Race, Racism and the Law 
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Article 6 Assure Effective Protection and Remedies

United States Report on Convention on Elimination of All Forms of Racial Discrimination,
  Initial Country Report (Sept, 2000). 

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Vernellia R. Randall
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 Article 6 requires States Parties to assure persons within their jurisdictions effective protection and remedies through tribunals and other institutions for acts of racial discrimination, including the right to seek "just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination."

As set forth throughout this report, U.S. law offers those affected by racial discrimination a number of different remedies, ranging from individual suits in the courts, to reliance on administrative procedures to criminal prosecution of offenders.

Private suits. The federal statutes derived from the Civil Rights Act of 1868, including most of the laws dealing with discrimination by governments and their officials, give the individual a "cause of action," i.e., a right to sue in federal court to correct the alleged discrimination. See, e.g., 42 U.S.C. sec. 1981-1985. These suits may seek injunctive relief, which requires the governmental unit or official to correct the conduct, and monetary relief, which requires the payment of damages. A government official who "knew or ought to have known" that the conduct was unconstitutional or in violation of federal law may also be subjected to punitive or exemplary damages. If the plaintiff "substantially prevails" in one of these suits, the plaintiff can also recover attorneys' fees. Private litigation under these provisions has played a substantial role in promoting and protecting racial equality. Non-governmental organizations that promote civil rights are frequently involved in assisting individual lawsuits. Further, the availability of recovery of attorneys fees has encouraged lawyers and organizations to come to the assistance of such individuals and provides the financial wherewithal to pursue future cases.

Civil Suits by the United States. In many circumstances, the Federal government is authorized to initiate suits to enforce racial equality. See, e.g., the Voting Rights Act, the Fair Housing Act; Titles II, IV and VII of the Civil Rights Act; and the Equal Credit Opportunity Act. Involvement of the government agency in such litigation is important because these suits usually include allegations of discriminatory "patterns or practices" that require intensive investigation that would be difficult for a private party to pursue. The Department of Justice also administers the pre-clearance requirement of the Voting Rights Act, which requires review and approval of changes in state and local voting practices and procedures to assure that they do not have the purpose or effect of denying or abridging the right to vote of members of minority groups. It applies in states and other jurisdictions which historically have denied or abridged minority voting rights.

In addition, under the Fair Housing Act, the Secretary of Housing and Urban Development may initiate investigations and file complaints relating to cases of housing discrimination. The Secretary can also commence actions in administrative tribunals to enforce laws prohibiting housing discrimination.

Criminal prosecution. A number of federal statutes also provide for criminal penalties for intentional or willful violations. In these cases, the U.S. Attorney for the district in question will initiate an investigation, either on the prosecutor's own initiative or on information provided by the Civil Rights Division or by the private complaining party.

Administrative remedies. An entire federal agency, the Equal Employment Opportunity Commission (EEOC), is devoted to the enforcement of anti-discrimination laws relating to employment. An individual may file a complaint with the Commission, which engages in initial investigation and attempts to provide a resolution of the matter through conciliation. In cases where conciliation fails and a determination is made to file a lawsuit to vindicate the public interest, it may assume direct responsibility for prosecuting the case. In other cases, it will issue a "right to sue" letter, permitting the individual to pursue the claim in private litigation.

By statute, the EEOC has five Commissioners and a General Counsel, each of whom is appointed by the President of the United States and confirmed by the Senate. With its headquarters in Washington, DC, the EEOC operates approximately fifty field offices nationwide, including district, area and local offices. Each of these field offices has an enforcement staff responsible for accepting charges of discrimination from the public, investigating the charges, and attempting conciliation and mediation. Each district and most area offices also have a legal unit, responsible for providing legal advice to the enforcement staff and bringing lawsuits in federal court to enforce Title VII.

In addition to enforcement efforts through the administrative process and litigation, the EEOC enforces Title VII though various other means. For instance, the EEOC issues procedural regulations implementing Title VII, requires employers to post notices summarizing the requirements of Title VII, and requires large employers to file reports on the relationship of minority workers to the employer's total workforce in specified job categories.

The EEOC recently has been able to implement significant changes in the pursuit of ending race discrimination. The EEOC has increased its staff of investigators and attorneys and has modernized its technology. In addition, the EEOC has developed a comprehensive strategic enforcement model to reduce the backlog of charges, increase the number of charges resolved through mediation, develop closer ties with its stakeholders in local communities, and increase public awareness of discrimination. In the arena of federal employment, the EEOC has modified the regulation governing the administrative complaint process, 29 C.F.R. 1614, to streamline the process by eliminating unnecessary layers of review and addressing perceptions of unfairness. The most significant change is the transfer of authority to issue a final decision on discrimination complaints from the agency charged with discrimination to the EEOC.

Since its creation in 1965, the EEOC (and state and local fair employment practice agencies, known as FEPAs) have received approximately 1.2 million charges of discrimination based on race and approximately 275,000 charges of discrimination based on national origin. In Fiscal Year 1999, the EEOC and the FEPAs received approximately 50,000 charges of discrimination based on race and approximately 13,000 charges of discrimination based on national origin. Since 1965, the EEOC and the FEPAs have recovered more than $2.2 billion in monetary damages through voluntary settlement or conciliation during the administrative process on behalf of victims of discrimination. In 1999 alone, the EEOC recovered over $210 million in monetary damages in the administrative process. The EEOC also has initiated lawsuits based on many meritorious charges that were not resolved in the administrative process, recovering over $8.5 million in 1999. Over the past ten years, the EEOC has filed 866 lawsuits alleging discrimination based on race and 242 lawsuits alleging discrimination based on national origin. In many cases, the EEOC secures other valuable relief in addition to monetary damages, such as reinstatement of wrongfully discharged employees, court-ordered training in the equal employment opportunity laws, the development of written equal employment opportunity policies, and court orders prohibiting specific discriminatory practices. Taken together, the monetary and non-monetary relief serve the dual purpose of compensating victims of discrimination and preventing similar forms of discrimination from recurring in the future.

 

Other federal agencies also play important roles in enforcing civil rights and equal protection:

At the Department of Labor's Office of Federal Contract Compliance Programs, individuals may file complaints if they believe they have been discriminated against by federal contractors or subcontractors, and the Office itself may conduct compliance investigations to determine whether contractors are complying with Executive Order 11246's non-discrimination and affirmative action obligations. Complaints may also be filed by organizations on behalf of the person or persons affected. Other departments administer laws requiring recipients of federal financial assistance to provide equal opportunity for participants of programs that receive the federal financial assistance.

As discussed earlier, the Department of Education's Office of Civil Rights (OCR) bears primary responsibility for enforcing laws prohibiting discrimination in educational programs and activities receiving federal financial assistance. But while a large share of OCR's work is enforcement, OCR also issues national policy statements that define to the nation-at-large the scope of legal requirements to eliminate racial barriers to equal educational opportunity. These policies address many key, sometimes controversial issues, including:

Educational Opportunity for English Language Learners. OCR requires school districts to ensure equal educational opportunity to English language learners. Districts are required to take affirmative steps to provide equal educational opportunity where the inability to speak and understand the English language excludes national origin minority group children from effective participation in the district's educational program. The Supreme Court in Lau v. Nichols, 414 U.S. 563 (1974) upheld OCR's policy that requires school districts to ensure that language barriers do not exclude English language learners from effective participation in their programs.

Higher Education Desegregation. OCR's policy provides guidance to institutions of higher education pursuant to the Supreme Court's decision in Ayers v. Fordice, 111 F. 3d 1183 (4th Cir. 1997) cert. denied, 522 U.S. 1084 (1998), requiring the elimination of vestiges of desegregation in formerly de jure higher education systems.

Race Based Financial Assistance. OCR's policy guidance on race based financial assistance sets forth five principles that satisfy the requirements of Title VI. These principles provide that:

1.   A college may make awards of financial aid to disadvantaged students without regard to race or national origin even if that means that such awards go disproportionately to minority students.

2.   A college may award financial aid on the basis of race or national origin if the aid is awarded under a federal statute that authorizes the use of race or national origin.

3.   A college may award financial aid on the basis of race or national origin if the aid is necessary to overcome the effects of past discrimination. A finding of discrimination may be made by a court or administrative body, and may also be made by a State or local legislative body, as long as the legislature has a strong basis in evidence identifying discrimination within its jurisdiction for which that remedial action is necessary. In addition, a college may voluntarily take action to remedy its past discrimination where it has a strong basis in evidence for concluding the action is necessary to redress its past discrimination and its financial aid program is narrowly tailored to that purpose.

4.   A college may promote its First Amendment interest in diversity by weighing many factors -- including race and national origin and its efforts to attract and retain a student population with different experiences, opinions, backgrounds, and cultures -- provided that the use of race or national origin is consistent with the constitutional standards reflected in Title VI, i.e., that it is a narrowly tailored means of achieving the goal of a diverse student body.

5.   Title VI does not prohibit an individual or an organization that is not a recipient of federal financial assistance from directly giving scholarships or other forms of financial aid to students based on their race or nation origin. Principles 3 and 4 apply to the use or race-targeted privately donated funds by a college and may justify awarding these funds on the basis of race or national origin if the college is remedying past discrimination or attempting to achieve a diverse student body.

Racial Harassment. OCR's policy on racial harassment provides that a recipient of federal financial assistance violates Title VI if 1) an official representative of a recipient treats someone differently in a way that interferes with or limits the ability of the student to participate in or benefit from the recipients' program; 2) the different treatment occurred in the course of the official or representative's assigned duties or responsibilities, and 3) the different treatment was based on race, color, or national origin, and there was no legitimate nondiscriminatory non-pretextual basis for the different treatment. An official representative will also be in violation of Title VI if his or her actions establish or contributes to a "racially hostile environment" (1) when the recipient had actual or constructive notice of a racially hostile environment and (2) a racially hostile environment existed, and (3) the recipient failed to respond adequately to redress the racially hostile environment.

U.S. Commission on Civil Rights Oversight. In addition to institutions devoted to law enforcement, other bodies are involved in making policy recommendations to improve the protection of the rights of minorities. The Civil Rights Commission conducts studies and makes recommendations in this regard, and it receives communications from individuals and groups about alleged discrimination.

Further, through fifty-one State Advisory Committees, including the District of Columbia, the Civil Rights Commission receives information on civil rights issues in the states. Through the Commission's regional directors, the Committees hold regular meetings, cooperate on race-related projects, and submit findings to the Commission on civil rights issues that have regional importance. From time to time, the Commission may recommend specific projects to be undertaken.

Equal opportunity officers. Another approach to protecting individuals is the requirement that many larger employers designate an "equal opportunity officer" within their organization, whose responsibility is to receive and respond to complaints about employment discrimination within the firm. In effect, this requirement provides an internal advocate within the firm for protection of the rights secured by this Convention. The equal opportunity officers may make recommendations to prevent discriminatory practices, as well as to remedy instances that have occurred. They are not, strictly speaking, "enforcement" officers, but have had a significant impact on realization of the goals of non-discrimination.

 

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Introduction ] General Report ] Legal Prohibition ] U.S. Reservations, Understandings and Declarations ] Compliance with Specific Articles ] Article 1 - Racial Discrimination ] Article 2 ] Art 3 Condemn Racial Segregation and Apartheid ] Article 4 Eliminate Incitements or Acts of Discrimination ] Article 5 Equality Under the Law ] [ Article 6 Assure Effective Protection and Remedies ] Article 7 Adopt Measures ] Conclusion ]
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Thanks to Derrick Bell and his pioneer work: 
Race, Racism and American Law
(1993).