Periodic report of the united states of america to the united nations committee on the elimination of racial discrimination

Article 1 A. Definitions of racial discrimination in domestic law and the Convention

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Article 1

A. Definitions of racial discrimination in domestic law and the Convention.

7. Definition of racial discrimination in domestic law. Existing U.S. constitutional and statutory law and practice provide strong and effective protections against discrimination on the bases covered by Article 1 of the Convention in all fields of public endeavor, and provide remedies for those who, despite these protections, become victims of discrimination.1 For discussion of U.S. constitutional provisions and laws providing protections against racial and ethnic discrimination, please see sections II and III of the Common Core Document.

8. Prohibition of discriminatory effects or disparate impact. With regard to paragraph 10 of the Committee’s Concluding Observations, although establishing a race discrimination violation of the U.S. Constitution requires proof of discriminatory intent, many U.S. civil rights statutes and regulations go further, prohibiting policies or practices that have discriminatory effects or disparate impact on members of racial or ethnic minorities or other protected classes. In cases involving disparate impact analysis, the inquiry is whether evidence establishes that a facially neutral policy, practice, or procedure causes a significantly disproportionate negative impact on the protected group and lacks a substantial legitimate justification. When facts support the use of disparate impact analysis, the United States is committed to using these valuable tools to address indirect discrimination. Laws that address disparate impact discrimination include:

  • Title VII of the Civil Rights Act of 1964 (Title VII), prohibiting disparate impact in employment, as seen in the recent holding that New York City’s use of examinations for firefighters had an unlawful disparate impact on Blacks/African Americans and Hispanics/Latinos. U.S. v. City of New York, NY, 683 F. Supp. 2d 77 (E.D.N.Y. 2009);

  • The Voting Rights Act, which prohibits certain voting practices and procedures, including redistricting plans, that have disparate impact on the basis of race, color, or membership in a language minority group. For example, a recent enforcement action led to an agreement with Shannon County, South Dakota to ensure the voting rights of Lakota-speaking Native American voters with limited English proficiency.

  • Title VI of the 1964 Civil Rights Act, 42 U.S.C. 2000d, and its implementing regulations, which prohibit practices that have the effect of discriminating by state or local governments or private entities receiving federal financial assistance, including schools, hospitals and health care facilities, law enforcement agencies, courts, and creditors such as banks and credit card companies.2 For example, in 2010, the Department of Health and Human Services Office for Civil Rights (HHS/OCR) secured a settlement requiring the University of Pittsburgh Medical Center to ensure that closure of a hospital in a predominately Black/African American community did not have a disparate impact on the residents of that area. Other examples are noted below in the discussion under Articles 2 and 5.

  • The Fair Housing Act (Title VIII of the Civil Rights Act of 1968), which prohibits discrimination in the sale, rental, and financing of dwellings based, inter alia, on race, color, or national origin; and the Equal Credit Opportunity Act, which prohibits creditors from discriminating against credit applicants on the basis of, inter alia, race, color, or national origin. For example, in 2011, DOJ obtained its largest fair lending settlement, requiring Countrywide Financial Corporation to provide $335 million to some 230,000 Black/African American and Hispanic/Latino borrowers who were steered into sub-prime loans or forced to pay more for their mortgages than similarly-qualified White borrowers.

9. As part of its recently reinvigorated civil rights enforcement, in 2010 DOJ/CRT issued a letter to chief justices and administrators of state courts, clarifying the obligation under Title VI of courts that receive federal financial assistance to provide language assistance services to people with limited English language ability in all proceedings and court operations. DOJ also provides technical assistance to federal agencies to strengthen their Title VI enforcement efforts.

10. Examples of recent policy developments concerning disparate impact include the following. In 2013 the Department of Housing and Urban Development (HUD) published a final rule on the implementation of a discriminatory effects standard with regard to housing, designed to promote enforcement against housing practices that have an unjustified discriminatory effect, In April 2012, the Equal Employment Opportunity Commission (EEOC) issued guidance, inter alia, on the application of disparate impact analysis in cases involving employer use of arrest and conviction records in employment decisions – decisions that often have a disproportionate impact on racial minorities, Further examples of enforcement of laws against activities with unjustified discriminatory effect or disproportionate impact are found in the Common Core Document and in the 2011 U.S. ICCPR Report (discussion under Article 2).

11. Understanding of the phrase “public life.” The United States understands that identification of the rights protected under the Convention by reference in Article 1 to the fields of “public life” reflects a distinction between spheres of public conduct that are customarily subject to government regulation, and spheres of private conduct that may not be. With regard to this issue, and also in response to paragraph 11 of the Committee’s Concluding Observations, at the time it became party to the CERD, the United States carefully evaluated the treaty to ensure that it could fully implement all of the obligations it would assume. In this case, the definition of “racial discrimination” under article 1 (1) of the Convention, the obligation imposed in article 2 (1) (d) to bring to an end all racial discrimination “by any persons, groups or organizations,” and the specific requirements of paragraphs 2 (1) (c) and (d) and articles 3 and 5 could be read as imposing a requirement on States parties to take action to prohibit and punish purely private conduct of a nature generally held to lie beyond the proper scope of governmental regulation under U.S. law. For this reason, in close collaboration with the U.S. Senate, the United States crafted a formal reservation that U.S. undertakings in this regard are limited by the reach of constitutional and statutory protections under U.S. law as they may exist at any given time. We believe this reservation continues to be necessary, although we note that anti-discrimination laws in this area have broad reach. As described in greater detail in paragraph 154 of the Common Core Document and also discussed below in the context of Article 2, the protections against discrimination in the U.S. Constitution and federal laws reach significant areas of non-government activity, ranging from reliance on U.S. civil rights laws to prohibit private actors from engaging in racial or ethnic (national origin) discrimination in activities such as the sale or rental of private property, employment at private businesses, admission to private schools, and access to public facilities; or the use of the Immigration and Nationality Act’s (INA) anti-discrimination provisions to protect authorized immigrants from discriminatory practices by private employers based on the workers’ immigration status, how they look or speak, or where they are from. Similarly, many state anti-discrimination laws cover discriminatory practices by private employers, landlords, creditors, and educational institutions.

12. Differential treatment based on citizenship or immigration status. The United States strongly shares the Committee’s view that citizens and noncitizens alike should enjoy protection of their human rights and fundamental freedoms. Although the Convention by its terms does not apply to “distinctions, exclusions, restrictions or preferences made by a State Party … between citizens and noncitizens,” as a general matter the United States believes that every State must be vigilant in protecting the rights that noncitizens enjoy in the State, regardless of immigration status, as a matter of applicable domestic and international law.

13. As the Common Core Document makes clear, the United States has one of the most open immigration systems in the world. Aliens within the United States, regardless of their immigration status, enjoy substantial protections under the U.S. Constitution. Many of these protections are shared on an equal basis with citizens, including protections against racial and national origin discrimination. The guarantee of equal protection of the laws under the Fifth and Fourteenth Amendments to the Constitution applies in some respects to aliens who have made an entry into the United States, even if such entry was unlawful. In addition to constitutional protections, which, for example, make it unlawful to deny elementary and secondary school children in the United States a free public education on the basis of their immigration status, see, e.g., Plyler v. Doe, 457 U.S. 202 (1982), many federal statutes prohibit discrimination against noncitizens. These include (1) section 274B(a)(1) of the INA, 8 U.S.C. 1324b (a)(1) (prohibiting employment discrimination against certain work authorized individuals, including some noncitizens, on the basis of national origin or citizenship status with respect to hiring, firing, or recruitment for a fee); (2) the protections of federal labor law; and (3) anti-discrimination employment laws, see EEOC Compliance Manual, Sec. 2, Threshold Issues, (“Individuals who are employed in the United States are protected by the EEO statutes regardless of their citizenship or immigration status.”). In addition, the federal prohibition against discrimination based on race, color, or national origin under Title VI of the Civil Rights Act applies to citizens and noncitizens alike. See DOJ/CRT Title VI Legal Manual, p. 6,

14. The United States prioritizes elimination of racial discrimination against all individuals, both citizens and noncitizens alike. For example, in 2011 DOJ and the Department of Education (ED) issued guidance reminding public schools of their obligation under Plyler to enroll all students regardless of their or their parents’ immigration status. DOJ and ED have since provided technical assistance to schools to help them fulfill these obligations. They have also investigated schools that are reportedly not following the rules leading, inter alia, to a recent settlement agreement with a Georgia school district that improperly notified parents that their children would be withdrawn from school for failure to provide social security numbers and failed to make enrollment procedures accessible to parents with limited English proficiency. Also in 2011, Alabama passed an immigration law (H.B. 56) that required the disclosure to schools of the immigration status of enrolling children and their parents. DOJ immediately travelled to Alabama to meet with parents, students, teachers, and other community leaders. DOJ challenged the law in Federal court, and private parties in a separate case also challenged the law. Ultimately, the court held that the disclosure provision (Section 28) of H.B. 56 violated the Equal Protection Clause of the U.S. Constitution and enjoined the operation of that section. United States v. Alabama, 691 F.3d 1269 (11th Cir. 2012); Hispanic Interest Coalition of Alabama v. Governor of Alabama, 691 F.3d 1236 (11th Cir. 2012).

15. DOJ investigates employment discrimination against noncitizens under the INA; the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) of DOJ/CRT works with local communities to prevent violations of, and to seek out and prosecute those who violate, anti-discrimination laws with regard to noncitizens. The United States also devotes substantial resources to assisting and providing services to noncitizens, for example, through the Department of Labor (DOL) Migrant Worker Partnership Program, designed to facilitate protection of the rights of noncitizens working in the United States. In addition, the EEOC enforces prohibitions against employment discrimination based on race and national origin without regard to immigration status; in recognition of the need to serve this vulnerable population more effectively, it created an Immigrant Worker Team in 2011 to develop policies for enforcement and outreach to immigrant groups. EEOC continues to prioritize serving vulnerable immigrant workers in its 2012 Strategic Plan and Strategic Enforcement Plan identifying agency priorities through FY 2016. For further discussion, see paragraphs 101 – 108 (Law with regard to Aliens) of the 2011 U.S. ICCPR Report and the discussion of noncitizens under Article 5, below.

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