Race, Racism, & The Law Memorandum

Impact of Ricci regarding reverse discrimination in the workplace

INTRODUCTION The Ricci case had earned much notoriety as a result of Justice Sotomayor's senate confirmation hearings during the summer of 2009. Members of our legislature opposing her nomination, for whatever reasons they, continually focused on her role in this decision prior to its appeal to our nation's highest court. I remember intently watching the confirmation hearings, hearing Justice Sotomayor being grilled from members of the senate committee solely on the topic. It was not until I began researching this case for the purposes of this memorandum that I learned that Justice Sotomayor did not write an opinion to this case at all, but merely signed an order affirming summary judgment. Ricci v. DeStefano, 264 Fed.Appx. 106 (2d Cir. 2008).

There was a very brief opinion attached to the order. The short text that was given explained that the firefighters did not have a viable Title VII claim; and the Board acted lawfully in refusing to validate the exams to satisfy Title VII requirements when faced with results with a showing of disproportionate racial impact. Id. Subsequent to the order, an active judge of the Court requested a poll on whether to rehear the case in banc. Ricci v. DeStefano, 530 F.3d 88 (2d Cir. 2008). The Second Circuit of Appeals in a 7-6 vote, withdrew their order affirming, and instead issued a per curiam order. Id. Then Judge Sotomayor concurred with Judge Katzmann and Judge Parker in their opinions to decline an en banc rehearing of Ricci. But because of the continuous opposition against Justice Sotomayor during the confirmation hearings on this decision, in addition to the press' nonstop reporting on this attack, my interest in the developments of Ricci was certainly incited. Racism in American society stemming from the time of slavery still exists to a varying degree. Though slavery is of course no longer an issue; prejudice, intolerance, and bigotry continues to inject itself into culture whether those who are realize it or not. To combat this, Congress enacted The Civil Rights Act of 1964 that outlawed discrimination and ended racial segregation in America.

Contributed by: Andrew Thomas Smith In Ricci v. DeStefano, the principle case in this memorandum, the Supreme Court particularly examines an aspect of Title VII of the Act; which prohibits discrimination by covered employers on the basis of race, color, religion, sex or national origin. But interestingly enough, legislation that was passed to prevent discrimination of minorities in the workplace, has become the means to prevent discrimination of non-minorities. Discrimination has grown to become a complex entity in itself. Reverse discrimination and affirmative action programs have become the source of much controversy in cases involving inequality in the workplace; and we see the source of ire in the principle case stems from it. Reverse discrimination is: 1) a concept of prejudice directed; 2) against members of certain social or racial groups, as white persons; 3) thought of as being dominant or having benefited from past discrimination against minority groups who are now favored. These are often as a result of (and most commonly associated with) affirmative action programs; the policies that take factors including "race, color, religion, sex or national origin" into consideration in order to benefit an underrepresented group, usually as a means to counter the effects of a history of discrimination..

LEGISLATIVE HISTORY OF THE CIVIL RIGHTS ACT OF 1964 TITLE VII Title VII of the Civil Rights Act of 1964 has been used to both defend and oppose reverse discrimination decisions by employers. The Civil Rights Act of 1964 was the subject of the longest Congressional filibuster in history, and until this day it continues to hold that record. Crain, Kim, Selmi, Work Law: Cases and Materials 536 (2006 Lexis/Nexis). Prior to the enactment of Title VII of the Civil Rights Act, it was legal for employers to discriminate on the basis of race, sex, national origin, and religion. Id. But the bottom line principle of Title VII is found in section 703(a)(1): "It shall be an unlawful practice for an employer ... to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual... because of such individual's race, color, religion, sex, or national origin." 42 U.S.C.

Daddy Daycare

I know what it is like to be a career driven female, but I cannot pretend to know what it would be like for a man to stay at home raising children. I thought it would be wise to have a male's perspective. I sat down with a very well respected student from my law school that had the privilege of being a stay at home dad for 3 years. The insight he gave me was honest and inspiring. The reason my peer decided to stay home with his daughter was because his wife was finishing medical school, starting her residency, and would be working ridiculous hours. They decided, as a couple, it would be best for him to put his career on hold, and stay home a couple of years. They were apprehensive about putting their newborn baby in daycare 45+ hours a week. As I talked with my fellow student, I began to notice a common trend. One parent usually chooses to stay at home with the newborn child, while the other parent provides financial resources. The main concern is usually the hours the baby would spend with someone other than the parents. This is not a new concern, but traditionally, the mother would forfeit her career to take on this responsibility. Now, men are choosing to make the sacrifice instead. I wondered further what the benefits of being raised by either parent would be versus alternative child care. In his particular situation, the benefits were immense. At 15 months, his daughter had a 300 word vocabulary. She could sight read over 400 words at 3 and began to read books at 4. She just turned 6, is in kindergarten, and reads at a 3rd grade level. She also has never had an ear infection. She plays the piano and received a perfect score at her last Hymn Festival. She is a confident, intelligent, well adjusted kid. "Now is that because I stayed home with her or because she received superior genes from her Mom? I'll assume it was a combination of both." It seems the results of a parent raising their child during the most delicate and formative years are extremely beneficial. However, sacrificing a career for the immense benefits of the child must come with a trade off. When I asked him if his domestic position was challenging, he was not afraid to answer candidly. He said that being a stay at home dad required adaptation and creativity, but that he wouldn't trade the time with his kids for anything in the world. A recurrent theme in our conversation was his overall plan. He accredited the strength of his marriage and security in his position as a stay at home dad with his goal of going to law school. He said he always knew he would be attending law school once his wife's residency was over. Being home with his child gave him an opportunity to do all the research he needed to find the perfect law school. He said that he never could have completed such an application process if he didn't have the time at home to do the research. He holds a strong belief that eventually a man has to work. He feels, and I agree, "That no matter how liberated or intelligent a woman is, at her core, she will lose respect for her husband if he doesn't work for more than a few years". He feels the key to a successful marriage, and especially his marriage, is a wife maintaining respect for her husband. When asked if he would recommend staying at home he replied, "Sure, so long as the marriage is strong and the period of time is limited and well defined. A man also needs to work for his own self esteem and to maintain his self worth." Contributed by: Natalie Lynn Fears

What is the "Cloud" and How Can You Use it In Your Law Practice

Lawyers are talking about successful "cloud" case and document management. You may have heard attorneys talk about "the cloud" when discussing IT projects or back up for legal documents. The cloud simply means computer power that is available as a service, accessed securely through the Internet rather than using on-premise servers. After all, servers take up your valuable office space in your law firm. With cloud computing, great scale and best practice benefits are achievable, meaning high availability and productivity for you and your law practice.

Another term you may have heard is "unified communications". For most companies and law firms today, telephone, e-mail, IM, audio conferencing, video conferencing, Web conferencing and voice mail all live in their own disconnected silos. Unified communications reduces technology complexity by putting people at the center of the communications experience by integrating all of the ways we contact each other in a single environment. In order to leverage the cloud and cloud-based unified communication services, you'll need a reliable way to connect your office, satellite offices and remote lawyers to the cloud. There are numerous firms which provide private cloud hosting and part or fully managed outsourcing. Security and management of data are also key issues. Make certain that any vendor or company you may consider has appropriate certifications. With today's expansive choice and availability of services, law firms are now utilizing the cloud and are pleased with the predictable costs and high reliability it provides.

Unexpected Benefits Come From Office Sharing

Attorneys - as Landlords or Tenants The advantages of attorneys sharing office space are many. In fact, sharing office space can provide many unexpected benefits to both the law firm and the tenant. Ever since tough economic times hit in 2008, many law firms have downsized their staff, but continue to own or lease the same size office space. The result is an underutilization of space that translates to decreased revenue. By renting out vacant space to solo law practitioners, law firms can not only generate extra income, but also benefit from the natural synergies created by this arrangement. The benefit that is immediately obvious is the income generated from the rent of the actual office space. When deciding on a figure, it is important to include overhead. Common expenses include maintaining support personnel (for example, a receptionist, secretarial staff or an accountant), as well as providing a phone system and maintaining office equipment. The cost of filing clerks and other administration staff also can be defrayed by bringing in a solo-practitioner. But beyond the pure dollars and cents of a landlord-tenant arrangement, there are other benefits to sharing office space. Even when the practice areas of the law firm's attorneys and the tenant are not identical, frequent discussions between attorneys can keep creativity and ideas flowing. For the solo-practitioner, renting space in an established law firm can help stave off the negative effects of isolation. Daily contact with other lawyers can provide a valuable opportunity to network and can help the solo-practitioner keep on top of changes in the law. Ultimately, clients from both sides of the landlord-tenant relationship may benefit from a wider array of legal services. In 2010, Elaine M. Russell created www.LawSpaceMatch.com, a service that matches lawyers seeking to sublet space with unoccupied office space at compatible law firms around the country. Elaine M. Russell is a corporate and business attorney representing clients throughout Georgia. Elaine's office is located in the Buckhead section of Atlanta.

Grades Or Experience? The Great Debate

Since the economy plummeted and job availability for attorneys went south, the question has been debated by third year law students throughout the country: getting the grades or having work experience--which is better for getting a job after law school. I can only speak from my own personal experiences, but there seems to be a very apparent catch-22. Employers want a new associate with experience. In order to get that experience, law students need to create enough time and space in their week and work during law school (and, of course, during their summers); however, working during law school most likely means sacrificing on your studies (and as most law school professors might tell a law student, sacrificing on your studies will only weaken your grades). If your grades suffer, the first thing employers notice on your resume is that you're not in the top of your class (be it the top 5%, 10%, etc. depending on your job market). If you're not in the top of your class, employers apparently think you lack the ability to perform in the real world of law. By that same token, however, if employers see that you're in the top 10% of your class, they next criticize your lack of experience. And far be it from me to point out to a potential employer in a cover letter or an interview (if I've managed to somewhere scrounge one up) that I'm a law student and law related experience is hard to come by (you would think this would be obvious to the employer--I don't know many law students with four or five years of litigation experience). Maybe you're thinking to yourself though that you're in the top 10% of your class AND you have actual legal experience so I should be fine. Not to be the pessimist--or maybe to be exactly that--you're still not guaranteed a job. Surprised? Shocked? Me too! I'm in the top 10% of my class, and I have work experience (two and half years to be exact). Now granted, my experience hasn't been in front of a judge. I spent a year and a half working in a public defender's office, and I've spent close to a year at the United States Attorney's office as a law clerk. You would think, however, that this would make for a fantastic resume, and you would be wrong (to an extent). My problem is that my work experience is all in the criminal law field, and when civil law firms see that they either a) question my desire to work in civil law or b) question my ability. Now, I cannot help but be offended when my ability is questioned; after all, I'm in the top of my class, and I've only taken 3 criminal law classes (so obviously I'm excelling in civil areas of the law, but alas the civil firms appear to overlook this). I say to ALL the potential employers out there, civil and criminal alike, I CAN DO ANYTHING YOU NEED A NEW ASSOCIATE TO DO! Word to the wise, perhaps that should be the subject line of all your cover letters from now on. Not that you have legal work experience or that you're number five in your class, but that you have NO preference for a particular area of the law. Perhaps by making this abundantly clear in your cover letter, when employers read your resume and see that you're at the top of your class and that you have work experience (regardless of whether it's only criminal or only civil) they won't disregard you for what they see as potential strikes against you. Forgive me for rambling; the point is don't put all your eggs in one basket. Get a job during law school, but don't over work yourself at the expense of your grades. And if you're lucky enough to make the grades and get the experience, make sure it's in both criminal and civil law. If you do those things, maybe you'll get the job that I just can't seem to get (and if you do get that job, put in a good word for me--my resume is posted at http://jodyslaw.wordpress.com/ and http://www.linkedin.com/in/jodysellerslaw). * Contributed by Jody Sellers is a current 3L law student, who between his limited free time, writes reflective blogs offering insight into the law school experience.

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