Fri, 13 Jan 2017 09:45 -0500On Martin Luther King Day, the director of the ACLU's racial justice program reflects on Obama’s legacy. The coincidence of the end of the Obama administration and the celebration of the life of Dr. Martin Luther King invites some reflection on the connection between the election of the first Black president and the life and work of the great civil rights advocate. As always, I tend to view questions of national importance through the filter of my family and the way that it is affected by broader issues.When thinking of President Obama’s presidency, I invariably return to thoughts of the night in 2008 when he was elected. I spent the early part of the evening watching the returns with my now 97-year-old mother. My mother was born in Summerville, South Carolina, and came up to New York at age 9 in 1928 to rejoin her mother, who had moved north to work as a domestic for white families in Pennsylvania and New York. Like so many black families who were part of the great migration, they had moved north to escape discrimination and the lack of opportunity in the South only to face different manifestations of America’s original sin in the North. Her lifetime of facing discrimination great and small had taken a toll on my mother. Despite the ongoing positive results, she insisted that Obama could not win, not given this country’s racial history. So deep was this conviction that when I called her the following day to hear her reaction, she seemed audibly disoriented, as if her world had suddenly turned upside down. Eight years later, her granddaughter — my daughter Zoe — would be teaching a class of second-grade students in Brooklyn, all of them students of color, who had never known anything but a Black president. The students, however, did not take the racial similarities between themselves and the first family for granted. Zoe shared with me her students’ writings, which reflect pride and identification with this charismatic leader and his family. That difference between a senior citizen whose history would not permit her to imagine that a Black person could be elected president and a group of young people for whom a black president was their only reality reflects something about Martin Luther King’s dream. Perhaps reflecting a national tendency to downplay the history of race and its continuing existence in the United States, some people chose to regard Obama’s election as a sign we were on the verge of a race-blind society. Reality, as it has a way of doing, intervened. The persistence of massive disparities in wealth, in levels of incarceration, in employment, in access to education and housing, and in reports of shooting of unarmed people of color — not to mention the massive racial and economic fissures revealed by the most recent presidential election — made it impossible for anyone except the most delusional to sustain the idea of having removed race entirely from the factors affecting opportunity in this country. And Obama’s election did not fully realize the hopes that so many had. My organization, the ACLU, fought back against many of the policies of the Obama administration, including his record level of deportations and his unaccountable use of drones. But in many important ways, Obama’s election represented substantial, significant progress toward the realization of Martin Luther King’s dream. Some critics, myself included, faulted the president early on for a seeming reluctance to take on adequately the continuing presence of racial discrimination. But when he did — in a number of instances, including his personal and heartfelt reaction to the shooting of Trayvon Martin — he did so in a way that was moving and incisive and that showed a clear willingness to swim against the overwhelming current of opinion that favors sweeping away the historical and current realities of discrimination. Here, for the first time, was a president who understood and could express the pain and frustration of Black parents. People who could not understand why so many of their fellow citizens seemed[...]
Thu, 12 Jan 2017 17:15 -0500Sessions overzealously prosecuted a case that a judge called the worst example of prosecutorial misconduct he had ever seen.
It is now well-known that Jeff Sessions’ record as a senator shows blindness or hostility to the rights of those the attorney general is responsible for protecting — people of color, women, LGBT people, religious minorities, and immigrants. Less well known, but equally disturbing, is his record as a prosecutor. When he last exercised the power of a prosecutor, as attorney general for Alabama in the 1990s, he abused that power.
The biggest case his office handled was thrown out in what the judge called the worst case of prosecutorial misconduct he had ever seen. In a remarkable opinion, the Alabama state trial judge hearing the case concluded that “the misconduct of the Attorney General in this case far surpasses in both extensiveness and measure the totality of any prosecutorial misconduct ever previously presented to or witnessed by the Court.”
The court found that the “the prosecutorial misconduct is so pronounced and persistent that it permeates the entire atmosphere of this prosecution and warrants a dismissal of these cases.” It also found the misconduct so pervasive that “this court can only conclude it is dealing with either intentional and deliberate misconduct or conduct so reckless and improper as to constitute conscious disregard for the lawful duties of the Attorney General and the integrity and dignity of this court and this Judge.”
Sessions’ office filed a 222-count indictment against a business competitor of a company that was contributing to Sessions’ first senatorial campaign, using the power of his office to intervene in a private business dispute. The court dismissed every count of the indictment — some as baseless, but others because of egregious prosecutorial misconduct.
Senators must ask themselves: Should we be confirming a man to the most powerful prosecutor’s office in the country who has a record of prosecutorial abuse?
For more, see our written testimony to the Senate Judiciary Committee or this clip of ACLU National Legal Director David Cole discussing the case on The Rachel Maddow Show:
Thu, 12 Jan 2017 15:00 -0500It's two weeks into 2017 and state legislatures are already making abortion harder and telling women it's for their own good.
The Kentucky legislature had hardly been gaveled into session on January 3 when lawmakers rushed to pass the latest offensive abortion restriction into law. HB 2 forces doctors to describe an ultrasound to a women seeking an abortion in detail, even if she objects, even if the doctor believes that forcing the description on the woman would be harmful, and—most absurdly—even if the woman is covering her eyes and ears.
Lawmakers then took the extraordinary step of attaching an emergency clause to have the law take effect immediately. Just days after this insulting bill was introduced, Gov. Matt Bevin signed it into law.
That very day, the ACLU filed a lawsuit to block it from taking effect. The law unconstitutionally comes between a woman and her doctor by requiring that a doctor recite a state-mandated speech while providing an ultrasound — even if the woman is closing her eyes or asking the doctor to stop. It also violates medical ethics by forcing doctors to subject women to a medical procedure without their consent.
Shockingly, the law mandates that doctors put the ultrasound screen in a woman’s face and deliver the state’s antiabortion message even if the doctor thinks this will have a traumatic effect on the patient’s mental health. As expert medical testimony in the case makes clear, this experience would be incredibly harmful to many women, including women who became pregnant as a result of rape or incest, among others.
On the facts, it’s not immediately clear which is more outrageous: The legislators’ attempt to shame women for exercising their constitutional rights or their claim that they are doing so to “protect the welfare” of the women they are forcing these unwanted procedures on. What is clear is that the American College of Obstetricians and Gynecologists and the American Medical Association both oppose mandated ultrasound laws and say that they serve no medical purpose.
HB 2 is at once both typical of the more than 340 state laws restricting abortion that have been passed since 2010 and a stark warning of things to come. While it is nearly identical to a North Carolina law that the ACLU had struck down in 2014, its “emergency” consideration at the top of the agenda of Kentucky’s new legislature likely signals an escalation of the assault on the right to abortion.
Gov. Matt Bevin fired back in response to the ACLU’s lawsuit. “They sue often," he said, "They try to find resolution for everything they don't like in the courts.”
On that point, Gov. Bevin is only partly correct. We don’t sue when we don’t “like” something. We sue when the government tramples on our constitutional rights. One in three women will terminate a pregnancy at some point in her life. The right to abortion is more than a woman’s right to control her body— it’s the right to control her life.
So when Kentucky passes legislation that curbs a woman’s constitutionally protected right to make decisions about their lives, their health, and their bodies, then yes Gov. Bevin, you can expect to see us in court.
Thu, 12 Jan 2017 09:30 -0500For prisoners with physical disabilities, life behind bars can mean exclusion, neglect, and even solitary confinement. Dean Westwood arrived at Coffee Creek Correctional Facility in Oregon in a wheelchair. Prison officials required him to surrender his property, submit to a search, and agree to administrative procedures like finger printing. This is standard practice. But unlike other detainees, Dean is paralyzed below the waist and has limited use of his arms and hands. Staff at the Oregon jail didn’t know how to handle someone with his disability. They rough-handled his limbs and pulled his fingers apart to get his fingerprints. They stripped him down for a search, rough-handling his genitals. They forced his body into a set of jail clothing that was a couple of sizes too small, which caused Dean severe irritation below the waist.They then placed him alone in an isolated medical cell for approximately seven days. Without the means he needed for assistance in moving around, Dean lay flat on his back in an isolation cell. He endured painful convulsions because the jail failed to provide him with his medically necessary anti-seizure medication. The way Coffee Creek jail officials treated Dean Westwood is a travesty, and his story is one of many. Prisoners with physical disabilities constitute one of the most vulnerable populations in detention, yet across the nation, they are needlessly subjected to neglect, denied services, and placed in solitary confinement. Read the Full Report: Caged In These prisoners rely on corrections staff for support and services every day, be it assistance in taking showers, getting dressed, receiving medication, utilizing law libraries, or visiting prison commissaries. Although comprehensive data on the number of prisoners with physical disabilities in jails, prisons, and detention centers across the nation are currently unavailable, as many as 26 percent of state prisoners report possessing a mobility, hearing, or visual disability, according to one 2003 estimate. When cognitive disabilities and disabilities that limit a prisoner’s ability for self-care are included, the proportion of prisoners with physical disabilities in prisons and jails increase to 32 percent and 40 percent, respectively. Moreover, as the prison population ages, reports indicate the number of prisoners living with physical disabilities in American prisons will increase significantly. Despite these known facts, prisoners with physical disabilities are often denied the services they are entitled to under the law. Over 25 years after the passage of the Americans with Disabilities Act (ADA), which prohibits public entities from discriminating against people with disabilities, discrimination against people with disabilities persists in prisons and jails nationwide. Recent court cases have brought to light the serious violations of the rights of prisoners with physical disabilities. In March 2015, the Los Angeles Sherriff’s Department settled a lawsuit brought by the ACLU of Southern California, agreeing to provide mobility devices and physical therapy for prisoners with mobility disabilities after horrifying incidents of neglect and abuse. In an ongoing class action lawsuit, prisoners held in Illinois state prisons challenged the denial of, among other things, alert systems that would provide warnings to deaf prisoners during fires and other emergencies in the state prison facilities. Another recent case against the Louisiana State Penitentiary at Angola alleges that corrections staff refused to provide a blind prisoner with a cane for 16 years. The problems, however, didn’t stop there. The prison also declined to place him in a facility with accommodations for the blind. As a result, he was forced to rely on other prisoners rather than prison staff to carry out his daily activities. Neglect is only part of the story. Prisoners with physical disabilities are at constant risk for placement in solitary confinement and its attendant harms. [...]
Wed, 11 Jan 2017 16:30 -0500In 1961, the ACLU successfully fought back against McCarthyism and demonstrated that lies can wither in the face of truth. “If you’re to be called a communist every time you stand up for basic American rights and freedoms, what’s likely to happen? Will you be silent? And if so, is this what the House Committee on Un-American Activities is really after — a silent, submissive, un-protesting America?” -Ernest Besig, “Operation Correction,” 1961 Fifty-five years ago this January, the ACLU of Northern California was busy filling orders from across the country for copies of its recently produced film, “Operation Correction.” The film was a response to a piece of Red Scare propaganda, “Operation Abolition,” which was produced by the House Un-American Activities Committee (HUAC) and depicted civil liberties activists in San Francisco as violent “communist agents” bent on destroying the fabric of America. In those days, the federal government was deeply concerned with the political affiliations of ordinary Americans — if those affiliations were left-leaning. My own grandfather, who was a World War II veteran and affiliated with the Communist Party in San Francisco, was under FBI surveillance. In 1950, he was fired from a good union job at a glass company after FBI agents paid his employers a visit and informed them of his history as a labor organizer before the war. Our family bounced back, but the government’s post-war obsession with leftist thought and activism ruined the lives of many Californians. Leading the charge was HUAC, which investigated suspected communists. Professors, teachers, journalists, writers, filmmakers, and activists all came under deep scrutiny. In 1960, HUAC came to San Francisco. They subpoenaed 48 Northern Californians — many of them teachers and professors — to testify at City Hall about their political affiliations. At this point, the tide of public opinion was already starting to turn against HUAC. College students from UC Berkeley and Stanford mobilized to protest the hearings and take a stand for freedom of speech and freedom of association. The hearings, the protests, and the violent police crack-down were covered heavily by local news. Demonstrators outside of the San Francisco city hall. Credit: SAN FRANCISCO HISTORY CENTER, SAN FRANCISCO PUBLIC LIBRARY. Inside City Hall, witnesses were called to testify — several of them represented by the ACLU. While the hearings dragged on, the San Francisco Police Department used firehoses to knock protesters down the marble steps of City Hall. Scores were arrested and charged. The San Francisco Police Department turned fire hoses on student demonstrators and dragged them down the steps of City Hall and out to police paddy wagons. Through manipulative editing and voiceover narration, HUAC’s “Operation Abolition” used real news footage to portray the student activists as violent and dangerous “hardcore Communist agents” and “indoctrinated and trained dupes.” In this moment, the ACLU of Northern California saw an opportunity to educate the public about the danger HUAC posed to American ideals of freedom, democracy, and dissent. While “Operation Abolition” was being viewed by millions of Americans at town halls and colleges across the country, the ACLU produced “Operation Correction.” Our executive director at the time, Ernest Besig, narrated the exact same footage and explained the propagandistic tactics being used to mislead the public. People flocked to see it. In Berkeley, hundreds showed up for a standing-room-only “Operation Correction” event. Copies were distributed nationwide and even shown on TV in Alaska, Texas, and Kansas. Newspapers like The Washington Post editorialized on the success of the film and the dangers of government propaganda. Historians credit HUAC’s “Operation Abolition” with backfiring spectacularly. Young people across the country were shown the film a[...]
Wed, 11 Jan 2017 15:15 -0500Chelsea Manning has suffered long enough. It’s time for President Obama to do the right thing and send her home. This morning, NBC News reported that Chelsea Manning is on President Obama’s “short list” to receive a commutation of her sentence. Chelsea applied for clemency in November, urging the president to commute her sentence to time served and give her a chance “to live [her] life outside the USDB as the person [she] was born to be.”With nine days left in office, action by Obama may be Chelsea’s last chance for survival. Seven years into her 35-year sentence, Chelsea has already served longer than any person in United States history for disclosing information to the news media. The information she disclosed served a clear public interest, helping raise awareness regarding the impact of war on innocent civilians. Nonetheless, she pled guilty to many of the charges brought against her hoping for leniency in her sentencing — leniency that she never received. Instead, she endured torturous conditions of solitary confinement for 11 months during her pretrial confinement at Quantico, received an egregiously long sentence, and then was sent to an all-male facility. To add insult to injury, the prison denied Chelsea treatment for her gender dysphoria, even though the military’s own doctors diagnosed her as such as far back as 2010. In the past six months, after years of fighting just to be treated as a human being, after being humiliated in the military under policies like “Don’t Ask, Don’t Tell” and the ban on open transgender service, after surviving homelessness and discrimination in her youth, Chelsea has attempted to end her life twice. Her well-being was further compromised when she faced punishment for her desperation and was sent to solitary confinement for attempting suicide in July. Her trauma is escalating; her life is in danger. President Obama is likely the only person who can save her. Though her appeals are ongoing, the process is slow. Though she has received some medical treatment, much critical care remains withheld. The future is uncertain, and our chance to save Chelsea’s life is now. Chelsea is not asking for a pardon. She takes and always has taken full responsibility for her actions. As she explains her in clemency application: “I take full and complete responsibility for my decision to disclose those materials to the public. I have never made any excuses for what I did. I pleaded guilty without the protection of a plea agreement because I believed the military justice system would understand my motivation for the disclosure and sentence me fairly. I was wrong.” More than most people, Chelsea believes in our country, in our systems of justice, and in our ability to correct course when we act against our ideals. At 22 years old, she acted in what she believed to be the public’s great interest. She acted so that we might have a greater understanding of our government’s actions in our name far away from home. She acted in accordance with her conscience. And for that, she has paid a horrible price. Chelsea has faced solitary confinement. She has been denied health care. She has had medically necessary treatment withheld. She has faced the perpetual indignity of being subjected to male grooming and hair standards and held in an all-male facility as a woman. Chelsea is not yet 30 years old and her prospects for surviving another year are grim. She needs a commutation of her sentence by President Obama. Her life depends on it. We are watching and hoping and fighting for her. #FreeChelseaNOW[...]
Tue, 10 Jan 2017 14:15 -0500James Burns suffered through solitary confinement as a young man. He went back between the walls to push for its abolition. For the last 30 days, I was worried about James Burns. He was once again in solitary confinement, only this time it was of his own accord and live-streaming on VICE. As a kid and a young man, Burns repeatedly was put in solitary, and it hurt him badly. Now a journalist, Burns volunteered to go back between those four lonely walls to raise awareness and push for an end to solitary confinement in America. Today, Burns gets out. Today the isolation ends. Today he goes home. I know he made the decision himself to go back in for the greater good. Still, I’m worried about the impact on that awful place — and how his latest stint there will affect him for the rest of his life. And Burns isn’t the only one suffering from the impact of solitary confinement. In fact, as many as 100,000 people are in solitary on any given day in the United States. Solitary confinement deprives people of virtually all human interaction, and those kept in solitary often sustain permanent psychological damage. This is why I feared for Burns every time I saw him in that tiny, concrete cell all alone, even if — his time around — it was his choice. The cell was about the size of a parking spot with an iron bunk, toilet, and sink. There was a metal door with a small viewing window so the officers could look in to make sure he was still alive. Other than that, there was nothing else but the four concrete walls. I saw James Burns in that cell pacing back and forth, back and forth. There’s nothing else to do when you’re trapped in a box all day. I bet he counted how many steps it takes to cross the cell backwards and forwards. I bet he knew every crack in the wall, every chip in the paint. Sometimes it must have felt like the walls were closing in on him. Sometimes he must have been so desperate just to see and talk to another human being that he wanted to cry or scream. Burns could’ve left solitary at any moment, but he didn’t. Instead he persevered because he wants me thinking about solitary confinement. He wants you thinking about solitary confinement. He knows the other men around him are trapped. He heard, and will probably always hear, their screams — their cries full of desperation, rage, and despair. He wants us to hear them too. I admire Burns’ bravery and his resolve, but I know his project didn’t come without a price. I’ve seen what solitary confinement does to people: As an ACLU attorney, I sue the government for violating the Constitution by subjecting people in prison to “cruel and unusual punishment.” (That’s the phrase the Founding Fathers used in the 18th century; now we’d probably just say “torture.”) In my work, I’ve talked to hundreds of men, women, and kids in solitary confinement. I’ve sued states for harming people in solitary confinement. And I’ve worked for years to abolish the practice and make prisons more humane for all. Still, I couldn’t do what James did — I’m too afraid. Almost nobody survives solitary confinement undamaged, and too many don’t survive at all. I think of Kalief Browder, arrested for allegedly stealing a backpack at 16 and put into solitary for two years of his three years inside prison before being released to the community. The pain and suffering of those years in jail overwhelmed him, and he took his own life. I think of my client Mariam, who was also placed in solitary as a kid. We found her in an isolation cell during a prison inspection in Arizona, a confused and scared 17-year-old. We tried to get her out immediately, to get her out before it was too late — she seemed to be unraveling in isolation — but the state refused. Instead, they sent her to an adult supermax prison. The pain and desperation she must have felt in that small, lonely cell haunts[...]
Thu, 05 Jan 2017 13:30 -0500With Jeff Sessions as Attorney General, the private prison industry will have a direct line to President Trump. Donald Trump’s victory has been nothing but good news for the private prison industry.The day after the election, shares of the two biggest private prison corporations — Corrections Corporation of America (CCA) and GEO Group — jumped 43 and 21 percent, respectively. And share prices continue to soar. Since Election Day, CCA and GEO’s stock value has increased by 75 and 54 percent. Investors have good reason to believe that Trump will rely heavily on private prison companies. When asked how he planned to reform the country’s prison system during a town hall in March, Trump stated: “I do think we can do a lot of privatizations, and private prisons. It seems to work a lot better.” Additionally, Trump’s hardline stance on immigration practically guarantees an increased need for detention facilities, a gap that private prison companies are more than eager to fill. If Congress fully funds Trump’s proposal to round up and deport 2 to 3 million immigrants in the first year of his presidency, the immigration detention population will more than quadruple — requiring the construction of scores of new jails for immigrants. But the fact that the president-elect has selected Sen. Jeff Sessions as his nominee for attorney general gives the private prisons business even more to celebrate. In October, according to Politico, GEO Group hired Sen. Sessions’ former aides David Stewart and Ryan Robichaux to lobby in favor of outsourcing federal corrections to private companies. GEO Group is the same private prison company that was accused of illegally donating to a Rebuild America Now, a pro-Donald Trump super PAC, earlier this year. The ACLU does not endorse or oppose any nominee for public office, but we do analyze their track records. We are alarmed that if Sessions were confirmed as attorney general, the private prison lobby could have direct access to the head of the Department of Justice and tremendous influence over the Trump administration. By their nature, private prisons depend on and profit from the mass imprisonment of human beings. And decades of experience have shown that handing people in government custody over to for-profit companies is a recipe for abuse and neglect. For example, at one GEO-run immigration detention facility in Colorado, Evalin Ali-Mandza, a 46-year-old immigrant from Gabon, died of a heart attack after medical staff waited nearly an hour to call an ambulance. One of the nurses even chose to prioritize filling out paperwork over dialing 911. Federal officials have recognized this reality. In August, the Justice Department concluded that private prisons “compare poorly” to federally run prisons and directed the Bureau of Prisons to begin phasing out its private prison contracts. An expert advisory panel similarly recommended on December 1 that the Department of Homeland Security shift away from its own private prison contracts. As attorney general, Sessions should not be tempted to maintain the status quo and ignore the clear evidence that private prisons do not “work better.” Publicly traded for-profit prison corporations like CCA and GEO owe a fiduciary duty to their shareholders — the public, the human beings in their custody, and their own employees be damned. And they have demonstrated their priorities time and time again. In one ACLU case, a federal court found CCA in contempt because the company did not implement court-ordered improvements that would have made the prison safer. The year after a CCA employee was killed in a prison riot, company executives refused to hold a moment of silence in his honor at the annual shareholder meeting. Apparently, trying to mislead the public and escape this record of scandalous behavior, CCA recently rebranded itself “C[...]
Wed, 04 Jan 2017 16:45 -0500The humanity of trans people will once again be under attack in state legislatures across America. Across the country, before state legislative sessions have even convened, lawmakers are making clear that transgender people will again be the relentless targets of discriminatory legislation. Last year, lawmakers introduced more than 200 anti-LGBT bills in 34 states. At least 50 of those bills targeted transgender people specifically. We were able to defeat the overwhelming majority of these proposed laws. The two most sweeping anti-LGBT bills to become law, HB 1523 in Mississippi and HB 2 in North Carolina, we promptly challenged in court. In North Carolina, the passage of HB 2 has resulted in hundreds of millions of dollars in lost revenue to the state, costly litigation, and former Gov. Pat McCrory’s defeat at the ballot in November. But it seems lawmakers are not heeding the lessons of North Carolina. In Alabama, Texas, South Carolina, South Dakota, Washington, and more, bills have been pre-filed or lawmakers have announced their plans to file bills that target transgender individuals for discrimination. Unconstitutional, unenforceable, and harmful, these bills send the message to trans people that our very existence is a problem for the lawmakers charged with protecting us. Leading the charge of anti-trans rhetoric is Texas Lt. Gov. Dan Patrick, who has included anti-trans legislation among his 2017 legislative priorities. While the Texas Association of Business has warned that Patrick’s proposed bill, SB 6, could cost the state $ 8.5 billion, Patrick has dismissed those concerns and doubled down on his discriminatory proposal. His law, as he explained in an interview with the Houston Chronicle, will only expel women who are trans from women’s restrooms and not trans men from men’s restrooms because “men can defend themselves.”Riddled with constitutional violations, the proposed bill is nonetheless another terrifying attack on an already vulnerable group of people. Patrick and others are playing on fears of trans people — the type of fears that contribute to the epidemic of violence against and suicide within the trans community — to push legislation that will result in expelling trans people from public life. Women and girls who are trans are frequent targets of harassment in schools, violence on the street, and widespread discrimination in all facets of life. By claiming that discrimination against transgender women is necessary to protect the safety and privacy of “women and girls,” Patrick is reinforcing the idea that women and girls who are trans are not “real” women and girls. These proposals suggest that the very existence of a trans person undermines the privacy of others. This is not true. The work of combatting these bills and the misinformation that animates them must center the voices and lived experiences of trans people. And what we know from experience is that: The existence of trans people does not threaten the privacy of anyone else. We exist. Some people may be uncomfortable with us, but discomfort with difference is not the same as infringement of privacy. Trans women and girls are women and girls. Full stop. They are not “biological males” or “men pretending to be women” — no qualifications needed. The same is true for trans men and boys, who are men and boys. Extending legal protections to transgender people, including when it comes to using restrooms and locker rooms, does not threaten the safety of anyone else. This has been proven time and time again despite the ongoing rhetoric to the contrary. Policing of gender or genitals in restrooms is bad for everyone. There is no way to actually enforce these anti-trans bathroom laws except by exposing us all to intrusive questioning about our bodies, our gender, and our government documents. [...]
Thu, 22 Dec 2016 16:30 -0500In landmark case, the IACHR finds that U.S. violated labor rights protections against undocumented workers. In 2004, Leopoldo Zumaya was working as an apple picker in Pennsylvania when he fell from a tree, breaking his leg and leaving him with permanent nerve damage and chronic pain. A treating physician said Zumaya’s injuries were among the worst he’d ever seen. Most workers in Zumaya’s position would have received workers’ compensation benefits. But instead of disbursing his rightful worker’s compensation, his employer reported his immigration status to the insurance company, which then refused to pay his benefits, leaving him unable to access medical care. Zumaya hired a lawyer, but due to his immigration status he reluctantly accepted a settlement for less than one-third of the money he would have received had he been authorized to work in the U.S. The next year, Francisco Berumen Lizalde, an undocumented worker from Mexico, was working as a house painter in Kansas when he fell from scaffolding, severely injuring his hand. Shortly after filing for workers’ compensation benefits, Berumen-Lizalde was arrested by immigration enforcement officers, prosecuted for visa fraud, jailed and deported in what appeared to be retaliation for having filed for workers’ compensation. He was unable to pursue his claim for disability or to secure payments for medical care. Both men have been waiting more than a decade to undergo necessary medical treatment and the compensation to which they are entitled. In 2006, the ACLU, the National Employment Law Project and the University of Pennsylvania Law School’s Transnational Legal Clinic filed a petition with the Inter-American Commission on Human Rights (IACHR), challenging the U.S. government’s failure to protect these two clients, and millions of others like them, from exploitation and discrimination in the workplace. The petition was filed in the wake of Hoffman Plastic Compounds v. NLRB, the 2002 U.S. Supreme Court decision that held that an undocumented worker, who had been illegally fired for participating in protected union activities, could not recover back pay – the wages she would have earned if she not been fired. While some states, like California, do recognize greater labor rights for undocumented workers, several others were emboldened by the Hoffman decision to limit or even eliminate core workplace protections, like compensation for injuries. The IACHR published its long-awaited decision this week finding that the United States is responsible for violating Zumaya and Berumen-Lizalde’s human rights by denying them the right to equality before the law and access to justice and labor protections. The Inter-American Commission made several recommendations to address those violations including: provide Messrs. Zumaya and Lizalde with adequate monetary compensation to remedy the violations; ensure all federal and state laws and policies, on their face and in practice, prohibit any and all distinctions in employment and labor rights based on immigration status and work authorization, once a person commences work as an employee; prohibit employer inquiries into the immigration status of a worker asserting his or her employment and labor rights in litigation or in administrative complaints; ensure that undocumented workers are granted the same rights and remedies for violations of their rights in the workplace as documented workers; establish a procedure whereby undocumented workers involved in workers' compensation proceedings, or their representatives, may request the suspension of their deportations until the resolution of the proceedings and the workers have received the appropriate medical treatment ordered by the presiding courts; and improve and enhance the detection of employers who violate labor rights and ex[...]