In April 15 and April 16, 2009 Press Releases by the Equal Employment Opportunity Commission (”EEOC”), the federal agency announced the filing of two separate disability discrimination lawsuits, accusing two businesses of disability discrimination and violating the Americans With Disabilities Act (”ADA”).

In the April 15, 2009 Press Release, the EEOC announced that it sued a steel manufacturing company for allegedly violating federal law by denying a job to an applicant because of his disability when the company rescinded an offer of employment and refused to hire an applicant when it learned of his disability through a post-job-offer medical examination.  See, http://www.eeoc.gov/press/4-15-09a.html .  The defendant in the case is headquartered in Pittsburgh.

In the April 16, 2009 Press Release, the federal agency announced that it filed a disability discrimination lawsuit against a neurological rehabilitation company in Florida because the company allegedly denied a job to a hearing impaired person and refused to provide an American Sign Language interpreter to assist a female housekeeping worker through her training period.  As a result, the EEOC contends she could not complete the training and lost the job.  See, http://www.eeoc.gov/press/4-16-09b.html .  According to an EEOC attorney quoted in that Press Release: “The ADA applies to employees and applicants at all phases of employment [and the company's] refusal to make the minimal accommodation of an interpreter resulted in this woman’s losing her job.”

According to the EEOC, ADA charge filings with the EEOC nationwide increased 10% in Fiscal Year 2008 to 19,543, the highest level of disability discrimination charges since Fiscal Year 1995.  For information about the EEOC, see www.eeoc.gov .

Whether disability discrimination in employment occurs in San Antonio, San Marcos or elsewhere, victims of employment related disability discrimination may contact the EEOC and a lawyer to determine if a disability discrimination lawsuit may ultimately be appropriate under the particular facts and circumstances of the potential claim.

The United States Department of Labor (”DOL”) administers and enforces the Employee Polygraph Protection Act of 1988 (”the Act”) through the Wage and Hour Division of the Employment Standards Administration.  As reported in the DOL Fact Sheet #36, the Act generally prevents employers engaged in interstate commerce from using lie detector tests either for pre-employment screening or during the course of employment, with certain exemptions.  The Act empowers the Secretary of Labor to bring injunctive actions in U.S. district courts to restrain violations, and to assess civil money penalties up to $10,000 against employers who violate any provision of the Act. 

Generally speaking, the DOL states that the Act prohibits an employer from engaging in certain conduct.  For example, an employer shall not require, request, suggest or cause an employee or prospective employee to take or submit to any lie detector test.  Further, an employer shall not use, accept, refer to, or inquire about the results of any lie detector test of an employee or prospective employee.  Moreover, an employer shall not discharge, discipline discriminate against, deny employment or promotion, or threaten to take any such action against an employee or prospective employee for refusal to take a test, on the basis of the results of a test, for filing a complaint, for testifying in any proceeding or for exercising any rights afforded by the Act. 

According to the DOL, federal, state and local governments are excluded.  In addition, lie detector tests administered by the Federal Government to employees of Federal contractors engaged in national security intelligence or counterintelligence functions are exempted.  Further, the Act includes limited exemptions where polygraph tests may be administered in private sector employment.  Where polygraph examinations are permitted under the Act, they are subject to strict standards concerning the conduct of the test, including the pre-test, testing and post-test phases of the examination.

Civil actions may be brought by an employee or prospective employee in Federal or State court against employers who violate the Act for legal or equitable relief, such as employment reinstatement, promotion, and payment for lost wages and benefits, but the action must be brought within three (3) years of the date of the alleged violations, according to the DOL. 

For additional information, the public may visit http://www.wagehour.dol.gov and/or contact the DOL toll free at 1(866)487-9243.  In addition, victims of violations of Employee Polygraph Protection Act may contact an attorney to determine if a polygraph protection lawsuit may ultimately be appropriate under the particular facts and circumstances of the potential claim.

As reported in a March 18, 2009 Chron.com posting, nine (9) Galveston police officers were suspended without pay and four (4) received written reprimands for involvement in a wedding fracas in which thirteen (13) guests were arrested, including Houston Astros pitcher Brandon Backe.  See, Rice, Harvey, “9 Galveston Police Suspended Over Backe Arrest,” http://www.chron.com/disp/story.mpl/front/6320046.html , 3/18/09.  Although guests complained about police abuse and violence during the October 5th incident, the article states that the Police Chief said no formal complaints were lodged against any officers, and, according to the article, the officers were disciplined for failing to properly document the incident.  The article further quotes a statement issued by the Police Chief which said that “no officer was found to have violated any departmental policies related to any arrest or any use of force.”  However, Chron.com reported in the article that police and wedding guests’ versions of events conflicted, with policie alleging that guests were unruly, fighting and interfering with officers and guests contending there was no fighting and that Backe and others suffered unprovoked attacks as thirty (30) officers swarmed into the Galveston wedding party.  In this regard, Chron.com reported that a video from the party allegedly showed officers using a Taser on an apparently unresisting father of the bride.  According to the article, investigators blamed the incident on a 19-yar-old they accused of resisting officers when they tried to arrest him for underage drinking.  Police reportedly charged Backe nad other arrested guests with resisting arrest.

Whether alleged police officer misconduct, police abuse or excessive force by law enforcement occurs in Galveston or elsewhere, victims may consider making formal complaints to the proper police department and consult an attorney to determine if a police misconduct lawsuit may ulitmately be appropriate under the particular facts and circumstances of the potential claim.

According to the April 9, 2009 issue of The Houston Sun, African American principals in a ten-year old construction company have filed a racial discrimination lawsuit in a Mississippi federal court against Toyota of North America, the State of Mississippi Development Authority and the Governor of Mississippi, alleging that their Jackson, Mississippi company was denied the opportunity to bid on the Toyota Plant construction project in Blue Springs, Mississippi as a prime contractor.  See, “Mississippi Minority Contractors File Civil Action Against Toyota of North America,” The Houston Sun, 4/9/09, p. 3.  An attorney for the plaintiffs was quoted in the article as saying that the bid process was racially discriminatory and is in violation of the Civil Rights Act of 1866, as codified at 42 U.S.C. Section 1981.  Id. 

Whether race discrimination in minority contract processes occurs in Mississippi, Texas or elsewhere, minority contractor discrimination victims may consult an attorney to determine if a discrimination lawsuit may ultimately be appropriate under the particular facts and circumstances of the potential discrimination claim.

As reported in the April 21, 2009 Houston Chronicle, a Houston man has been accused by company attorneys of faking a report that the Houston man contends he sent to company executives warning them of a dust hazard at a Georgia refinery days before a blast there killed fourteen (14) workers.  See, Associated Press, “Attorneys Say Whistle-blower Faked Warning of Explosion,” Houston Chronicle, 4/21/09, p. A4.  According to the article, attorneys defending the company in more than thirty (30) lawsuits filed a motion in court asking a judge to throw out the report and all testimony by the Houston man “because he knowingly provided false testimony.”  Id.  In addition, the article states that investigators determined that the plant explosion was caused by airborne particles of sugar dust which ignited like gunpowder, injuring dozens of workers and killing fourteen (14) workers in the February 7, 2008 incident.  Id.  The article further states that company attorneys said computer forensics experts hired by the company determined that the Houston man’s report, which he contends he forwarded to top company executives seventeen (17) days before the explosion, was actually generated three (3) days after the blast.  Id.  The accused whistleblower referred questions to his attorney after stating that the allegations are wrong.  Id.  For his own part, the attorney was quoted in the article as saying that “I can’t comment directly on the forensics until I see them … I have a lot of questions myself.”  Id.  An attorney representing families of eleven (11) victims suing the company defended the Houston man and was quoted in the article, describing him as “the hero of this case.”  Id.

As reported by the Houston Chronicle on April 21, 2009, a Denver-based company and the colleges it operates in Texas agreed to pay $7 million to settle allegations that the colleges submitted false claims for federal student aid funds.  Associated Press, “Whistle-blower Suit Resolved,” Houston Chronicle, 4/21/09, p. B5.  According to the article, the Department of Justice claimed in a civil suit that the Texas schools operated by Alta Colleges Inc. obtained licensing from the Texas Workforce Commission by misrepresenting that they complied with job-placement reporting requirements and that their interior design programs met the standards for a professional license.  Id.  State licensing is a requirement for receiving federal student aid.  Id.  The article states further that Alta Colleges is the parent company of Westwood College, which operates seventeen (17) campuses in six states, including Texas campuses in Dallas, Fort Worth and Houston.  Id.  According to a letter cited in the article from a company CEO, the company contends that it acted lawfully but thought it necessary to settle with the government because of the time and expense associated with litigation.  Id.  However, the article states as well that the government’s lawsuit included the allegation that Alta Colleges violated Texas Workforce Commission requirements by falsely reporting that more than 90% of its students received jobs after graduation, when, “in truth, the figure was 54 percent, and only a third of the graduates were placed in jobs through the efforts of the school, according to the lawsuit.”  Id.  When it sued the company, the government intervened in a federal whistleblower lawsuit.  Id.  In conclusion, the article states that the plaintiffs who initiated the proceeding - all former employees of the college - will receive $1.9 million as part of the settlement.  Id.

According to AP National Writer, Jesse Washington a transformation in hiring may be at hand.  Reverse Discrimination Case May Transform Hiring, http://www.blackamericaweb.com/?q=articles/news/the_state_of_black_america_news/8656/1

Inside a burning building, fire doesn’t discriminate between Matthew Marcarelli and Gary Tinney. Inside the New Haven Fire Department, however, skin color has put them on opposite sides of a lawsuit that could transform hiring procedures nationwide.

This week, the Supreme Court will consider the reverse discrimination claim of Marcarelli and a group of white firefighters. They all passed a promotion exam, but the city threw out the test because no blacks would have been promoted, saying the exam had a “disparate impact” on minorities likely to violate the 1964 Civil Rights Act.

Besides affecting how race can be considered in filling government and perhaps even private jobs, the dispute also addresses broader questions about racial progress: Do minorities and women still need legal protection from discrimination, or do the monumental civil rights laws that created a more equal nation now cause more harm than good?

Also, beneath the specific details of the firefighters’ lawsuit lies an uncomfortable truth: On most standardized tests, regardless of the subject, blacks score lower than whites.

Reconciling that reality with efforts to ensure “justice for all” remains a work in progress - one that will be molded by the Supreme Court.   Jesse Washington, Blacks In America.  This impact will be felt in Houston as well as other metro cities.

New Haven’s population is 44 percent white, 36 percent black and 24 percent Hispanic (who can be any race). At the time of the 2003 test, 53 percent of the city’s firefighters, 63 percent of lieutenants and 86 percent of captains were white. Blacks were 30 percent of the firefighters, 22 percent of lieutenants and 4 percent of captains.

The promotion exams were closely focused on firefighting methods, knowledge and skills. The first part had 200 multiple-choice questions and counted for 60 percent of the final score. Candidates returned another day to take an oral exam in which they described responses to various scenarios, which counted for 40 percent. http://www.blackamericaweb.com/?q=articles/news/the_state_of_black_america_news/8656/1
Tinney, a black lieutenant who has been a firefighter for 14 years, was seeking a promotion to captain when he took the exam. He says both the test and his fire department have hidden biases against minorities: The department is historically white, with the first blacks joining in 1957, and jobs, relationships, knowledge and choice assignments are passed on from friend to friend and generation to generation.

“I just call it ‘the network,’” Tinney says. The white firefighters’ attorney, Karen Torre, said they would not be interviewed for this story. In a conversation on Fox News’ “Hannity” program, Marcarelli said it was “gut wrenching” to learn that he was No. 1 on the test but would not get promoted. “It’s something that shakes what you believe in. Because you believe if you work hard, you’re rewarded for that, and that’s not necessarily the case,” Marcarelli said. Torre said whites have no special advantage in promotions because of laws requiring use of a race-blind, score-based system. She added that many blacks have relatives on the force, including high-ranking officers.

One hundred and eighteen people took the tests; 56 passed. Nineteen of the top scorers were eligible for promotion to 15 open lieutenant and captain positions. Based on the test results, the city said that no minorities would have been eligible for lieutenant, and two Hispanics would have been eligible for captain. (The lawsuit was filed by 20 white plaintiffs, including one man who is both white and Hispanic.)

The exams were designed by a professional testing firm that followed federal guidelines for mitigating disparate racial outcomes, the plaintiffs say.  But after the results came back, the city says it found evidence that the tests were potentially flawed. Sources of bias included that the written section measured memorization rather ….. ….. than actual skills needed for the jobs; giving too much weight to the written section; and lack of testing for leadership in emergency conditions, according to a brief filed by officers of the Society for Industrial and Organizational Psychology.

“I’m sure there are numerous reasons why (blacks didn’t do as well), and not because we’re not as intelligent,” Tinney says. “There’s a lot of underlying issues to that … these folks are saying, ‘We studied the hardest, we passed the test, we should be promoted.’ But they’re not talking about all the other things.”

Torre argues that discarding a test because no minorities would have been promoted violates the equal protection clause of the U.S. Constitution and Title VII of the Civil Rights Act, which forbids discrimination because of race.  Call it a legal riddle only the Supreme Court could solve: The white firefighters say Title VII prohibits discrimination against them for being white; New Haven says Title VII prohibits it from using a test that has a disparate impact against blacks.

“All were afforded the same notice, the same study period, the same exam syllabi, etc.,” said Torre, who would only answer questions by e-mail. “The rest was up to the individual.” There are long-standing divisions over the concept of hardworking, qualified whites being “victimized” by laws or practices designed to help minorities overcome America’s history of racism. What’s different today is that the landscape has shifted in many ways, big and small.

The biggest is the election of President Barack Obama, and the support he received from millions of white voters.  “It is not white racism that plays the deciding role in the success of minorities any more,” says Edward Blum, a visiting scholar at the American Enterprise Institute who believes that race should not be considered in employment decisions.

“That was the case in the ’60s and ’70s and maybe even part of the ’80s,” he says. “But it is no longer the case in the 21st century that because you are black you are being held back from achieving what your parents and your ambitions will allow you to achieve. I think that has been crystallized with the election of President Obama.” Obama’s election has been a boon to the movement that developed years ago seeking to reshape civil rights laws designed to remedy discrimination.

Besides the firefighters’ lawsuit, the Supreme Court will soon hear a case seeking to overturn a Voting Rights Act requirement that all or parts of 16 states with a history of discrimination must get approval from the Justice Department before changing election procedures. And in 2007, the court struck down voluntary integration plans in two public school districts. Even though it may result in less opportunities for qualified minorities, “the use of race does greater harm to our social fabric by being there than by being eliminated,” Blum says.

Another major shift has been in the balance of the Supreme Court. Conservatives gained a 5-4 majority during the Bush administration, although Justice Anthony Kennedy is seen as a potential swing vote.

In Chief Justice John Roberts’ majority opinion in the 2007 school ruling, one line rang loudest: “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” That statement was seen as a harbinger of future rulings that would end the use of race in employment, voting and awarding government contracts. It also rebutted a famous statement by Justice Harry Blackmun in the landmark Bakke affirmative action case: “In order to treat some persons equally, we must treat them differently.”

Mary Frances Berry, a history professor at the University of Pennsylvania and head of the U.S. Commission on Civil Rights during the Clinton administration, said the firefighters’ case has broad implications.  “This is about whether we are going to see a sea change in how the judiciary looks at the need for these (protections), and how the popular culture and electoral politics influence their perceptions,” Berry said.

The Obama administration has said such laws are needed and it is committed to enforcing them. The Justice Department’s brief in the firefighters case supports New Haven’s position that the city acted properly in throwing out the tests.  But in what many call a political maneuver designed to avoid taking sides, the Justice Department stopped short of saying the firefighters’ case should be dismissed, instead recommending that it be remanded to a lower court to determine if city’s decision was a pretext for intentional discrimination.

Polls show varying levels of support for affirmative action programs. In an AP-Yahoo poll conducted in December 2007 through January 2008, one-quarter of respondents favored affirmative action programs and 37 percent opposed them. Another 36 percent neither favored nor opposed them.  Jesse Washington, Black In America, April 2009

A September 2007 Pew poll, which did not give people the option to say they had no opinion, found that 46 percent of people said they favored affirmative action programs that give special preferences to qualified blacks in hiring and education, while 40 percent opposed such programs.

Last November, Colorado voters became the first in the nation to reject a ban on state affirmative action programs. Similar measures have been approved in Nebraska, California, Michigan and Washington.

Supreme Court observers predict the firefighters’ lawsuit will be decided by a 5-4 margin, with Justice Kennedy casting the deciding vote. His past decisions give hope to both sides.

In the recent Voting Rights Act decision that made it harder for some minority candidates to win election when voting districts are redrawn, Kennedy wrote in the majority opinion that “racial discrimination and racially polarized voting are not ancient history. Much remains to be done to ensure that citizens of all races have equal opportunity to share and participate in our democratic processes and traditions.”  ”It would be an irony, however,” Kennedy continued, if civil rights laws were used to “entrench racial differences.” Jesse Washington, Black In America, April 2009
http://www.blackamericaweb.com/?q=articles/news/the_state_of_black_america_news/8656/1

The United States Department of Labor at http://www.osha.gov/dep/oia/whistleblower/index.html offers the public information about certain whistleblower protections.  In this regard, the Occupational Safety & Health Act (”OSHA”) is designed to regulate employment conditions relating to occupational safety and health and to achieve safer and more healthful workplaces throughout the nation.  The Act provides for a wide range of substantive and procedural rights for employees and representatives of employees and also recognizes that effective implementation of its goals depend in large measure upon the active and orderly participation of employees, individually and through their representatives, at every level of safety and health activity.  To help ensure that employees are, in fact, free to participate in safety and health activities, Section 11(c) of the Act prohibits any person from discharging or in any manner retaliating against any employee because the employee has exercised rights under the Act. The seventeen (17) statutes enforced by OSHA and the regulations governing their administration can be found by visiting the website.

As stated at the OSHA website, a person filing a complaint of discrimination or retaliation will be required to show that he or she engaged in a protected activity, the employer knew about that acitivity, the employer subjected him or her to an adverse employment action, and the protected activity contributed to the adverse action.

The website recommends that employees who believe they have been discriminated against by an employer as a result of the employee exercising safety and health rights should contact their local OSHA Office right away since most discrimination complaints of this type need to be reported within thirty (30) days.  According to the OSHA website, some other laws may different complaint filing deadlines, so OSHA recommends that employees check which deadline may apply to them.  There is, as reported in the website, a Regional OSHA Office in Dallas.  The Dallas Office phone number is listed as (972)850-4145.

Whether whistleblower discrimination or retaliation occurs in Dallas or elswhere, victims of whistleblower discrimination may contact an OSHA Office and an attorney to determine if a whistleblower lawsuit may ultimately be appropriate under the particular facts and circumstances of the potential whistleblower claim.

In a December 31, 2008 Equal Employment Opportunity Commission (”EEOC”) Press Release, the federal agency announced that a federal appeals court declined to review a jury verdict in an EEOC religious discrimination lawsuit against a telecommunications company, leaving in place a jury finding that the company unlawfully discriminated against two customer service technicians who were fired after attending a Jehova’s Witnesses convention.  See, http://www.eeoc.gov/press/12-31-08.html .  According to the EEOC Press Release, the EEOC had charged the San Antonio, Texas based-company with violating Title VII of the Civil Rights Act of 1964 by denying the two employees a reasonable accommodation of their sincerely held religious beliefs, as the law requires, and unlawfully terminating them because of those beliefs.  As reported in the Press Release, the jury awarded damages, including lost wages, and the trial court ordered the company to, among other things, reinstate both men.  An EEOC trial attorney was quoted in the Press Release as saying that “These were two outstanding employees who simply should have been allowed to attend the Jehova’s Witness convention as they had done during their employment.” 

Religious discrimination charge filings reported to the EEOC offices nationwide have, as stated in the EEOC Press Release, substantially increased from 1,388 in Fiscal Year 1992 to 2,880 in Fiscal Year 2007.  The EEOC enforces federal laws prohibiting employment discrimination and further information about the EEOC is available on its website at www.eeoc.gov .

Whether employment related religious bias occurs in San Antonio or elsewhere, victims of religious discrimination may contact the EEOC and an attorney to determine if a religious discrimination or bias lawsuit may ultimately be appropriate under the particular facts and circumstances of the potential religious discrimination claim.

According to a December 23, 2008 article in a Galveston County newspaper, a Galveston attorney filed a federal court lawsuit in which it is alleged that Galveston policemen assaulted a 12-year-old girl who was mistaken for a prostitute.  See, Paschenko, Chris, “Lawsuit: Cops Beat 12-Year-Old Girl,” The Daily News, 12/23/08.  The lawsuit reportedly accuses Galveston police officers of failing to identify themselves when they approached the girl at her home after her mother dispatched her outside to flip the breaker back on when electricity failed.  Id.  As stated in the article, police were sent to the area to look for three white prostitutes soliciting a white man and a black man selling drugs when one officer saw a black female and ordered her detained.  Id.  After that, four officers got out of a blue van and ran toward the 12-year-old girl, who is black, because they suspected she was a prostitute since, as the officers contend, she was wearing tight shorts.  Id.  As described in the article, the lawsuit contends that one officer covered the screaming girl’s mouth and handcuffed her while other officers grabbed her and held one of her arms.  Id.  It is, according to the article, unclear how much time elapsed before the girl’s parents took her to the University of Texas Medical Branch for treatment of injuries which allegedly include head injuries - caused by an officer’s flashlight - multiple contusions, loss of vision and hearing and a bloody nose.  Id.  Galveston Police Chief Charles Wiley declined to comment specifically about the case, citing a law that keeps information about juvenile crimes out of the public view.  Id. 

See, http://galvestondailynews.com/story.lasso?ewcd=344e970058ff3262&-session=TheDaily…

Whether excessive use of force or abuse and brutality by police occurs in Galveston or elsewhere, victims of alleged unconstitutional police misconduct may consider making a formal complaint to internal affairs and consult an attorney to determine if a police abuse lawsuit may ultimately be appropriate under the particular facts and circumstances of the potential claim.