Second
and Third Periodic Report of the United States of
America to the UN Committee on Human Rights Concerning
the International Covenant on Civil and Political Rights
Submitted by the United States of America to the
UN Committee on Human Rights Concerning the
International Covenant on Civil and Political Rights
October 21, 2005
I.
INTRODUCTION
II.
IMPLEMENTATION OF SPECIFIC PROVISIONS OF THE COVENANT
Article 1 -
Self-determination
3
Article 2 - Equal protection of rights in the
Covenant 10
Article 3 - Equal rights of men and
women
22
Article 4 - States of
emergency
31
Article 5 - Non-derogable nature of fundamental
rights 33
Article 6 - Right to
life
33
Article 7 - Freedom from torture or cruel, inhuman
or degrading treatment or punishment
45
Article 8 - Prohibition of
slavery
59
Article 9 - Liberty and security of
person
64
Article 10 - Treatment of persons deprived of their
liberty
69
Article 11 - Freedom from imprisonment for breach of
contractual obligation
78
Article 12 - Freedom of
movement
78
Article 13 - Expulsion of
aliens
79
Article 14 - Right to fair
trial
102
Article 15 - Prohibition of ex post facto
laws
109
Article 16 - Recognition as a person under the
law
109
Article 17 - Freedom from arbitrary interference
with privacy, family, home
110
Article 18 - Freedom of thought, conscience and
religion
119
Article 19 - Freedom of opinion and
expression
123
Article 20 - Prohibition of propaganda relating to
war or racial, national or religious
hatred
124
Article 21 - Freedom of
assembly
128
Article 22 - Freedom of
association
128
Article 23 - Protection of the
family
130
Article 24 - Protection of
children
134
Article 25 - Access to the political
system
146
Article 26 - Equality before the
law
156
Article 27 - The rights of minorities to culture,
religion and language
156
III.
Committee Suggestions and Recommendations
Annexes:
Annex I - Territorial Scope of Application of the
Covenant
Annex II - Programs to Protect Women from Violence
Annex III - Refugee Admissions from FY 1994 to FY
2004
I. INTRODUCTION
1. The Government of the United States of America
welcomes this opportunity to provide the Human Rights
Committee the U.S. combined second and third periodic
report on measures giving effect to U.S. undertakings
under the International Covenant on Civil and Political
Rights ("the Covenant") in accordance with Article 40
thereof. The organization of this periodic report
follows the General Guidelines of the Human Rights
Committee regarding the form and content of periodic
reports to be submitted by States Parties (CCPR/C/66/GUI/Rev.2).
2. The following information supplements that
provided in the U.S. Initial Report of July 1994 (CCPR/C/81/Add.4,
published 24 August 1994; and HRI/CORE/1/Add.49,
published 17 August 1994). It also supplements the
information provided by the U.S. delegation at the
meetings of the Human Rights Committee, which discussed
the Initial Report on 31 March 1995 (CCPR/C/SR.
1401-1402 and SR. 1405-1406, published 24 April 1995).
The information also takes into account the concluding
observations of the Committee, CCPR/C/79/Add.50;
A/50/40, paras. 266-304, published 3 October 1995, and
the 27 July 2004 letter of the Committee to the United
States in which the Committee invited the United States
to address several of its specific concerns.
3. In this consolidated report, the United States has
sought to respond to the Committees concerns as fully
as possible, notwithstanding the continuing difference
of view between the Committee and the United States
concerning certain matters relating to the import and
scope of provisions of the Covenant. In particular, in
regard to the latter, the United States respectfully
reiterates its firmly held legal view on the territorial
scope of application of the Covenant. See Annex I.
II. IMPLEMENTATION OF SPECIFIC PROVISIONS OF THE
COVENANT
Article 1 - Self-determination
4. The basic principle of self-determination remains at
the core of American political life, as the nation was
born in a struggle against the colonial regime of the
British during the eighteenth century. The right to
self-determination, set forth in Article 1 of the
Covenant, is reflected in Article IV, Section 4 of the
United States Constitution, which obliges the federal
government to guarantee to every state a "Republican
Form of Government."
5. The Insular Areas. The United States
continues to exercise sovereignty over a number of
Insular Areas, each of which is unique and constitutes
an integral part of the U.S. political family.
6. Paragraphs 12-25 of the Initial Report set forth
the policy of the United States of promoting
self-government in the Insular Areas of the United
States. At that time, the Insular Areas of the United
States included the Commonwealth of Puerto Rico, Guam,
the U.S. Virgin Islands, American Samoa, and the
Commonwealth of the Northern Mariana Islands; the United
States also administered Palau, at the time the sole
remaining entity of the Trust Territory of the Pacific
Islands.
7. The Insular Areas of the United States remain the
same, but the status of Palau has changed. In 1986, the
government of Palau and the government of the United
States signed a Compact of Free Association, which was
enacted into law by the U.S. Congress in the same year.
However, the Compact was not ratified by the people of
Palau until a November 1993 plebiscite. Approval of that
plebiscite led, on 1 October, 1994, to the
termination of the Trusteeship, independence for
Palau and the commencement of Palaus relationship of
free association with the United States. Palau became a
member of the United Nations on 15 December, 1994.
8. The Commonwealth of Puerto Rico. As
reported in paragraph 14 of the Initial Report, the
people of Puerto Rico expressed their views in a public
referendum in November 1993, in which continuation of
the commonwealth arrangement received the greatest
support, although nearly as many votes were cast in
favor of statehood. By contrast, a small minority of
some 5 percent chose independence. The people of Puerto
Rico more recently expressed their views in a public
referendum held on 13 December, 1998. The plebiscite
allowed for five options: (1) a "territorial"
commonwealth (0.1%); (2) free association (0.3%); (3)
statehood (46.5%); (4) independence (2.5%); and (5)
"none of the above" (50.3%). The majority, thus, chose
"none of the above." To address the schism in Puerto
Rico between those in favor of maintaining the
commonwealth status and those in favor of statehood, in
2000, the U.S. Congress held hearings on the right of
Puerto Rico to self-determination and passed legislation
assigning $2.5 million to educate Puerto Rico residents
about their self-determination choices regarding the
Islands future status.
American Indians
9. The United States is home to more than 560 federally
recognized tribes with about 50 percent of the American
Indian and Alaska Native population residing on or near
280 reservations. These tribal lands represent about
four percent of the United States' total land area.
10. In addition, there are approximately 56 million
acres held in federal trust for the use and benefit of
tribes and individual Indians. Trust land is maintained
both on and off Indian reservations, and may not be
alienated, encumbered, or otherwise restricted without
the approval of the Secretary of the Interior. A
significant number of acres of land are owned in fee
status whereby the United States holds the fee to the
land as a means of acquisition prior to converting the
land to trust land.
11. History of Indian Trust Accounts. The
federal government‑Indian trust relationship dates back
over a century. As to individual Indians,
pursuant to its assimilationist policy in the 19th
century, Congress passed the General Allotment Act of
1887, also known as the "Dawes Act." 25 U.S.C. §
331, et seq. (as amended). Under the General
Allotment Act, beneficial title of allotted lands vested
in the United States as trustee for individual Indians.
See Cobell v. Norton, 240 F.3d 1081, 1087
(D.C. Cir. 2001). The trust had a term of 25 years, at
which point a fee patent would issue to the individual
Indian allottee. See id. Allotment of
tribal lands ceased with the enactment of the Indian
Reorganization Act of 1934 ("IRA"). See id.
(citing 48 Stat. 984 (codified as amended at 25 U.S.C. §
461 et seq.)). Allotted lands remained allotted,
but the IRA provided that unallotted surplus Indian
lands return to tribal ownership. See id.
(citing 25 U.S.C. §
463). In keeping with the government's assimilationist
allotment policies, the 1934 Act extended the trust
period indefinitely for allotted lands. See
id. The federal government retained control of lands
already allotted but not yet fee‑patented, and thereby
retained its fiduciary obligations to administer the
trust lands and funds arising therefrom for the benefit
of individual Indian beneficiaries. See id.
These lands form the basis for some of the Individual
Indian Money ("IIM") accounts, which are monitored by
the Secretary of the Interior. See id. As
to the Indian tribes, the United States also holds lands
in trust for the tribes. The Secretary of the Interior
may collect income from tribal trust property and may
deposit it for the benefit of the relevant tribe in the
United States Treasury (or other depository
institution).
12. The American Indian Trust Fund Management
Reform Act. After Congress amended the Indian
Self‑Determination Act in 1994, tribes had the
opportunity (subject to the approval of the Bureau of
Indian Affairs of the Department of the Interior) to
manage their own trust accounts (including IIM
accounts). If a tribe chose not to manage its own trust
accounts, or if the BIA found that a tribe could not
fulfill the fiduciary obligations therein, the
government retained control over the accounts. See
Cobell, 240 F.3d at 1088. In 1994, Congress also
enacted the Indian Trust Fund Reform Act, which
recognized the federal government's preexisting trust
responsibilities. Pub. L. No. 103‑412 (1994). That Act,
among other things, outlined the "Interior Secretary's
duties to ensure 'proper discharge of the trust
responsibilities of the United States.'" Id. at
1090 (quoting 25 U.S.C. §
162a(d)).
13. In 1996, several beneficiaries of IIM accounts
brought a class action (the Cobell case) seeking
declaratory and injunctive relief, alleging that the
Secretaries of the Interior and Treasury breached their
fiduciary duties by mismanaging IIM accounts. See
Cobell, 240 F.3d at 1087. The district court
found for the plaintiffs in the initial phase of the
case, and the U.S. Court of Appeals for the District of
Columbia Circuit affirmed and remanded for further
proceedings. See id. at 1110. In September
2003, the district court entered a "structural
injunction" setting forth detailed requirements for both
trust administration and accounting. See
Cobell v. Norton, 283 F. Supp. 2d 66 (D.D.C. 2003).
That ruling is currently on appeal.
14. In 2002 and thereafter, various tribes sued the
government in federal district court and the Court of
Federal Claims, claiming that the government had failed
to provide accountings of their trust funds and trust
assets and had mismanaged those funds and assets. As
relief, the plaintiffs seek accountings and money
damages. Currently, there are 25 tribal trust accounting
and asset mismanagement cases pending against the
government.
15. Committee Recommendation: That steps be
taken to ensure that previously recognized aboriginal
Native American rights cannot be extinguished. The
term "recognized aboriginal rights" does not have a
meaning per se in U.S. Indian law and
practice. Moreover, under U.S. law recognized tribal
property rights are subject to diminishment or
elimination under the plenary authority reserved to the
U.S. Congress for conducting Indian affairs.
16. Committee Recommendation: That the
government ensure that there is a full judicial review
in respect of determinations of federal recognition of
tribes. The U.S. regulatory process for recognizing
tribal governments is set forth in 25 C.F.R. Part 83; it
provides that determinations may be reviewed in federal
court. In particular, an administrative decision not to
recognize a tribe can be challenged in federal court.
Also, Congress retains the authority, subject to some
constitutional constraints, to recognize Indian groups
as tribes.
17. Committee Recommendation: That the
Self-Governance Demonstration Project and similar
programs be strengthened to continue to fight the high
incidence of poverty, sickness and alcoholism among
Native Americans. The Self-Governance Demonstration
Project became a permanent program for the U.S.
Department of the Interior in 1994 and for the U.S.
Department for Health and Human Services in 2003. See
25 U.S.C. §
458aa et seq. As of 2003, more than 200 tribes
had participated in the program under 81 agreements with
the United States which were funded at a total cost of
$304,857,315. The Self-Governance Program continues to
be credited with the improved delivery of services to
American Indians and Alaska Natives.
18. Committee Request: Describe the
constitutional and political processes -- including the
legislative, administrative or other measures in force
-- which in practice allow the exercise of the right of
self-determination within the U.S. Under the concept
of tribal self-determination, the tribes have the right
to operate under their own governmental systems within
the American political framework. In Article 1, Section
8, Clause 3 of the United States Constitution, tribes
are recognized as political entities with a
government-to-government relationship with the United
States. The United States enables, assists, and supports
the exercise of tribal self-determination. One example
of this government support of the exercise of tribal
self-determination and self-governance is through Indian
Self-Determination Contracts and Grants for the entire
range of governmental programs frequently administered
by tribal governments, including health, education,
human services, public safety and justice, community
development, resources management, trust services, and
general administration.
19. Current policy. As stated by President
George W. Bush on 23 September 2004, "my administration
is committed to continuing to work with federally
recognized tribal governments on a government to
government basis and strongly supports and respects
tribal sovereignty and self-determination for tribal
governments in the United States." George W. Bush,
Memorandum for the Heads of Executive Departments and
Agencies. President Bush stated that his administration
would continue to provide Native Americans "with new
economic and educational opportunities." Proclamation
No. 7500, 66 Fed. Reg. 57, 641 (Nov. 12, 2001). See
also, George W. Bush, Letter Celebrating the 35th
Anniversary of President Richard Nixon's Special Message
to Congress on Indian Affairs, (July 1, 2005); George W.
Bush, Proclamation of National American Indian Heritage
Month, (Nov. 4, 2004); and, George W. Bush,
Government-to-Government Relationship with Tribal
Governments, (Sept. 23, 2004).
20. Committee Request: Describe the factors
or difficulties which prevent the free disposal by
peoples of their natural wealth and resources contrary
to the provisions of Article 1 of the Covenant and the
extent to which such prevention affects the enjoyment of
other rights set forth in the Covenant. Under the
concept of tribal self-determination, the tribes have
the right to operate under their own governmental
systems within the American political framework. In some
circumstances, the United States may require that Native
Americans secure the consent of the federal government
prior to disposing of their property or natural
resources. Native Americans are the owners of land and
resources, which may be held in either trust or in fee.
In either case, there are processes available for the
disposal or alienation of the land or the natural
resources if they so choose, with the consent of the
federal government.
21. Committee Request: Discuss any
restrictions or limitations even of a temporary nature
imposed by law or practice on the enjoyment of the right
to self-determination. Under U.S. law, tribes enjoy
self-determination regarding issues that have an impact
on them or have a nexus with their endeavors, affairs,
operations, members, etc. U.S. law, however, makes
tribal sovereignty subject to the plenary power of
Congress.
22. As reported in paragraph 47 of the Initial
Report, in the area of criminal jurisdiction, Congress
during the 1950s gave several of the states authority to
exercise concurrent jurisdiction on Indian reservations.
18 U.S.C. §
1162; 28 U.S.C.
§ 1360. Also, in 1968 Congress limited the tribal
exercise of criminal jurisdiction to misdemeanors. 25
U.S.C. §
1302(7). While the Supreme Court subsequently concluded
that tribes do not have criminal jurisdiction over
non-Indians, Oliphant v. Suquamish Indian Tribe,
435 U.S. 191 (1978), last year the Supreme Court
affirmed that Indian tribes do have the jurisdiction and
authority to prosecute non-member Indians for crimes
committed on their reservations. See United
States v. Lara, 541 U.S. 193 (2004).
23. Committee Request: Describe any factors
or difficulties affecting the enjoyment of the right to
self-determination by persons within the jurisdiction of
the State. Under the concept of tribal
self-determination, the tribes have the right to operate
under their own governmental systems within the American
political framework. To the extent that an owner of
trust or fee property is required to obtain federal
approval of development of land, a delay may occur in
obtaining that federal approval. With regard to
political status and cultural development, Indians are
citizens of the United States and enjoy the same rights
as other citizens. However, when indigenous individuals
are in tribal jurisdiction, as a member of the tribe,
enjoyment may be limited by the tribe, consistent with
the federal Indian Civil Rights Act, 25 U.S.C. 1301.
Indigenous governments control tribal membership and
therefore set the rules for the enjoyment of culture and
values within the tribe, outside of U.S. jurisdiction,
so long as they are not in violation of federal law.
Tribes generally maintain exclusive jurisdiction over
any misdemeanor committed by a tribal member within that
tribes jurisdiction.
24. Committee Request: Describe any
measures taken to promote the right of
self-determination in Non-Self-Governing and Trust
Territories under the control of the United States.
Please see paragraphs 5 through 8 of this report.
25. Committee Request: That the United
States should show broader willingness to recognize
Indian tribes. As reported in the Initial Report,
since 1978, the United States has been open and
accommodating of petitions for recognition. Efforts have
been made to streamline the process and isolate its work
from undue influence. The Federal Acknowledgment Program
maintains a public listing of petitioners which
evidences the large volume of petitions actively being
considered by the United States. A discussion of the
acknowledgment process can be found in paragraphs 51-53
of the Initial Report. Thus far, the status of 60 groups
has been resolved either by the U.S. Department of the
Interior or through special legislation.
Article 2 - Equal protection of
rights in the Covenant
26. The enjoyment by all individuals within the United
States of the rights enumerated in the Covenant without
regard to race, color, sex, language, religion,
political or other opinion, national or social origin,
property, birth or other status, was elaborated upon in
paragraphs 77-100 of the Initial Report.
27. Since submission of its Initial Report, the United States has
ratified the International Convention on the Elimination
of All Forms of Racial Discrimination; that Convention
entered into force for the United States on 20 November,
1994. The United States Initial Report under that
Convention was submitted to the UN Committee on the
Elimination of Racial Discrimination in September 2000.
Committee on the Elimination of Racial Discrimination;
Third periodic reports of States Parties due in 1999:
United States of America, U.N. Doc. CERD/C/351/Add.1
(2000). The United States was examined by that Committee
on that report in August 2001. Concluding Observations
of the Committee on the Elimination of Racial
Discrimination: United States of America, Comm. on the
Elimination of Racial Discrimination, 59th
Sess., U.N. Doc. CERD/C/59/Misc.17/Rev.3 (2001).
28. Classifications. Under the doctrine of
equal protection, it has long been recognized that the
government must treat persons who are "similarly
situated" on an equal basis, but can treat persons in
different situations or classes in different ways with
respect to a permissible state purpose. The general rule
is that legislative classifications are presumed valid
if they bear some reasonable relation to a legitimate
governmental purpose. See FCC v. Beach
Communication, Inc., 508 U.S. 307 (1993); McGowan
v. Maryland, 366 U.S. 420, 425-36 (1961). The most
obvious example is economic regulation. Both state and
federal governments are able to apply different rules to
different types of economic activities, and the courts
will review such regulation under a very deferential
standard. See, e.g., Williamson v. Lee
Optical Co., 348 U.S. 483 (1955). Similarly, the way
in which a state government chooses to allocate its
financial resources among categories of needy people
will be reviewed under a very deferential standard.
See Dandridge v. Williams, 397 U.S. 471
(1970).
29. Suspect classifications. On the other
hand, certain distinctions or classifications have been
recognized as inherently invidious and therefore have
been subjected to more exacting scrutiny and judged
against more stringent requirements. For example,
classifications on the basis of racial distinctions are
automatically "suspect" and must be justified as
necessary to a compelling governmental purpose and as
narrowly tailored to achieving a valid compelling
government interest. See, e.g., Adarand
Constructors, Inc. v. Pena, 515 U.S. 200 (1995);
Korematsu v. United States, 323 U.S. 214 (1944);
Brown v. Board of Education, 347 U.S. 483 (1954);
McLaughlin v. Florida, 379 U.S. 184 (1961);
Loving v. Virginia, 388 U.S. 1 (1967).
30. This rule was recently reiterated by the Supreme
Court in Johnson v. California, 125 S. Ct. 1141
(2005). Petitioner, a prison inmate, sued the California
Department of Corrections (CDC), alleging that the CDC's
unwritten policy of segregating new and transferred
prisoners by race violated the inmates constitutional
right to equal protection of the laws. The CDC contended
that the policy was necessary to prevent violence caused
by racial prison gangs and was thus reasonably related
to legitimate penological interests.
31. The Supreme Court held that the policy was
subject to strict judicial scrutiny since it was based
on racial classification, and thus the classification
was required to be narrowly tailored to further
compelling CDC interests. The court found that
compromising the inmate's equal protection rights was
not necessarily needed for proper prison administration.
The CDC's discretion and expertise in the unique area of
managing daily prison operations did not warrant
deference to the CDC's use of race as a means of
controlling prison violence.
32. The court has also affirmed the application of an
intermediate level of scrutiny to classifications by
gender. See United States v. Virginia, 518
U.S. 515 (1996) (stating military colleges male-only
policy was unconstitutional because the state failed to
provide an "exceedingly persuasive justification" for
categorically excluding admission of women).
33. Corrective or affirmative action. It
remains a matter of continuing interest in the United
States whether legislation may classify by race for
purposes of compensating for past racial discrimination.
The general rule that has evolved is that because race
is a "suspect classification," in this context as in all
others, it will be subject to "strict scrutiny" by the
courts. See, e.g., Adarand Constructors, Inc.
v. Perla, 515 U.S. 200 (1995); Richmond v. Croson,
488 U.S. 469 (1989). However, where an employer or other
entity has engaged in racial discrimination in the past,
it will generally be permitted (and may sometimes be
required) to accord narrowly tailored racial preferences
for a limited period of time, to correct the effects of
its past conduct. See Wygant v. Jackson Bd. of
Educ., 476 U.S. 267 (1986). Government entities,
however, may also attempt to address discriminatory acts
of others when the effects of such discrimination may be
extended by government policies.
34. Black Farmers. One of the major
issues addressed by the U.S. Department of Agriculture
(USDA) is the ongoing implementation of the historic
civil rights Consent Decree in the federal district
court case of Pigford v. Veneman, 355 F. Supp. 2d
148 (D.D.C. 2005); see also
Pigford v. Glickman,185 F.R.D. 82 (D.D.C. 1999).
Pigford is a class action lawsuit
brought by African American farmers who alleged that
USDA discriminated against them on the basis of their
race in its farm credit and non-credit benefit programs.
35. On 14 April, 1999, the U.S. District Court for
the District of Columbia approved a Consent Decree
resolving the case. See Pigford v. Glickman,
185 F.R.D. 82 (D.D.C. 1999).(A consent decree is an
order of a judge based upon an agreement, almost always
put in writing, between the parties to a lawsuit instead
of continuing the case through trial or hearing. A
consent decree is a common practice when the government
has sued to make a person or corporation comply with the
law or the defendant agrees to the consent decree in
return for the government not pursuing criminal
penalties.)
36. The Pigford Consent Decree set up a claims process under
which the individual claims of class members would be
adjudicated. Class members could either choose Track A,
which is an expedited process with a lesser evidentiary
standard and automatic relief for prevailing claimants;
or Track B, which entitles the claimant to a one-day
hearing before the Consent Decree Arbitrator in which
the typical evidentiary standard applies and the
claimant can receive any relief that the Arbitrator
awards.
37. As of 7 December, 2004, over 22,000 individuals
filed timely and eligible claims and chose Track A for
relief. Less than 200 individuals have chosen Track B.
The independent Adjudicator has issued decisions on most
of these claims. Over 61 percent of Track A claimants
have prevailed. The federal government has paid out over
$660 million on Track A claims and USDA has forgiven
over $15 million in debt. Many claimants who did not
prevail on their claims have filed petitions with the
Monitor for review of these decisions. Once the Monitor
completes her review, the claim may be sent back to the
Adjudicator or Arbitrator for reexamination pursuant to
the Monitors direction.
38. The Consent Decree implementation has continued
for over 5 years because far more claims were filed than
anyone anticipated when the document was signed and
approved. At the time the Consent Decree was signed,
class counsel anticipated that only 2,000-5,000
claimants would file claims under the Decree. However,
over 20,000 individuals filed claims under the Consent
Decree. Accordingly, it has taken a substantial time for
these claims to be processed and all that this entails
under the Consent Decree process. Virtually all of these
claims have now been processed and decisions issued on
the claims.
39. USDA has voluntarily taken several measures to
benefit Consent Decree claimants beyond those required
by the Consent Decree and subsequent Court orders. These
measures include refunds to prevailing claimants of
administrative offsets on discharged debts; extension of
the time for prevailing claimants to take advantage of
injunctive relief; and providing additional loan
servicing rights, affording some claimants an
opportunity to restructure their remaining debt.
40. Federal statutes. The Religious Land Use
and Institutionalized Persons Act of 2000 (RLUIPA), 42
U.S.C. §
2000cc, et seq., (2004), prohibits governments
from imposing a substantial burden on the exercise of
religion or otherwise discriminating against individuals
or organizations based on their religion through land
use regulation. RLUIPA also prohibits government-run
institutions, such as prisons, jails, and hospitals,
from imposing a substantial burden on the religious
exercise of an institutionalized individual. The
Attorney General can bring civil actions for injunctive
relief to enforce compliance with RLUIPA.
41. The Developmental Disabilities Assistance and
Bill of Rights Act of 2000, 42 U.S.C. §
15001 (2004), provides support for individuals with
disabilities to be more independent and have greater
control and choice over where they live and contribute
in their communities. The Help America Vote Act of 2002,
42 U.S.C. §
15301 (2004), established standards and funding to
strengthen the federal voting process by making it
easier for individuals with disabilities to vote. In
1998, Congress extended to technology the prohibition
against discrimination on the basis of disability.
Through section 508 of the Rehabilitation Act of 1973,
29 U.S.C. §
794(d)(2004),the federal government is required to make
its electronic and information technology accessible to
and usable by its customers and employees with
disabilities. Through eight different statutes, a
protection and advocacy system is funded in each U.S.
state to assist individuals with disabilities to
preserve, restore, or secure their rights under the law,
including the right to vote.
42. Aliens. Under United States immigration law,
an alien is "any person not a citizen or national of the
United States." 8 U.S.C. §
1101(a)(3). Aliens who are admitted and legally
residing in the United States, even though not U.S.
citizens, generally enjoy the constitutional and
Covenant rights and protections of citizens, including
the right to life; freedom from torture or cruel,
inhuman or degrading treatment or punishment;
prohibition of slavery; the right to liberty and
security of person; the right to humane treatment for
persons deprived of their liberty; freedom from
imprisonment for breach of contractual obligation;
freedom of movement; the right to fair trial;
prohibition of ex post facto laws; recognition as
a person under the law; freedom from arbitrary
interference with privacy, family and home in the United
States; freedom of thought, conscience and religion;
freedom of opinion and expression; freedom of assembly;
and freedom of association.
43. Legal aliens enjoy equal protection rights as
well. Distinctions between lawful permanent resident
aliens and citizens require justification, but not the
compelling state interests required for distinctions
based on race. Consistent with article 25 of the
Covenant, aliens are generally precluded from voting or
holding federal elective office. A number of federal
statutes, some of which are discussed above, prohibit
discrimination on account of alienage and national
origin.
44. Throughout the Immigration and Nationality Act,
Congress distinguishes lawful permanent residents (LPRs)
and non-LPRs. The federal courts have held that Congress
may draw such distinctions consistently with the Equal
Protection Clause of the Fifth Amendment so long as
there is a facially legitimate and bona fide reason for
treating the two classes disparately. See,
e.g., De Leon-Reynoso v. Ashcroft, 293 F.3d
633 (3d Cir. 2002); Jankowski-Burczyk v. INS, 291
F.3d 172 (2d Cir. 2002); Lara-Ruiz v. INS, 241
F.3d 934 (7th Cir. 2001).
45. With the creation of the Department of Homeland
Security (DHS) in 2003, Congress established an Officer
for Civil Rights and Civil Liberties. The Officer is
charged with reviewing and assessing information
concerning abuses of civil rights, civil liberties, and
discrimination on the basis of race, ethnicity and
religion, by employees or officials of the Department of
Homeland Security. The Officer has a unique internal
function of assisting the senior leadership to develop
policies and initiatives in ways that protect civil
rights and civil liberties. The Officer conducts
outreach activities to non-governmental organizations
and others to communicate the Offices role and the
Departments commitment to the protection of individual
liberties. The DHS Office for Civil Rights and Civil
Liberties has been actively working to develop
relationships with the Arab-American and Muslim-American
communities. Reaching out to immigrant communities is an
important part of a dialogue to address concerns
regarding racial, ethnic, and religious discrimination.
46. Education. The Equal Protection Clause of
the United States Constitution bars public schools and
universities from discrimination on the grounds of race,
sex, religion, or national origin. Under Title IV of the
Civil Rights Act of 1964, the U.S. Department of Justice
may bring suit against a school board that deprives
children of equal protection of the laws, or against a
public university that denies admission to any person on
the rounds of "race, color, religion, sex or national
origin." The Department of Justice continues to enforce
court-issued consent decrees against local school boards
that had engaged in racial segregation in the past in
cases that may date back 40 years. The Department of
Justice also investigates and brings new cases of
education discrimination.
47. The Department of Justice has investigated a
number of cases involving discrimination against or
harassment of Muslim or Arab children in public schools.
For example, the Department brought an action against a
school district that barred a Muslim girl from wearing a
hijab to school, resulting in a consent decree that will
protect the rights of students to wear religious garb.
Similarly, the Department obtained a settlement in a
case in which another girl was harassed by a teacher and
students because she was a Muslim.
48. The U.S. Department of Education administers a
number of programs that provide opportunities for the
participation of all students, including minorities and
women in elementary, secondary and higher education
programs, including magnet schools; educational equity
programs for women and other students; assistance to
school districts and others for the education of Native
Hawaiians, Native Americans and Alaskan Natives;
financial aid for all students including those who are
minorities or women; and grants to strengthen
historically Black colleges and universities and other
minority serving institutions. In addition, the
Elementary and Secondary Education Act of 1965 (ESEA),
as reauthorized by the No Child Left Behind Act of 2001
(20 U.S.C. 6301 et seq.) (NCLB Act), promotes high
educational standards and accountability in public
elementary and secondary schools, and thus provides an
important framework for improving student performance
for all students. The reauthorized ESEA requires, as a
condition of a states receipt of funds under the "Title
I" program, that the results of annual statewide testing
be published and broken out, at the school, school
district, and state levels, by poverty, race, ethnicity,
gender, migrant status, disability status, and limited
English proficiency to ensure that no group is left
behind. Each state is required to establish academic
content and achievement standards and define adequate
yearly progress, for the state as a whole and for
schools and school districts, toward ensuring that all
students meet these standards. Adequate yearly progress
must include measurable annual objectives for continuous
and substantial improvement for all public elementary
and secondary students and for the achievement of
economically disadvantaged students, students from major
racial and ethnic groups, students with disabilities,
and students with limited English proficiency. If a
school or school district fails to make adequate yearly
progress, the school or district is subject to a
sequence of steps to address the situation, moving from
improvement, to corrective action, and to restructuring
measures designed to improve performance to meet state
standards. The reauthorized ESEA also focuses on reading
in the early grades through comprehensive reading
programs anchored in scientific research and through
enabling limited-English proficient (LEP) students to
learn English quickly and effectively through
scientifically based teaching methods.
49. The Department of Educations Office for Civil
Rights (OCR) enforces laws that prohibit discrimination
on the basis of race, color, national origin, sex,
disability, and age in programs that receive federal
financial assistance from the Department of Education.
These laws include: Title VI of the Civil Rights Act of
1964 (prohibiting discrimination based on race, color
and national origin); Title IX of the Education
Amendments of 1972 (prohibiting sex discrimination in
education programs); Section 504 of the Rehabilitation
Act of 1973 (prohibiting disability discrimination); Age
Discrimination Act of 1975 (prohibiting age
discrimination); and Title II of the Americans with
Disabilities Act of 1990 (prohibiting disability
discrimination by public entities, whether or not they
receive federal financial assistance).
50. The Individuals with Disabilities Education Act
(IDEA), 20 U.S.C. §
1400 et seq., requires public schools to make available
to all eligible children with disabilities a free
appropriate public education in the least restrictive
environment appropriate to their individual needs. The
IDEA requires school systems to develop appropriate
individualized programs for each disabled child designed
to meet the childs specific educational needs.
51. Additionally, the IDEA Amendments Act of 1997 and
its implementing regulations, at 20 U.S.C. §
1418(c) and 34 C.F.R. 300.755, provide for the
collection and examination of data to determine if
significant disproportionality based upon race is
occurring in the state with respect to the
identification of children with disabilities and their
placement into particular educational settings. Where
significant disproportionality exists, states must
provide for the review and, if appropriate, revise the
policies, procedures, and practices used in such
identification or placement to ensure that they comply
with the requirements of the IDEA. The Office of Special
Education Programs (OSEP) administers the IDEA and
requires each state to include information on
disproportionality in its Annual Performance Report.
52. The Supreme Court ruled that under the Americans
with Disabilities Act of 1990 (ADA), states are required
to place individuals with mental disabilities who are in
the states care in community settings rather than in
institutions when the states treatment professionals
have determined that community placement is appropriate,
the individual does not oppose the transfer from
institutional care to a less restrictive setting and the
community setting placement can be reasonably
accommodated, taking into account the states resources
and the needs of others with mental disabilities. See
Olmstead v. L.C., 527 U.S. 581 (1999). In Executive
Order 13217, President Bush selected the top officials
in several federal agencies, including the Departments
of Education, Labor, and Housing and Urban Development,
to assist the states and localities in swift
implementation of the Olmstead decision to help ensure
that all Americans have the opportunity to live close to
their families and friends, to live more independently,
to engage in productive employment, and to participate
in community life. Executive Order 13217 (June 18,
2001).
53. While the Equal Protection Clause of the
Constitution bars governmental discrimination on the
basis of race, the Supreme Court has permitted the use
of race as a factor when it serves a compelling
government interest and is narrowly tailored to achieve
that interest. In Grutter v. Bollinger, 539 U.S.
306 (2003), the Supreme Court upheld the University of
Michigan Law School's "affirmative action" program,
which allowed the racial and ethnic background of
applicants to be considered as a factor in admission
decisions. The Court found that the Law School's use of
race in admissions to obtain the educational benefits
that flow from a diverse student body is constitutional,
i.e., that attaining a diverse student body may qualify
as a "compelling" interest and that the Law School's use
of race is narrowly tailored to achieve this goal. On
the issue of whether attaining a diverse student body
was a compelling interest, the Court deferred to the Law
School's educational judgment that such student body
diversity is essential to its educational mission. The
Court found the Law School's program to be narrowly
tailored to achieve this goal because its interest in
achieving a critical mass of minority students was a
flexible goal and not a quota, it did not preempt a
holistic review of each applicant's file, and it did not
"unduly burden" individuals who are not members of the
favored racial and ethnic groups. The Court opined that
unlike the University of Michigan's undergraduate
admissions program, the Law School awarded no
"mechanical, predetermined diversity bonuses based on
race or ethnicity." The Court also held that
"race-conscious admissions policies must be limited in
time" and expressed an expectation that "25 years from
now, the use of racial preferences will no longer be
necessary to further the interest approved today." At
the same time, the Court in Gratz v. Bollinger,
539 U.S. 244 (2003), struck down the admissions policies
of the same universitys undergraduate program on the
ground that it operated as a mechanical quota that was
not narrowly tailored to achieve its goal of racial
diversity.
54. Community and Faith-Based Initiatives. In January
2001, the President launched an initiative to ensure
that community and faith-based organizations are allowed
to compete for federal financial assistance on a level
playing field to the full extent permitted by law,
without regard to the religious nature or lack thereof
of the applicant. The President signed two executive
orders on 29 January, 2001, that established a White
House Office of Faith-Based and Community Initiatives
and directed five federal agencies to establish their
own centers for this initiative, including the
Departments of Education, Justice, Labor, Health and
Human Services, and Housing and Urban Development.
Executive Orders 13198 and 13199 (January 29, 2001). On
4 June, 2004, the Department of Education issued final
regulations ensuring that faith-based organizations may
compete on an equal footing for Department funding and
that funded programs are implemented in a manner
consistent with the Constitution (69 Fed. Reg.
31708-15).
55. Education and Religion. Since the Initial
Report, the Supreme Court has decided a number of cases
involving religion and public schools. These cases fall
into two general categories: religious expression in
public schools and the funding of religious schools.
With regard to religious expression, the Supreme Court
has, in a number of decisions, made clear that while the
Establishment Clause of the United States Constitution
prohibits state-sponsored prayer in the public schools,
at the same time, religious expression by students is
constitutionally protected. Thus in Lee v. Weisman,
505 U.S. 577 (1992), the Supreme Court struck down a
public high schools practice of inviting a clergy
member to say a prayer at graduation, and in Santa Fe
Independent School District v. Doe, 530 U.S. 290
(2000), struck down a schools practice of holding a
prayer led by a student over a loudspeaker before
football games. In sharp contrast, the Supreme Court has
consistently struck down government discrimination
against student religious speech, even when carried out
in the name of separation of church and state. In
Good News Club v. Milford Central School District,
533 U.S. 98 (2001), the Court held that a school must
permit equal access to school facilities for
after-school meetings of a youth organization whose
activities included Bible lessons, prayer, and
religion-themed games, when the school had opened
facilities to various private secular organizations
serving the community. Similarly, in Rosenberger v.
Rector, 515 U.S. 819 (1995), the Court held a state
university that distributed funds to student
organizations could not deny funds to a student
organization that published a news magazine from a
Christian perspective.
56. In the area of funding for religious schools, the
Supreme Court has consistently held in recent years that
where an education benefit, such as a scholarship, is
provided to students on a religion-neutral basis, and
the students are free to use the benefit toward the
education of their choice, whether secular or religious,
providing such a benefit does not violate the
non-Establishment principle. See, e.g.,
Zelman v. Simmons-Harris, 536 U.S. 639 (2002). The
Supreme Court has also upheld various other forms of aid
to students at religious schools so long as it is
secular in nature, is distributed on a religion-neutral
basis, and is not open to diversion to religious uses.
Thus the Court in Mitchell v. Helms, 530 U.S. 793
(2000) upheld a federal program in which equipment such
as computers was loaned to schools, both religious and
secular, for purposes of instruction in secular
subjects. Likewise, in Agostini v. Felton, 521
U.S. 203 (1997), the Court upheld a program in which
public school employees went to private schools to
provide supplemental instruction to poor children with
disabilities.
57. Beginning in 2004, the U.S. Department of
Education began administering the D.C. Choice Incentive
Program. The purpose of the program is to give the
parents of school children in the District of Columbia
(DC) the opportunity to exercise greater choice in the
education of their children by giving eligible
low-income D.C. school children scholarships to attend
private schools, including private religious schools.
58. Education and aliens. The courts have held
that the constitutional guarantee of equal protection of
the laws applies to aliens who have made an entry into
the United States, even if such entry was unlawful. In
Plyer v. Doe, 457 U.S. 202 (1982), the Supreme
Court invalidated a Texas law which withheld state funds
from local school districts for the education of
undocumented alien children, and allowed local school
districts to refuse to enroll the children. The Court
first found that the Equal Protection Clause of the
Constitution applies to the undocumented alien children.
Then, although the Court did not treat the aliens as a
suspect class entitled to strict scrutiny of their
differing treatment, the Court nonetheless required the
state to demonstrate a rational basis for its
restrictions. The Court concluded that the state could
not meet this test, rejecting the states arguments that
denial of benefits was justified due to the childrens
lack of legal status and based on the states desire to
preserve resources for the education of the states
lawful residents.
59. Remedies. As reported in paragraph 98 of
the Initial Report, U.S. law provides extensive remedies
and avenues for seeking compensation and redress for
alleged discrimination and denial of constitutional and
related statutory rights. In addition to those
previously reported, under the Violent Crime Control and
Law Enforcement Act of 1994, 42 U.S.C. §
14141 (2004), the Attorney General can bring a civil
action for equitable relief against a governmental
authority to eliminate a pattern or practice of
constitutional violations committed by law enforcement
officers.
Article 3 - Equal rights of men and women
60. Constitutional protections. As discussed
in paragraphs 101 109 of the Initial Report, the
rights enumerated in the Covenant and provided by U.S.
law are guaranteed equally to men and women in the
United States through the Equal Protection and Due
Process Clauses of the Fourteenth and Fifth Amendments
of the United States Constitution. These provisions
prohibit both the federal government and the states from
arbitrarily or irrationally discriminating on the basis
of gender.
61. Gender Classifications. In Craig v.
Boren, 429 U.S. 190 (1976), the Supreme Court
articulated a standard which governed the field of
gender distinctions for several years: "[t]o withstand
constitutional challenge . . . classifications by gender
must serve important governmental objectives and must be
substantially related to achievement of those
objectives. Id. at 197; see also,
Califano v. Goldfarb, 430 U.S. 199 (1977);
Taylor v. Louisiana, 419 U.S. 522 (1975).
62. However, in United States v. Virginia, 518
U.S. 515 (1996), the Supreme Court articulated the
current standard for equal protection review of gender
distinctions. The justification for such distinctions
must be "exceedingly persuasive." Id. at 533.
"The burden of justification is demanding and it rests
entirely on the state. The state must show at least
that the [challenged] classification serves important
governmental objectives and that the discriminatory
means employed are substantially related to the
achievement of those objectives." Id., (quoting
Mississippi Univ. for Women v. Hogan, 458 U.S.
718, 724 (1982)). Furthermore, "[t]he justification must
be genuine, not hypothesized or invented post hoc in
response to litigation. And it must not rely on
overbroad generalizations about the different talents,
capacities, or preferences of males and females." Id.
63. In Nguyen v. INS, 533 U.S. 53 (2001), the
Supreme Court applied the Virginia standard to
uphold a federal immigration statute that makes
gender-based distinctions in the methods of establishing
citizenship for a child born out-of-wedlock overseas
where one parent is a U.S. citizen and the other is an
alien. The statute, 8 U.S.C. 1409(a), requires that
certain steps be taken to document parenthood when the
citizen-parent is the childs father but not when the
citizen-parent is the childs mother. The Court found
that the statute substantially serves the important
governmental objectives of ensuring the existence of a
biological relationship between the citizen-parent and
the child, as the mother-child relationship is
verifiable from the child's birth. Id. at 62. The
Court also reasoned that the statute ensures at least
the opportunity for the development of ties between the
child and the citizen-parent, and, in turn, the United
States, as the very event of birth provides such an
opportunity for the mother and child. Id. at
64-65. Because fathers and mothers are not similarly
situated with regard to proof of parentage, the Court
held that the gender-based distinctions in the statute
were justified. Id. at 63, 73. The Court also
noted that the additional requirements imposed upon
fathers were "minimal" and that the statute did not
impose "inordinate and unnecessary hurdles to the
conferral of citizenship on the children of citizen
fathers[.]" Id. at 70-71.
64. On 23 June, 2000, Executive Order 13160 was
issued prohibiting discrimination on the basis of a
number of classifications, including sex, in
federally-conducted education and training programs. 65
Fed. Reg. 39,775 (2000). This order applies to all
federally conducted education and training programs as a
supplement to existing laws and regulations that already
prohibit many forms of discrimination in both federally
conducted and federally assisted educational programs.
65. Discrimination based on pregnancy. The
Pregnancy Discrimination Act (PDA) of 1978, 42 U.S.C.
2000e(k)(2004), amended Title VII of the Civil Rights
Act of 1964 to provide that discrimination "on the basis
of sex" includes discrimination "because of or on the
basis of pregnancy, childbirth, or related medical
conditions[.]" The PDA requires that pregnancy be
treated the same as other physical or medical
conditions.
66. The PDA has been held to protect not only female
employees, but also the spouses of male employees. In
Newport News Shipbuilding and Dry Dock Co. v. E.E.O.C.,
462 U.S. 669, 684-85 (1983), the Supreme Court held that
a provision in an employers health insurance plan that
provided female employees with hospitalization benefits
for pregnancy-related conditions, but provided less
extensive benefits for spouses of male employees,
discriminated against male employees in violation of the
Civil Rights Act of 1964, as amended by the PDA. The
Court stated that the PDA "makes clear that it is
discriminatory to treat pregnancy-related conditions
less favorably than other medical conditions." Id.
at 684.
67. In International Union v. Johnson Controls,
Inc., 499 U.S. 187, 206 (1991), the Supreme Court
held that a battery manufacturers policy prohibiting
women capable of bearing children from working in jobs
involving lead exposure violated Title VII of the Civil
Rights Act of 1964, as amended by the PDA. The Court
recognized that the PDA prohibits discrimination not
only on the basis of pregnancy, but also on the basis of
a woman's capacity to become pregnant. Id.
68. The PDA has been found to apply to contraceptive
coverage in employer health insurance plans. On 14
December, 2000, the U.S. Equal Employment Opportunity
Commission (EEOC) decided that the exclusion of
prescription contraceptives from a health insurance plan
that covered other comparable medical treatments was a
violation of Title VII of the Civil Rights Act of 1964,
as amended by the PDA. However, this was an
administrative reasonable cause determination, and not
an authoritative construction of the PDA.
69. Prohibition of Sex Discrimination in Education.
Title IX of the Education Amendments of 1972 (20 U.S.C.
1681 et seq.) is the principal federal law
that prohibits sex discrimination in education programs
or activities that receive federal financial assistance.
Federal regulations and guidelines require and assist
schools in addressing such issues as sexual harassment
and nondiscrimination in admissions, financial
assistance, course offerings, parental or marital
status, and opportunities to participate in
interscholastic and intercollegiate athletics. Each
school or educational institution is required to
designate an employee to coordinate its Title IX
responsibilities, including investigating complaints
alleging violations of Title IX.
70. Title IX is primarily enforced by the Department
of Educations Office for Civil Rights which
investigates complaints, issues policy guidance, and
provides technical assistance to schools (such as
training, and sponsorship of and participation in civil
rights conferences). Students and school employees may
also bring private lawsuits against schools for
violations of Title IX.
71. Furthermore, every federal agency that provides
financial assistance to education programs is required
to enforce Title IX. In August 2000, twenty federal
agencies issued a final common rule for the enforcement
of Title IX. In addition, Executive Order 13160, issued
in June 2000, prohibits discrimination based on sex,
race, color, national origin, disability, religion, age,
sexual orientation, and status as a parent in education
and training programs conducted by the federal
government.
72. Prohibition of Discrimination in Education on
the Basis of Pregnancy. The Title IX implementing
regulation at 34 C.F.R. 106.40(a) specifically prohibits
educational institutions that are recipients of federal
financial assistance from applying any rule concerning a
student's actual or potential parental, family, or
marital status, which treats students differently on the
basis of sex. The Title IX implementing regulation at 34
C.F.R. 106.40(b)(1) prohibits a recipient from
discriminating against any student, or excluding any
student from its education programs or activities,
including any class or extracurricular activity, on the
basis of such student's pregnancy or pregnancy related
condition, unless the student requests voluntarily to
participate in a separate portion of the program or
activity of the recipient. The Title IX implementing
regulation at 34 C.F.R. 106.40(b)(3) provides that if a
recipient operates a portion of its education program or
activity separately for pregnant students, to which
admittance is completely voluntary on the part of the
student, a recipient shall ensure that the instructional
program in the separate program is comparable to that
offered to non-pregnant students.
73. The Title IX implementing regulation at 34 C.F.R.
106.40(b)(2) provides that a recipient may require a
pregnant student to obtain the certification of a
physician that the student is physically and emotionally
able to continue participation in the normal education
program or activity so long as such a certification is
required of all students for other physical or emotional
conditions requiring the attention of a physician. With
respect to a recipient that does not have leave of
absence policies for students, or in the case of a
student who does not otherwise qualify for leave under
such a policy, the Title IX implementing regulation at
34 C.F.R. 106.40(b)(5) provides that a recipient shall
treat pregnancy and pregnancy-related conditions as a
justification for a leave of absence for so long a
period of time as is deemed medically necessary by the
student's physician, at the conclusion of which the
student shall be reinstated to the status which she held
when the leave began.
74. A recipient shall treat pregnancy and
pregnancy-related conditions in the same manner and
under the same policies as any temporary disability with
respect to any medical or hospital benefit, service,
plan, or policy which such recipient administers,
operates, offers, or participates in with respect to
students admitted to the recipient's educational program
or activity. 34 C.F.R. 106.40(b)(4).
75. Sexual Harassment. Sexual harassment has
been found to be a form of sex discrimination. Thus,
federal statutes prohibiting discrimination on the basis
of sex in employment, Title VII of the Civil Rights Act
of 1964, 42 U.S.C. 2000e et seq, and in
federally assisted education programs, Title IX of the
Education Amendments of 1972, 20 U.S.C. 1681, also
prohibit sexual harassment. In a series of decisions,
the Supreme Court has established the principles
underlying the application of these statutes to sexual
harassment. First, it is clear that same-sex harassment
is actionable, as long as the harassment is based upon
sex. See Oncale v. Sundowner Offshore
Servs., Inc., 523 U.S. 75 (1998). With
respect to employment, where harassment by a supervisor
results in a "tangible employment action" such as
demotion, discharge, or undesirable reassignment, the
employer is liable for a Title VII violation. Even if
there has been no such tangible employment action by the
employer, there may nonetheless be a Title VII violation
if workplace harassment is "sufficiently severe or
pervasive to alter the conditions of [the victims]
employment and create an abusive working environment."
See, Meritor Sav. Bank, FSB v. Vinson, 477
U.S. 57, 67 (1986) (citations and internal quotation
marks omitted). In such cases, however, an employer may
avoid liability if it demonstrates that: 1) it exercised
reasonable care to prevent and correct promptly any
sexually harassing behavior; and 2) the employee
unreasonably failed to take advantage of any preventive
opportunities provided by the employer or to avoid harm
otherwise. See, e.g., Faragher v. City
of Boca Raton, 524 U.S. 775, 807 (1998);
Burlington Indus. v. Ellerth, 524 U.S. 742, 765
(1998).
76. With respect to education, educational
institutions that receive federal financial assistance
may be liable for damages in sexual harassment suits if
school officials have actual notice of the harassment,
and respond to that notice with deliberate indifference.
See, e.g., Franklin v. Gwinnett County
Pub. Sch., 503 U.S. 60 (1992); Gebser v. Lago
Vista Indep. Sch. Dist., 524 U.S. 274 (1998);
Davis v. Monroe County Bd. of Educ., 526 U.S. 629
(1999).
77. Compensation for sex discrimination.
Section 706(g) of the Civil Rights Act of 1964 provides
that courts may enjoin respondents from engaging in
unlawful employment practices, and order such
affirmative action as may be appropriate, including
reinstatement or hiring of employees with or without
back pay, or any other equitable relief the court may
require. 42 U.S.C. 2000e-5(g)(1). Section 102 of the
Civil Rights Act of 1991 provides that Title VII claims
not involving disparate impact may result in
compensatory and punitive damages in addition to the
relief authorized by Section 706(g) of the Civil Rights
Act. 42 U.S.C. 1981a(a)(1). Punitive damages are
allowed when the plaintiff can demonstrate that the
defendant acted with malice or reckless indifference to
the plaintiffs federally protected rights, but are not
allowed against governmental entities. 42 U.S.C.
1981a(b)(1). The sum of compensatory and punitive
damages for each plaintiff cannot exceed $50,000 for
employers with between 14 and 100 employees, $100,000
for employers with 100 to 200 employees, $200,000 for
employers with 201 to 500 employees, and $300,000 for
employers with more than 500 employees. 42 U.S.C.
1981a(b)(3). Federally assisted educational institutions
may also be liable for damages for sex discrimination.
See Gebser, supra.
78. Family Leave. The federal Family and
Medical Leave Act (FMLA), 29 U.S.C. 2601 et seq.,
guarantees that employees who work for companies with 50
or more employees can take up to 12 weeks of unpaid
leave a year for the birth or adoption of a child, or
for a serious health condition of the employee or a
family member of the employee, including a child, spouse
or parent. The FMLA defines a serious health condition
as an illness, injury, impairment, or physical or mental
condition that involves in-patient care in a hospital,
hospice, or residential medical care facility, or
continuing treatment by a health care provider. 29 U.S.C.
2611(11).
79. The FMLA allows states to provide additional
protections, and several states have family leave laws
that are more generous than the FMLA. For example, some
states have family |
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