Motley Speaker Series: Structural Racism in Employment

Motley Speaker Series: Structural Racism in Employment

December 16, 2020

3:30 p.m. – 5:00 p.m.

CT Bar Association

Webinar

CT Bar Institute, Inc.

CT: 1.5 CLE Credits (Ethics)

No representation or warranty is made as to the accuracy of these materials. Readers should check primary sources where appropriate and use the traditional legal research techniques to make sure that the information has not been affected or changed by recent developments.

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Table of Contents Lawyers’ Principles of Professionalism ..................................................................................................................3

Faculty Biographies ................................................................................................................................................6

Structural Racism in Employment ..........................................................................................................................8

Resources ..............................................................................................................................................................26

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Approved by the House of Delegates October 19, 2020

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LAWYERS’ PRINCIPLES OF PROFESSIONALISM

As a lawyer, I have dedicated myself to making our system of justice work fairly and efficiently

for all. I am an officer of this Court and recognize the obligation I have to advance the rule of

law and preserve and foster the integrity of the legal system. To this end, I commit myself not

only to observe the Connecticut Rules of Professional Conduct, but also conduct myself in

accordance with the following Principles of Professionalism when dealing with my clients,

opposing parties, fellow counsel, self-represented parties, the Courts, and the general public.

Civility:

Civility and courtesy are the hallmarks of professionalism. As such,

I will be courteous, polite, respectful, and civil, both in oral and in written

communications;

I will refrain from using litigation or any other legal procedure to harass an opposing

party;

I will not impute improper motives to my adversary unless clearly justified by the facts

and essential to resolution of the issue;

I will treat the representation of a client as the client’s transaction or dispute and not as a

dispute with my adversary;

I will respond to all communications timely and respectfully and allow my adversary a

reasonable time to respond;

I will avoid making groundless objections in the discovery process and work

cooperatively to resolve those that are asserted with merit;

I will agree to reasonable requests for extensions of time and for waiver of procedural

formalities when the legitimate interests of my client will not be adversely affected;

I will try to consult with my adversary before scheduling depositions, meetings, or

hearings, and I will cooperate with her when schedule changes are requested;

When scheduled meetings, hearings, or depositions have to be canceled, I will notify my

adversary and, if appropriate, the Court (or other tribunal) as early as possible and enlist

their involvement in rescheduling; and

I will not serve motions and pleadings at such time or in such manner as will unfairly

limit the other party’s opportunity to respond.

Honesty:

Honesty and truthfulness are critical to the integrity of the legal profession – they are core values

that must be observed at all times and they go hand in hand with my fiduciary duty. As such,

I will not knowingly make untrue statements of fact or of law to my client, adversary or

the Court;

I will honor my word;

I will not maintain or assist in maintaining any cause of action or advancing any position

that is false or unlawful;

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I will withdraw voluntarily claims, defenses, or arguments when it becomes apparent that

they do not have merit or are superfluous;

I will not file frivolous motions or advance frivolous positions;

When engaged in a transaction, I will make sure all involved are aware of changes I make

to documents and not conceal changes.

Competency:

Having the necessary ability, knowledge, and skill to effectively advise and advocate for a

client’s interests is critical to the lawyer’s function in their community. As such,

I will keep myself current in the areas in which I practice, and, will associate with, or

refer my client to, counsel knowledgeable in another field of practice when necessary;

I will maintain proficiency in those technological advances that are necessary for me to

competently represent my clients.

I will seek mentoring and guidance throughout my career in order to ensure that I act with

diligence and competency.

Responsibility:

I recognize that my client’s interests and the administration of justice in general are best served

when I work responsibly, effectively, and cooperatively with those with whom I interact. As

such,

Before dates for hearings or trials are set, or if that is not feasible, immediately after such

dates have been set, I will attempt to verify the availability of key participants and

witnesses so that I can promptly notify the Court (or other tribunal) and my adversary of

any likely problem;

I will make every effort to agree with my adversary, as early as possible, on a voluntary

exchange of information and on a plan for discovery;

I will attempt to resolve, by agreement, my objections to matters contained in my

opponent's pleadings and discovery requests;

I will be punctual in attending Court hearings, conferences, meetings, and depositions;

I will refrain from excessive and abusive discovery, and I will comply with all reasonable

discovery requests;

In civil matters, I will stipulate to facts as to which there is no genuine dispute;

I will refrain from causing unreasonable delays;

Where consistent with my client's interests, I will communicate with my adversary in an

effort to avoid needless controversial litigation and to resolve litigation that has actually

commenced;

While I must consider my client’s decision concerning the objectives of the

representation, I nevertheless will counsel my client that a willingness to initiate or

engage in settlement discussions is consistent with zealous and effective representation.

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Mentoring:

I owe a duty to the legal profession to counsel less experienced lawyers on the practice of the law

and these Principles, and to seek mentoring myself. As such:

I will exemplify through my behavior and teach through my words the importance of

collegiality and ethical and civil behavior;

I will emphasize the importance of providing clients with a high standard of

representation through competency and the exercise of sound judgment;

I will stress the role of our profession as a public service, to building and fostering the

rule of law;

I will welcome requests for guidance and advice.

Honor:

I recognize the honor of the legal profession and will always act in a manner consistent with the

respect, courtesy, and weight that it deserves. As such,

I will be guided by what is best for my client and the interests of justice, not what

advances my own financial interests;

I will be a vigorous and zealous advocate on behalf of my client, but I recognize that, as

an officer of the Court, excessive zeal may be detrimental to the interests of a properly

functioning system of justice;

I will remember that, in addition to commitment to my client's cause, my responsibilities

as a lawyer include a devotion to the public good;

I will, as a member of a self-regulating profession, report violations of the Rules of

Professional Conduct as required by those rules;

I will protect the image of the legal profession in my daily activities and in the ways I

communicate with the public;

I will be mindful that the law is a learned profession and that among its desirable goals

are devotion to public service, improvement of administration of justice, and the

contribution of uncompensated time and civic influence on behalf of those persons who

cannot afford adequate legal assistance; and

I will support and advocate for fair and equal treatment under the law for all persons,

regardless of race, color, ancestry, sex, pregnancy, religion, national origin, ethnicity,

disability, status as a veteran, age, gender identity, gender expression or marital status,

sexual orientation, or creed and will always conduct myself in such a way as to promote

equality and justice for all.

Nothing in these Principles shall supersede, supplement, or in any way amend the Rules of

Professional Conduct, alter existing standards of conduct against which a lawyer’s conduct might

be judged, or become a basis for the imposition of any civil, criminal, or professional liability.

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Faculty Biographies

Shannon Gleeson is Associate Professor of Labor Relations, Law, and History at Cornell University. Her books include Precarious Claims: The Promise and Failure of Workplace Protections in the United States (2016), and Conflicting Commitments: The Politics of Enforcing Immigrant Worker Rights in San Jose and Houston (2012). Among her current research projects, she is studying the effects of temporary immigration status on worker legal mobilization in New York City.

Lori Isley is an attorney with Columbia Legal Services. She has practiced with legal services organizations in Yakima, Washington since she graduated from Northeastern University School of Law in 1991. For the last 15 years she has focused on working with farmworkers in class action litigation and civil rights cases. She argued Martinez v. DeRuyter Brothers before the Washington Supreme Court in which the Court recently found the exclusion of dairy workers from overtime protection violated Washington’s state constitution.

Han Lu is a lawyer and policy analyst at the National Employment Law Project in New York City, where he focuses on work issues and criminal justice. Prior to joining NELP, he worked at the New Orleans Public Defenders where he was a line defender and Gideon’s Promise Fellow, as well at the New Orleans Workers’ Center for Racial Justice and A New Way of Life Reentry Project. He grew up in Louisiana.

Sachin Pandya is a professor of law at the University of Connecticut School of Law. Professor Pandya’s scholarship has focused on American employment law, tort law, and the origins of the American liability insurance market. Since joining the Law School in 2008, Professor Pandya has taught Torts, Employment Law, and advanced seminars on related topics.

A graduate of Yale Law School (J.D.), Columbia University (M.A. Sociology), and the University of California, Berkeley (B.A. Social Science), Professor Pandya clerked for the Honorable Jon O. Newman, United States Court of Appeals for the Second Circuit, after which he served as an appellate and civil rights attorney in the Office of the New York Attorney General. There, he litigated, and often personally argued, many complex cases in New York State’s appellate courts and the U.S. Court of Appeals for the Second Circuit. He also helped litigate cases in the US Supreme Court. In 2004, he was a co-recipient of a Best U.S. Supreme Court Brief Award from National Association of Attorneys General. Professor Pandya started his law teaching career as a teaching fellow at Columbia Law School.

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Natalicia Tracy, PhD, is Executive Director of Boston's Brazilian Worker Center, which supports immigrant workers on issues of workplace rights and immigration. She co-founded the Massachusetts Coalition for Domestic Workers that led the campaign to pass the state's 2014 Domestic Worker Bill of Rights, and, in 2015, rights for domestic workers in Connecticut under the CHRO. She is also Resident Scholar at the UMass Boston Labor Resource Center, and Lecturer in Labor Studies and in Sociology.

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Structural racism in employment

Connecticut Bar Association

Constance Baker’s Motley Speaker Series

Han [email protected]

December 16, 2020

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SOURCE: http://www.nelp.org/publication/research‐supports‐fair‐chance‐policies/

That’s nearly 1 in 3 adults.

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Over 70 million people in the US have an arrest or conviction record.

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Details on the data are available in Prison Policy Institute’s States of Incarceration: The Global Context. Prisonpolicy.org also has a version of this graph focusing on the incarceration of women.

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Radical Racialized Inequality in Connecticut Incarceration – per 100K

0

200

400

600

800

1000

1200

1400

1600

White Black Hispanic'

SOURCE: The Sentencing Project, The Color of Justice: Racial and Ethnic Disparity in State Prisons (2016), https://www.sentencingproject.org/publications/color‐of‐justice‐racial‐and‐ethnic‐disparity‐in‐state‐prisons/

In Connecticut, Black people are incarcerated at a rate over nine times the rate of white people – the sixth highest race disparity in the country.

1 in 19 Black adult men in Connecticut are incarcerated.

The scale of disparity in incarceration rates cannot be accounted for by higher rates of offense.

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SOURCES: NELP, “Research Summary” (2017), http://www.nelp.org/publication/research‐supports‐fair‐chance‐policies/ and Brennan Center, “Conviction, Imprisonment, and Lost Earnings: How Involvement with the Criminal Justice System Deepens Inequality” (2020) https://www.brennancenter.org/our‐work/research‐reports/conviction‐imprisonment‐and‐lost‐earnings‐how‐involvement‐criminal; Devah Pager, The Mark of a Criminal Record (2003), https://scholar.harvard.edu/pager/publications/mark‐criminal‐record

Fair Chance View on Intersection with Employment

Nearly half of children have a parent with a record

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NELP Fair Chance Resources

Unlicensed & Untapped: Removing Barriers to State Occupational Licenses for People with Records (2016)http://nelp.org/publication/unlicensed‐untapped‐removing‐barriers‐state‐occupational‐licenses/

Fair Chance Licensing Reform Toolkit (2019) http://www.nelp.org/publication/fair‐chance‐licensing‐reform‐opening‐pathways‐for‐people‐with‐records‐to‐join‐licensed‐professions/

Ban the Box State and Local Guide (2020) https://www.nelp.org/publication/ban‐the‐box‐fair‐chance‐hiring‐state‐and‐local‐guide/

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New Orleans

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Pop. ~400K, metro area ~750K

44,373 people have 55,047 outstanding warrants for municipal and traffic offenses

1 in 7 adults has an active warrant from municipal/traffic court

48% unemployment among Black men between 17‐35 years old

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Stand with Dignity campaign timeline

2011: 50 jobs, training, and wage increase for workers

rebuilding Calliope Housing Project post Katrina (2005)

2012: Training policy & career ladders for local workers in

publicly funded construction projects

2013: Iberville Housing Projects worker‐member injured

on this job, win Health and Safety protections for city

construction and demolition workers

2015: Win HANO policy to end exclusion of people with

records from public housing

2016: Win Living Wage Ordinance for City employment

and a local hire & apprenticeship program

2016: Win food stamps without work requirements

2017 to Present: New Orleans Shakedown8

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Stand with Dignity

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Fines & fees campaign called “NOLA Shakedown”Coming out of Ferguson/BLM moment

Taking ability to pay hearings seriouslyAbolishing fees & court costsProhibiting jailing for poverty offensesClearing warrants for failure to pay/failure to appear

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2017 Community Warrant ClinicsIn 2017 Stand with Dignity organized two community clinics to clear municipal and traffic warrants, fines, and fees. Stand led this charge in partnership with other community organizations, the M&TCNO judges and staff, the City Attorney’s office in the first warrant clinic, and OPD.

● Over $3 million debt cleared for low‐income workers

● Courts received payments

● 800+ people with reduced or removed fines & fees

● 1,000+ license reinstatement letters issued

● 2,500 impacted people reached

● The community at large is less afraid to go to court

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Working under threat of jail

• Pressure to accept bad jobs• Tool for employer retaliation

• Creation of legally unprotected work• Displacement of other workers

• Depression of standards

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Work or Jail

DirectBail conditions

Probation & parole conditions

Community service sentences

Work as rehabilitation

Duties to pay (work)Child supportCriminal legal debt (fines & fees)Traffic legal debt

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“Get To Work or Go To Jail”

WorkMandates

Threat of State Violence

“Free” in theCommunity

SOURCE: Following four slides are from UCLA Prof. of Law Noah Zatz presentation at “Caging the Unemployed: Mass Criminalization as a Labor Market Institution” at NELP’s We’re All In National Conference, 2019.

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Welfare Work Requirements

WorkMandates



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Welfare Work Requirements Prison Labor

WorkMandates



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Welfare Work Requirements Prison Labor Unauthorized

Immigrant Labor

WorkMandates



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Employment Rights LitigationStatutory Coverage Thirteenth Amendment

Arriaga v. County of Alameda, 892 P.2d 150 (Cal. 1995) Community service to work off court debt employment for Workers Comp

Doyle v. City of New York, 91 F.Supp.3d 480 (S.D.N.Y. 2015) Community service as diversion NOT employment for FLSA

Vaughn v. Phoenix House Found., 2019 WL 568012 (S.D.N.Y. 2019) Residential rehab center maintenance

work as diversion into rehab NOT employment for FLSA

Copeland v. C.A.A.I.R., Inc., 2019 WL 4307125 (N.D. Okla. 2019); Fochtman v. DARP, Inc., 2019 WL 4740510 (W.D. Ark. 2019) Poultry processing and plastic

manufacturing as “drug rehab” diversion Joint employment for FLSA

U.S. v. Reynolds, 235 U.S. 133 (1914) Prosecution for quitting private employer

who paid off court debt unconstitutional involuntary

servitude/peonage

U.S. v. Ballek, 170 F.3d 871 (9th Cir. 1999); Moss v. Superior Court, 950 P.2d 59 (Cal. 1998) Incarceration for “willful” child support

nonpayment based on voluntary unemployment no 13th amd violation

Opinion of the Justices, 431 A.2d 144 (N.H. 1981); State ex rel. Carriger v. City of Galion, 560 N.E.2d 194 (Ohio 1990) Community service to work off court fees unconstitutional involuntary servitude

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Additional Resources

• NELP’s Fair Chance Campaign Site: https://www.nelp.org/campaign/ensuring‐fair‐chance‐to‐work/

• Email list: https://connect.nelp.org

• Brennan Center, “Conviction, Imprisonment, and Lost Earnings: How Involvement with the Criminal Justice System Deepens Inequality” (2020) https://www.brennancenter.org/our‐work/research‐reports/conviction‐imprisonment‐and‐lost‐earnings‐how‐involvement‐criminal

• Stand with Dignity, New Orleans Workers Center for Racial Justice, “NOLA Shakedown: How Criminalizing Municipal Fines and Fees Trap Poor and Working Class Black New Orleanians in Poverty” (2019) https://www.nolashakedown.org/report

• UCLA Labor Center, “Work, Pay, or Go to Jail: Court‐ordered Community Service in Los Angeles,” (2019) https://www.labor.ucla.edu/publication/communityservice/

• Reveal News – Center for Investigative Reporting, American Rehab, https://revealnews.org/topic/all‐work‐no‐pay/

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Motley Speaker Series: Structural Racism in Employment (EMS201216) December 16, 2020, 3:30 PM to 5:00 PM EST https://www.ctbar.org/events-education/events/event/2020/12/16/default-calendar/motley-speaker-series-structural-racism-in-employment-ems201216-1430187 Shannon Gleeson, Associate Professor Cornell University, School of Industrial and Labor Relations https://www.ilr.cornell.edu/directory/smg338/ RESOURCES Theorizing Structural Racism

Golash-Boza, Tanya. 2016. “A Critical and Comprehensive Sociological Theory of Race and Racism.” Sociology of Race and Ethnicity 2 (2): 129–41. https://doi.org/10.1177/2332649216632242. Whiteness and the Workplace

Ray, Victor. 2019. “Why So Many Organizations Stay White.” Harvard Business Review, November 19, 2019. https://hbr.org/2019/11/why-so-many-organizations-stay-white. Race, Immigration, National Origin

Saucedo, Leticia M. 2017. “The Legacy of the Immigrant Workplace: Lessons for the 21st Century Economy.” T. Jefferson L. Rev. 40: 1. https://drive.google.com/file/d/1edYgzGt0xIHSEk7Ef2ihJabqbxvHaGd9/view https://www.cornell.edu/video/immigrant-workplace-lessons-for-21st-century-economy Accessing & Mobilizing Rights at Work

Garcia, Ruben J. 2012. Marginal Workers: How Legal Fault Lines Divide Workers and Leave Them Without Protection. New York: NYU Press. https://nyupress.org/9780814732212/marginal-workers/ Framing the Workplace Claim

Alexander, Charlotte S., Zev J. Eigen, and Camille Gear Rich. 2016. “Post-Racial Hydraulics: The Hidden Dangers of the Universal Turn.” New York University Law Review 91: 1–58. https://www.nyulawreview.org/issues/volume-91-number-1/post-racial-hydraulics-the-hidden-dangers-of-the-universal-turn/ Intersectionality Before the Courts

Best, Rachel Kahn, Lauren B. Edelman, Linda Hamilton Krieger, and Scott R. Eliason. 2011. “Multiple Disadvantages: An Empirical Test of Intersectionality Theory in EEO Litigation.” Law & Society Review 45 (4): 991–1025. https://doi.org/10.1111/j.1540-5893.2011.00463.x Discrimination Impacts on Workers

McCluney, Courtney L., Lauren L. Schmitz, Margaret T. Hicken, and Amanda Sonnega. 2018. “Structural Racism in the Workplace: Does Perception Matter for Health Inequalities?” Social Science & Medicine (1982) 199 (February): 106. https://doi.org/10.1016/j.socscimed.2017.05.039 The Future of Work

Ajunwa, Ifeoma. 2020. “Race, Labor, and the Future of Work.” SSRN Scholarly Paper ID 3670785. Rochester, NY: Social Science Research Network. https://papers.ssrn.com/abstract=3670785.

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https://www.ctbar.org/events-education/events/event/2020/12/16/default-calendar/motley-speaker-series-structural-racism-in-employment-ems201216-1430187

https://www.ctbar.org/events-education/events/event/2020/12/16/default-calendar/motley-speaker-series-structural-racism-in-employment-ems201216-1430187

https://www.ilr.cornell.edu/directory/smg338/

https://doi.org/10.1177/2332649216632242

https://hbr.org/2019/11/why-so-many-organizations-stay-white

https://drive.google.com/file/d/1edYgzGt0xIHSEk7Ef2ihJabqbxvHaGd9/view

https://www.cornell.edu/video/immigrant-workplace-lessons-for-21st-century-economy

https://nyupress.org/9780814732212/marginal-workers/

https://www.nyulawreview.org/issues/volume-91-number-1/post-racial-hydraulics-the-hidden-dangers-of-the-universal-turn/

https://www.nyulawreview.org/issues/volume-91-number-1/post-racial-hydraulics-the-hidden-dangers-of-the-universal-turn/

https://doi.org/10.1111/j.1540-5893.2011.00463.x

https://doi.org/10.1016/j.socscimed.2017.05.039

https://papers.ssrn.com/abstract=3670785

Lori Isley, Attorney Columbia Legal Services, Yakima, WA

RESOURCES

Documents are available at the links below to one of the amicus which talks about the racial motivation behind New Deal legislation and to the opinion, Justice Gonzalez’s concurring opinion (starts at page 21 of the opinion) is illustrative.

https://www.courts.wa.gov/content/Briefs/A08/962677%20Amicus%20-%20Farmworker%20Justice%20Project.pdf

https://www.courts.wa.gov/opinions/pdf/962677.pdf

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Motley Speaker Series: Structural Racism in Employment

Documents

Transcript of Motley Speaker Series: Structural Racism in Employment