“MLK Day” to Employers and Employees Today and Tomorrow

JANUARY 19, 2009

The significance of “MLK Day” to employers and employees today and tomorrow

For millions of people all over the world, the confluence of today’s national celebration of Dr. Martin Luther King, Jr.’s birthday and tomorrow’s historic inauguration of President-elect Obama as the 44th president of the United States speaks volumes about the progress we have made as a nation and a people, at least in terms of our politics, toward fulfilling Dr. King’s dream of a color-blind society. For many employees and employers alike, both here and abroad, these twin celebrations also hold great promise and hope for increased workplace diversity.

By John E. Higgins

On this day, and on the third Monday of each January since 1986, millions of people across America —and, indeed, throughout the world—of every race, color, religion, national origin, and creed celebrate the birth, life, and legacy of Dr. Martin Luther King, Jr. in a national holiday of remembrance and service. This year’s celebration of Martin Luther King ( MLK) Day, coming 80 years after Dr. King’s birth in 1929, more than 50 years after his untimely death at the age of 39 by an assassin’s bullet in 1968, and more than 45 years after his famous “I Have a Dream” speech on August 28, 1963, on the steps of the Lincoln Memorial in Washington, D.C., comes at a particularly poignant and historic time. That is because tomorrow, on January 20, 2009, one day after the 23rd national celebration of the MLK holiday in America, Barack Obama, the first person of African- American descent ever elected to the highest office in the land, will be sworn in as the 44th president of the United States.

Notably, legislative efforts to create a national day of remembrance in honor of Dr. King began only days after his death in Memphis, Tennessee, on March 29, 1968. On the day of his death, Dr. King had gone to Memphis and spoken out in support of higher wages and better working conditions for striking black sanitation workers represented by the American Federation of State, County, and Municipal Employees (AFSCME). It should, therefore, come as no surprise that today’s MLK holiday was founded in part as a union demand in contract negotiations between organized labor and employers, many of whom eventually came to recognize and support increasing concerted efforts in the 1970s and ’80s to establish a federal holiday in the slain civil rights leader’s name. But it was not until 1983, some 15 years after Dr. King’s death, with financial and human capital support provided not only by organized labor but also by major corporations and by Democrats and many Republican leaders alike, that a law establishing Martin Luther King, Jr. Day as a federal holiday was passed by both houses of Congress and signed into law by then-President Ronald Reagan.

On November 2, 1983, in his remarks on signing the bill making the birthday of Dr. King (which actually falls on January 15) a national holiday, President Reagan noted that “Dr. King made equality of rights his life’s work” and that “[a]cross the country, he organized boycotts, rallies, and marches. Often he was beaten, imprisoned, but he never stopped teaching non-violence.” It was for this reason, President Reagan observed, and because of his tireless work to end racial discrimination through civil disobedience and other non-violent means, that, in 1964, “Dr. King became the youngest man in history to win the Nobel Peace Prize.”

But as President Reagan also explained in making this day a national holiday, Dr. King’s greatest political legacies may be found in his tireless efforts to secure passage of the Civil Rights Act of 1964, guaranteeing all Americans equal use of public accommodations, equal access to programs financed with federal funds, and the right to compete for employment on the basis of individual merit and without discrimination on account of race, sex, religion, creed, or the color of one’s skin, as well as the Voting Rights Act of 1965, which assured blacks in America the right to vote guaranteed by the 15th Amendment to the United States Constitution. Of course, as President Reagan observed in 1983 and as then-President George Walker Bush remarked six years later, on May 17, 1989, in signing the MLK Federal Holiday Commission Extension Act, it was toward these ends that Dr. King delivered his now famous “I Have a Dream” speech on a sweltering August day in 1963 to a quarter-million people from diverse backgrounds gathered at the steps of the Lincoln Memorial during the nation’s first historic March on Washington. It was there and then that Dr. King shared his famous dream with the American people, challenging all people of this great country, including the sons and daughters of former slaves, to believe “that one day, this nation will rise up and live out the true meaning of its creed … that all men are created equal,” and to be patient.

In remembrance of these “shining ideals,” the MLK federal holiday was first observed in America on January 20, 1986. It would take another 14 years after that, though, before all 50 states in the country officially observed the King holiday, a hallmark reached on May 2, 2000, when the state of South Carolina recognized MLK Day as a paid holiday for all state employees. Today, according to estimates provided by the Bureau of National Affairs (BNA), most if not all public employers, and nearly one out of every three private employers in the country (about 31 percent), recognize MLK Day as a paid holiday for millions of U.S. workers And, according to the King Center in Atlanta, established by Dr. King’s widow, the late Coretta Scott King, it is estimated that the MLK holiday is recognized and celebrated in one form or another in more than 100 countries outside of the United States by diverse people all over the world.

So, what does the historic election and tomorrow’s inauguration of Barack Obama, a biracial man of African-American ancestry, mean on this day to employers and employees across America and abroad, in terms of workplace diversity and the fulfillment of Dr. King’s dream of a “color-blind” society? In previous Employment Law Alerts, we have explained in some detail how the historic election of Barack Obama and the recent gains made by Democrats in both the U.S. House of Representatives and the Senate may well lead to profound and dramatic changes in the landscape of labor and employment law, and may transform the American workplace. (See Nixon Peabody’s November 17, 2008, Employment Law Alert: “President-elect Obama and potential historic changes in labor & employment law.”) We have also explained in recent Employment Law Alerts how President- elect Obama’s nomination of a diverse cabinet, including his nomination of U.S. representative Hilda Solis (D-CA) as the next Secretary of Labor, is expected to result in greater enforcement of

2 workplace laws, regulations, and workers’ rights, and a much stronger role for unions. (See January 6, 2009 Employment Law Alert, “Obama selects Hilda Solis for Secretary of Labor.”)

Many of these pro-labor and pro-employee changes are already well underway. And, if the speed with which the new Congress has already begun to tackle, debate, and prepare such legislative initiatives as the Lilly Ledbetter Fair Pay Act of 2009 and Employee Free Choice Act for a new president’s signature is any indication, employers should indeed “get ready” because, in the words of the 1964 Curtis Mayfield song, “there’s a train a-coming.”

But, in addition to fulfilling many of the promises of democracy articulated in the Voting Rights Act and expressed in Dr. King’s “I Have a Dream” speech, the historic election and tomorrow’s inauguration of Barack Obama as president may also reasonably be expected to have a much more subtle, yet even more profound and greater transformative effect on the diversity of workplaces, both public and private, in the United States and elsewhere. In part, this is due to President-elect Obama’s expressed commitment to workplace equality and the cautious hope he has already instilled in employers and employees alike with his recent pledge “to put people back to work and get our economy moving again.” On a more basic and symbolic level, however, President-elect Obama’s election to the office of United States president reflects what many workplace diversity experts see as a new way of thinking—for millions of people across America and abroad—about the meaning and importance of diversity, and about what it means to be the best person for a particular job. And that includes the job of president, whether it be of the United States or a major corporation or business.

As recently explained by Gloria Castillo, president of Chicago United, an organization that advocates for diversity in business, President-elect Obama’s “appeal to voters from different ethnicities, generations, and geographies was enriched by the diverse campaign team he assembled for their mix of experience and viewpoints.” Castillo is also right when she says that Obama’s “victory demonstrates that, when we bring diverse thinking to the table, we all gain tremendous benefits and a competitive advantage” and that this is “a striking reminder for corporate America.”

For many business leaders in corporate America, this is not a new or novel idea. As explained by former U.S. Supreme Court Justice Sandra Day O’Connor, writing in 2003 for a majority of a divided court in Grutter v. Bolinger, for many years “[m]ajor American businesses have made clear that the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints.” These very same businesses have likewise made it clear that “racial and ethnic diversity … is vital to [their] efforts to hire and maintain a diverse workforce … [and] such a workforce is important to [our] continued success in the global marketplace.” Nevertheless, for many people in America and elsewhere, particularly African Americans, “tomorrow’s inauguration is symbolic of a new level of hope, and of greater expectations, because we know we can now believe in inclusion in a way we may not have thought possible before,” as recently noted by diversity consultant Erika Walker, Director of Motir Consulting Services in Washington, D.C. According to Walker, “It’s Dr. King’s message manifested in so many ways, yet the dream of hope has now been taken to an entirely new level (minus the excuses and assumptions about what can’t be done).”

With the election of Barack Obama as president by a majority of American voters on November 4, 2008, including blacks, whites, Hispanics, Asians, and others who voted for Obama in record numbers, and with the appointment of what President-elect Obama has promised will be one of the most diverse cabinets and White House staffs in history, it can be expected that more business

3 leaders will also increase their commitments and efforts to select candidates for every job based on merit and ability, and without discrimination due to race, creed, sex, religion, national origin, sexual orientation, or other unlawful considerations. If indeed such a sea change in thinking takes hold throughout corporate America during Obama’s next four years as president, as businesses compete increasingly on a global stage for the very best, brightest, and most diverse people to fill positions of every kind, there is no doubt that Dr. King’s dream of a more color-blind meritocracy, where people are judged based on the content of their character and not on the color of their skin, will one day be achieved.

If you would like more information about the topics covered in this Alert, please contact your Nixon Peabody attorney or:

 John E. Higgins at 518-427-2704 or [email protected]  Elizabeth D. Moore at 212-940-3052 or [email protected]  Bonnie Glatzer at 415-984-8333 or [email protected]