If you don’t know, it could cost you.  In the past few years, federal courts have seen an influx in “donning and doffing” lawsuits.  These suits reflect a general discontent of employees that are not compensated for the time spent dressing in work-related attire while on employer premises. Sometimes employers are required to pay and sometimes they aren’t, but it is best to be aware of recent developments to avoid being caught with your pants down.

Consider Your Collective Bargaining Agreement & the FLSA

On January 27, 2014, the Supreme Court handed down its opinion for Sandifer v. United States Steel Corp.  The Supreme Court granted cert on this case to determine whether an employer must pay employees for their time spent putting on (donning) and taking off (doffing) their work-related garments and protective gear under the Fair Labor Standards Act (FLSA).  

The FLSA sets out the circumstances under which an employer must compensate an employee.  Pertinent to “donning and doffing”, section 790.8(c) of the FLSA requires that an employer compensate an employee for the time they take to put on and take off safety equipment. However, section 203(o) creates an exception, which indicates that any time spent changing clothes or washing at the beginning and end of the workday shall be excluded from compensated time if the collective bargaining agreement in place excludes compensation for these activities.  In Sandifer v. United States Steel Corp., 800 steelworkers from Indiana have challenged the definition of clothes in the applicable collective bargaining agreement in line with section 203(o) of the FLSA.  

When United States Steel Corp. steelworkers arrive at the plant each morning, they report to their respective locker rooms and dress in protective gear that is stored at the facility.  A steelworker wears fire retardant jackets, fire retardant pants, steel toed boots, protective goggles, ear plugs, hard hats, a flame retardant or aluminized snood (a head covering to protect the head and neck), a flame retardant wristlet that covers the forearms, and flame retardant spats that cover the foot and shin area.  If these items fall outside of the definition of “clothes,” perhaps qualified as “protective gear,” then Sandifer and the other steelworkers must be compensated for the time spent changing.

The amount of time that it takes each worker to put on (don) and take off (doff) each protective item can certainly accumulate each day. Sandifer and the other steelworkers allege that they are owed back overtime pay because the amount of time spent donning and doffing their protective gear would qualify as overtime beyond the normal 40 hour work week.

The Supreme Court determined that all items worn by the steelworkers, other than protective goggles and ear plugs, qualified as “clothes” under the ordinary meaning of the word, defined as “items that are both designed and used to cover the body and are commonly regarded as articles of dress”.  Because these items are deemed “clothes," employers and employees are authorized to decide whether that time is compensable and memorialize the decision in a collective bargaining agreement.

The Supreme Court’s determination of Sandifer can impact your business if you have established a collective bargaining agreement that qualifies the donning and doffing of safety equipment or protective gear as “changing clothes.”  It is important to review the types of work-related garments and gear your employees wear.  Are the items commonly regarded as articles of dress?  Or are some of the items more similar in function to ear plugs and safety glasses?  Certainly no one would question whether jeans, a tee shirt, a suit, or a blouse were clothes.  But the Supreme Court’s decision requires that you consider each element of your employees’ uniform in a new light.  It may be necessary that you reconsider whether certain items be donned during work hours in order to prevent the risk of future litigation.  The Sara Lee Corporation failed to address these implications in time to avoid litigation.

The Portal to Portal Act: Donning & Doffing May Be a Principal Activity

In 1947, the Portal-to-Portal Act was enacted as an amendment to the FLSA in order to clarify the type of time that classifies as work time.  Section 254(a)(2) provides that no employer shall be liable for failure to pay wages or overtime for activities that are preliminary or postliminary to principal activities, which occur before the workday starts or after the workday ends. Thus, the pertinent legal question is whether an activity is a principal activity.  

In Duran v. Sara Lee Corp., a group of Sara Lee factory workers in Zeeland, Michigan, brought suit to demand back overtime pay for the time spent donning and doffing their protective gear, including ear protection, safety glasses, steel-toed boots, and bump caps, while on-site.  These workers argued that putting on and taking off this protective gear qualifies as a “principal activity” of their job.  In March, a federal jury determined that the Sara Lee factory workers were engaging in “principal activities” of their jobs while donning and doffing their protective gear because it is one of the many tasks that must be completed on the job daily.  The jury also determined that these factory workers are owed back overtime pay for these activities.  In addition, the jury determined that Sara Lee’s actions were willful, which allows for greater recovery of damages.  Although it is certain this verdict will be appealed, the Michigan jury is sending a message to employers to review their contracts and reconsider their donning and doffing policies.

Conclusion

Savvy business owners should carve out time to review the articles of clothing and protective gear worn by their employees.  Consider the purpose and function of each article. If there is a chance that an item is more likely to be qualified as protective gear rather than clothes, it is vital to revisit your current collective bargaining agreement and employment manual with respect to the donning and doffing of work-related articles.  The time spent examining your current policies is well worth the benefit of avoiding or minimizing future litigation whether your employees wear clothes to work or not.


This article does not constitute legal advice, is not applicable to factual situations, and does not establish an attorney-client relationship.

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“Diversity” is a concept at center stage in today’s ever changing world. And, all of us have heard or used the phrase “be politically correct.” Diversity can be visually obvious such as age, gender, and race. But, there are many facets of diversity that are not visual such as religion, politics, sexual preference, etc. And, even if diversity is totally obvious, oft times we simply don’t know what to do with diversity! Do we avoid eye contact, or address it head on?  As attorneys, how do we tap into the power of diversity to make us better people, counselors, colleagues and litigators? None of us want to be the next Paula Dean or Duck Dynasty patriarch!  As lawyers what do we need to know about diversity and trial tactics to provide our clients with the best defense? In a medical case it’s a given that throughout the case we will encounter many people with who look different than us, practice different religions, come from different cultures, and so on. From the patients, to the admissions clerk, to the nursing staff, to doctors, clients and jurors, the various human differences are mind boggling. How do we go from “tiptoeing” around our differences to weaving diversity into our cases to achieve winning strategies? 

Learn more about how you can address diversity issues in your practice and during trial at DRI’s Medical Liability and Health Care Law Seminar, taking place at the Cosmopolitan Hotel in Las Vegas March 20–21, 2014. You will not want to miss the presentation on “Diversity in the Courtroom: Putting the Odds in Your Favor.” Click here to register for this program. 

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Nelson Mandela, the first black president of South Africa, is remembered by members of the DRI Diversity Committee community as a courageous leader and the symbol of a new era for his country.  He was a South African anti-apartheid revolutionary, lawyer committed to the legal profession and philanthropist who served as President of South Africa from 1994 to 1999. He was South Africa's first black chief executive, and the first elected in a fully representative democratic election. The fact that Mandela could emerge from 27 years of prison with so much strength and commitment to changing his country, end the injustice of apartheid, to become the moral center of his nation, as it rebuilt itself, is a testimony to the strength of his human spirit.  The father of an independent South Africa will be sorely missed. 

Nelson Mandela’s life serves as a model for others, South Africa, Africa, and America and serves as confirmation that one courageous man can make the world a better place. 
 
Our profession must continue to embrace the spirit of inclusion that was demonstrated by the life of Nelson Mandela.

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The Approach to Diversity

Posted on October 18, 2012 02:24 by Alison Y. Ashe-Card

“Is dicing the workforce into pre-set categories going to encourage working together,” ponders author Liz Ryan.  In a recent Harvard Business Review article, she describes a recent diversity conference with which she was involved where concurrent sessions were held focusing on women, Baby Boomers, the GLBTQ population, Asians, African-Americans, and the physically challenged.  Ryan suggests, "We are not going to get better at confronting the differences that hamper our ability to work together by separating our people into broad-brush groups... Instead, we're going to get better at celebrating the family backgrounds, religious traditions, and ethnic heritage that our people bring with them to work. We can do that by talking about it — all the time — and by teaching people to talk about the 'sticky human stuff' in general."  She advocates that barriers will be broken down when we actively engage in conversations about our differences.

DRI has demonstrated that it is on the path to becoming a thought leader on the issue of diversity within our profession.  A core centerpiece of DRI’s diversity efforts is the Diversity for Success Seminar and Corporate Expo which will be held on May 30, 2013 in Chicago.  Diversity not only involves how people perceive themselves, but how they perceive others. Those perceptions affect their interactions.  The Diversity for Success Seminar provides a forum for attendees to have courageous, thought-provoking discussions about our differences and the role it plays in our firms, businesses and in the legal profession. 

 

 

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Introduction

Cases can be won and lost on voir dire. Success in jury selection relies on an attorney's interpersonal skills, mainly an attorney's ability to stand in front of a group of strangers and convince them that he or she is to be trusted.


While jurors are influenced by external factors such as knowledge of the case. More important are the internal factors, including their own past experiences and psychology. Internal factors are not only highly influential, but are also immeasurable, as the jurors themselves typically cannot explain their influence nor are they even aware of those influences. As a result, these internal factors are all too often overlooked.

Diversity Matters
First we must be honest about the reality of voir dire. While it is, in fact, the process by which biased jurors are removed from the juror pool with aspirations of producing a "fair and impartial jury," an attorney does not leave the role of advocate at the courtroom door when commencing voir dire. Being an advocate means that if an attorney believes that a juror is biased in his or her favor, that attorney will try to keep that juror.

Diversity is more than just race – it means valuing differences such as ethnicity, gender, age, religion, sexual orientation, socioeconomic and educational backgrounds. Investing in diversity goes beyond mere stereotyping, such as assuming an injured plaintiff wants a jury composed only of liberal-minded, soft-hearted, and generous people. Rather than focusing on generic stereotypes, attorneys should accept that as advocates, they are seeking a jury most favorable to their case. Attorneys must recognize that this begins with how the jury feels about the advocates. In turn, law firms must encourage their attorneys to use their diversity to relate to jurors as part of being zealous advocates for clients.

Diversity in a law firm allows a firm to empower its clients. A diverse trial team has many advantages, as not only is there is a visual benefit of the jury seeing a diverse team, but it also allows the trial team to be strategic. A firm with diversity among its attorneys can decide on a moment's notice who is best suited for voir dire based on jury makeup. If jurors believe that an attorney is a relatable figure, they are more likely to be candid in their responses during voir dire, and to trust that attorney more than the opponent throughout the trial.

Where Attorneys Unnecessarily Limit Themselves
While the peremptory challenge is a legal tool used to remove biased jurors, empirical data shows that many jurors who actually sit for trials are influenced by prejudices and biases. Despite this fact, attorneys often struggle with the importance of addressing how race and gender-based stereotypes inevitably affect people's judgment and decision-making which can result in losing juror biased in the client's favor.

Much of this failure to capitalize on jurors' favorable biases is due to the fact that freedom to select the perfect jury has its limits. The Seventh Amendment to the Constitution guarantees that a defendant in a civil suit has the right to a fair trial, by an impartial jury. Furthermore, in Batson v. Kentucky, 476 U.S. 79 (1986) the U.S. Supreme Court made it illegal to reject jurors on the basis of race. The Court determined that a man is entitled to be tried by a jury which represents a cross section of his community, and reasoned this could not be accomplished by rejecting jurors based on their race.

As a result, some argue that attempting to explicitly use one's race or gender to gain favor with a potential juror would likely cross the line established in Batson, believing it is unconstitutional to use a potential juror's diversity as the basis for a peremptory challenge. However, this extrapolation has limited attorneys unnecessarily, as Batson and its progeny regard excluding a juror on the basis of race, ethnicity, or gender. As set forth below, there are a myriad of ways diversity can be utilized within constitutional bounds.

Proponents of intentionally maximizing diversity in their legal teams argue that it is unethical for a defense lawyer to disregard what is known about the influence of race and sex on juror attitudes in order to comply with Batson. "The ethical obligation to comply with Batson conflicts with the ethical obligation of defense attorneys to vigorously defend their clients: The task of the lawyer, therefore, is to outsmart the system--to figure out the demographics of justice and to manipulate it during jury selection by eliminating jurors with the so-called wrong personal characteristics." Abbe Smith, "Nice Work if You Can Get It": "Ethical" Jury Selection in Criminal Defense, 67 Fordham L. Rev. 523, 524-28 (1998).

The importance of eliminating jurors with biases against your case is consistent with public sentiment. A 2008 Harris Poll showed that less than three in five Americans believe juries can be fair and impartial all or most of the time. Just Under Three in Five Americans Believe Juries Can Be Fair and Impartial All or Most of the Time, Harris Poll, Jan. 21, 2008. And it isn't just public opinion - empirical data supports the notion that many jurors who actually sit for trials are influenced by prejudices and biases.

This should not be surprising, as attorneys themselves are similarly influenced. Attorneys have all learned stereotypes from their culture and environment. When a lawyer sees a potential juror, he or she will almost instantaneously categorize that person on the basis of age, race or sex. Often unconscious of the stereotyping, an attorney will pay greater attention to information given by that juror that confirms their expectations. Studies have also shown that information that confirms expectations based on a stereotype will be recalled more easily, and any ambiguous information will be interpreted to conform to that expectancy. Antony Page, Batson's Blind-Spot: Unconscious Stereotyping and the Peremptory Challenge, 85 B.U. L. Rev. 155, 228 (2005).

As jurors make the same categorizations about the attorneys conducting voir dire, using diversity within a trial team to elicit favorable characterizations should be a focus of voir dire questioning. Questions that provide information that not only reinforces, but makes the jurors' inherent biases apparent to the legal team, should be an intentional focus. In doing so, there is a greater probability that those jurors with biases in favor of your case can be retained, and those whose biases do not favor your side can be challenged.

The Ultimate Goal – Getting the Juror You Need
Conducting a successful voir dire has as much to do with the manner in which questions are presented by an attorney as the questions themselves. The importance of connecting with the jury on a personal level can not be overstated.

One of the best ways an attorney can connect to a juror is to identify commonalities between the juror and attorney to establish a connection prior to trial. In the same way, jurors that see an attorney as similar to themselves will make attributions to the attorney such as the trustworthiness of that attorney. Capitalizing on similarities can be as simple as a slight, subtle change in dialect when greeting jurors. An African American female attorney who has tried many cases explained that she intentionally tailors her greeting to reflect the characteristics of the juror. When she greets a middle aged Caucasian woman, she might simply say "Good morning Ms. Morgan" to reflect that she is polite, articulate and trustworthy. When greeting an African American woman, she might use a more causal "How are you doing Ms. Morgan?" to reflect a familiarity that is conveyed to that juror by the dialect and tone of her greeting. In instances like this, what is said is not as important as using cultural mannerisms to communicate with the prospective juror.

Other techniques can be even more subtle, but highly effective, such as a slight change in an attorney's demeanor, or even just making a connection through eye contact. An African American male attorney explained that African Americans tend to communicate with their eyes. When walking down a street, it is a part of their culture to do a head nod of recognition when they see another African American. Therefore, when he sees black jurors, he makes a point of looking them in the eye for a bit longer so that commonality and understanding exists between them.

In another instances, a female Latina attorney who practiced in Laredo, Texas stated she appreciated the opportunity she received solely because of her Hispanic background. She was taken to trial very early on in her career because the jury pool was composed of mostly Hispanic people and her firm recognized the value her heritage had with the jury. During voir dire she made a point of introducing herself with her natural accent so that the jurors recognized that she was one of them.

While keeping suggestions like these in mind, an attorney must be careful not to alienate other jurors in this process. Attorneys for the defense have a particular advantage in this regard, as they conduct their examinations after the Plaintiff. Therefore, they retain the benefits of the knowledge derived from the prior examination, and consequently can incorporate this into more targeted questions to find commonalities among the trial attorney and the remaining jurors. Defense attorneys who are diverse also have the advantage of switching the attorney conducting voir dire at the last moment if something is revealed during plaintiff's questions that reveals a better match exists.

Although many attorneys are aware of the importance of posing questions relating to bias and life experience during voir dire, a great deal discount the importance of relating the similarities they find to themselves. This practice can be invaluable, but requires law firms to have already made a commitment to diversity. If a law firm is lacking in diversity, it is lacking in its ability to provide the best representation for its clients.

While some firms have begun to tailor their trial teams to be more diverse, many have not. Firms are still composed largely of white males, where minorities account for only 5.4% of partners, and 18.1% of associates. Minority women account for less than 2% of partners and 10% of associates. This places firms who have failed to invest in diversity at a distinct disadvantage when connecting with any jury. Survival of any business enterprise in today's world requires that the dialogue be open and honest about diversity. Recognizing the importance of diversity and making a commitment to it can only strengthen the success amongst law firms within the legal community. When we look at the jury pool today, we no longer see a majority of any one race, gender, or socioeconomic status. We see the melting pot we have become and a successful firm is armed with the ammunition to relate to that melting pot.

Stacy L. Douglas, Wood, Smith, Henning & Berman
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The underlying premise of the U.S. Supreme Court’s precedent in Grutter v. Bollinger is that students benefit from being in a racially diverse educational environment.  As the justices prepare to reconsider the issue of affirmative action in higher education, new research has emerged which examines Grutter’s premise.  The study, “Does Race Matter in Educational Diversity? A Legal and Empirical Analysis,” concludes that law students actually do benefit from racial diversity on campus and that law schools should work to maintain diverse classes.  University of North Carolina School of Law professor Charles Daye conducted the research along with University of North Carolina psychology professor A.T. Panter; University of California, Los Angeles sociology professor Walter Allen; and University of North Carolina at Greensboro professor emeritus Linda Wightman.  Their findings are based on data collected from law schools over a decade. The team surveyed approximately 6,500 incoming students at 50 law schools about their own backgrounds, expectations and experiences. They also conducted periodic focus groups consisting of approximately 200 students throughout their three years in law school.  

The researchers set out to answer two basic questions: Does race make a difference to what students bring to law school? If so, are any differences reflected in the quality of education students receive?  The data shows, resoundingly, that students of different races do come to law school with differences in experience and perception, Daye said.  Perhaps more important, those differences translated into a richer educational experience overall, according to the surveyed students.  "Diversity matters in the way students conduct conversations in class, how they interpret cases, in the way they interact in social settings and with their professors," Daye said.  Critics contend that the study authors used shoddy science to reach predetermined conclusions by relying on self-reporting of law students and assert that the study only demonstrates that students think that diversity helps their understanding of the law.
 
Does race matter in educational diversity and, if so, how do you measure or quantify the difference that it makes?  Does race make a difference to what students bring to higher education?  If so, are any differences reflected in the quality of education students receive?
 

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This fall, the United States Supreme Court will reconsider the issue of affirmative action in higher education for the first time since its 2003 decision in Grutter v. Bollinger.  In Grutter the Court held that, “The Equal Protection Clause does not prohibit the [University of Michigan] Law School’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.”  The Court will consider the appeal of Abigail Fisher, a white student, who alleges she was denied admission to the University of Texas because of the color of her skin.  At issue in the Fisher case is whether the Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Grutter, permit the University of Texas at Austin’s use of race in undergraduate admissions decisions. 

The Supreme Court’s decision stands to have great impact nationally.  Numerous amicus briefs have been filed in support of both litigants.  Of note, the University of California (UC) president and chancellors, the state of California, the California Institute of Technology and a group of student organization at UC campuses are among at least 69 organizations that have filed amicus briefs in support of the University of Texas at Austin.  California is one of a few states that have already prohibited affirmative action in college admissions following the passage of Proposition 209 in 1996.  In its amicus brief, UC attorneys argued that the university system’s experience after Prop. 209 “sheds important light on the practical, real-world obstacles faced by universities seeking to obtain the educational benefits that flow from a diverse student body.”  Similarly, the brief filed on behalf of the state of California by Attorney General Kamala Harris observed that if California, a large and diverse state, could not achieve an acceptable level of diversity in its public universities in the absence of race-conscious admissions policies, other states with more homogeneous populations would struggle to an even greater extent.

Despite several initiatives enacted after the passage of the proposition, UC has not been able to reverse the decline in minority admission and enrollment since 1998, when the law went into effect.  Between 1995 and 2009, African Americans consistently represented between 7 and 8 percent of new high school graduates in California.  In 1995, African Americans made up 7.3 percent of admitted freshmen at UC Berkeley, but by 1998, that figure had dropped to 3.2 percent. In 2010 and 2011, it was 3.9 percent. UCLA saw similar results.

Is diversity a sufficiently compelling reason to use race in admissions decisions?  Is there a compelling interest in obtaining educational benefits from a diverse student body?  Could a reversal of the Court’s decision in Grutter result in less diverse student bodies at public colleges and universities as has been experienced in California?

 

Alison Y. Ashe-Card

Womble Carlyle Sandridge & Rice, LLC

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According to a recent survey published by the Minority Corporate Counsel Association (MCCA), more women serve as general counsel at Fortune 500 companies in 2011 than ever before.  Women now hold the top legal spot at 21 % of Fortune 500 companies and approximately 16% of these female general counsels identified themselves as minorities.  MCCA President, Joe West, says “The real impact of this news, hopefully, is that it will illustrate to law firms that corporate law departments are serious about inclusion both in word and in deed, and that the time is coming when law firms need to get serious about it as well.”

The numbers of female and minority lawyers are increasing in corporate legal departments because of the transparency requirements put on them by government and the accountability required by consumers and shareholders, says Dr. Arin Reeves, an expert on diversity in the legal field.  While the information in the MCCA report shows positive change, Reeves says it’s dangerous to allow short-term positive change to slow long-term momentum.  “We should be very vigilant that we have a long way to go.  We’re nowhere near represented yet, nowhere near full or unfettered opportunity for women or minorities.”

http://www.law.com/jsp/cc/PubArticleCC.jsp?id=1202567037361

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“Show-me-your-papers”

Posted on June 29, 2012 02:23 by Alison Y. Ashe-Card

Earlier this week, the U.S. Supreme Court struck down several key provisions of an Arizona law (SB 1070, Support Our Law Enforcement and Safe Neighborhoods Act) targeting illegal immigrants, ruling the state interfered with congressional authority over U.S. borders, but it let stand a requirement that police check the immigration status of people they stop for traffic or other offenses.  Reaction by law enforcement officials in Arizona, and others, has been mixed.  Police Chief Roberto Villaseñor of Tucson said that he wonders if his agency has been dealt an “impossible mandate,” while Amy Rezzonico, spokeswoman for Arizona’s attorney general’s office said, “I’m pretty sure it will be business as usual to some degree.”  The court left open the possibility that the surviving provision could be challenged, should it lead to prolonged detentions solely to determine immigration status.  "No American should ever live under a cloud of suspicion just because of what they look like. Going forward, we must ensure that Arizona law enforcement officials do not enforce this law in a manner that undermines the civil rights of Americans, as the Court’s decision recognizes," said President Obama.

Marc Miller, a vice dean and law professor at the University of Arizona said, “By making it a mandate and lining up against the warnings of the Supreme Court, it’s created an impossibly difficult question for police and sheriffs.  Are we concerned about racial profiling? Absolutely.”  Will enforcement of this law likely result in racial profiling?  Is it fair to question one’s legal residency or U.S. citizenship simply on the basis of the color of their skin?  What impact will this law have on the Hispanic community and other minority communities?  Are the civil liberties of all Americans at risk?

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This Day In History: June 13th

Posted on June 14, 2012 04:03 by Alison Y. Ashe-Card

On this day in 1967, President Lyndon B. Johnson nominated Thurgood Marshall to fill the seat of retiring U.S Supreme Court Associate Justice Tom Clark, saying that this was "the right thing to do, the right time to do it, the right man and the right place."  The Senate confirmed his nomination on August 30th by a vote of 69-11.  Upon his swearing in, Marshall became the 96th justice and the first African-American to sit on the nation’s highest court.  Only one other African-American, Clarence Thomas who succeeded Marshall, has served as one of the Court’s 112 justices.

 
Marshall, a Baltimore native, graduated from Lincoln University cum laude in 1930 and from Howard Law School in 1939 at the top of his class.  Marshall wanted to apply to his hometown law school, the University Of Maryland School Of Law, but the dean said he would not be accepted because of the school's segregation policy.  He practiced law privately in Baltimore before joining the NAACP as assistant counsel in 1936.  As the NAACP’s chief counsel from 1938 to 1961, Marshall, argued 32 cases before the high tribunal, repeatedly challenging racial segregation, most notably in public education. He won 29 of those cases, including a historic victory in 1954’s Brown v. Board of Education decision when the court, reversing itself, unanimously found that segregated schools violated the equal protection clause of the 14th Amendment.

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