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The Fight To End Human Trafficking – Should the EEOC Participate?

November 18, 2013

By Reema Kapur and Abigail Cahak

The Equal Employment Opportunity Commission (EEOC) is stretching Title VII jurisprudence to fight modern human trafficking. While the Commission’s goal is laudable, its legal theories are not grounded in existing law. This post addresses whether the EEOC’s novel expansion of federal employment discrimination statutes to address trafficking is necessary or desirable, especially in light of the existing civil and criminal statutory schemes already on the books.

Understanding “Human Trafficking”

The term “human trafficking” encompasses “labor” and “sex” trafficking. Federal law defines sex and labor trafficking respectively as “the recruitment, harboring, transportation, provision, or obtaining of a person” for either “the purposes of commercial sex act” or “for labor or services” which is induced or obtained “through the use of force, fraud, or coercion.” Although conceptually distinct, the line between the two often blurs.

Efforts To Counteract Human Trafficking

Anti-trafficking laws exist at the federal level and in all 50 states as well as the District of Columbia. Traditional methods of counteracting human trafficking have largely focused on criminal prosecution and targeting organized crime.
Recently, the Obama Administration has made a concerted effort to raise awareness of human trafficking. In conjunction with public awareness campaigns, the White House has overseen a push across many federal agencies to tackle human trafficking from all angles. Among other things, this initiative has included the proposed adoption of rules to prevent the use of forced labor in conjunction with government contracts and creation of the National Human Trafficking Resource Center (NHTRC). While the NHTRC is not a law enforcement or immigration agency, it may forward tips it receives to local, state, and/or federal law enforcement authorities if deemed appropriate.

Human Trafficking In The EEOC’s Crosshairs

According to the EEOC, employment discrimination laws are the “new frontier” in the war against human labor trafficking. The EEOC’s position is not without controversy because Congress has limited the EEOC’s authority to enforce particular statutes. As an end-run around this limitation, the EEOC has pushed courts to analyze human trafficking as Title VII race or national origin discrimination claims. It has argued that “[a]nti-discrimination laws – particularly those prohibiting race and national origin discrimination as well as sexual harassment – are an integral part of the national fight against human labor trafficking.”

The EEOC signaled its focus on human trafficking and forced labor as early as January 19, 2011 when, at a public hearing, it held a panel on the topic. In spring 2011, the EEOC flexed its litigation muscles when it filed lawsuits against two employers purportedly on behalf of hundreds of workers. In both ongoing lawsuits, the EEOC alleged that the employers had engaged in race and national origin discrimination when they trafficked foreign workers into the United States. In the first, the EEOC sued a marine services company alleging that it had subjected a class of approximately 500 Indian employees to human labor trafficking and a hostile work environment. In the second case, the EEOC sued a manpower agency alleging that it engaged in a pattern or practice of national origin and race discrimination, harassment, and retaliation, when it trafficked over 200 Thai male victims to agricultural farms in the U.S. Finally, the most current version of the EEOC’s Strategic Enforcement Plan (SEP), identifies “Protecting Immigrant, Migrant and Other Vulnerable Workers” as a national priority. Under this priority, the EEOC has vowed to “target disparate pay, job segregation, harassment, trafficking and discriminatory policies affecting vulnerable workers who may be unaware of their rights under the equal employment laws, or reluctant or unable to exercise them.”

Preventing Human Trafficking While Ensuring The Legal Integrity Of Those Efforts

Without a doubt, vulnerable workers deserve protection and it is a societal responsibility to push for legal – and ethical – labor practices. However, the question remains: how do we best prevent human trafficking while ensuring the legal integrity of those efforts? Although human exploitation should be attacked using all available means, the EEOC is not well-equipped to do so.

The plain language of Title VII prohibits discrimination based on race, color, religion, national origin, or sex. The EEOC’s assertion that Title VII covers “human trafficking” is in fact a novel extension of Title VII, well beyond statutory language and the EEOC’s enforcement authority as defined by Congress. Because the EEOC can only bring suit under its limited statutory authority, human trafficking claims must be shoehorned into one of Title VII’s protected categories.

To do this, the EEOC must draw unsupported inferences to tie human trafficking allegations to discrimination on the basis of race, sex or national origin. This forces the EEOC to litigate human trafficking by proxy — it must convince a court that individuals targeted for their economic vulnerability are necessarily targeted for their national origin, race, or sex. Although the two often coincide, a correlation is not automatic and making this connection in each instance would dilute the force of the EEOC’s arguments. In sum, the unintended consequence of the EEOC’s tactics is to direct the parties’ and courts’ attention away from human trafficking to address whether the facts support a claim for discrimination under a recognized protected category.

In addition to lacking a legal mandate to pursue human trafficking cases, the EEOC also lacks the resources. The EEOC admits that it is a cash-strapped organization. For example, in a September 23, 2013 open letter, P. David Lopez, EEOC General Counsel, acknowledges that the EEOC only brings suit in less than 1% of cases. Furthermore, the continued efficacy of the agency – as cautioned by the union representing EEOC employees – has been repeatedly called into question in the face of continuing budget cuts. The EEOC, employers and workers are better served if the EEOC focuses its resources on staying within its legal mandate.

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SABA Toronto Hosts Justice Bhandari, Chief Justice of the Bombay High Court

October 2, 2013

The Honourable Justice Dalveer Bhandari was a special guest speaker at a reception co-hosted by Osgoode Hall Law School and the South Asian Bar Association (SABA) of Toronto. Justice Bhandari is a judge of the International Court of Justice (ICJ) in The Hague, President of the India International Law Foundation and a former Judge of the Supreme Court of India. Justice Bhandari has also served as Chief Justice of the Bombay High Court and as a Judge of the High Court of Delhi.

SABA Toronto and its members were honoured to welcome Justice Bhandari and introduce him to the South-Asian legal community in Toronto. At the reception, Justice Bhandari discussed the ever growing importance of law and lawyers in all facets of society.

The reception was well attended by SABA Toronto members and other distinguished guests including Akhilesh Mishra, Consul General of India, Toronto, Pascale Daigneault, President of the Ontario Bar Association, Yasir Naqvi , Minister of Labour, Justice Brown of the Superior Court of Justice among others.

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Affordable Care Act Exchanges Make Their October 1 Debut

October 1, 2013

Today the Affordable Care Act (ACA) enters a new phase with the opening of the enrollment period for the health care exchanges. The federal government has also shut down today for the first time since 1995, but the roll-out of the exchanges will continue because this provision of the ACA is largely funded through mandatory appropriations rather than annual spending bills.

The exchanges are the centerpiece of the ACA’s effort to cover more of the 48 million uninsured Americans by creating online marketplaces in each state where individuals and small businesses can compare health insurance plans and buy coverage. All plans are required to at least provide the same set of essential benefits but plans may offer additional benefits as well. The cost structures of the plans will vary and consumers will be able to compare prices of the different plans, which are described as bronze, silver, gold, and in some cases platinum. In addition, consumers who are between 100 and 400 percent of the poverty line are eligible for tax credits to defray monthly premium costs.

The District of Columbia and 16 states have opted to run their own exchanges, while the remaining 34 states decided to let the federal government run all or part of their marketplaces. The enrollment period for 2014 coverage starts today and ends March 31, 2014; however, in order to be covered starting January 1, 2014, the deadline for enrollment is December 15, 2013. The ACA requires most people to have health insurance, but exceptions to this rule exist. Those who do not meet an exception in 2014 will be required to pay a $95 penalty or 1 percent of their household income, whichever is greater. People who have insurance through their jobs or through Medicare are automatically in compliance with the health insurance mandate.

The success of the health insurance marketplaces depends on whether the exchanges will function as expected, whether sufficient numbers of healthy, young Americans will sign up for coverage, and whether patients will be able to have adequate access to doctors and specialists. The program has already faced technical glitches and delays including a delay until November of the ability of small businesses to buy coverage online in the 34 federally run exchanges and a delay of the Spanish language version of the federal website until mid-October.

Visit http://www.healthcare.gov for links to each state’s exchanges and for more information.

NASABA Health Law Section

NASABA COMMENDS THE NOMINATION OF INDIRA TALWANI TO THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

September 24, 2013

*** FOR IMMEDIATE RELEASE ***

The North American South Asian Bar Association (NASABA) commends President Obama’s nomination of Indira (“Indi”) Talwani to the United States District Court for the District of Massachusetts. “Indi is a committed attorney with an exceptional record. She is admired by her peers. We are extremely excited that another deserving South Asian has been nominated to the judiciary,” pronounced Nadeem Bezar, President of NASABA.

Talwani is a respected leader in the public interest legal community and a leading authority on the Family Medical Leave Act. She has tried more than twenty-five arbitration cases as lead or solo counsel and has developed an impressive record as an advocate for the underserved while working on a wide variety of matters from complex civil anti-trust litigation, whistleblower protections under the Sarbanes-Oxley Act, low wage class action, and challenging an Environmental Protection Agency decision. Ms. Talwani is a tireless advocate on behalf of the underserved and understands the value of labor relations. These skills have distinguished her among her peers. In 2012, the Chinese Progressive Association awarded her the Workers Justice Award. In 2010, The Massachusetts Lawyers Weekly named her one of the “Top 10 Lawyers of the Year.”

Talwani will be the third current South Asian nominee by President Obama, after Vince Chhabria and Manish Shah, both awaiting confirmation. Once confirmed, Talwani would be the first South Asian justice in the First Circuit.

Ms. Talwani is currently a partner in the Boston law firm of Segal Roitman, LLP and focuses her practice on labor and employment law. Talwani received her J.D. from the University of California Berkeley School of Law (a.k.a. Boalt Hall), in 1988 and she received her B.A. cum laude, from Harvard-Radcliffe in 1982. She served as a law clerk to Hon. Stanley A. Weigel in the U.S. District Court for the Northern District of California, and was a partner at Altshuler Berzon LLP in San Francisco before moving to Boston in 1999.

NASABA is a voluntary bar organization and serves an umbrella organization to 25 chapters in the United States and Canada. NASABA is a recognized forum for professional growth and advancement for South Asian attorneys in North America and seeks to protect the rights and liberties of the South Asian community across the continent. Learn more at http://www.nasaba.com

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Neil C. Maskeri
Vice President of Public Relations
North American South Asian Bar Association (NASABA)
215-255-9180
nmaskeri@vklaw.com
http://www.nasaba.com

South Asian American Pioneers in the Public Sector

September 24, 2013

On Wednesday, October 16, SABA-DC invites you to join us as we celebrate the successes of two South Asian American pioneers in the public sector: D.C. Circuit Court of Appeals Judge Sri Srinivasan and Neera Tanden, President of the Center for American Progress. Former SABA-DC President Dharmesh Vashee will facilitate a discussion with Judge Srinivasan and Ms. Tanden about their paths through the public sector, the philosophies that inspired their successes, and the pitfalls they avoided along the way. Judge Srinivasan and Ms. Tanden will take questions from the audience following the discussion.

Hosted by the Arent Fox Diversity Initiative, a reception of hors d’oeuvres, beer, wine and refreshments will precede the discussion.

The event is open to the public and all attendees must register at http://bit.ly/1fb7URc. The cost of admission to the event is complimentary for SABA-DC Members and $20 for Non-Members. More information about becoming a member of SABA-DC can be found at http://bit.ly/19wTcLW.

Date: Wednesday, October 16, 2013
Time: 6:00 pm – 7:00 pm :: Reception
7:00 pm – 9:00 pm :: Discussion and Q&A

Venue: Arent Fox LLP, 1717 K St NW, Washington, DC 20036.
Cost: Free for SABA-DC Members and $20 for Non-Members

NASABA APPLAUDS THE NOMINATION OF MANISH S. SHAH TO THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

September 20, 2013

The North American South Asian Bar Association (NASABA) applauds President Obama’s nomination of Manish Shah to the United States District Court for the Northern District of Illinois. “This is a proud moment for NASABA as another deserving South Asian has been nominated to the judiciary,” pronounced Nadeem Bezar, President of NASABA.

Manish Shah currently serves as the Chief of the Criminal Division at the United States Attorney’s Office for the Northern District of Illinois, where he has worked since 2001. His decision to spend almost his entire career in the U.S. Attorney’s office demonstrates a dedication to public service. Additionally, he has given back to new attorneys by teaching at the National Advocacy Center and instructing at a legal aid workshop at the University of Chicago.

Shah will be the second current South Asian nominee by President Obama, after Vince Chhabria for the Northern District of California, awaiting confirmation. Once confirmed, Shah would be the first South Asian Article III judge in Illinois.

Shah received his J.D. with honors from the University of Chicago Law School in 1998, and he received his B.A. with honors, and with distinction, from Stanford University in 1994. Shah began his legal career as a Litigation Associate at Heller Ehrman White & McAuliffe in San Francisco, CA where he represented clients in commercial and antitrust litigation. Shah then left the San Francisco law firm to clerk for Hon. James B. Zagel of the United States District Court for the Northern District of Illinois.

NASABA is a voluntary bar organization and serves an umbrella organization to 25 chapters in the United States and Canada. NASABA is a recognized forum for professional growth and advancement for South Asian attorneys in North America and seeks to protect the rights and liberties of the South Asian community across the continent. Learn more at http://www.nasaba.com

Perminder Tung Appointed to Board of College of Massage Therapists of BC

September 16, 2013

SABABC is pleased to announce that SABABC board member Perminder Tung has been appointed by the provincial government to serve on the Board of Directors of the College of Massage Therapists of BC. The College regulates the profession of massage therapy in BC, in accordance with the duties and objects set out in the Health Professions Act. Please join us in congratulating Perminder.

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