally do theIr jobs, slUd Owens. "The inescapable fact is
Me.ny v.:orked at Sulka, Ii luxury men's clothing
~~t a stock !=lerk position consists almost entirely of
store In Chicago. When he took the job he advised the
lifting. reacI:Ung, carrying, pushing and pulling items,
general manager of his learning disability. .
.
s<?DJ-e o~ which are heavy·and some of which are not.
BIVI~ SlDlply could not do a lot of this type of activity at
: .
the time.'~
Cases Involving Scar, Dyslexia, Neck Injury
Push Federal COurts to Define' Disabifity
F
i:' .
.
eases
iO
q.
�.
'
Discrimination' '.
Georlta.High Court Finds. No Clash. .' .
Between State Law and Disabilities ~ct
"eo~~'s highest cOurt has upheld 'a State policy de
nY4tg wpr:kers' compensation. benefi~ t~ those
who lie about a ,disability on a Job application. de
ciding the rule is not incons~tent, with the ~eri!=ans
with Disabilities Act and promo!es stat~ publ~c policy.
With one justice 'dissennng~ the G~o,~a Supreme
Court reviewed for the fiI:st timeJ~}~false r.:~presen~a
tion defense" in light of the ADA· (c:;aldwell, Y. Aarltnl
Holcombe Armature Co., GaSupCt;~ No. S96A1419,
". .
2/17/97). "
.
The·decision by Judge Carol W. Hl1n.~t~iri cente~d
on an ADA 'provision at 42. ,U.S.C.. Sect!on
12112(d)(2)(A), which proHibits employers fro!f1 asking
job applicants if they are disabled or from asking about
the nature and extent of a disability. However, an em
ployer may "make pre-employment inquiries into the
ability of an applicant. to' perfC?~ job-r~lat~d .~n.c "
tions," the law proYides. ....
'.
The majority ruled that if a job applicant is ~mprop
erly asked about .a disability on a ),ob application,. ~he
proper response IS to pursue ADA':-proVlde~ remedies,
not to lie. The denial of workers' compe~s~tlo~ benefits
to those who misrepresent themselves 15 Justified, the
Georgia Supreme Court held, because the false repre
sentation defense promotes a state public policy of
truthfulness on job applications and the voiding of con
tracts for fraud.
"Where an employer seeks to elicit the truth regard
ing ajob applicant's physical condition in a mant;lerthat
violates the ADA, the remedy is not for the appl~cantto
misrepresent his or her physical condi.tion to th~ .em
ployer; rather the remedy is recourse to the proVlS1ons
of the ADA," the majority concluded. .
' . '.
, . Judge Rob~rt Benham dissented, saying that th~ m~:
jority's ruling "rewards the employer's wrongdOing,
. will encourage dishonesty at the pre-job-offer stage of
employment, and coul.d have a "chilling effect on ~e
employment process" In the state..
.'
.
'G'
Applicant Ued on Job Form. In the case at bar, JuHus
Caldwell injured his back while working for a restau
rant in March 1994, and received disability and medical
benefits. In May of the same year, he, appHed for a job
with AarHn/Holcombe. Armature Co., and answered
uno" to the question: u[h]ave you ever been treated for
back problems?" He was hired as a lathe operator and
within weeks experienced back trouble. He ,stopped
working in July 1994, saying that he was disabled.
In a subsequent workers'. compensation proceeding,
Caldwell lost under Georgia's high court 1989 decision
in Georgia Co. Y. Rycroft (378SE2d 111). Rycroft held
that a false statement in a job application bars recovery
of workers' compensation benefits. if a three, part test is '
met: 1) the employee knowingly and willfully lied about .
a condition,. 2) the employer relled upon the misrepre
sentation in the hiring decision, and 3) there was a coil
. nectionbetween the worker's injury' and the job' appH.:
cation He.
'
. .:
. , ,..
In Caldwell's case, the workers'· compensation judge
found that all three elements were met: Caldwell mis
represented his back condition, .his employer relied
upon the misrepresentation when it hired him as a lathe
operator, and the false representation was connected to
the subsequent injury. The ruling was appealed until it
reached· Georgia's highest court, with Caldwell losing
all the way up." ,
.
Challenge Application, Don't Ue. The Georgia Supreme
Court rejected Caldwell's argument that the Rycroft
rule "rewarded" employers that violated the ADA and
that the rule was incorisistent with the ADA. The court
wrote that. while it did not condone employers' ADA
breaches on job applications, people in Caldwell's posi
tion should challenge the improper question on the ap
plication rather than lie. '
Caldwell "did not have to answer the questions at all,
and certainly did not have to answer them falsely," and
Ois ac;tions Jed to.a worsening, of, hisback.injury, ·the· .
majority said. To rule otherwise would reward Caldwell
for making false statements, the majority reasoned.
The decision was Joined by judges Norman S.
Fletcher,' Leah J. Sears, George H. Carley, Hugh P.
Thompson, and P. Harris Hines.'
'.
'i
The dissent argued that the Rycroft rule was estab
lished in a 4-3 vote by the Georgia Supreme Court be
fore the ADA was passed. Georgia should follow the ex
ample set by the Alabama legislature, the dissent ar
gued. Alabama law bars' recovery of workers'
compensation benefits if an employee makes misrepre
sentations after the pre-employment stage, the dissent
wrote.
PHOTOCOPY
PRESERVATION
�.',
MONDAY FEBRUARY 24,1997
iHOUSEL" Ii
CQ Monitor
F JStl)lg"s
,ltttUIe'
.'/
,
1I
REHABILITATION ACT
Appropriations
~
'*
FY98 COMMERCE·JUSTICE.STATE
•
Postsecondary Education, TrainIng and Life
Long Learning (Chainnait McKeon, R-Calif.) of
House Education and the Workf'orce COnunlttee
will hold a hearing on the Rehabilitation Act.
9:30am 2175 Rayburn Bldg. Feb. 'D
Agenda &: witnesses scheduled:
APPROPS
PANEL:
Commerce. JUstice, State and Judiciary Sub
conunlttee (Chainnan Rogers, R-K"y.) of House
Appropriations Conunlttee will hold hearings
on FY98 appropriations for programs under its
Jurisdiction.
2prn H,,'nO Capitol Bldg. Feb. 2S
Ham H-31O Capitol Bldg. Feb. 26
'2prn H-3l0'Capitol Bldg.Fe~. 26
Judy Hewnann - assistant secretsry or Education.
Office or Special Education and Rehabilitative
SeIVices; Frederic Schroeder - commissioner,
Rebabilitation SelVices. Depamnent or Educa
tion
Witnesses scheduled:
Feb. 25 Jacquelyn Williams-Bridges - inspector
general, Department or State; Frank DeGeorge
• inspector general. Department or Commerce
Feb. 26 Michael Bromy,;ch - inspector general,
Department orJustice
Feb. 26 Representatives from Legal Services Cor
poration
PANEL:
Paul Spo~mer- executive director. MetroWest Cen
ter r~ Independent U'ing. Jiic. Fia.mingtuun;
Mass.; P. Charles LaRosa - COmmissioner,
South Carolina Vocational Rehabilitation
Department, West Columbia, S.C.; Suzanne
Hutcheson - president, Trl-County TEC, Stuart,
Fla.
• Revised Listing
"
*
New Listing
�(No. 36)
Lead Report I Page AA-l
Economic News I Page D·l.
News I Page A-l
3
Text I Page E-l
Interview I Page Col
PUBUC EMPLOYEES Florida Supreme Court orders
state to pay state workers annual-leave benefits ....... A-IO
EAD REPORT
POLmCS Interest groups meet at White House; urge
Senate hearing date for Herman ........................... AA-I
SEXUAL HARASSMENT Court holds that same-sex
harassment is unlawful discrimination .................... A-IO
Eighth Circuit cuts $5 million award against
Wal-Mart stores to $350,000 ................................... A-9
WRONGRIL DISCHARGE Correction to story on page
A-7 of the Feb. 21 DLR......................................... A-13
NEWS
AFL-CIO AFL-CIO urges government to negotiate
better.deal in U.N . talks on global warming
A·l
i .............
AUTOS Workers at two Johnson Controls plants end
strike, ratify three-year contracts ........................... A·ll
INTERVIEW .1
CHILD LABOR NAFTA partners will share information,
focus attention on combating child labor .................. C·I
CANADIAN ECONOMY Canada's national inflation rate
flat at 2.2 percent in January, StatsCan says .............. A·5
CIVIL RIGHTS Court reinstates Title VII suit for
alleged breach of EEOC settlement .......................... A·I
DISABILmES ACT Cases involving scar, dyslexia,
neck injury push federal courts to define disability ..... A·7
DISCRIMINAnON Court denies employer's request for
data on all EEOC charges mailed inane month ......... A·6
Georgia high court finds no clash between state law
and disabilities act ................................................ A·5
EDUCAnON Hawaii teachers abandon strike plans,
settle for 17 percent increase over ,term .................... A-4
EMPLOYMENT POUCIES Companies should show
shift workers more support, Conference Board says ... A-7
ECONOMIC NEWS
CONSUMER PRICES Correction to Table I of BLS's
CPI for All Urban Consumers for January, which
appeared In DLR Feb. 20 on 0-4 ............................. 0·1
EMPLOYMENT Improved employment opportunities
likely for spring, Manpower survey finds ................ ~. 0-1
TEXT
Weekly summary of NLRB cases, dated Feb. 21.
1997 ................................................................... E-l .
FEDERAL EMPLOYEES AFGE signs three·year
agreement with Hughes Aircraft at Navy facility ........ A·8
HEALTH CARE AFSCME gains majority In two units
with 2,100 workers at health system ....................... A·12
INTERNAnONAL LABOR Wal·Mart Canada to appeal
ruling forcing unionization at Ontario store .............. A·3
JOB lRAlNING ASTD report finds increasing use of
alternative training methods ................................... A-7
POlInCS Sens. McCain, Feingold split over union
political spending .............;.................................. A.ll
BNA'S DAILy LABOR REPORT
1418-2693/97/$0+$1.00
TABLE OF CASES
Bivins v. Bruno's Inc. (DC MGa) ............................. A-7
Caldwell v. AarlinJHolcombe Armature Co. (Ga
SupCt) ................................................................ A..5
Florida v. Florida Police Benevolent Association
(Fl8.SupCt) ........................................................ A·IO
Hitlgen v. PMA Group (DC EPa) ............................. A·6
Kimzey v. Wal-Mart Stores Inc. (CA 8) ..................... A·9
PHOTOCOPY
PRESERVATION
2·24-97
�THE FEDERAL DIARY
;i '"
t
,:.
t ••·,
- -- ..•
.
~
..
Switching, Health Plans
0
By Mike Causey
washinat.. Pus! SWf WriLer
>,;
P,en season, when
.
federal workers and
~-:":
retirees may pick a new
•.\.health plan. takes place about
,-,,,,,the same time each year. usually
from mid-November to early
December. Most of the people
-., who later regret their choice
·.=7must live with that plan for a
year.
,
But there are exceptiOns,
, usually because of an event:
,,;,birth, death, change in marital
THE WASHINGTON POST
;";status or key birthday.
, Specifically, you can change
coverage if you:
• Marry, making you eligible fQr
family coverage.
• Lose a spouse because of
,death or divorce, making you
, eligible for single coverage.
• Have or adopt a child and need
to mov~ from, single ,t() family' ,
, _coverage. Married feds with
•. ,single coverage who want family
coverage must enroll in the same
. family plan. The husband, for
~ex:ample, can't keep a single
policy while the \\ife and child
• ",..get family coverage.
,,...::". Celebrate your 65th birthday.
, ....Being eligible for Medicare
"'~ineans that many retirees can
witch to a less costly plan and
7.:":lltill get almOst total coverage.
; • Move outside the co\'erage
~ area of your health maintenance
',' organization. You can pick a new
:' HMO at the new site or switch
: to a fee-for-service plan.
: ..:Although HMOs provide
: '-emergency coverage out of area,
=-" " they aren't good for people who
:~ travel frequently or who spend
~,' ,'Part of the' year outside the
: :"''HMOarea:
:: Investment Hindsight
: ~.. " I've received lots of calls from
,"
people planning for the thrift
savings plan open season that
begins May 3t That's when
nonparticipants can sign up for
the federa1401 (k) plan aild
participants can reallocate where
future payroll contributions will
go.
Feds have three choices: the
C-fund, which. like other index
fun6s; tracks the S&P 500 stock
index; the F-fund. which tracks
_ the Lehman Brothers Aggregate
Bond Index; and the G-fund.
which invests in U.S. Tr~swy
securities not available to the
gener3t public. The C and F
funds, rise and fall with the stock
and bond markets. The G-fund
rate is set each month and is
guaranteed by the Treaswy.
Over the life of the three
funds, the high-risk C-fund has
done the best. Its compounded
annual rate of return has been
15.9 percent. compared with 8.4
percent for the F-fund and 7.7
percent for the G-fund. Here's
the track record of the three
funds from 1988 to 1996. The
amounts shown are after'
expenses.
• G-fund (Treaswy securities):
8.8 percent in 1988 and 1989.
8.9 percent in 1990, 8.1 percent
in 1991,7.2 percent in 1992, (i.l
percent in 1993. 7.2 percent in
1994.7 percent in 1995 and 6.8
percent in 1996. Compounded
annual rate of rettim for the .
period: 7.7 percent.
• C-fund (stocks): 11.8 percent
in 1988. 31 percent in 1989,
minus 3.2 percent in 1990, 30.8
percent in 1991. 7.7 percent in
1992.10.1 percent in 1993,1.3
percent in 1994, 37.4 percent in
1995 and 22.8 percent in 1996.
Compounded annual rate of
return for the period: 15.9
percent.
• F-fund (bonds): 3.6 percent in
1988,13.9 percent in 1989. 8
percent in 1990, 15) pP.rcent in
1991,7.2 percent in 1992, 9.5
percent in 1993. minus 3
percent in 1994.18.3 percent in
1995 and 3.7 percent in 1996.
Compounded annual rate of
return for the period: 8.4
percent.
Feds \\ith accounts in the
tax-deferred thrift savings plan
can move money from one fund
to another any time. But they
. must wait for an open season to
redesignate where their future
payroll contributions will go. For
example, someone can move
existing account money from the
C-fund to the F-fund or G-fund
any time. Or vice versa.
But to join the savings plan. or
to reallocate where future '
payroll contributions will go,
indi.iduals must wait for the
, open season, this year beginning
May 31.
MtJlldliy. Feb. 24. 1997
, ,
MO:\'DA\', FEBRUARY 24, 1997
�;-'\r-,/,
'~~8,
z
JAMES BOVARD
en does a goalJor..hiring
•be:come ,a raCiaL quota?'
When, ;tliere" i~', afederal.
>! ,
',_I!gent sittirig,acrossthe
.
table' with a nuclear.bomb: ,
'The Office pf 'Fe~~hifCor}tiact power of debarment as "a kind of ~ informed, het thatguidart<:e ,was,
Compliance Pt:ogr~rris, a ,little nticlt;!ar bQmb." Under the Clinton, ) not. yet available, on the subje<;t,
knowh bu~ extremely'po~~rfui 'administration, the OFCCP ,has ,But, the locru. OFCCP compliance
II branch ofthe U.S; Department of
cut off government contracts to officer demanded t:hat th,e t~mpsbe
J..abor, iii America's p're~er:~eial' twice 'as many companies,as'hap-" includ,ed in the plari-': and then
'racketeering ,agency. .oFCCP peried dU{,ing the Bush adminis announced that the company was
gUilty of hiring insuffiCieI:lt, black
Di,reetorShir,!ey Wi.~her geclared tration. "
. '
'OFCCP'S passion for the correct employees. This company.has
'l~styear:,;~1!!.n!gr¢'emerit,o(~eq!!~ty In tlie,.work.,.""~"i..'.:",'
numbers
far spent tens of tnousanas'ofdollars
providing training to and 'recruit
p.ace , in,CI~de's'
, ','
,"
,"
,
exceeds its devo
ing low-income blacks and has
p~naJ?es to ~eter
OFCCP has
Uon to following
almost three times as inany blacks
•
,
"
.
the law. New Jer
VIOlations and to
ge! resuits as more
pOlver sey
human on its payrolls as reside in the area.'
Yet, because some blackapplicaitts
qUickly and effi
and" less'" •• •...:1: ial'
resources ,consul
had not been hired,the officer
cientIy as the law
'"
Juu.t.C
tant Mary Jane
became "obsessed," in Ms. Sin
permits." .Not
. ,":';'Jt.;' 't"ha"'"
Sinclair observed:
s.." "f.""ny
qny , ,"The government clair,'s view, and threatened to seek
equality ofoppor~
tunity-notequal
other quo' pap'-'Ol,·C'" regs take the a· huge settlement for the',alleged,
,
chances for equal
" .' " '. ,'I " ' , ~, 'standing' 'that you "victims.","
:
Many O~CP compliance offi
talen~
.. but'
are out to screw
the system so we cers abuse their power. One.iawYer ,
_ ,equality,plam a n d ' . ,
' . ,.'
with 20 years' experience dealing
, simple, by hook or
"
ar~ going to screw
by croQk.
"
,
you first. It is like with OFCCP related, "They used to
The OFCCP enforces affirmative, you are sitting down with a Mafia show up and demand coffee ·and
doughnuts and demand to be taken
,action obligations on'federal con don.... TheY put the fear 9f God
tractors. More thall,~OO,OOO Com~ into you- that is how they get the to lunch. I don't see much of that
any more - because they are all
parnes and institutions with more 'numbers:"
•
than 25 million employees are sub~
. Even when OFCCP officials reporting on each other!' A differ
ject to the OFCCP's racial and gen-' admit they have no policy, compa entform of abuse occUrred when an
OFCCP agent arrived at aCalifor
der dictates. The OFCCP haS,rn9re nies can, still be found guilty. Ms.
coercive power and less judicial SinClaidsadvising a company that nia movie studio. The lawyer noted,
scrutiny ~an any other quota police has a high perCentage of temporary "The investigator was so en):hralled
that she basically' moved :in; She
agency in the nation.'
.' work~rs. Ms; Sinclair 'contacted
OFCCP gains much ofitsjlower OFCCP headquarters for ~dyice on would show up every morning With
from its ability. to' debar private how to account for the temps in the a huge bag of popcorn linda pack
,companies frort:l federalcontracts".company's annual affirmative of Cokes and every t:in1El the com
Assistant Labor .secretary action plan. OFCCP-headquarters panY needed to talk to her, they
would find her on a movie set some
Bernard Anderson described the ,officials were mystified ~nd
,
'~
0>
~a:
Ourpremier racial racketeering agency
W
'/:'
>0
a..
o~
The
coercive
"n
agencyin thenation-.
>
o~
::cw
.
~.
place!',
..
'The issue ()f OFCCP affi
" , One Midwest, human resource ,action goals and timetable
the heart of the coercivene
director~complained of OFCCP
agents' compliance officers, ~'just ' Welfare State. l'hese vague
coming on site an-dscaring every
ingregulatioris rriaxitni
oneta death and costing them thou
power ·of governinerit:al
sands of ijol1~s in time and effort." intimid~ite and browbeat
According to formerOFCCPDirec
businesses. "The esse
tor ElIenShQng Bergman, OFCCP OFCCP'sconceptofsodalj
officers are so~etimes, gUilty of compelling companies.to 1
"attempted extortion" hi theiF pie for work that they neve
threats against businesses found
based on se.eret rules the
riot hiring and promoting enough
continually changes. '
minorities and women.
Unfortunately, Republic.
proven as cowardly,as m~
A female lawyerwith more than
a quarter-century's experience with ernment contractors at con
OFCCP efforts said that browbeat
the scam of federal radall
ing; ,intirriidatIonan(i '.lYing,aboiit der pre[ere,nces..Sen. Bi
thelaw by OFCCP'colTlpliance offi sponsored an excellent I
cers'happens "alltheqqIe:'~,
Would haveende,d. suc~
French philosopher.l~ertraild de, enCes; hoWever, the HouSe ,
JO\lvenal observe9, "Asodety of' liCt:lP leadership last week
sheep must in time beget a gov to abt\l1don the ,bilI. (J.I4'r. I
ernment of wolves." Government 'alsobee~ ducking the isslu
contractors rarely challenge the tas). The GOPJs terrified 01
principle of OFCCPpowl!r grabs; ing potential female and,bl
for instance, Diane ,Generous of ers. However, by not 'ha,
t:l:Ie N(!tional Association of Manu courage to stiomd for their
fa~turers; when asked about. her
pIes, th~ Republica,lsha
members' pr(}blemswith the again made their urevolutil
'
OFCCP, replied: "Our cQncern)s like a laughingstock:
the' paperwork," .wayn~ Stat~ Uni
. versitY law school profesSor Kings
ley Bro:-vne observed: "Everybody
Jam&s Bovard is Ii Was,
knows What is going on. The prob writer. Portions 01' this
lem is that tbe business communi are adapted from a piec.
ty has been completely spineless on current issue ofAmerica
,this issue."
tator.
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�
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Stephen Warnath - Civil Rights Series
Creator
An entity primarily responsible for making the resource
Domestic Policy Council
Stephen Warnath
Civil Rights Series
Date
A point or period of time associated with an event in the lifecycle of the resource
1993-1997
Is Part Of
A related resource in which the described resource is physically or logically included.
<a href="http://clinton.presidentiallibraries.us/items/show/36406" target="_blank">Collection Finding Aid</a>
<a href="http://catalog.archives.gov/id/641686" target="_blank">National Archives Catalog Description</a>
Description
An account of the resource
Stephen Warnath served as Senior Policy Analyst in the Domestic Policy Council. The Civil Rights Series includes material pertaining to the Civil Rights Working Group and topics such as affirmative action, English only, age discrimination, religious freedom, and voting rights. The records also include confirmation briefing materials for Department of Justice (DOJ) and Equal Employment Opportunity Commission (EEOC) nominees. The records include briefing papers, correspondence, schedules, testimony, reports, clippings, articles, legislative referral memoranda, and memos. The majority of the memos are internal between the Domestic Policy Council staff and the staff of the Equal Employment Opportunity Commission, and between the Domestic Policy Council staff and Congress.
Provenance
A statement of any changes in ownership and custody of the resource since its creation that are significant for its authenticity, integrity, and interpretation. The statement may include a description of any changes successive custodians made to the resource.
Clinton Presidential Records: White House Staff and Office Files
Publisher
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Clinton Presidential Library & Museum
Format
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Adobe Acrobat Document
Extent
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134 folders in 13 boxes
Text
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Original Format
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Paper
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
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[Affirmative Action - Clippings]
Creator
An entity primarily responsible for making the resource
Domestic Policy Council
Steven Warnath
Civil Rights Series
Is Part Of
A related resource in which the described resource is physically or logically included.
Box 1
<a href="http://www.clintonlibrary.gov/assets/Documents/Finding-Aids/Systematic/Warnath-DPC-Civil-Rights.pdf" target="_blank">Collection Finding Aid</a>
<a href="http://catalog.archives.gov/id/641686" target="_blank">National Archives Catalog Description</a>
Provenance
A statement of any changes in ownership and custody of the resource since its creation that are significant for its authenticity, integrity, and interpretation. The statement may include a description of any changes successive custodians made to the resource.
Clinton Presidential Records: White House Staff and Office Files
Format
The file format, physical medium, or dimensions of the resource
Adobe Acrobat Document
Publisher
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Clinton Presidential Library & Museum
Medium
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Reproduction-Reference
Date Created
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2/8/2012
Source
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641686-affirmative-action-clippings2
641686