Rosamond Taylor Darden Johnson: A Life Well Lived

Rosamond Taylor Darden Johnson left this world peacefully on December 5, 2016. Fittingly, she was surrounded with love by members of her family, as family always took priority in her life.

 

Rosamond was the third of four children born to the union of Alvin Hawkins Darden and Elsie Taylor Darden in Shelbyville, Indiana. She attended the Shelbyville Public Schools and Fisk University.  A life-long lover of literature and art, she worked at Fisk with Arna Bontemps and Langston Hughes in compiling their 1949 anthology, The Poetry of the Negro, 1746-1949. 

On August 15, 1947 she married Charles S. Johnson, Jr.  Following Charles’ graduation from Meharry Medical College and the completion of his post-graduate work at Lincoln Hospital in Durham, North Carolina, the couple settled in Dayton, Ohio. She served her community as a volunteer with institutions as diverse as the Dayton Art Institute and Dayton Children’s Hospital. She was also an active member of the Dayton chapters of the Sophisticates, the Carousels, Jack & Jill, Inc. and The Links, Incorporated, and myriad other clubs and associations.

Rosamond provided a nurturing presence to friends and relatives alike. Successive generations of young people came to regard her as their favorite “aunt” and, in turn, each “niece” or “nephew” came to believe that he or she was her personal favorite.  When she spotted you arriving at family gatherings, she would open her arms wide, wanting to give you a big hug – no words were needed.  To all visitors, she would point with pride at her refrigerator door in Dayton wallpapered with business cards of her children, nieces, nephews and grands. Seldom appearing to think of her own needs, she constantly rejoiced in the successes and accomplishments of those around her, particularly when those accomplishments helped to make the world a better place.

Rosamond was preceded in death by her late husband, Charles S. Johnson, Jr.; siblings, Alice Veneta Darden Scott (Lawrence), Ethel Darden Starks (Douglas) and Alvin H. Darden, Jr.; grand-daughter-in-law Kira Dixon Johnson; and in-laws Robert Burgette Johnson, (Edith) and Patricia Johnson Clifford (Maurice). She is survived by her children Charles S. Johnson III (Sondra) and Winifred Marie Johnson; grandchildren Charles S. Johnson IV, Christopher Lawrence Johnson, Courtney Nicole Uche (Ugwu) and Colin Taylor Burnett; great-grandchildren Madison Corinne Howard, Ansley Laurel Howard, Charles S. Johnson V and Langston Emile Johnson; in-laws Jeh Vincent Johnson (Norma), Gloria Darden; and by a host of nieces, nephews, extended family and friends.

Mandatory Vaccination: Public Health vs. Individual Rights

By Charles S. Johnson

Daily Report

November 7, 2016

The Centers for Disease Control and Prevention (CDC) has long recommended that all health care workers receive an annual influenza vaccination. Throughout the United States, employers in the health care industry have experimented with strategies to encourage voluntary influenza vaccinations of health care workers. However, voluntary immunization policies have not had a significant impact on the overall coverage rate. During the 2010-2011 flu season, for example, the CDC found that 95 percent of health care workers received the flu shot when their employer required it but, when vaccinations were made voluntary, the rate of immunization fell to less than 64 percent. Beginning in 2011, the Joint Commission began to require that health care facilities implement mandatory flu shot policies but acknowledged the need to allow some employees to decline.

The goal of universal vaccination of health care workers remains elusive, partially because the available vaccine may sometimes be in short supply, requiring employers to establish criteria for prioritizing those employees who should be first to receive the available vaccine, and partially because vaccination mandates sometimes conflict with applicable collective-bargaining agreements. In addition to these institutional concerns, certain individual rights concerns have arisen which must be accommodated in the development of any employee vaccination policy, and the need for such accommodation has produced a new wave of litigation.

 

Accommodation Based on Medical Contra-Indication

Title I of the Americans With Disabilities Act prohibits discrimination by employers on basis of disability. Under Title I, discrimination includes the failure to provide a "reasonable accommodation" for a disabled individual, unless such accommodation imposes "undue hardship" on the employee. The EEOC has advised that an employee "may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine." The EEOC also has asserted that a covered employer may not compel all of its employees to take the influenza vaccine, regardless of their medical conditions, but that such an employer may require employees to wear personal protective equipment (such as employer-provided non-latex gloves or gowns designed for individuals who use wheelchairs). The CDC has recommended exemptions with respect to persons with severe allergy to vaccine components (such as chicken eggs), persons with a history of severe reaction to an influenza vaccination, persons less than six months old and persons with a history of Guillain-Barré Syndrome.

 

Accommodation Based on Religious Grounds

Title VII of the Civil Rights Act of 1964 prohibits employer discrimination based on religion and requires an employer to accommodate sincerely-held religious practices that may conflict with workplace practices, as long as the religious practice does not impose an undue hardship on the employer. For purposes of religious accommodation under Title VII, undue hardship is defined by the courts as "more than de minimis" burden on the operation of the employer's business. This de minimis standard is lower than the standard than under ADA. The First Circuit is reviewing a district court decision which held that it would be an undue burden to require a hospital to permit an unvaccinated employee to have contact with emergency room patients. Robinson v. Children's Hospital of Boston (2016).

 

Tips for Drafting Exemption Policies

A policy exemption based on medical contra-indication should proceed from a clear definition of the population for whom vaccination is mandated (e.g., will the mandate apply to employees who are not exposed to sensitive areas and vulnerable populations?), the circumstances under which a medical exemption may be sought (e.g., with reference to an objective standard such as the manufacturer's prescribing information or current CDC guidelines); a clear definition of the proof needed to qualify for an exemption (e.g., the kind of medical provider from whom a signed statement is acceptable and whether a statement from a neurologist is required with respect to exemptions related to Guillian Barré Syndrome); a clear differentiation between those exemptions which must be sought annually vs. those exemptions which remain in effect from year to year absent changed circumstances; and a clear definition of the available vaccine alternatives (e.g., if unvaccinated persons are required to wear face masks, how such a requirement will be enforced?).

A religious exemption policy should include a clear definition of who is entitled to the exemption and who is not, and it should require an individualized determination with respect to each application. Many policies require that an application for a religious exemption should include a supporting statement by a religious leader, but the EEOC does not favor such a requirement. The EEOC also suggests that an employer should ordinarily assume that an employee's request for a religious accommodation is based on a sincerely-held religious belief.

However, the Third Circuit is currently reviewing Fallon v. Mercy Catholic Medical Center (2016), one of many decisions regarding an exemption based on a belief which is purely personal, political, economic or sociological, rather than spiritual and other-worldly. In some cases, exempt employees are accommodated with the condition that they wear face masks, although some have suggested that such masks constitute a religious stigma. One court recently held that it was reasonable to accommodate an exempt person with the opportunity to apply for another work assignment (Robinson, supra).

A successful religious exemption policy should proceed from a broader policy that narrowly defines the population for which vaccination is mandatory. The EEOC has recently challenged the compulsory vaccination of individuals who have no contact with vulnerable populations. See, e.g., E.E.O.C. v. Bay State Medical Center, Inc. (2016) (involving a hospital's human resources employee who worked in a separate administrative services building and had no apparent patient contact); EEOC v. Mission Hospital, Inc. (2016) (involving of a pre-school teacher in a hospital's child development center who had no apparent patient contact).

Health care employers, perhaps more than any other category of employers, have strong reasons to assure that precautions are taken to protect their customers and their employees from the risk of infectious disease. However, recent enforcement actions, brought by the government and on behalf of private citizens, illustrate that our society has not yet established an appropriate balance between the value of public health and the value of individual liberty.

 

Charles S. Johnson III is a trial lawyer with Holland & Knight in Atlanta. He primarily focuses in the areas of public policy and complex business disputes.

Georgia's Lawyers of Color: A Tradition of Excellence

By Charles S. Johnson

Reprinted from 100 Years of Atlanta's Black Heritage


The history of Georgia’s African-American lawyers, particularly those who practiced in Atlanta, is marked with noteworthy achievement and distinguished service.  Our lawyers have been excellent as a matter of necessity, and they have constantly been in the forefront of our community’s advancement.

The tradition of excellence was established early.  One of the State’s first lawyers of color was Styles Hutchins (pictured, right)  Admitted to the bar in 1877, Hutchins was part of the appellate team for Ed Johnson, whose eventual lynching in Chattanooga resulted in the first and only contempt citation ever issued by the United States Supreme Court.  Judson Whitlocke Lyons, admitted to the bar in 1884,  served as Register of the Treasury under President William McKinley and is one of the few Americans of any color ever to have his name appear on United States currency.

Perhaps the best-known of Georgia’s early African-American lawyers was Austin Thomas (“A.T.”) Walden.  Born in Fort Valley, Georgia in 1885, Walden graduated from Atlanta University in 1907 and the University of Michigan Law School in 1911 and, thereafter, he established a law practice in Macon, Georgia.  After serving a tour of duty in the army in France during World War I, he relocated his practice to the City of Atlanta.  Walden’s practice was, by necessity, a general one, combining a statewide litigation practice with the representation of estates, small businesses, and African-American institutions such the Atlanta Life Insurance Company and Citizens Trust Company.  He served in a number of positons of civic leadership, and his voter registration efforts were so successful that, for a time, he was marked for death by the Ku Klux Klan.

For a long time, Walden recalls, he was “the only Negro lawyer in Georgia engaged in the full time practice of law.”   Eventually, however, Atlanta became a center for the African-American practice of law in the State.  By 1948 there were at least ten African-American lawyers in Atlanta, comprising three “groups”: “The Walden Group” (including Walden, Charles M. Clayton, E.D. D’Antignac and Rachel Pruden Herndon), “The Henry Group” (including T.J. Henry, E.E. Moore, Jr., S.S. Robinson and R.E. Thomas) and two “independents” (J.E. Salter and T.W. Holmes). 

The accomplishments of these and other early lawyers of color were achieved in the face of a level of adversity which is unimaginable today.  Throughout much of the Twentieth Century  African-American lawyers were treated with distain, often denied access to public law libraries,  forced to drink water from separate fountains, forced to use separate lavatory facilities and to eat outside of the courthouse, largely denied access to white clients and unable claim close relationships with judges and other persons of influence.  Until late in the 1960’s they could not join the majority bar associations, which were racially exclusive. 

In 1948, Atlanta’s ten African-American lawyers came together to form the State’s first historically black bar association, the Gate City Bar Association, whose purpose was to promote an appreciation of the legal profession, to increase the number of lawyers of color, and to oppose arbitrary, capricious, and discriminatory laws. The Association’s stated purpose was given life by the active involvement of its founders and early members (including Horace Ward, William Alexander, Howard Moore and Donald Hollowell) in advancing the cause of justice.  Walden, for example, brought suits to equalize the salaries of public school teachers and to integrate the Georgia State College of Business Administration. Along with Moore, Robinson, Thomas, Powell and Hollowell, he defended the Atlanta Branch of the NAACP when the branch was prosecuted for failing to register and failing to surrender its membership records to the Secretary of State. Thomas, Moore and Robinson filed the successful suit to desegregate Atlanta’s municipal golf courses.  Hollowell represented Horace Ward in his unsuccessful effort to desegregate the University of Georgia.  Walden, Hollowell and Moore were part of the original group of counsel in the 1958 suit to desegregate the Atlanta Public Schools.  Walden and Hollowell were among the lawyers who represented the students who were arrested in the Atlanta Sit-Ins of 1960.  Hollowell achieved national attention when, in 1960, he secured the release of Martin Luther King, Jr. form Reidsville State Prison. Ward, Hollowell and Vernon Jordan represented Charlayne Hunter and Hamilton Holmes in their successful effort to desegregate the University of Georgia in 1961.

Leroy R. Johnson (standing, right), admitted to the bar in 1959, played a major role in Georgia’s public life throughout the 1960’s and beyond, becoming one of the most powerful African-Americans in the State’s history.  He was elected to the State Senate in 1962, becoming the first African American to be elected to that body since 1874.  He served in the Senate until 1975, ultimately rising to the Chairmanship of the powerful Senate Judiciary Committee. His influence was such that he was able to persuade Georgia’s segregationist Governor Lester Maddox to issue a boxing license to Muhammad Ali (at a time when no other state would issue such a license to Ali), thus facilitating Ali’s first comeback.  In his campaign for Mayor of Atlanta in 1973, Johnson received the endorsement of the Atlanta Journal Constitution, but the election was ultimately won by Maynard H. Jackson, Jr., another African-American lawyer.

Jackson, Atlanta’s first African-American Mayor (1974-1982, 1990-1994) was one of the most transformative figures in Atlanta history.  Jackson led the City during a time of tumultuous change, including a higher level of inclusiveness in public decision-making.  He helped to keep the community together during the Atlanta Child Murder Panic.  His administration completed the reconstruction of the world’s busiest airport on-time and under-budget. His policies set a tone which was conducive to the creation of professional and business opportunities for populations that had previously been under-represented, including African-American professionals and business owners.

Georgia’s African-American bar experienced significant growth in the 1970’s and throughout the Jackson years, with the addition of groups such as the “Johnson Group” (which in various forms has included lawyers such as Senator Leroy Johnson, Antonio Thomas, Judge Marvin Arrington, and Judge Clarence Cooper), the “Sampson Group” (which in various forms has included lawyers such as John Kennedy, Reuben Bussey, Thomas Sampson, Benjamin Spaulding, P. Andrew Patterson, Donald Edwards, Linwood Slayton, and Jeffrey Tompkins), the “Ward Group” (which at various times has included Felker Ward, Jr., Judge Thelma Wyatt Cummings Moore, Franklin Biggins and Ray Carpenter), and the “Jackson Group (which in various forms has included lawyers such as Maynard Jackson, P. Andrew Patterson, Bernard Parks, David Franklin, Tony Axam and Philip Ransom), as well as a large cadre of small firms and solo practitioners.  Pioneers  began to be appointed and elected to the judiciary, such as Horace Ward and William Alexander (each first to the State Court of Fulton County and then the Superior Court of Fulton County). Others began to break into (and advance to leadership positions in) government agencies (e.g., Donald Hollowell at EEOC, Emma Darnell at the City of Atlanta, and Marva Jones Brooks at the City of Atlanta), corporate law departments (e.g., Daniel Thompson at BellSouth, Glenda Hatchett at Delta Air Lines and Helen Huyler at the Prudential Insurance Company) and majority law firms (e.g., Prentiss Yancey at what is now Smith Gambrell, Richard Sinkfield at what is now Rogers & Hardin and myself at what is now Alston & Bird).

The growth experienced in the Jackson years has continued to accelerate.  Atlanta is now home to several hundred African-American lawyers, who have excelled across a broad range of professional pursuits.  Unlike  Walden, whose practice was largely limited to the representation of African-American clients, many of our private practitioners have emerged as counselors to major mainstream institutions in the public and private sectors.  In addition to numerous trial court and lower-court judges, lawyers such as Horace Ward, Clarence Cooper, Stephen Jones and Eleanor Ross have been appointed to the U.S. District Court for the Northern District of Georgia.  Leah Sears, Robert Benham and Harold Melton have been appointed to the Georgia Supreme Court and Herbert Phipps and Yvette Miller have been appointed to the Georgia Court of Appeals.  Thurbert Baker and Michael Thurmond have held cabinet-level positions in State Government (as Attorney General and Labor Commissioner, respectively).  Others have assumed leadership positions in their respective institutions as U. S. Attorneys (such as Larry Thompson and Richard Deane), District Attorneys (such as Paul Howard, Gwen Keyes Fleming and Robert James) City and County Attorneys (such as Clifford Hardwick, Susan Langford, Cathy Hampton, Michael Coleman, Marva Jones Brooks, Overtis Hicks Brantley and David Ware) authority chairs (such as Michael Tyler and Felker Ward), nonprofit executives (such as Kim Anderson) and law firm leaders (such as Bernard Taylor and Ernest Greer).  Our lawyers have also included three of Atlanta’s Mayors (Maynard Jackson, William Campbell and Kasim Reed) a President of the State Bar of Georgia (Patrice Perkins-Hooker) three Presidents of the Atlanta Bar Association (Paula Frederick, Ray Persons and Harold Franklin), the Chief Legal Officers of major institutions such as United Parcel Service (Teri Plummer McClure), The Home Depot (Teresa Wynn Roseborough), Pepsico, Inc. (Larry Thompson) Hanes Group (Joia Johnson) and the Coca-Cola Company (Deval Patrick), and partners in every major Atlanta law firm.