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Archive for June 30th, 2009

Supreme Court Rules In Favor Of Firefighters In Reverse Discrimination Case

Posted by African Press International on June 30, 2009

Employers and Employees Both Find Comfort in Decision

In one of the most important employment law cases of the decade, the U.S. Supreme Court handed employees a 5-4 victory by recognizing that even good-faith employment decisions can sometimes lead to results that give rise to lawsuits if those results fall more harshly on one class of employees than on another.

But the news is certainly not all bad for employers the Supreme Court’s ruling provides justification for those tough decisions that might otherwise have led to concerns about claims of discrimination, and allows employers the freedom to make such decisions without fear of reprisal. Ricci v. DeStefano

Promotion Exam Results Skewed Heavily Against Minority Applicants

In 2003, a group of 118 New Haven, Connecticut, firefighters took promotion exams seeking to advance to the ranks of Lieutenant and Captain. The exams were administered by the City of New Haven after much effort to ensure that they would measure the applicants’ ability to perform the work at issue, and that they would be neutral in every other respect. Despite the fact that the group of applicants which took the exams was racially diverse (over 1/3 of the applicants were either African American or Hispanic), the results of the exam were anything but of the 15 vacancies that would be filled by exam placement, none of them were black and only 2 were Hispanic.

The Civil Service Board held a series of public meetings to determine whether they should certify the exam results and issue the promotions, and listened to opposing testimony about the matter. Several of the white firefighters who passed the test and were therefore in line for the promotions testified about the hardships they endured studying for the exam. Frank Ricci studied 8 to 13 hours a day to prepare for the exam and incurred over $1,000 in costs, including purchasing study-aid books and paying for someone to read them to tape because he is dyslexic and studies better by listening than reading; Christopher Parker studied in his wife’s hospital room as they awaited delivery of their son. The Board also heard testimony from the company which drafted the exam and other experts who testified that the tests were designed to be racially neutral.

From the opposing viewpoint, experts pointed to other jurisdictions which placed different weight on certain parts of their respective exams and thus achieved better racial diversity in promotions. Most importantly, the Board heard testimony from its own attorney, who testified that the City would almost certainly face a “disparate impact” lawsuit from those black and Hispanic firefighters who did not pass the exam should the test results be certified. Such a claim can be brought when, even though an employer does not make a conscious discriminatory decision (for example, “I’m firing you because you are black”), its decisions tend to have a more adverse impact on one group of employees than another.

City Tosses Out Promotions Due To Concerns About Discrimination

The Board voted 2-2 on the issue (a fifth member of the Board recused herself because her brother was one of the affected firefighters). Because a majority did not agree to certify the results, no promotions were made. A group of 17 white firefighters and one Hispanic firefighter brought a Title VII discrimination lawsuit against the City, alleging that the decision not to issue the promotions amounted to reverse discrimination making an adverse employment decision based on the applicants’ color (in this case, white).

The U.S. District Court in Connecticut rejected their claims and dismissed the lawsuit, ruling that the employer had a right to rely on the good faith belief that its actions could have resulted in a finding of discrimination. It rejected the reverse-discrimination argument of the firefighters, holding that there was no evidence that the decision was motivated by discriminatory animus. In an unusual maneuver, the U.S. Court of Appeals for the Second Circuit (including Supreme Court nominee Judge Sonia Sotomayor) affirmed the district court’s 48 page written opinion with a single paragraph, drawing the ire of the firefighters and their many supporters across the country. An appeal to the U.S. Supreme Court was accepted, eventually leading to today’s opinion.

Supreme Court Rules In Favor Of Firefighters

A fractured Supreme Court issued a 5-4 decision reversing the Second Circuit and handing the firefighters a victory. It began by adopting a new standard for Title VII cases: when an employer engages in intentional discrimination (“I’m not hiring you because of the color of your skin”) for the claimed reason that it wants to avoid or remedy unintentional discrimination, the employer must have a “strong basis in evidence” to believe that it will be exposed to a disparate impact claim if it fails to take that action.

The Supreme Court initially ruled that the City of New Haven did, in fact, make an intentional decision to discriminate against the white firefighters when it chose not to promote them. It then examined whether the City had a “strong basis in evidence” to have made that decision, deciding that there were four reasons why there was not:

1. The City cannot simply rely on a showing of statistical evidence when claiming that it would be fearful of a disparate-impact claim. Even though the racial adverse impact in this case was significant, numbers alone will not satisfy the strong-basis-in-evidence test.

2. The firefighters and test administrators proved that “detailed steps” were taken to develop the tests in an unbiased manner, including “painstaking” analyses to ensure that the tests were relevant to show whether the applicants were qualified for the promotions.

3. Although the City argued that there may have been other testing alternatives that might have led to a more diverse pool of qualified promotion candidates such as weighing the scores differently, using a different test, or otherwise adjusting the results the Court held that such alternatives were not proven to be necessary and, in fact, could have also been intentionally discriminatory.

4. Finally, fear of litigation alone cannot justify an employer’s decision to discriminate against non-minority employees. The Court held that the City could have properly defended its actions and avoided disparate-impact liability by showing the unbiased nature of the promotion exams, and could not use the specter of possible litigation to rationalize the mistreatment of the qualified applicants.

What Does This Mean For Employers?

This is the rare Supreme Court case where a ruling against employers might actually serve to provide ammunition when defending against claims of discrimination. Moreover, by adopting a strict test for disparate-impact clams, this decision may quell the tide of employee victories in unintentional discrimination lawsuits, which could be welcome relief for employers in this era of downsizing and layoffs.

Employers now have a bright line standard to follow when implementing any action that might serve to unintentionally impact any certain class of employees more than another class is there a “strong basis in evidence” that the employer will lose a claim of disparate impact litigation if it makes such a decision? If the answer is yes and only if the answer is a clear yes the employer is allowed to adopt an “affirmative action” type of approach and favor the minority employees or applicants. Otherwise, employers can expect to get hit with a reverse-discrimination lawsuit.

Employers should now feel confident that, as long as they take a reasoned and rational approach to such decisions, they will not be caught up in competing litigation worries, and can implement whatever workforce configuration they choose. Whether it is in the context of hiring or promotion, terminations or layoffs, you will want to take proactive steps to ensure that each decision leading to the action is based on a job-related reason (Does that employee really need that license or certificate to do the job? Do we need to offer that specific test to each applicant?) and that each decision is consistent with business necessity (Do we need to eliminate all employees in that department? Can we show that we have fired everyone else who has failed to meet that production standard?).

This Supreme Court Alert discusses highlights of a specific court decision. It is not intended to be, and should not be construed as, legal advice for any particular fact situation.

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Cable that will change many lives in Africa: Optic cable arrival stirs ICT sector

Posted by African Press International on June 30, 2009


The arrival of the Teams fibre optic marine cables in Mombasa at the Fort Jesus sea front. Companies are now expected to launch new products for mass market. Photo/FILE


Arrival of the submarine fibre optic cable has sparked off the release of new products and consolidation as the information communication and technology sector gears up for the mass market.

Last year telecom analysts predicted an upsurge in ICT products fuelled by the mass market rollout of residential internet this year. This is becoming evident with ongoing developments.

In his maiden speech, Mr Mickael Ghossein, the new Telkom Kenya CEO promised that the company would place focus on data service provision.

Strong areas

In the next three to four years, we are looking at being a leader in the areas where we are strong and that includes broad band services, said Mr Ghossein last week.

Internet service providers have already started selling broadband. UUNET Kenya says it will connect its clients onto the submarine fibre optic cable from September this year.

Mr Tom Omariba UUNET Kenya MD said on Monday that he has issued an internal communication to clients, advising them to utilise the current 60-day testing period to ensure their communication systems are protected against threats.

Two weeks ago, data infrastructure firm Kenya Data Network signed a Sh1.6 billion deal with telecom solutions provider Alcatel-Lucent for the upgrade of its internet network.

The three-year deal will include the supply, installation and integration of the internet protocol system in 12 towns countrywide.

The firm that has 10 gigabytes of data in the Seacom cable has started to invite orders for Seacom fibre optic.

The cable, through KDN costs $600 per MB (duplex) per month, which is a reduction from the current $4,000.

Listed mobile phone operator Safaricom recently entered into an agreement in which Jamii Telecommunications Ltd will provide it with broadband infrastructure.

As you know, Safaricom has now formally migrated to the Communication Commission of Kenyas new technology-neutral, unified licensing regime and can therefore effectively offer a broader spectrum of data services using any technological platform available to it, said Safaricom chief executive officer Michael Joseph.

The operator also launched a mobile internet portal. This is a service that will enable subscribers get fast access to both local and international content on their mobile phones.

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Alert as APs threaten protest – Kenya regular police said to have killed two senior administration police officers – There is jealousy between the two forces

Posted by African Press International on June 30, 2009


In Summary

  • Officers bitter at the killing of two of their own by colleagues from regular force

Top security officials were on the look-out after junior Administration Police officers threatened to hold demonstrations in Mombasa on Monday.

Word had earlier in the day spread within the police force that the APs would move to the streets to protest against the killing of two of their own by officers from the regular force at the weekend.

There was relief at the coastal town after the APs turned up for work in the morning, and took over from those who had been on night shift without hitches, senior officers told the Nation.


In Nairobi, police chiefs on Monday made frantic efforts to avert a full-blown confrontation between the junior officers in the two formations.

Internal Security minister George Saitoti ordered police commissioner Hussein Ali to carry out thorough investigations into the shooting, saying what his officers had explained was not very clear.

Coast provincial police boss Leo Nyongesa had on Saturday said that his officers acted on information that the APs were part of a gang of robbers and that they were killed in a shoot-out.

Witnesses interviewed by the Nation contradicted the police version, saying the officers who were killed had not challenged their counterparts when they were accosted.

On Monday, AP commandant Kinuthia Mbugua told the Nation: I trust that the truth will be brought out after investigations.

Even as the family of one of the AP officers killed alleged foul play, it emerged yesterday that he kept calling his brother, informing him that he feared for his life.

Relatives blamed the killings on senior regular police officers. They said the shooting victims were involved in the investigation of major drug trafficking at the Coast.

At the burial of senior inspectors Badi Said Mwajirani and Juma Yusuf Mwagaatu, Coast MPs called for thorough investigation into the case and warned against any cover-up.

We are not going to accept any investigation reports that are not open and revealing, those are specifically tailored to cover up the truth by a selected committee, said the Matuga MP Chirau Ali Mwakwere.

His sentiments were echoed by nominated MP Sheikh Mohammed Dor, who called for an independent investigation.

Shot dead

Mr Mwajirani and Mr Mwagaatu were shot dead on Moi Avenue in Mombasa on Saturday at around 9.30am. The police shot the APs after they allegedly drew firearms.

According to Mr Nyongesa, the APs, who were four, had stolen Sh6,000 and a mobile phone from two people and had planned to rob Toyota Kenya when the police officers caught up with them.

Two were gunned down and police recovered one firearm, a Ceska pistol, with 22 rounds of ammunition, said Mr Nyongesa, adding that the other two suspects escaped.

But this version has been disputed by eyewitnesses, human rights activists and families of the victims.

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Make no mistake, in Kenya, you are what you drive

Posted by African Press International on June 30, 2009


THE STIFF RESISTANCE BY Cabinet ministers and top government officials to Finance minister Uhuru Kenyattas directive that they give up their expensive gas-guzzlers in favour of cheaper cars with an engine capacity of less than 1800cc has left me truly dumbfounded.

Lets not forget that many of our senior civil servants and Cabinet ministers grew up in poverty. Many went to school barefoot and some probably didnt get to own a car until they entered politics.

Unlike Uhuru, who was born into wealth and can if he wishes buy 20 top-of-the-range gas-guzzlers in cash, many of our Cabinet ministers come from humble backgrounds, and have taken hefty loans to support their new luxurious lifestyles. What is worse, most of them represent some of the poorest people on this planet.

To now claim that driving a smaller, less luxurious car will cramp their style is the height of hypocrisy and displays gross insensitivity to the plight of ordinary Kenyans. Gender minister Esther Murugi is reported to have said that she will not comply with the directive because a smaller car will not allow her to visit various parts of the country where the roads are impassable.

If her own constituents, who voted her in, can suffer bad roads, why cant she? Besides, if the money saved from driving a less expensive car can go towards fixing those impassable roads, then everyone will be happy. I must confess that I am one of the lucky people in Kenya who owns a car and learned to drive at an early age. But for me, cars are just tools to get from point A to point B, nothing more.

I remember when I bought my first car a beaten-up old Toyota that left a cloud of smoke every time I accelerated a colleague had the audacity to tell me that I should quickly buy a bigger and more luxurious model because my car was an embarrassment and looked bad in front of all the 4X4 luxury gas-guzzlers in the parking lot.

Being impressionable and not so wise to the world at that time, I succumbed to the pressure and bought an old BMW just to fit in. Unfortunately, because it was old, and had clocked more than 100,000 miles, the BMW had a tendency to break down quite often, and I was forced to eventually sell it at one-tenth the price at which I had bought it.

THAT EXPERIENCE TAUGHT ME THE following important lessons. One, cars depreciate in value the minute they are out of the showroom they are not an investment. Two, that you must never take out a car loan unless you have paid your mortgage. Three, gas-guzzlers cost a lot of money to maintain and are bad for the environment.

Meanwhile, agents supplying the most sought-after luxury car in Kenya the Mercedes Benz are having a field day. In line with the ministers directive, they are promoting the E-class model, which has an engine capacity of 1796cc but which comes with all the luxurious features our ministers cannot live without, such as leather interiors and sun roofs.

Daimler-Benz, the manufacturer of the Mercedes Benz, is laughing all the way to the bank because while the engine might be smaller, the price tag is just as high as the larger engine capacity model between Sh8 and Sh18 million, depending on the features. To put this in perspective, a minimum-wage earner in Kenya would have to work more than 100 years to earn this kind of money.

But let me not be too harsh on politicians. We Kenyans like to see them and celebrities (many of whom claim to be champions of the poor) riding in the lap of luxury. How can we explain the ecstasy in the faces of Kibera or Budalangi residents (many of whom live below the poverty line) when their MPs drive in to see them in a Hummer (price tag Sh6 million)?

Why is it that the cars that celebrities drive are photographed as much as the celebrities themselves? What if our ministers, to demonstrate solidarity with Kenyan watchmen, nannies, factory workers, hawkers and the like rode to Parliament on bicycles or in cheap Toyota Starlets? Would we lose respect for them or applaud them? I suspect the former.

Because in Kenya, you see, you are what you drive, not what you think, what you accomplish, or what you are as a human being. That is why manufacturers of luxury cars will always find a willing market in Kenya, regardless of the countys economic situation.

Ms Warah is an editor with the UN. The views expressed here are her own and do not necessarily reflect those of the United Nations. (

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Berlusconi rating dips over prostitutes scandal – This is a PM who believes in enjoying life

Posted by African Press International on June 30, 2009


ROME, Sunday

Italian Prime Minister Silvio Berlusconis approval rating has slipped below 50 per cent after a scandal about prostitutes and news that his wife was divorcing him because of his relationship with a teenage girl from Naples.

Mr Berlusconis credibility is under attack just when he is about to host a summit of G8 leaders, and he has had to spend his time defending his private life and denying he paid for sex.

New opinion poll

The 72-year-old media tycoon had an approval rating of 49.1 per cent in a new opinion poll by ISPO for Corriere della Sera newspaper published today. The pollsters compared that to his average of 51 per cent for the first five months of 2009.

That is way under the 61 per cent support that Mr Berlusconi himself said this week that he enjoys, citing his own private polls. But even that would be a sharp drop from the 75 per cent popularity rating Mr Berlusconi had claimed before the scandals.

The fact remains that, despite everything, Berlusconi still enjoys the trust of roughly half of Italian people, political analyst Renato Mannheimer said in comments accompanying the poll in Corriere della Sera.

The scandal erupted in May when Mr Berlusconis wife said she was filing for divorce because of his promotion of pretty young women in politics and his friendship with an 18-year-old girl.

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Eritrea backing rebels: President of Somalia wants AU support to avoid being toppled -Ethiopians will assist since they are Eritria’s enemies

Posted by African Press International on June 30, 2009


In Summary

  • Leader says former allies keeping him under pressure due to external support


President Sheikh Sharif Sheikh Ahmed today blamed Eritrea for backing Sheikh Hassan Dahir Aweys, the leader of Hizbu Islam.

The President said the Islamists, he once worked with, were keeping pressure on the Somali Government with the help of Eritrean army.
President Ahmed made the remarks at Villa Somalia, the State House in Mogadishu.

We had been very close (with Aweys) for a number of years, but he opted to follow a wrong path, said President Ahmed. I would advise him to refrain from misdeeds, he added.

These terrorists

President Ahmed said that his government was at war with al-Qaeda elements that have come to attack Somalia.

Non-Somali fighters have been spotted in many places, said the President. These terrorists are here to prevent the Somali people from rebuilding their statehood.

The leader of the TFG thanked the African Union Mission in Somalia, Amisom, for helping the Somali people.

He said he hoped the number and clout of the peacekeepers will be increased.

On Friday and Saturday, President Ahmed congratulated the people in Somalia and Djibouti on their independence days.

June 26 marked the 49th anniversary of the independence of the former British Somaliland in 1960 (that united with the rest of Somalia on July 1, 1960 and then self-declared independence on May 18, 1991).

Djibouti attained its independence from France some 32 years ago, in 1977.

Despite the continuous wars, the President has reiterated that his government would lead Somalia to stability and development.

We have been forced to fight by anti-peace groups and we are going to win, he said.

At the time of the press conference at Villa Somalia, heavy shelling was taking place at Karan District in North Mogadishu and parts of Hodon and Howl-wadaag Districts in South Mogadishu.

Reported dead

Three people were reported dead and scores of others injured, according to an ambulance servicemen.

Meanwhile, Sheikh Musse Abdi Arale, a member of the Shura (Council) of Hizbu Islam, told the local media that the US was responsible for the mayhem in Somalia.

He insisted that the US has always intervened in the internal affairs of Somalia.

For half a century, the US has been following plans to harm the Somali people, said Sheikh Musse.

He added that the American governments exploited Somalias natural resources by employing local stooges.

Sheikh Musse was reacting to reports that the US had delivered arms and ammunition to the Transitional Federal Government.

This delivery of arms and ammunitions to Somalia is an indication that the US is not interested in the stability of Somalia, stated the sheikh.

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Swine flu in Kenya – Brought in by a British student: He should be expelled immediately so that he does not pass it to Kenyans

Posted by African Press International on June 30, 2009

The disease was not in Kenya. The British student has now made Kenya to be put in the list of countries having the disease. The student is a traveller around in Kenya with others and he may spread the disease to many Kenyans.

All the British students must be isolated and the best one can do is to remove them from the country immediately. Kenyans who have been in contact with the students must be checked before they spread the disease to innocent Kenyans. (API)


Kenya has joined the global swine fever watch-list after a visiting British student became the first to be diagnosed with the flu.

The good news is that medical experts generally consider this flu a relatively mild illness and consequently the Public Health minister assures the country the government has capacity to deal with it. Mrs Beth Mugo also asks the nation not to panic and to “shun rumours.”

In between the bad and good news is a gap of uncertainty the 20-year-old boy was in the company of 34 British students who have been in Kenya for a week and are now quarantined at a hotel in Kisumu.

Airports countrywide remained on high alert, with all air travellers requested to fill the H1N1 surveillance form.

So far United States of America leads with 21,449 reported cases and 87 deaths followed by Mexico with 8279 cases but 116 deaths. United Kingdom so far has reported 4,289 cases with one patient succumbing.

Current vaccines

Kenyans were also warned the current flu vaccines do not cushion one against the new H1N1. “I wish to inform Kenyans that it is most likely that there will be more cases of H1N1 in Kenya…it should be noted that this disease is treatable and usually can resolve on its own, said the minister before giving the global infection rates which show the deaths are minimal.

Depending on the outcome of the tests if it will be necessary to carry them on the rest of the students, the figure could go up or stagnate. Health personnel meanwhile are tracking those who had contact with the British students and have been publicly notified that to go for testing and treatment if they test positive if they suffer flu-like symptoms.

The party landed at Jomo Kenyatta International Airport on Sunday June 21 aboard a Virgin Atlantic flight from London and travelled to Kisumu aboard a bus driven by a Kenyan. Two days later the boy developed headache and joint pains.

“On Wednesday his girlfriend in Nottingham, United Kingdom, who had been in close contact with him earlier in the UK called and informed him that she had tested positive for influenza A (H1N1) also known as swine flu,” said the minister.

She went on: “The British national who happens to be a medical, visited one of our facilities and samples were taken and brought to Nairobi on Sunday 2:30pm for testing. The sample was tested CDC-Kemri and the National Influenza Centre (laboratories in Nairobi. The sample tested positive for Influenza A (H1N1) Swine Flu in both laboratories.

The public also ought to know the main signs of Swine Flu: fever, cough, headache, muscle and joint pain, chills and fatigue, sore throat and runny nose, and sometimes vomiting and diarrhoea.

Precautionary measure

Mugo said Kenya has stocked 50,000 doses of Tamiflu an effective Swine Flu cure – worth Sh61million donated by World Health Organisation only two weeks ago as a precautionary measure.

She, however, was quick to allay fears of a possible epidemic saying the identified case was mild and not “so dangerous” to warrant panic. On Saturday, Nairobi was gripped by a Swine Flu scare but the minister reported tests showed the case was a hoax.

It is different from Mondays case. And on Monday Mugo said: “Since this confirmation, my officers have been monitoring the student. His condition is stable and does not require hospitalisation.”

The student, whose identity was not revealed, went for medical check up in one of the health facilities and samples were taken to Nairobi.

“We have embarked on tracing any contacts the student has made while in Kenya. If any of the contacts will exhibit flu-like symptoms, they will be tested and if found positive, they will be appropriately managed.”

Virgin Atlantic marketing co-ordinator Priya Chana said the airline was unaware of the case and was yet to be contacted by the Ministry of Health. “Unless we get the name of the said passenger it is hard to confirm whether he travelled with us,” she said.

Kenya now joins South Africa, Ethiopia, Ivory Coast and Cape Verde as countries affected in Sub-Saharan Africa. Fears had been rife since Saturday when a 20-year-old Kenyan woman, who studies in London, displayed symptoms of H1N1 flu. However, test results proved negative.

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