Politics & Policy

Civil-Rights Election

The fast-track under President Obama.

Should Barack Obama win this fall, 2009 will a busy year for enacting civil-rights legislation — perhaps the busiest since 1964.

Numerous civil-rights bills have either passed the House or are pending in various committees, just waiting for a Democrat to be elected to the White House. Traditional civil-rights groups anticipate that without the threat of veto, expanded Democratic majorities in Congress will pass a number of these bills in the first few months of 2009. Here are just a few of the bills likely to be signed by a President Obama within the next year.


Commission to Study Reparations Proposals for African-Americans Act.

Rep. John Conyers has introduced this legislation every year since 1989, but with a Democrat in the White House and significant congressional majorities, this bill finally has an opportunity to be enacted. The purpose of the bill is to create a commission to study the impact of slavery in the United States and recommend appropriate remedies, including an apology to and reparations for blacks. The House Judiciary Committee on the Constitution held hearings related to the bill in December 2007. The bill is modeled after that which granted reparations to Japanese-Americans interned during World War II.

The Native Hawaiian Government Reorganization Act (“Akaka Bill”).

The Akaka Bill would create a separate race-based government for persons of Native Hawaiian descent. The race-based government would have the authority to exercise broad sovereign powers, including the ability to negotiate with the federal government concerning criminal and civil jurisdiction, civil-rights protections, and the transfer of lands and national resources. The bill would permit Native Hawaiians to sue the federal government for claims related to the 1893 overthrow of the Hawaiian Kingdom. Its supporters concede that ultimately, secession is a possibility.

The U.S. Commission on Civil Rights found that the bill would discriminate on the basis of race and national origin and further subdivide Americans into discrete sub-groups accorded varying degrees of privilege. The White House issued a Statement of Administration Policy strongly opposing the bill. Sen. Obama, a former resident of Hawaii, has pledged his unqualified support for the bill and vowed to sign it if he becomes president.

The Guam World War II Loyalty Recognition Act.

The bill provides $126 million for reparations to residents of Guam who suffered personal injury, forced labor, or internment at the hands of the Japanese during World War II. If those who suffered during the war are deceased, the reparations would flow to their descendants. As opposed to other reparations bills, the funds paid would be unrelated to any alleged policy, action, or damage done by the United States, but rather the actions of another sovereign. Moreover, reparations could be paid to individuals who suffered no direct injury.

Comparable Worth

Fair Pay Act of 2007.

The bill would amend the Fair Labor Standards Act to prohibit discrimination in the payment of wages on account of sex, race, or national origin. It’s designed to target the wage gap between male and female employees that the bill’s sponsors maintain stems from employment discrimination. The bill would charge the EEOC with establishing criteria to determine whether a given occupation is dominated by one sex. Employers would be required to send a list of job classifications to the EEOC annually. The list would set forth the race and sex of the employees in the occupations, their rates of pay, and how such pay scales were determined. The federal government would then be charged with determining whether the employees are in “equivalent jobs” and ensuring that employees in those jobs are paid similar wages. Sen. Obama is one of the sponsors of the bill.

Obama has also sponsored the Paycheck Fairness Act that significantly narrows the circumstances under which an employer may use the “bona-fide factor other than sex” affirmative defense in sex-discrimination cases involving wage disparities.

Sexual Orientation/Gender Identity

Employment Non- Discrimination Act.

As originally proposed (H.R. 2015), (“ENDA”) would have amended Title VII to forbid discrimination in employment on the basis of actual or perceived sexual orientation and gender identity — adding two new federally protected classes of persons. The original version excluded military and religious organizations from coverage. The exemption for religious employers, however, was narrow — raising significant issues related to religious organizational freedoms protected by the Free Speech Clause of the First Amendment.

A compromise bill (H.R. 3685) was introduced in September 2007. It did not include gender identity in its scope and it broadened the religious exemption — albeit in a manner that is vague and arguably inconsistent with the language of Title VII. Senator Obama has stated that he supports the expansive version of ENDA that includes gender identity.

Local Law Enforcement Hate Crime Protection Act of 2007.

The bill would make federal crimes of certain violent conduct where such conduct is motivated by the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of the victim. The Bush Administration issued a veto threat. Sen. Obama is one of the sponsors.

Housing Discrimination

Housing Fairness Act of 2007.

The bill directs HUD to conduct a national testing program to detect, document, measure and assess the degree to which individual renters, home buyers, or mortgage borrowers are discriminated against based on race, color, religion, sex, familial status, disability, or national origin.

Voting Rights

Ex-Offenders Voting Rights Act of 2007.

The bill would automatically restore to ex-offenders who have served their sentences the right to vote in federal elections. Presently, 47 states bar incarcerated convicts from voting and 36 states deny paroled felons the right to vote.

It’s estimated that more than four million people have temporarily or permanently lost their right to vote due to a criminal offense. Supporters of the bill maintain that felon disfranchisement laws have a disparate impact on blacks and other minorities. Sen. Obama is one of the sponsors.

Several other bills will have a dramatic impact on employment discrimination litigation should they be enacted: the Civil Rights of 2008 would eliminate existing damage caps on lawsuits brought under Title VII and the Americans with Disabilities Act; the Fair Pay Restoration Act would significantly expand the effective statute of limitations in Title VII discrimination claims; and the ADA Restoration Act would substantially alter the definition of disability under the American With Disabilities Act, as well as eliminate consideration of mitigating measures used by an individual to manage his impairment (anxious Republicans have already agreed upon compromises to the ADA Restoration Act in order to pass something less onerous to employers). The bills should be a boon for employment lawyers.

Even considering the trade-offs and compromises that even a party in complete control of the executive and legislative branches must make, there’s a very good probability that most, if not all, of the foregoing bills will be signed into law if Sen. Obama wins. And it wouldn’t be surprising if even more bills join the list. The interest groups supporting the proposed legislation have been laboring in the wilderness for some time waiting for the harmonic convergence of large majorities in Congress and a Democrat in the White House. They won’t let the moment pass quietly.

Peter Kirsanow is a member of the U.S. Commission on Civil Rights. These comments do not necessarily reflect the positions of the Commission.


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