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Discrimination Law

Religious Liberty after Hobby Lobby - Event Video

2014 National Lawyers Convention
Kim Colby, William P. Marshall, Robin Fretwell Wilson, Diarmuid F. O'Scannlain, William L. Saunders November 14, 2014

The U.S. Supreme Court’s 2013-14 Term included two major religion cases, Town of Greece v. Galloway and Burwell v. Hobby Lobby.  In Galloway, the Court held that prayers offered by local clergy at the start of town board meetings did not violate the Establishment Clause.  In Hobby Lobby, the Court held that the Religious Freedom Restoration Act required that corporations whose owners object to the HHS contraceptive mandate be exempt from it.  The panel will explore, from a range of perspectives, the significance of Hobby Lobby and the religious freedom jurisprudence of the Roberts Court.  Among the topics to be considered are the analysis under RFRA of the government’s compelling interest and the narrow tailoring requirements, the interplay between religious exemptions and the Establishment Clause, emerging issues at the intersection of religious freedom and anti-discrimination laws, ongoing challenges to the HHS contraceptive mandate, and the legacy of Hobby Lobby for future First Amendment and religious freedom cases.

The Federalist Society's Religious Liberties Practice Groups presented this panel on "Religious Liberty after Hobby Lobby" on Thursday, November 13, during the 2014 National Lawyers Convention.

Featuring:

  • Ms. Kim Colby, Senior Counsel, Christian Legal Society
  • Prof. William P. Marshall, William Rand Kenan, Jr. Distinguished --Professor of Law, University of North Carolina School of Law
  • Prof. Robin Fretwell Wilson, Roger and Stephany Joslin Professor of Law and Director, Program in Family Law and Policy, University of Illinois College of Law
  • Moderator: Hon. Diarmuid F. O’Scannlain, U.S. Court of Appeals for the 9th Circuit
  • Introduction: Mr. William L. Saunders, Senior Vice President and Senior Counsel, Americans United for Life and Chairman, Religious Liberties Practice Group

Mayflower Hotel
Washington, DC

Executive Order 13672: The LGBT Executive Order - Podcast

Religious Liberties Practice Group Podcast
Carl H. Esbeck, Stanley Carlson-Thies, Robin Fretwell Wilson September 18, 2014

On July 21, 2014 President. Obama issued Executive Order 13672, amending EO 11246 which has been around since 1965. The new EO added sexual orientation and gender identity to the list of prohibited bases of employment discrimination by federal contractors. The order applies to all employees of a contractor, not just those working on a federal contract. It also requires the contractor to hold itself out to the public as an equal opportunity employer with respect to these newly protected classes, and to post in conspicuous places notice to employees and job applicants of its nondiscrimination duties.

Some religious organizations are federal contractors. This has long been the practice with respect to international relief efforts, as well as for services to meet the religious needs of those in prison and serving in the armed forces. Religious organizations petitioned the White House for an exemption from these new requirements. Although they did not succeed, they were able to convince President Obama to leave intact a more limited religious exception permitting religious organizations to staff on a religious basis, an exception drawn from Title VII of the 1964 Civil Rights Act.

  • Prof. Carl H. Esbeck, R.B. Price Professor Emeritus and Isabelle Wade & Paul C. Lyda Professor of Law Emeritus, University of Missouri, Columbia School of Law
  • Dr. Stanley W. Carlson-Thies, Founder and President, Institutional Religious Freedom Alliance; Senior Fellow and former Director of Social Policy Studies, Center for Public Justice; former Director, White House Office of Faith-Based & Community Initiatives
  • Prof. Robin Fretwell Wilson, Director, Program in Family Law and Policy, University of Illinois College of Law

Place, Not Race: A New Vision of Opportunity in America - Podcast

Civil Rights Practice Group Podcast
Sheryll D. Cashin, Roger B. Clegg September 17, 2014

Race-based affirmative action had been declining as a factor in university admissions even before the recent spate of related cases arrived at the Supreme Court. Since the mid-1990s, the percentage of four-year public colleges that consider racial or ethnic status in admissions has fallen from 60 percent to 35 percent. Only 45 percent of private colleges still explicitly consider race, with elite schools more likely to do so, although they too have retreated. Law school professor and civil rights activist Sheryll Cashin believes that this isn’t entirely bad news, because, as she argues, affirmative action as currently practiced does little to help disadvantaged people. The truly disadvantaged are not getting the quality schooling they need in part because backlash and wedge politics undermine any possibility for common-sense public policies. Using place instead of race in diversity programming, she writes, will better amend the structural disadvantages endured by many children of color, while enhancing the possibility that we might one day move past the racial resentment that affirmative action engenders. In Place, Not Race: A New Vision of Opportunity in America, Professor Cashin reimagines affirmative action and champions place-based policies, arguing that college applicants who have thrived despite exposure to neighborhood or school poverty are deserving of special consideration.

Disparate Impact and the Rule of Law: Does Disparate Impact Liability Make Everything Illegal? - Event Audio/Video

Civil Rights in the United States
Roger B. Clegg, Peter N. Kirsanow, Theodore M. Shaw, John G. Malcolm, Dean A. Reuter September 14, 2014

Disparate impact liability—or holding an actor liable for actions that have a disproportionate effect (disparate impact) on a particular race, sex, national origin, or religion—was invented by the Equal Employment Opportunity Commission during the Johnson administration as a strategy for stepping up the fight against employment discrimination. The Supreme Court eventually adopted this theory of liability in the employment context in the controversial case of Griggs v. Duke Power, 401 U.S. 424 (1971). Congress later incorporated it into the employment context in the Civil Rights Act of 1991. The Obama administration has eagerly embraced disparate impact liability: Administration officials have applied it to new areas, like housing, education and credit. Disturbingly to some, these officials have also arranged settlements in lawsuits headed to the Supreme Court that appeared likely to result in decisions limiting the doctrine’s reach. Because nearly every employment, education, housing, or lending policy has a disproportionate effect on some protected group, the recent growth of disparate impact means that virtually any such policy may be deemed illegal. Panelists will discuss whether and to what extent disparate impact’s metastasis thus threatens traditional principles of the rule of law and whether it is consistent with statutory law and the Constitution.

This panel on "Disparate Impact and the Rule of Law: Does Disparate Impact Liability Make Everything Illegal?" was part of a day-long conference on Civil Rights in the United States held on September 9, 2014, co-sponsored by the Federalist Society's Civil Rights Practice Group, the Cato Institute, and the Heritage Foundation.

Featuring:

  • Mr. Roger B. Clegg, President and General Counsel, Center for Equal Opportunity
  • Hon. Peter N. Kirsanow, Benesch, Friedlander, Coplan & Aronoff LLP and Commissioner, U.S. Commission on Civil Rights and former Member, National Labor Relations Board
  • Prof. Theodore M. Shaw, Julius L. Chambers Distinguished Professor of Law and the Director of the Center for Civil Rights, University of North Carolina Law School
  • Moderator: Mr. John G. Malcolm, Director and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation
  • Introduction: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

The Mayflower Hotel
Washington, DC

Disparate Impact Analysis - Event Audio/Video

Second Annual Executive Branch Review Conference
Gail Heriot, Peter N. Kirsanow, Theodore M. Shaw, Adam Liptak May 14, 2014

Disparate Impact Analysis - Event Audio/VideoUnder disparate impact analysis, certain practices might be considered discriminatory if they have a disproportionate adverse impact on a protected class of persons, even without discriminatory intent. A number of commentators have noted an expansion of the use of disparate impact analysis in the federal government to areas other than employment, now including education, housing, government contracting, and auto financing, to name a few. Our panel of experts will discuss whether or not there has been such an increase, and, if so, what the ramifications might be.

A key element of the Practice Groups' Executive Branch Review project is our annual conference. This year's Executive Branch Review Conference took place on May 7th at the Mayflower Hotel in Washington, D.C.

Disparate Impact Analysis
11:00 a.m. – 12:15 p.m.
Promenade Ballroom

  • Hon. Gail Heriot, Professor of Law, University of San Diego School of Law and Commissioner, U.S. Commission on Civil Rights
  • Hon. Peter N. Kirsanow, Benesch, Friedlander, Coplan & Aronoff LLP and Commissioner, U.S. Commission on Civil Rights and former Member, National Labor Relations Board
  • Prof. Theodore M. Shaw, Professor of Professional Practice in Law, Columbia University School of Law
  • Moderator: Mr. Adam Liptak, Supreme Court Correspondent, The New York Times

Mayflower Hotel
Washington, DC