Law and Disorder Radio – Census Bureau Hiring Discrimination Lawsuit – FBI Inappropriately Tracked Domestic Advocacy Groups – Hosts: Heidi Boghosian, Michael Steven Smith & Michael Ratner – Produced by Geoff Brady

Law and Disorder Radio


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MichaelR_Sam Census_Bureau_sealCensus Bureau Case: Johnson v. Locke

Earlier this year, thousands of people of color who applied with the 2010 Census were deemed ineligible or deterred from the application process. The Center for Constitutional Rights (CCR), co-counsel Outten & Golden and others filed a federal lawsuit in the Southern District of New York against the Census Bureau for race and national origin discrimination in the hiring of temporary workers. In Johnson et al. v. Locke, CCR says that the U.S. Census Bureau’s practice of running job applicants’ names through the FBI criminal records database–a notoriously inaccurate and incomplete database–disproportionately excludes applicants of color and deters them from completing the application process. Basically, anyone with an arrest will not be eligible, including those arrested and not charged in a demonstration for example.

This practice directly undermines the Census Bureau’s self-avowed commitment to hiring temporary workers from within historically under-counted communities, such as low-income people of color and immigrants.

African Americans, Latinos and Native Americans are subject to exceedingly disproportionate rates of contact with the criminal justice system, from disparate rates of stops-and-frisks and arrests to higher conviction rates and harsher criminal penalties. Lawsuit Website

Sam Miller:

  • I’m one of the litigators of a class action lawsuit against the Census Bureau based on its hiring practices for those who would be doing the counting process.
  • The Census Bureau eliminates virtually anyone who has ever been arrested.
  • I was arrested for civil disobedience, and if I were to go to the Census and apply for a job, I would get a letter saying that your name popped up on the FBI database, you have to get an official court record of your arrest and if you can’t do it, you’re out.
  • You get a form letter that says you’re flagged for having some criminal record. Roughly one quarter of the adult US population has a record in the FBI database. The FBI database is flawed with an enormous amount of errors in it. It includes things like an arrest without a prosecution, juvenile records, expungements.
  • Tens and even hundreds of thousands of people affected by hiring policy.
  • This is what we call a disparate impact lawsuit. The challenge to the policy is, here you have a policy that is checking people’s criminal background and excluding them on the basis of that background. The discrimination occurs because of the enormous disparity that’s in the criminal justice process.
  • I believe this is the largest employment discrimination case for many years. We’re talking about 700,000 people who were excluded from these jobs, just on the basis of this form letter that went out.
  • This information came to us in the Spring 2010 and we got the litigation underway as fast as we could.
  • What were looking for now is to change their policy and practice. They can’t deny people employment based on arrest records where there’s never been a prosecution, there’s never been a conviction.
  • We’re also asking for damages. We have a class of over 100,000 people who should be compensated for the jobs they should have gotten. My concern is it’s the tip of the iceberg, that there is a broader problem within the federal government.  We learned that the Census Bureau did it the same way 10 years ago.
  • The standard question employers should is has there ever been a conviction, it should not be has there ever been an arrest because that’s irrelevant.
  • My hope is that word of how completely outrageous the policy in the Census Bureau is gets up high into the government, whether its the Secretary of Commerce, the White House. Credit history is also a very significant issue that’s related.
  • The New Jim Crow by Michelle Alexander – furthering the undercaste.

Guest – Attorney Sam Miller, with co-counsel Outten & Golden. For more than two decades, he has represented plaintiffs in individual and class action civil rights cases. Prior to joining O&G in July 2009, Sam was the Legal Director at the Center for Constitutional Rights (CCR), where he directed a twenty-person legal staff in domestic impact litigation (including a recent victory against the New York City Fire Department based on class-wide race discrimination), international human rights litigation (including a recent multi-million dollar settlement against Shell Oil for human rights abuses and environmental degradation in Nigeria), and the Guantanamo Global Justice Initiative.

 FBI Inappropriately Tracked Domestic Advocacy Groups

In the last year we’ve reported on the FBI’s over-reaching authority in cases that profile Muslims and the use of informants to entrap people on terrorism charges. Now, in a report released by the Justice Department, the FBI is exposed for inappropriately targeting left-leaning groups after 9/11. Among those groups surveilled are PETAGreenpeace and the Catholic Worker Movement. In the case of the Catholic Worker Movement, the OIG report concluded that the FBI inappropriately characterized certain nonviolent civil disobedience as terrorism-related. The Catholic Worker Movement is a group committed to “nonviolence, voluntary poverty, prayer and hospitality for the homeless.”

The four-year internal investigation “found no evidence that the FBI had any information at the time of the event that any terrorism suspect would be present at the event.” There are many other examples. The report concluded that FBI Director Robert Mueller “unintentionally provided inaccurate testimony to Congress” in 2006 about an anti-war rally in Pittsburgh four years earlier. Download PDF copy of report

Thomas Cincotta:

  • This report was prompted by media reports of FBI surveillance of domestic political organizations.
  • These reports came to light through several FOIA requests. The report illustrates a really broad scope of authority that the FBI has right now.
  • This report covers 2001-2006. Sheds a lot of light on what the FBI is doing and what they’re characterizing these days as terrorism. There seems to be some disconnect with reality here because of who the FBI is choosing to investigate.
  • Half of the report focused on the investigation of a pacifist group in Pittsburgh called the Thomas Merton Center.
  • Why did the FBI focus on an anti-war group? These terms “forceful and violent” are spelled out in FBI policy, so there’s a lot of discretion to slap this terrorism label on their investigations which can be extraordinarily prejudicial to their targets.
  • An example of the broad definition of terrorism, the FBI made a determination in the case of the Catholic Worker Movement, that spilling human blood on the walls and an American flag were forceful acts and damage to government property. They are immediately put on the VGTOF. The VGTOF list is used by all of the screening centers and by TSA, Customs Bureau, etc.
  • There’s a complete disconnect here in what the common notion of terror is. Michael Ratner: This verifies what we been thinking about for 10 or 11 years.
  • There’s an emphasis on ideology, which is a very sloppy way to do criminal law enforcement work. It has a very predictive quality. Meaning, organization X has said this, espouses this in its philosophy, that means we can expect that intends to do Y. This report demonstrates we can’t trust the FBI to police themselves.
  • We need mechanisms in place so when people are targeted unfairly by the government they can be held to account. Minnesota blog on RNC arrests.

Guest – Thomas Cincotta, project director with Political Research Associates. A criminal defense lawyer, he led the Denver chapter of the National Lawyers Guild in support of peace groups and others during the 2008 Democratic National Convention, and connected progressive lawyers with other community efforts around sentencing reform, immigrant rights, and police misconduct. He also represented migrant farm workers and served on the board of El Centro Humanitario, Denver’s first day laborer center. He currently serves on the NLG’s national board and international committee. Before becoming a lawyer, Cincotta worked as a labor representative for UNITE HERE Local 217 in Providence, Rhode Island.