Adjunct Law Prof Blog

Fort Worth and Tampa Local Laws Recently Passed Which Outlaw Transgender Discrimination

Workplace Prof Blog reported on December 1, 2009 that both the City of Tampa and the City of Fort Worth recently passed municipal local laws which would outlaw transgender discrimination. However, the posting continues by stating that "perhaps the passage of these ordinances throughout the United States will allow for the passage of the ENDA in the near future."

Local laws which outlaw discrimination on the basis of sexual orientation are nothing new. Local law in many jurisdictions is indeed more progressive than federal law. However, I do not believe that the passage of these statutes makes the enactment of ENDA either more or less likely.

Mitchell H. Rubinstein   

Court Dismisses Discrimination Case Against School District Which Refused To Allow Hearing Impaired Student To Guide Dog To School

Matter of East Meadow Union Free School Dist. v. State Division of Human Rights, ___A.D.3d___( 2d Dep't. Sept. 29, 2009), is an important decision to be aware of. After the school district refused to allow a hearing impaired student to bring a guide dog to school, the student sued in federal court. That case, which went to the 2d Circuit, was dismissed because plaintiffs remedies were under the IDEA.

Plaintiff also brought an employment discrimination administrative charge with the NYS Division of Human Rights which concluded that the School Districts policy was discriminatory. The 2d Department dismisses that case without reaching the merits of the controversary. Why?  Because a school district is not an "education corporation or association" within the meaning of Executive Law § 296(4). Rather, it is a municipal corporation. As the court explains:

Although the General Construction Law does define both "education corporation" and "school district," it establishes that they are mutually exclusive. Pursuant to General Construction Law § 65(a), a corporation is either a public corporation, a corporation formed other than for profit, or a corporation formed for profit (see General Construction Law § 65[a][1]); it cannot be more than one of these. An "education corporation" is a type of corporation formed other than for profit (General Construction Law § 65[c]). A "school district," by contrast, is a type of "municipal corporation" (General Construction Law § 66[2]). Since a "municipal corporation" is a public corporation (General Construction Law § 66[1]), a school district is a public corporation. Hence, a school district cannot be an "education corporation" within the meaning of Human Rights Law § 296(4).

I am a bit surprised that the court narrowly interpreted the Human Rights statute in this manner. I suppose it did not want to reach the merits of the case as it involves a situation where both sides may be right. The student needs his guide dog and the school needs to be concerned that others may be allergic to the dog.

Look for an application for leave to appeal to be filed the NYS Court of Appeals.

Mitchell H. Rubinstein

100% Healed Policy

Can a company insist that employees only come back to work if they are100% healed?? That issue is currently being litigated in the 3rd Circuit.
A district court improperly certified a nationwide class of UPS employees alleging pattern-or-practice discrimination under the ADA, the Third Circuit ruled on interlocutory appeal. The plaintiffs’ central claim was that the company’s “100 percent healed” policy, which barred employees from returning to work under any medical restrictions, violated the ADA. The district court applied the “Teamsters framework,” a two-stage method of proof promulgated by the Supreme Court for adjudicating pattern-or-practice claims brought under Title VII. The lower court erred in doing so, ruled a Third Circuit panel (that included visiting former Supreme Court Justice Sandra Day O’Connor), because the court failed to first consider whether the class members were individually qualified under the ADA, and thus whether they "can or need to be reasonably accommodated." Adopting the Teamsters method of proof to adjudicate the claims “does not obviate the need to consider the ADA’s statutory elements.” The Third declined to address whether a “100 percent healed” policy constitutes per se discrimination under the ADA. “Even if deemed per se discriminatory,” the court wrote, such a policy “cannot give rise to a finding of liability and relief under the ADA without the statutorily required inquiry into whether those affected by the policy are disabled and able to perform the essential functions of the jobs they seek or desire with or without reasonable accommodation.” Accordingly, the Third Circuit overturned the lower court’s grant of class certification (Hohider v UPS, July 23, 2009).

This is a very interesting issue in need of law review commentary.

Mitchell H. Rubinstein

State of Delaware Makes It Unlawful To Discrimate On The Basis Of Sexual Orientation

Delaware's state anti-discrimination statute was recently amended. S.B. 121 passed the General Assembly on June 24, 2009, and was signed by the Governor on July 2, 2009.  The law took effect immediately. A copy of that statute is available here. It prohibits discrimination in employment as well as in housing.

Mitchell H. Rubinstein

7thCir: No ADA claim for physician fired for making threats of physical violence

Sometimes you just cannot make these cases up. Bodenstab v Cook County, ___F.3d___(7th Cir. June 22, 2009), is one such case. The 7th held that a hospital did not violate the ADA when it discharged an anesthesiologist who allegedly threatened to kill his supervisor and coworkers. The 7th concluded that the physician failed to present sufficient evidence of pretext for his claim to survive summary judgment. Without deciding whether “interacting with others” qualified as a major life activity — or, if it did, whether he was so substantially limited — the appeals court determined the physician did not present any evidence calling into question the sincerity of the county’s belief that he had threatened to harm his supervisor and coworkers and that the county fired him for that reason. Rather, the undisputed evidence supported the county’s belief that he made the threats. In so holding, the Seventh Circuit did not decide whether the physician presented a direct threat to others because even if the county could establish its burden, summary judgment was nonetheless appropriate on the discharge claim. Moreover, the physician was not entitled to a reasonable accommodation. “There is no legal obligation to ‘accommodate’ conduct, as opposed to a disability.”

Mitchell H. Rubinstein

California Supreme Court Adopts Title VII Standards For Sexual Harassment Restrictions On Professional Relationships

Standard Established For Sexual Harassment Within Professional Relationships is an important National Law Journal article for California attorneys. California's Civil Code Section 51.9, prohibits sexual harassment in certain business relationships outside the workplace, such as those involving attorneys and their clients or doctors and their patients. The statute limits liability to conduct that is "pervasive" or "severe" but does not define those terms. On July 2, the California Supreme Court found that the definition of "pervasive" or "severe" under Civil Code section 51.9 is the same as that under case law involving workplace sexual harassment cases. Even in states that do not have such statutes, this case may be important with respect to establishing the appropriate standard in professional relationship cases.

Law review commentary on this important issue is needed.

Mitchell H. Rubinstein

D. N.J. limits Ledbetter Act to discriminatory compensation claims

Richards v Johnson & Johnson, ___F.Supp.2d___(D. N.J. June 2, 2009), is an important case. The Lilly Ledbetter Fair Pay Act continues to divide the courts, as a federal district court in New Jersey has joined a district court in Pennsylvania in narrowly construing the provisions of the Act to save only untimely discriminatory compensation claims, not other discriminatory acts (i.e., failure to hire) that would otherwise be time-barred.
A 48-year-old financial analyst alleged that he received low performance ratings. Filing suit under Title VII, the ADEA and New Jersey law, he asserted that not only did the low ratings contribute to his employer’s repeated decisions not to promote him, but that he was given low ratings in retaliation for complaining about the disparate treatment. As many as 15 of the analyst’s claims were time-barred, held the court, because they were discrete acts — not part of a single continuing violation — for which he did not file a charge of discrimination within the applicable time period. “While the [Act] certainly contains expansive language…[it] does not save otherwise untimely claims outside the discriminatory compensation context." As to the analyst’s timely filed claims, the court held that triable issues existed as to whether his employer committed race and age bias.

Mitchell H. Rubinstein

Breaking News! En Banc 6th Cir Reverses Itself And Rejects Associational Discrimination Theory

Thompson v North Am Stainless, LP, ___F.3d___(6th Cir. June 5, 2009) (en banc), is a critically important case. The en banc panel overturned its prior 2-1 ruling which had broadened the scope of Title VII’s anti-retaliation provision. A divided en banc Sixth Circuit held  that Sec. 704(a) of the Act does not provide a cause of action for third-party retaliation for individuals who did not personally engage in protected activity. “Our interpretation does not undermine the anti-retaliation provision’s purpose because retaliation is still actionable, but only in a suit by a primary actor who engaged in protected activity and not by a passive bystander.”  In its previous ruling, the Sixth Circuit became the first court of appeals to recognize a claim for associational retaliation under Title VII’s anti-retaliation provision, noting its decision comported with precedent from the Seventh and Eleventh Circuits, the EEOC's Compliance Manual, and the Supreme Court’s reasoning in Burlington N & Santa Fe Railway Co v White.
However, this time, the court joined the Third, Fifth and Eighth Circuits, which have “soundly rejected” such claims, in concluding the plain language of the statute covers only individuals’ own opposition or participation activity and does not protect related or associated third parties. “We decline the invitation to rewrite the law,” the majority noted. Thus, the court affirmed summary judgment to the employer on a suit brought by a male employee who alleged he was fired in retaliation for an EEOC sex bias charge filed by his then-fiancée, who also worked for the company. In what probably will become an important quote, the court explained:

In essence, plaintiff and the EEOC request that we become the first circuit court to
hold that Title VII creates a cause of action for third-party retaliation on behalf of friends and
family members who have not engaged in protected activity. However, we decline the
invitation to rewrite the law.

This is a very interesting issue in dire need of good law review commentary. If any of my students are still looking for a paper topic, this is a great one. Richard, I scooped you on this one! Finally!!

Mitchell H. Rubinstein

Is Discharge For Wearing Religious Nose Ring Discriminatory??

EEOC v Papin Enters Inc, ___F.Supp.2d____(M.D. Fla. April 7, 2009), is an interesting case.  The court held that EEOC could proceed to trial with its lawsuit alleging that a Florida corporation which franchised the Subway sandwich shop brand and one of its franchisees violated Title VII by failing to accommodate an employee who wore a nose ring pursuant to her religious beliefs. The franchisor denied the franchise owner‘s request on behalf of the employee for an exemption to the franchisor’s no-facial-jewelry policy because it was not satisfied with the documentation the employee submitted regarding her religious beliefs. After the employee refused to provide additional documentation and refused to remove the nose ring while working, she was terminated. In denying the defendants’ motions for summary judgment, the court rejected their contention that the employee refused an accommodation, finding that neither of the franchisor owner’s proposed accommodations—that she cover her nose with a Band-Aid while working or that she leave the store when inspectors arrived—would resolve the conflict between her religious observance and the no-facial-jewelry policy. The court also determined that factual issues existed as to whether accommodating the employee’s beliefs would be an undue hardship.

Mitchell H. Rubinstein

8th Circuit Issues Decision Discussing Damages Under Title VII

Wallace v. DTG Operations, Inc., No. 08-1474 (8th Cir. Apr. 17, 2009), is an interesting decision. This is because it reviews the standards for awarding damages under Title VII. The 8th affirms a jury veridict ($10K wages; $20K comps; $220K atty fees) for fired rental car company station manager on her state law claims; but reduces punitive damages award from $500K to $120K). The case illustrates how atty fees can be more than the damages.

Mitchell H. Rubinstein

Individual Liability For Discrimination Under New York Law

Solinsky v. Custodial Maintenance, ___F.Supp. 2d ___ , 2008 U.S. Dist. Lexis 105964 (N.D. N.Y. 2009)(not freely available on the internet) demonstrates once again how state discrimination law differs from federal law. Here, corporate officers were not entitled to dismissal of a discriminatory discharge claim under the New York Human Rights Law where the complaint alleged that the officers had an ownership interest in the corporation and actively participated in the discharge of an employee because he was HIV positive. As the court explained:

Pursuant to NYHRL § 296(6), "[i]t shall be an unlawful discriminatory practice for any person to aid, abet, incite, compel or coerce the doing of the acts forbidden under [the NYHRL], or to attempt to do so." NY Exec. LAW § 296(6). A corporate supervisor or manager may be subject to personal liability under NYHRL § 296 only where said supervisor or manager has been deemed an employer within the meaning of the NYHRL. According to the New York Court of Appeals, a corporate manger or supervisor is not considered an employer pursuant to NYHRL unless he is shown to have (1) an ownership interest in the corporation or (2) any power to do more than carry out personnel decisions made by others. See Patrowich v. Chemical Bank, 63 N.Y.2d 541, 542, 473 N.E.2d 11, 483 N.Y.S.2d 659 (1984) (emphasis added).

In order for a plaintiff to state a claim against an aider or abettor of NYHRL violations pursuant to § 296(6), he must allege "(1) that [defendant] engaged in conduct protected by the NYHRL; (2) there is a causal connection between the  [*10] protected conduct and the alleged [violations] of the NYHRL; and (3) that [defendant] 'actually participated' in the discrimination." Beattie v. Guilderland Cent. Sch. Dist., 124 F.Supp.2d 802, 805 (N.D.N.Y. 2000), (citing Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995)).

Here, Defendants argue that Ms. Gogliardo is an improper party because "[s]he was not an agent, management employee, officer, or decision maker for [CMI]" Defs.' Mem. of Law in Supp. of Mot. to Dismiss, at 6, in apparent reliance on affidavits that were improperly submitted for the court's consideration at this stage of the litigation. It is clear, however, that on a Rule 12(b)(6) motion to dismiss, the court must accept the allegations of fact in the complaint as true. In the Complaint, Plaintiff alleges that Mr. and Ms. Gogliardo "have an ownership interest in CMI" Compl. P 56, and that Ms. Gogliardo is "the Chairman or Chief Executive of CMI," Compl. PP 9, 58. Moreover, Plaintiff also alleges that Mr. and Ms. Gogliardo "were aware that [Solinsky] was diagnosed as HIV-positive at the time of his discharge and his discharge was solely based on the fact that [Solinsky] was HIV-positive. [Mr. and Ms. Gogliardo]  [*11] actively participated in CMI's unlawful discharge of Solinsky from his employment based on [Solinsky's] disability in violation of New York Human Rights Law." Compl. P 60. The foregoing allegations in the Complaint sufficiently state a claim for aiding and abetting employment discrimination against both Mr. and Ms. Gogliardo under NYHRL. Accordingly, Defendants' Rule 12(b)(6) motion to dismiss is also denied in this regard.

Mitchell H. Rubinstein

 

New York State Assembly passes Gender Expression Non-Discrimination Act

The New York State Assembly passed a bill (A. 5710) that would prohibit discrimination based on gender identity or expression in employment, housing, credit and public accommodations. The proposed measure, the Gender Expression Non-Discrimination Act, would declare as a civil right the opportunity to obtain employment without discrimination based on one's "gender identity or expression." The bill would bar employers, because of "gender identity or expression," from refusing to hire, employ or discharge such individuals or to discriminate against such individuals in compensation or in terms, conditions or privileges of employment.
This bill goes far beyond the mandates of Title VII which only outlaw discrimination on the basis of sex.

Mitchell H. Rubinstein

Does Student Right To Service Dog At School?

Hearing to decide if boy with diabetes can take service dog to Yonkers school is an interesting March 13, 2009 article from Hudson Valley News. It is about a Hearing Officer ruling which permits the student to take his German Shepard dog to school. As the article states:

Samantha Spataro filed a complaint with the state Division of Human Rights on Oct. 8, accusing Yonkers schools of violating the state's Human Rights Law by discriminating against her son based on his disability.

The district responded that it satisfactorily accommodated Anthony by placing him in an inclusion class with a special-education teacher and assigning a skilled nurse to him.

Grace Miranda, a specialist at the Division of Human Rights, wrote in a Jan. 22 decision that the district violated two provisions of law and recommended a public hearing before an administrative law judge, who would decide if Anthony can take the dog to school.

Spataro said she had to send the dog back to the Missouri company that trained her because Jana lost her sensitivity to Anthony after being separated daily during the school day.

"There are incidents every day where his blood sugar is too high or low," she said, adding that no hearing date has been set.

Schools spokeswoman Jerilynne Fierstein said the district was awaiting the hearing.

"To the best of our knowledge, there are no scientific, recognized procedures for dogs to anticipate or recognize a change in a child's sugar levels," she wrote via e-mail. "The company that supplied the dog is under investigation by the Missouri Attorney General for fraud. The District is responsible for the health and safety of all of the students and staff in the school. The child continues to have a one to one aide, and the school's health staff is trained to assist the student as necessary."

Mitchell H. Rubinstein

 

Religious Quota At Place Of Public Accommodation Unlawful

Sometimes you just cannot make these facts up. The Mill River Club in Oyster Bay Long Island, a not-for-profit corporation which operates a country club, maintained a "balanced membership policy," whereby it sought to ensure that half of its members are of the Jewish faith, and half are Christians. As a result, the club admits applicants to membership only when a space opens up for a person of his or her religion, which can result in an otherwise acceptable applicant waiting as long as five or six years for membership. Surprise surprise, such a quota is unlawful. Matter of Mill River Club v. NYS Div. of Human Rights, ____A.D.3d___(2d Dep't. Feb. 10, 2009). As the court stated:

Substantial evidence also supports the Commissioner's determination that the club violated the Human Rights Law by using a religious quota system to admit new members. While the club's goal in implementing such a quota system was to promote diversity, the admissions policy had a discriminatory impact because it resulted in the denial of membership benefits to individuals [*5]who were placed on the waiting for substantial periods of time based solely upon their religion (see United States v Starrett City Assoc., 840 F2d 1096, cert denied 488 US 946).

Furthermore, we find no merit to the club's contention that the remedy directed by the Commissioner violates the First Amendment rights of its existing members to private association and expressive association. Even if we were to accept the club's position that it is a "private association" and "expressive association" in which its members have joined to express their belief in promoting religious diversity, the Commissioner's remedy does not violate these rights to associational freedom because it is narrowly tailored to serve a compelling state interest in preventing discrimination on the basis of religion (see Roberts v United States Jaycees, 468 US 609, 623). The remedy ordered by the Commissioner requires the club to evaluate applicants for membership without discrimination on the basis of creed, and to grant membership to all persons without regard to creed. This remedy does not violate the rights of existing club members to private association because it does not prevent the club from excluding applicants who do not subscribe to its goal of religious diversity in its membership, or to expressive association because it does not prohibit the club from advocating its viewpoint that a religiously diverse membership is vital. Although the Commissioner's remedy compels access to the benefit of membership without reference to religion, it does not trespass on the organization's message of religious diversity itself (see Hurley v Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 US 557, 580; New York State Club Assoc., Inc. v City of New York, 487 US at 12-13).

Finally, we reject the club's contention that the remedy directed by the Commissioner has been rendered academic by virtue of changes in its policies that it implemented after the hearing to bring it within the ambit of a "distinctly private" accommodation that is exempt from the Human Rights Law. Since these alleged policy changes were implemented after the hearing, they are dehors the record and we have no assurance that they are genuine (see Matter of United States Power Squadrons v State Human Rights Appeal Bd., 84 AD2d 318, 330, affd 59 NY2d 401).

Mitchell H. Rubinstein

Court Reduces Mental Anguish Damages Under New York Law In Half

Matter of Woehrling v. NYS Division of Human Rights, ___A.D.3d___(4th Dep't. Dec. 31, 2008), is an interesting decision. In this sex discrimination case, mental anguish damages were reduced to 10,000 from 20,000. Punitive damages in the amount of 10,000 damages and expenses of almost 3,000 were also awarded in this housing discrimination case. Though this case did not involve employment, the courts analysis might be helpful in employment cases. The court's reasoning was as follows:

In reviewing the Commissioner's determination, this Court may not substitute its own judgment for that of the Commissioner (see generallyExecutive Law § 298; 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 179-180), and "we must confirm the determination so long as it is based on substantial evidence" (State Div. of Human Rights v Rochester Prods. Div. of Gen. Motors Corp., 112 AD2d 785, 786). We conclude that the Commissioner's determination that petitioner discriminated against the complainant based on her [*2]pregnancy is supported by substantial evidence and that the award of $10,000 for punitive damages is supported by the evidence and is authorized by Executive Law § 297 (4) (c) (iv) as a deterrent against housing discrimination. We agree with petitioner, however, that the award of $20,000 for mental anguish and humiliation is not supported by the evidence. "In reviewing such an award, we must determine[, inter alia,] whether the relief was reasonably related to the wrongdoing [and] whether the award was supported by evidence before [the Commissioner]' " (Matter of Anagnostakos v New York State Div. of Human Rights, 46 AD3d 992, 994, quoting Matter of New York City Tr. Auth. v State Div. of Human Rights, 78 NY2d 207, 219). We conclude that the award is not reasonably related to the wrongdoing and is not supported by the evidence before the Commissioner. The evidence of the mental anguish and humiliation experienced by the complainant consisted of her testimony that she "had a little emotional breakdown" because she was "six months pregnant and basically homeless."She further testified that the experience was "very emotional" and caused an elevation of her blood pressure at her next prenatal visit to her physician, although the blood pressure problem was not ongoing and she attributed her emotional anguish in part to the fact that she was six months pregnant. In light of the nonspecific nature of the complainant's mental distress, we conclude that the maximum award for mental anguish and humiliation supported by the evidence is $10,000 (see generally Matter of New York State Tug Hill Commn. v New York State Div. of Human Rights, 52 AD3d 1169; Matter of Diaz Chem. Corp. v New York State Div. of Human Rights, 237 AD2d 932). We therefore modify the determination accordingly.

Mitchell H. Rubinstein

 

State Disability Law May Differ From The ADA

Matter of Rappo v. NYS Division of Human Rights, ___A.D.3d___(3rd Dept. Dec. 2, 2008), demonstrates that state law may differ than federal law. Sometimes state law is more restrictive and sometimes it provides more protection for employees. Here, at the time of the complaint, state law did not impose a duty to accommodate and therefore that discrimination claim was properly dismissed. As the court explained:

To the extent petitioner pro se claims that her former employer, New York City Human Resources Administration (HRA), failed to reasonably accommodate her disability, this claim must fail, because at the time she made her request, Executive Law § 292(21) did not require an employer to provide "reasonable accommodations" (see Riddick v City of New York, 4 AD3d 242, 247 [2004]). In any event, substantial evidence supports the determination that HRA was not required to provide petitioner with a job transfer as a reasonable accommodation, since petitioner failed to demonstrate that she could not perform the essential duties of her job and that she would be able to perform the essential duties of another job. . .

Mitchell H. Rubinstein

Discrimination Against Parents With Special Needs Children

The Boston Globe ran a very interesting and important article entitled A Parental Juggling Job on December 14, 2008.  It is about how difficult it is for parents to work full time and take care of special needs children at the same time. The article points out that many parents careers suffer because they need to take time off, sometimes at unpredicatable times. The article describes the legal protection parents have as follows:

Legally, parents caring for children with disabilities have some protection against discrimination. Amid rising claims by working caregivers in general, the federal Equal Employment Opportunity Commission issued guidelines last year to detail how laws banning discrimination based on sex or race protect such workers. For instance, a new mother who is placed into less desirable work because her boss assumes she is less serious about her career post-birth is protected against sex-based stereotyping under Title VII of the Civil Rights Act of 1964.

As well, the Americans with Disabilities Act outlaws discrimination against caregivers to the disabled, although it doesn't require that employers accommodate them by changing schedules or job duties, as is mandated for workers with disabilities.

If any one is aware of any case law on this issue, please let me know. Frankly, I think these cases are under reported and under litigated because no one cares. I also believe that aside from the FMLA, which provides extremely limited protection (12 weeks of unpaid leave), parents of special need children have very little protection under the law. I am actually not sure that the article is correct in implying that placing a mother in a less desirable job because the mother has a disabled child is unlawful. Unfortunately, I believe it is lawful. What is unlawful is if the employer makes sterotypical assumtions because of an employees sex.

Mitchell H. Rubinstein 

Settlement Discussions Are Not Admissible

It is hornbook law that settlement discussions are not admissible. Yet, in Lipani v. NYS Division of Human Rights, ___A.D. 3d___(2d Dept. Nov. 12, 2008), an ALJ apparently admitted them. Therefore, the case was reversed on appeal. As the court stated:

On the record presented, the SDHR improperly admitted into evidence the parties' attempts at conciliation and the conciliation agreement itself, which was made after the filing of the administrative complaint with the SDHR, thereby violating Executive Law § 297(4)(a).

The SDHR must reconsider the administrative complaint and the evidence before it, without reference to these attempts at conciliation and the conciliation agreement, and render a new determination thereafter.

This was a housing discimination case. I am assuming that the courts reference to conciliation was a reference to settlement discussions.

Mitchell H. Rubinstein

FedCir: Disadvantaged minority set-asides for DOD contracts unconstitutiona

(Rothe Dev Corp v Dep't of Defense, November 4, 2008). A federal law that sets a goal of awarding five percent per fiscal year of defense contracting dollars to companies owned by "socially and economically disadvantaged individuals" has been found unconstitutional by the Federal Circuit Court of Appeals. The law incorporates the Small Business Act's rebuttal presumption that African-Americans, Asians, Hispanics and Native-Americans are socially disadvantaged individuals, but implementing regulations require all owners to demonstrate the economic disadvantage element. The plaintiff corporation, owned by a Caucasian woman, claimed the law was unconstitutional on its face and as applied by the Department of Defense (DoD) when it awarded a contract to an Asian-American-owned business despite the fact that the plaintiff was the lowest bidder. In 1995, the US Supreme Court held in Adarand Constructors Inc v Pena that all race-conscious government programs must be evaluated pursuant to strict scrutiny standards to determine whether they violate the Constitution's equal protection guarantees. Under strict scrutiny analysis, such programs must be narrowly tailored to further a compelling government interest. In the present case, the Federal Circuit found that Congress did not have "a strong basis in evidence" upon which to conclude that the DoD was a passive participant in racial discrimination in relevant markets nationwide. Thus, Congress did not have a compelling state interest to justify the race-conscious remedial measures contained in the law when it was reenacted in 2006.

Mitchell H. Rubinstein

Attorneys Seek To Overturn California's Gay Marriage Ban-Proposition 8

The November 12, 2008 National Law Journal in an article entitled A Small Army Of Attorneys File Amicus Briefs In Proposition 8 Case is reporting that several attorneys are seeking to overturn California Proposition 8 which bans gay marriages in California.  As the article states:

Dozens of lawyers filed friend of the court briefs on Monday in support of a petition before the California Supreme Court seeking to overturn Proposition 8, a state constitutional ban on gay marriage that passed on Nov. 4 by a 52.3% to 47.7% vote.

The petition was filed on behalf of six same-sex couples by Shannon Minter, legal director of the National Center for Lesbian Rights in San Francisco, and Gregory D. Phillips, a partner in the Los Angeles office of Munger, Tolles & Olson. Strauss v. Horton, No. S168047 (Calif.). In a separate case earlier this year, Minter successfully argued before the California Supreme Court that same sex couples have the fundamental right to marry.

One of the recent briefs, filed by a team of lawyers at Los Angeles-based Gibson, Dunn & Crutcher on behalf of 44 state legislators, argues that Proposition 8 constitutes a change in the constitution that discriminates against a minority group — something that requires a two-thirds vote of the legislators, not a simple majority vote.

I cannot imagine that the California Supreme Court will accept this argument-though I hope that they do.

Mitchell H. Rubinstein