Monthly Archives: October 2013

Breaking the Bonds, Slavery in Modern Day America

Breaking the Bonds, Slavery in Modern Day America

Katherine Reeves

          To most Americans, slavery in the United States is a thing of the past. It’s just a part of history and nothing to be concerned about in the Modern Day United States.  This idea could not be farther from the truth.  In fact, four times the amount of people in the United States have been sold into slavery in 2013 then the year before the Civil War.[1] There are many organizations dedicated to bringing about awareness to this worldwide epidemic of human trafficking and to assisting the victims.  Both state and federal legislatures have begun to recognize a need for laws to help regulate this activity within the United States, but there is still work to be done.

The most common form of human trafficking exists in the form of sex trade.  Up to 75% of people entered into slavery in 2013 become part of sex trafficking.[2] It occurs in forms of prostitution, sexual entertainment, sexual servitude, exotic dancing, pornography, and servile marriage.[3] It’s a big business.  Sex trafficking is estimated to be second only to the drug trade in illegal business revenue in the United States.[4] In our own back yard, Interstate 20 (specifically from Birmingham to Atlanta) is known to have the highest volume of sex trafficking in the United States.[5] This interstate has earned the nickname of “the sex trafficking Superhighway.”[6]

What is being done about this terrible epidemic? In 2000, The United Nations recognized the need for action and passed the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Palermo Protocol).[7]  The Protocol identifies human trafficking as an international epidemic and encourages states to enact anti-trafficking legislation to begin dealing with the problem.[8] The United States signed the Protocol and, shortly thereafter, enacted federal legislation following the recommendations of the Protocol.

The legislation on Human Trafficking stems from the well-known 13th Amendment of the Constitution.[9] Following the 13th Amendment, Section 152 of the United States Code, led to the Supreme Court defining involuntary servitude to only by physical or legal coercion, not psychological coercion.[10]  After the passing of the Palermo Protocol, Congress expanded the definition to include psychological protocol in the Trafficking Victims Protection Act (TVPA).[11] TVPA also entitled victims to federal aid and authorized the Department of State to deliver reports of human trafficking worldwide.[12] Congress also expanded the legislation in 2003 to allow victims to seek civil remedies against their traffickers.[13] Reauthorization of TVPA in 2005 and 2008 expanded trafficking legislation to include “recruited, enticed, harbored, transported, provided, or obtained.”[14] Also, the reauthorizations established rehabilitation facilities and, most importantly, recognized human trafficking as a domestic crisis and authorized the Attorney General to research the extent of the domestic impact.[15]

The recognition of human trafficking as a domestic issue in the United States leads to a call for more localized action by the states.[16] State legislation to combat human trafficking falls into three trends: the Model Structure, the Individualistic Approach, and the Structuralist Trend.[17]  The Model Structure, following a model produced by the Department of Justice, indicates a single piece of legislation defining sex trafficking and other forms of human trafficking.[18] It is known for focusing on the prosecution of offenders.[19] This type of legislation, however, limits the distinction between sex crimes and other, less serious, offenses and provides difficulty in establishing enhancements for sexual crimes against children over labor crimes.[20] The Individualistic Approach includes legislation focused more on the human-rights side of trafficking.[21] This type of legislation aims to protect individual choices and often decriminalizes acts of the victims that would otherwise be illegal and provides for extensive victim services to assist in victim rehabilitation.[22] The Structuralist Approach adopts blanket protection for women involved in the sex trade and juvenile trafficking of all forms. These forms of legislation are often called “safe-harbor” laws, which “allow courts to forgive trafficking victims for unlawful acts they have committed during the course of their trafficking experience.”[23]

Alabama falls somewhere in the middle of all of these trends. Representatives Jack Williams and Merika Coleman Act of the Alabama Code lays out the State’s approach to human trafficking.[24] Alabama Law defines human trafficking and grants victims the right to seek civil relief against their traffickers, although statutes of limitations do apply.[25] Additionally, Alabama is one of eight states that allow the award of punitive damages.[26] Applying concepts of the Structuralist Approach, Alabama also provides an affirmative defense for all acts of “sexually explicit performance” preformed by victims of human trafficking. [27]

With all the legislation in the United States aimed at ending human trafficking, the main barrier lies in identification.  Identification is difficult for many reasons.  Human trafficking is intentionally a “hidden crime” and many victims travel throughout many jurisdictions.[28] Additionally, victims do not identify themselves or seek help often due to physical or psychological constraints by the trafficker or fear of legal ramifications such as prosecution or deportation for their crimes committed while enslaved.[29]

Many organizations are dedicated to improving identification of human trafficking victims by raising awareness and offering assistance to victims.   One of the largest and most recognized of these organizations is known as the Polaris Project. The Polaris Project offers client services through case management, participates in policy advocacy, provides training and technical assistance, and operates a 24-hour hotline.[30] These organizations all push for government action, but more importantly they stress the importance of cultural change and of actions of individuals.[31]

Our government has made great strides towards the elimination of human trafficking, but individuals must step forward to make a difference. As Americans, we must recognize that human trafficking violates all basic freedoms that we stand for in the United States and we cannot continue to be complacent.  We cannot allow ourselves to be blind to the deprivation of the civil rights and liberties we so openly boast.  It is important to be educated about human trafficking, learn the signs, and to speak up in questionable situations.  Public awareness is the first major step in the mission to combat human trafficking in the United States and we must step up.  We must take action for the victims.

[1] I-20: The Sex-Trafficking Superhighway, The WellHouse, (last visited October 25, 2013)

[2] Id.

[3] T.K. Logan et al., Understanding Human Trafficking in the United States, 10 TRAUMA, VIOLENCE AND ABUSE 9 (2009).

[4] Priscila A. Rocha, Our Backyard Slave Trade: The Result of Ohio’s Failure to Enact Comprehensive State-Level Human-Sex-Trafficking Legislation, 25 J.L. & Health 415, 424 (2012)

[5] I-20: The Sex-Trafficking Superhighway, supra note 1

[6] Id.

[7] Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime, G.A Res. 25, Annex II, U.N. GAOR, 55th Sess., Supp. No. 49, at 2 [hereinafter Protocol]

[8] Rocha, supra note 4, at 420

[9] Id at 425

[10] United States v. Kozminski, 487 U.S. 931, 941 (1988).

[11] Rocha, supra note 4, at 426

[12] Id. at 427

[13] Id.

[14] Id. (quoting Trafficking Victims Protection Reauthorization Act of 2003, Pub. L. No. 108-193 § 4(a)(4)(A), § 4(b)(1)(A), and § 5(a)(3) (2003))

[15] Rocha, supra note 4, at 427

[16] Id.

[17] Leslie Klaassen, Breaking the Victimization Cycle: Domestic Minor Trafficking in Kansas, 52 Washburn L.J. 581, 594 (2013)

[18] Id. at 595

[19] Id. at 596

[20] Id. at 595

[21] Id. at 596

[22] Id.

[23] U.S. Dept. of State, Trafficking in Persons Rep. (2013) at 24.

[24] Ala. Code § 13A-6-150 (West 2011)

[25] Ala. Code § 13A-6-157 (West 2011); Ala. Code § 13A-6-158 (West 2011)

[26] Janelle Zabresky, Creating A Safe Harbor for Florida’s Children: An Overview of Florida’s Legislative Evolution in Domestic Minor Sex Trafficking, 40 Fla. St. U. L. Rev. 415, 436 (2013).

[27] Ala. Code § 13A-6-159 (West 2011)

[28] Allison L. Cross, Slipping Through the Cracks: The Dual Victimization of Human-Trafficking Survivors, 44 McGeorge L. Rev. 395, 402 (2013)

[29] Id. at 402

[30] The Polaris Project, (last visited October 27, 2013)

[31] U.S. Dept. of State, Trafficking in Persons Rep. (2013) at 27.


Blurred Lines: Whether an Unpaid Intern Should Fall Under Title VII’s “Employee” Definition

Blurred Lines: Whether an Unpaid Intern Should Fall Under Title VII’s “Employee” Definition

By: Lacy Triplett

Internships provide valuable experience for students and recent graduates, and they are pretty much required in order to obtain a job in most fields. However, interns are not afforded the same civil rights protections that paid employees receive.[1] Although there are some regulations regarding interns in employment law, they are not strictly enforced, and most interns do not voice concerns about the violations because the intent of an internship is to obtain future employment.[2] While compensation for internships would be ideal, the main purpose of interning is to gain valuable workplace experience that cannot be taught in educational or vocational programs. The lines are blurred when unpaid interns have their rights violated and want to bring legal action but are statutorily barred because they are not legally considered employees. Therefore, their claims of harassment and discrimination under Title VII of the Civil Rights Act of 1964 (Title VII)[3] fall by the wayside because interns realize they will not prevail and their employers will not be punished. Title VII’s definition of an “employee” states that “the term ‘employee’ means an individual employed by an employer….”[4] While that definition seems rather open-ended, federal courts have regularly held that compensation is the threshold for concluding employment status.[5] Thus, unpaid interns are left in a vulnerable position without recourse for discrimination or harassment, which would be protected by Title VII if they were paid employees.[6]

There has been a recent resurgence in the debate as to whether an unpaid intern should be considered a Title VII employee due in large part to a recent case out of New York. In that case, an unpaid intern with a Chinese media outlet filed a lawsuit alleging sexual harassment against her supervisor, which created a hostile work environment.[7] Lihuan Wang interned for Phoenix Satellite Television while completing a Master’s degree in journalism from Syracuse University.[8] Wang performed duties typical of a news intern; she alleged that in order to get hired for a permanent position with the company post-graduation, she had to get the approval of her supervisor, Zhengzhu Liu.[9] The issues alleged in Wang’s suit began when Liu traveled from his office in the Washington D.C. bureau to the New York bureau where Wang was interning.[10] After having lunch with Liu and the other employees at the New York bureau, Liu asked Wang to stay behind so they could discuss her job performance and job possibilities.[11] After that discussion, Liu suggested that they go to his hotel so he could put his belongings in his room, and while on the way Liu began making crude and unconformable sexual remarks toward Wang.[12] At the hotel, “Liu asked Ms. Wang to name her most beautiful feature and told her that [her] eyes [were] so beautiful,” and then suggested they go to his room.[13] Once inside his hotel room, he “took off his shirt jacket and undid his tie;” then, Liu “suddenly exclaimed, ‘Why are you so beautiful?’ and threw his arms around [Wang].”[14] He then held Wang “tightly for roughly five seconds and tried to kiss [Wang] by force, but [Wang] turned her face away so [Liu’s] mouth landed on her cheek and neck.”[15] Wang also asserted that Liu “squeezed [her] buttocks with his left hand.”[16]  Wang stated that she only agreed to go to his room because he was her supervisor and she felt obligated, and she left the hotel room after asking Liu to stop.[17]  Wang asserted that after the incident at the hotel, Liu’s interest in permanently hiring her diminished.[18] Wang further asserted that when she contacted him after the completion of the internship, Liu invited her to Atlantic City, New Jersey for a weekend “to discuss her job opportunities.”[19]  Wang declined Liu’s invitation fearing that he would make sexual advances towards her again.[20]

Judge Castel held that Wang was unable to proceed on her claim because the protections afforded to employees under Title VII and the New York City Human Rights Law [21] (NYCHRL) do not extend to unpaid interns.[22] Specifically the Court stated that compensation is a threshold issue when determining whether an employment relationship is present under Title VII and the NYCHRL.[23]  “The plain terms of § 8-107(1)(a)[24] make clear that the provision’s coverage only extends to employees, for an ‘employer’ logically cannot discriminate against a person ‘in the conditions or privileges of employment’ if no employment relationship exists.”[25] Because Wang was an unpaid intern and received no remuneration, she was unable to prevail on her hostile work environment claim under the NYCHRL.  The fact that she did not receive payment for her work at Phoenix barred her sexual harassment claim under both Title VII and the state law provisions of the NYCHRL.[26]

Wang is not the first case to hold that unpaid interns are not protected from discrimination and harassment claims under Title VII,[27] and the debate surrounding the issue does not seem to be dying down any time soon. However, just like with any story, there are two sides to this debate. One legal commentator says that the decision in Wang is not a controversial one, and it is akin to the traditional interpretation of federal, state, and local discrimination laws, which do not afford protection to unpaid interns.[28] He suggested that employers prevent claims such as the ones alleged by Wang by auditing internships to make sure they comply with the Department of Labor’s guidelines, instituting paid internships, and educating employers on anti-discrimination policies.[29]

There has been some progress made in terms of protecting unpaid interns from harassment and discrimination at the hands of their employers. In Oregon, the legislature passed a bill that provides some of the existing employment discrimination protections to interns who are working for educational purposes.[30] If it is signed into law, it will protect unpaid interns against discrimination based on race, color, religion, sex, sexual orientation, national origin, marital status, disability, and uniformed service, as well as other things.[31] The reasoning behind the Oregon bill was to serve as a “preservation of the public peace, health and safety.”[32] Oregon is not alone in this movement. New York State Senator Liz Krueger plans to introduce legislation that will “close the loophole which basically allows unpaid interns to be sexually harassed because they aren’t being paid.”[33] She stated that her bill will “define internships, explicitly ban workplace sexual harassment of interns, and apply general workplace civil rights protections to interns.”[34]

Given the prevalence and near necessity of completing an internship, it will be interesting to see how the Oregon and New York legislatures address these bills. Issues still remain on the federal level and for interns who are not working in the two states will proposed laws to remedy the situation. What will become of Title VII and unpaid interns? Will compensation remain the determinative factor in establishing an employment relationship? Will any putative measures arise to prevent employers from continuing to discriminate and harass interns? If the Oregon legislature and Senator Krueger get their way, it seems that unpaid interns will be slowly clearing up the blurred lines of the intern and employee relationship allowing interns, like Wang, to address claims against their employers.

[1] See Kathryn Anne Edwards and Alexander Hertel-Fernandez, Not-So-Equal Protection –Reforming the Regulation of Student Internships, Economic Policy Institute (Apr. 9, 2010),

[2] See id.

[3]  42 U.S.C.A. §§ 2000e-2000e-17 (West, Westlaw through Sept. 18, 2013).

[4] 42 U.S.C.A. § 2000e(f).

[5] Edwards and Hertel-Fernandez, supra note 1.

[6] See id.

[7] Wang v. Phoenix Satellite Television US, Inc., No. 13 Civ. 218(PKC), 2013 WL 5502803, at *1 (S.D.N.Y. Oct.3, 2013).

[8] Id.

[9] Id. at *1-2.

[10] Id. at *2.

[11] Id.

[12] Wang v. Phoenix Satellite Television US, Inc., No. 13 Civ. 218(PKC), 2013 WL 5502803, at *1, *2 (S.D.N.Y. Oct. 3, 2013).

[13] Id. (internal quotation marks omitted)

[14] Id.

[15] Id.


[17] Id.

[18] Wang v. Phoenix Satellite Television US, Inc., No. 13 Civ. 218(PKC), 2013 WL 5502803, at *1, *2 (S.D.N.Y. Oct. 3, 2013).

[19] Id. at *3.

[20] Id.

[21] 8 N.Y.C. Admin. Code §§ 8-101-8-703 (last updated June 1, 2013), available at

[22] Wang, 2013 WL 5502803, at *9.

[23] Id. at *5.

[24]  Section 8-107(1)(a) of the NYCHRL states, “For an employer or an employee or agent thereof, because of the actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, sexual orientation or alienage or citizenship status of any person, to refuse to hire or employ or to bar or to discharge from employment such person or to discriminate against such person in compensation or in terms, conditions or privileges of employment.”

[25] Wang, 2013 WL 5502803, at *4.

[26] David Yamada, Unpaid Intern Cannot Bring Sexual Harassment Claim Under NYC Human Rights Law, Judge Rules, Today’s Workplace (Oct. 7, 2013),

[27] Many cases have decided this issue but for a look at how a few courts have decided the matter see O’Connor v. Davis, 126 F.3d 112, 119 (2d Cir. 1997); Haavistola v. Cmty. Fire Co. of Rising Sun, Inc., 6 F.3d 211, 221 (4th Cir. 1993); Neff v. Civil Air Patrol, 916 F. Supp. 710, 715 (D. Ohio 1996); Doe v. Lee No. 11C6102, 2013 WL 1883288, at *1, *4 (N.D. Ill., May 6, 2013).

[28] Michael S. Arnold, New York Federal District Court Declines to Extend Protections Against Discrimination Under the New York City Human Rights Law to Unpaid Interns; But Should the Analysis End There?, JDSupra Law News, (Oct. 10, 2013),

[29] Id.

[30] Pamela Wolf, Oregon Bill Protecting Unpaid Interns from Employment Discrimination May Be the Handwriting on the Wall, Employment Law Daily, (last visited Oct. 18, 2013).

[31] Id.

[32] Id. (internal quotation marks omitted).

[33] Jen Chung, State Senator Krueger: Unpaid Interns Should Be Protected from Sexual Harassment, gothamist, (Oct. 16, 2013),

[34] Id.

Solitary Confinement and the Eighth Amendment

Solitary Confinement and the Eighth Amendment

By: Alex Darby

Herman Wallace died of cancer on October 4th, just days after being released from prison in Angola, Louisiana, where he had been held in solitary confinement for the last forty-one years of his life.[1] Convicted of the murder of a prison guard, Wallace was released after a federal judge determined his indictment was constitutionally flawed because no women were included in the jury.[2] While in solitary confinement, he worked on projects, such as designs for his dream home.[3] Wallace stated this work “helped me maintain what little sanity I have left to maintain my humanity and dignity.”[4] Unfortunately for many in the prison system, maintaining dignity and sanity is impossible when subjected to solitary confinement, an issue with serious Eighth Amendment implications.

Prisoners held in solitary confinement are typically isolated in an eight by ten foot cell between twenty-two and twenty-four hours per day.[5] While the number of inmates held in solitary confinement is difficult to determine, studies estimate 25,000 are held in maximum security “supermax” facilities where solitary confinement is common, and up to 80,000 inmates are held in some type of segregated housing, separate from the general prison population.[6] Prisoners may be placed in special, or segregated housing units for administrative or disciplinary reasons, with harsher restrictions imposed on inmates segregated for disciplinary reasons.[7]

These conditions result in various health issues that range from acute to severe, worsening with longer sentences. While psychological problems are most common, physiological symptoms also appear in prisoners held in solitary confinement.[8] These symptoms include heart palpitations, insomnia, joint pain, and worsened pre-existing conditions.[9] Psychological impacts can be even more profound. Prisoners commonly show a range of symptoms stemming from anxiety, depression, cognitive disturbances, paranoia, and psychosis.[10] A prisoner at a California supermax prison noted the impact of solitary confinement on inmates, stating:

I have seen inmates lose their mind completely because of the sound of a light where they are yelling at the light, cursing at the light, believing that for some reason the [authorities] planted some kind of noise inside the light purposely…and so the inmates that ain’t strong minded, don’t have something to hang on to, the light, the sound of the door, can make them lose their mind… I found it strange, you know, how can a grown man, a very big, grown man, break down to a light. But that’s what [that place] can do[11]

The harsh reality for many of these prisoners is that they already suffer from some type of mental illness, and this is only worsened by their stay.[12] There is a significantly higher percentage of inmates with mental illness in segregated housing units that in the general prison population.[13] These psychological symptoms often result in self-harm.[14] In one California supermax prison, nearly 70% of the suicides committed in the prison were committed by inmates in segregated housing units.[15]

Solitary confinement is a relatively common practice in supermax prisons throughout the United States.[16] Prisoners have asserted claims attacking the conditions of solitary confinement as a violation of the Eighth Amendment prohibition against cruel and unusual punishment.[17] These challenges face significant setbacks. Circuit courts have held that solitary confinement is not necessarily cruel and unusual punishment.[18] Under these rulings, the punishment does not in itself violate the Eighth Amendment, but could potentially be cruel and unusual if there are other problems present.[19]

In Eighth Amendment challenges, the Supreme Court has held that prison conditions may constitute cruel and unusual punishment when there is “a substantial risk of serious harm” and prison officials show “deliberate indifference.”[20] The issue arising under these cases is that the “serious harms” often recognized by the court typically involve physical risks, not psychological ones.[21] To successfully argue a serious harm, an inmate must show he has been deprived of “a basic human need” and courts are hesitant to accept mental health as such.[22] This is especially clear in the Prison Litigation Reform Act, which prevents a prisoner from bringing suit – even an Eighth Amendment suit – for mental or emotional injury alone.[23] It is far easier to show physical signs of abuse, but this does not diminish the harm that can potentially be done to the mental health of incarcerated individuals in solitary confinement.

Individuals have previously been successful in bringing Eighth Amendment claims against conditions in solitary confinement, but the rulings often focus on the physical conditions of confinement rather than the solitary confinement itself.[24]

The Supreme Court has repeatedly asserted that the measure of the Eighth Amendment is based on “the evolving standard of decency that marks the progress of a maturing society.”[25] The court’s views on solitary confinement do not seem to be evolving along with the views of society. The focus on physical harm, while minimizing psychological harms inflicted on inmates, runs directly counter to society’s changing views on mental health. With mental health rapidly changing from a taboo topic to one of increased public focus, society clearly recognizes that mental health is often as important as physical health. Psychological harms are very real, and in many cases cause inmates to seek desperate measures, including taking their own lives. While a complete prohibition on solitary confinement is arguably unworkable in the prison system, the court system should have a way for prisoners to challenge solitary confinement based on its psychological impact alone, especially when solitary confinement persists for a substantial length of time.

[1] John Schwartz, Herman Wallace, Freed After 41 Years in Solitary, Dies at 71, N.Y. Times  (Oct. 4, 2013),

[2] Id.

[3] Id.

[4] Id.

[5] Solitary Confinement Fact Sheet, National Alliance on Mental Illness, 2 (Last accessed Oct. 10)

[6] Jean Cassella & James Ridgeway, How Many Prisoners Are in Solitary Confinement in the United States?, Solitary Watch (Feb. 1, 2012),

[7] Special Housing Units, Federal Bureau of Prisons, 2, 8-10 (Jul. 29, 2011),

[8]Sharon Shalev, A Sourcebook on Solitary Confinement, SolitaryConfinement.Org 15 (2008) (alteration in original),

[9] Id.

[10] Id.

[11] Id. at 14.

[12] Solitary Confinement Fact Sheet, supra note 5.

[13] Id.

[14] Shalev, supra note 6, at 17.

[15] Id.

[16] John F. Cockrell, Solitary Confinement: The Law Today and the Way Forward, 37 Law & Pshychol. Rev. 211, 216 (20012-2013).

[17] Id. at 215.

[18]Hawkins v. Hall, 644 F.2d 914, 917 (1st Cir. 1981); Sweet v. S.C. Dept. of Corr. 529 F.2d 854, 861 (4th Cir. 1975) Burns v. Swenson, 430 F.2d 771, 777 (8th Cir. 1970); Ford v. Bd. of Managers of N. J. State Prison, 407, F.2d 937, 940 (3d Cir. 1969).

[19] Id.

[20] Farmer v. Brennan, 511 U.S. 825, 828 (1994)

[21] See, Cockrell, supra note 16, at 216-18.

[22] Christine Rebman, The Eighth Amendment and Solitary Confinement: The Gap in Protection from Psychological Consequences, 49 DePaul L. Rev.567, 603 (1999)

[23] Cockrell, supra note 16, at 17.

[24] See, e.g., McCray v. Sullivan, 509 F.2d 1332, 1337 (5th Cir. 1975)

[25] Trop v. Dulles, 356 U.S. 86, 100-01 (1958).

University of Texas Southwestern Medical Center v. Nassar: A Significant Threat to Employees

University of Texas Southwestern Medical Center v. Nassar: A Significant Threat to Employees

by: Abigail Castleberry

The Supreme Court’s decisions on DOMA and the Voting Rights Act caused a media circus this year. Though garnering little attention from the media, University of Texas Southwestern Medical Center v. Nassar[1] is one of the Court’s most significant employment decisions in years. The decision fundamentally effects how employees who experience retaliation seek redress.

Naiel Nassar, Respondent, is a physician of Middle Eastern descent who worked for Petitioner as both a faculty member and staff physician.[2] The Respondent claimed his supervisor, Dr. Beth Levine, showed bias against him due to his ethnic heritage.[3] Constant criticism from Levine caused Nassar great distress.[4] Nassar, in order to remove himself from Levine’s supervision, made an agreement with the Petitioner that allowed him to continue working for the hospital without being member of the faculty. [5] Upon resigning his faculty position, Nassar wrote a letter detailing the reasons for his resignation and naming Levine’s discriminatory actions as the primary force behind the move.[6] Dr. Fitz, Levine’s supervisor, outraged by the letter, wanted Levine exonerated and placed pressure on the Petitioner to withdraw Nassar’s job offer, which it later was.[7] Nassar then filed two claims under Title VII.[8] First, he alleged that the Petitioner discriminated against him based on race, religion, and national origin, therefore violating 42 U.S.C.§ 2000e -2(a).[9] He also claimed that Fitz’s efforts to prevent him from securing his position was a violation of 42 U.S.C. §2000e -3(a)[10] as it constituted impermissible retaliation.[11] The trial court found for Nassar on all counts and granted large compensatory damages and back pay.[12]

The confusion surrounding the case arises from the mixed-motive proof structure that is available for employment discrimination claims. In Price Waterhouse v. Hopkins, six Justices agreed that a plaintiff could prove status based discrimination if he or she could show that one of the prohibited traits was a motivating factor in the employer’s decision, not merely the sole decision.[13] This lessened the burden of causation applied to employment discrimination claims. In the Civil Rights Act of 1991, Congress codified this lesser burden in a new statute, 42 U.S.C. § 2000e-2(m).[14] The issue before the Court was what standard of causation should be applied to a claim of retaliation and whether the new statute applied to retaliation claims. The majority found that the Congress’s revisions were only applicable to status based discrimination and inapplicable to claims of retaliation.[15] To support their argument, the majority points to the fact that Congress, in drafting 2000-2(m), only included within the statute status based violations of race, color, religion, sex, and national origin.[16] The court concluded that if Congress wanted the burden of causation to be lessened on retaliation claims, it would have clearly stated so in the statute.[17] Furthermore, in deciding that retaliation claims should fall under but-for causation, the Court relied heavily upon on tort law as well as the reasoning of Gross v. DBL Financial Services, Inc. [18] Gross analyzed the meaning of the Age Discrimination in Employment Act (ADEA).[19]  The language used within the ADEA is similar to that used within Title VII, especially in its use of the phrase “because of.”[20] The Court, in Gross, interpreted “because of” to be indicative of but-for causation. [21] The Court found that Gross’s interpretation of the phrase to be the definitive answer to their inquiry.[22] Therefore, for a plaintiff to succeed on a claim of retaliation, he or she must prove that retaliation was the sole motivating factor in an employment decision.[23]

The Court’s decision suffers from a number of flaws. First, it clearly rejects the precedent set out in Price Waterhouse and leans too heavily upon the Gross. In Price Waterhouse, the Court made it clear that any form of discrimination, either retaliation or status based, could utilize the “motivating factor” causation to prove a claim. It appears the court rejected their findings in Price Waterhouse in favor of Gross, but this decision makes little sense. In Gross, the Court stated very clearly that their decision was only applicable to the ADEA.[24] In fact, the Court explained that the statutes were “materially different.”[25] Apparently, the Court rejected stare decisis in choosing to find an ADEA decision controlling in a Title VII claim, in opposition to Title VII precedents.

Furthermore, the Court gave little concern to Congress’s intentions behind the 1991 revisions. The Court, in supporting its decision, concluded that if Congress intended to extend “mixed motive” causation to retaliation claims, it would have specifically done so.[26] This interpretation of Congress’s intentions makes little sense. In 1991, Congress accepted a majority of the reasoning in Price Waterhouse and incorporated it into the code. Congress only rejected the Court’s allowance of an employer to be fully exonerated.[27] Congress found this too employer friendly and allowed plaintiffs the ability to recoup attorney’s fees even if the employer was exonerated.[28] The Court apparently finds the Congress’s adjustment to the Price Waterhouse decision to be a rejection of the Court’s original finding and therefore chose to interpret the statute in the narrowest possible sense. This runs contrary to the original intent of Congress in that it wished provide more protection for employees. The Court’s new interpretation creates a more employer-friendly statute, clearly snubbing Congressional intent.

More importantly, the Court ignores the realities of employer discrimination. The majority commented that the number retaliation claims made to the EEOC has risen significantly and outpace all other claims of discrimination.[29] According the majority’s opinion, many of these claims are likely frivolous rather than the symptom of actual wrongs committed against employees.[30]  As Justice Ginsburg states, “[R]etaliation is inextricably bound up with status-based discrimination.[31] Rarely are employers’ actions motivated by a single intention. The statute “does not protect merely the . . . [minority] worker who is perfect . . . such a worker needs no protection except from irrational employers, and they are rare. It protects . . . the imperfect . . . worker from being treated worse than the [majority] one.”[32] With the Court’s decision in Nassar, this protection is threatened.

[1] 133 S. Ct. 2517 (2013).

[2] 2523.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id. at 2524.

[8] Id.

[9] Id.; 42 U.S.C. § 2000e-2(a)(2006).

[10] 42 U.S.C. 2000e-3(a)(2006).

[11] 133 S. Ct. at 2524.

[12] Id.

[13] 490 U.S. 228, 228 (1988).

[14] 105 Stat. 1071 (1991); 42 U.S.C. § 2000e-2(m)(2006).

[15] 133 S. Ct. at 2532-33.

[16] Id.

[17] Id.

[18] 557 U.S. 167 (2011).

[19] Id.

[20] 29 U.S.C § 623 (2006); 42 U.S.C. § 2000e-2(a).

[21] 557 U.S. at 180.

[22] 133 S. Ct. at 2521.

[23] Id. at 2534.

[24] 557 U.S. at 173-74.

[25] Id.

[26] 133 S. Ct. 2532.

[27] 42 U.S.C § 2000e-2(m)(2006).


[29] 133 S. Ct. at 2531.

[30] Id. at 2532.

[31] Id. at 2547.

[32] 913 F.2d 398, 403 (7th Cir. 1990).

Hoover Public Transportation

Hoover Public Transportation

Tiffany Ray

The Hoover City Schools in Central Alabama are no strangers to controversy. Among other things, the school system in recent years has endured a grade-changing scandal that resulted in several high-profile firings, and it has been sued by a student who was allegedly injured and arrested after falling asleep in class.[1] Now, the system is receiving national attention for its recent decision to end busing services for all but disabled students, a move that will disproportionately impact minority students.[2] The anticipated cuts have sparked criticism from some parents and community members, who have cited concerns about the decision’s potential to increase traffic as well as student tardiness and truancy.[3] Critics also worry about the safety of students who could be forced to walk long distances along busy commercial thoroughfares, or on streets with no sidewalks, and the additional burden the cuts will place on low-income families to get their kids to school.[4]

Clearly, the effects of such a decision are likely to impact Hoover as whole. However, findings that minority families may be disproportionately burdened by the loss of bus service are concerning and raise questions about what obligation public schools have to provide not only educational opportunities to children residing within their boundaries, but access to those opportunities.

Hoover has provided systemwide school bus services to students since its inception in 1988.[5] School officials claim eliminating the service, a measure approved by the school board July 15, is necessary to address funding shortfalls.[6] When it eliminates busing in the next school year, it will become one of only a handful of systems in the state that don’t provide it, and it will be the first to withdraw the service from its community.[7] Some parents have decried the decision for the burden it will place on low-income families who rely on busing to get their kids to school. Indeed, some allege that creating such a burden may be precisely the point: that eliminating bus service is a way to encourage families who would rely on such services to move elsewhere, or to discourage new low-income families from moving in.[8]

Whatever the motives of school officials in putting bus service on the chopping block in lieu of other programs or services, it certainly appears that a significant number of students will be impacted by the decision, and minority students particularly so. A local newspaper report found that nearly half of Hoover students were identified as likely bus riders next year, when the cuts take effect.[9] The report also found that 63 percent of black students in the Hoover system were likely bus riders, compared with only 44 percent of white students and about 55 percent of students categorized as “other.”[10]

The Supreme Court in its 1954 Brown v Board of Education of Topeka decision laid out the notion of equal educational opportunity, saying education is “perhaps the most important function of state and local governments … it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.”[11] The legislature followed with the Civil Rights Act of 1964, which prohibited not only intentional discrimination in programs receiving federal assistance, but also activities which unintentionally create discriminatory effects.[12] As Zachary W. Best explained in The Georgetown Law Journal, this disparate impact claim was successfully made in Lau v Nichols, where the Court found that schools discriminated by failing to provide adequate instruction to non-English-speaking students. [13] Since Lau, however, the evolution of disparate impact, with its burden-shifting framework (requiring plaintiffs to set out a prima facie case of discrimination, then offering defendants the opportunity to justify its actions on other, nondiscriminatory grounds, then returning to plaintiffs to show the defendants’ objectives are a merely a pretext for discrimination or could have been reached by other, nondiscriminatory means) has proven difficult for plaintiffs to overcome.[14] Moreover, individuals may no longer bring suit under Title VI but must funnel their claims through the U.S. Department of Education.[15]

The Supreme Court said in Washington v. Davis, the “central purpose of the Equal Protection Clause of the Fourteenth Amendment is the prevention of official conduct discriminating on the basis of race.”[16] However, the Court set the standard for a showing of Equal Protection violations similarly high, saying its “cases have not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely because it has a racially disproportionate impact.”[17] Indeed, speaking of school desegregation cases, the Court said such an act “must ultimately be traced to a racially discriminatory purpose,” though it went on to add that a disproportionate impact is at least relevant to showing a Constitutional claim.[18]

Best examines the issue in light of increasingly punitive school disciplinary policies and their disproportionate impact on minority students, calling for new standards in evaluating such claims, including a requirement that school systems not only enact policies neutrally, but that they do so with the goal of equal opportunity firmly in mind.[19] Requiring systems to actively seek out equal opportunity would “disallow apathy” and would comport better than current judicial policies with the intent of Equal Protection and Title VI, Best says.

Given the increasingly restrictive judicial review of disparate effects claims, a claim that eliminating school busing services violates guarantees of equal educational opportunities would seem to face significant roadblocks. Assuming a prima facie argument could be made, the district would be required to show a nondiscriminatory purpose for the cuts, and school officials already have spoken publicly about the system’s mounting budgetary problems, its deficit spending, and the difficulty of keeping up with its ever-increasing enrollment in the face of declining revenues.[20] Although the state reimburses school systems for most (about 80 percent currently) of its transportation costs, the large Hoover system will save an estimated $2.5 million a year of its own money by eliminating busing.[21] However, that’s a tiny piece of the district’s annual budget, estimated this year at about $167 million, and it still leaves the system with a $14 million hole in its budget.[22] Officials have said they targeted bus services because they wanted to keep spending cuts “away from the classroom,” but it seems more likely that these particular cuts would keep some children – a disproportionate number of them minority students – away from school.[23] Still, public outcry over the cuts may be having some impact: Hoover’s Superintendent, Andy Craig, has said the district is devising alternatives to bus cuts.[24] Stay tuned.

[1] Jon Solomon and Erin Stock, “Political football: Hoover city, school leaders helped make coach powerful,”, Feb. 27, 2008,; Kelsey Stein, “Hoover student claims in lawsuit that she was injured, arrested after falling asleep at desk,, May 9, 2013,

[2] Marie Leech, “Hoover bus cuts: Minority students more likely to ride bus than white students, data show,”, Sept. 17, 2013,

[3] Jon Anderson, “Hoover parents beg school officials to reverse school bus cuts at forum (photos),”, Aug. 8, 2013,; Jon Anderson, “Crowd fills Hoover school boardroom to air concerns over planned school bus cuts (photos),”, July 29, 2013,

[4] Anderson, Supra note 3.

[5] Marie Leech, “To bus or not to bus: Four points as Hoover eyes ending bus services,”, Sep. 3, 2013,

[6] Jeremy Gray, “Hoover to cut school bus service in 2014-15 school year in effort to save $2.5 million,”, July 15, 2013,

[7] Leech, supra note 5.

[8] Marie Leech, “Hoover bus cuts: Minority students more likely to ride bus than white students, data show,” AL.COM, Sept. 17, 2013,

[9] Id.

[10] Id.

[11] Brown v. Bd. of Ed. of Topeka, Shawnee Cnty., Kan., 347 U.S. 483, 493 (1954).

[12] Zachary W. Best, “Derailing the Schoolhouse-to-Jailhouse Track: Title VI and a New Approach to Disparate Impact Analysis in Public Education,” 99 Geo. L.J. 1671, 1685 (2011).

[13] Lau v. Nichols, 414 U.S. 563 (1974).

[14] Best, supra note 13.

[15] Id.

[16] 429 U.S. 229, 239 (1976).

[17] Id.

[18] Id. at 240-41.

[19] Id. at 1714.

[20] Marie Leech, “To bus or not to bus: Four points as Hoover eyes ending bus services,” AL.COM, Sep. 3, 2013,; Jon Anderson, “Hoover parents beg school officials to reverse school bus cuts at forum (photos),”, Aug. 8, 2013,

[21] Leech, supra note 20.

[22] Marie Leech, “Hoover bus cuts: Minority students more likely to ride bus than white students, data show,” AL.COM, Sept. 17, 2013,

[23] Leech, supra note 21.

[24] Anderson, supra note 20.

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