In the wake of all the attention given to last week’s Supreme Court rulings that gutted the Voting Rights Act and strengthened same-sex marriage rights, some of the Court’s other major decisions have gotten short shrift. Most importantly, while Justice Roberts and company were busy shredding the Voting Rights Act, they decided to trash Title VII of the Civil Rights Act while they were at it. Title VII is the provision of the Act that prohibits employment discrimination. Salon’s Irin Carmon has more:
The decisions in Vance v. Ball State University (authored by Justice Samuel Alito) and the University of Texas Southwestern Medical Center v. Nassar (authored by Justice Anthony Kennedy) each watered down the ability for employees to sue under Title VII of the Civil Rights Act, which prohibits employment discrimination on the basis of “race, color, religion, sex or national origin.” The first case, in which a kitchen employee of Ball State University said her co-workers had harassed her because she is black, narrowed the definition of a “supervisor” in determining whether an employer is responsible for harassment. (The central question was whether the harasser counted as a supervisor if he or she could assign responsibilities but not hire or fire someone.) The second, in which a doctor said he had been discriminated against for being of Middle Eastern descent and subsequently retaliated against, set a near-impossible standard for what constitutes retaliation after an employee complains he or she has been discriminated against.
A livid Justice Ginsberg took the unusual step of her reading her dissents in both cases from the bench. Carmon reports that while she did so, Justice Alito “rolled his eyes and shook his head.” Meanwhile, famous sexual harasser Clarence Thomas wrote a concurrence that mocked the entire concept of sexual harassment. Lovely!
The extent to which the courts are eviscerating workers’ rights to be free of workplace harassment and discrimination has been little noticed, but it is an alarming trend. Carmon reports that while appeals court judges reverse employer wins at a rate of 9 percent, they reverse employee wins by a whopping 41 percent. She quotes a prominent employment discrimination attorney, Cyrus Mehri, who recently said, “The doors are closing on people’s ability to vindicate their civil rights … To some extent you had a judicial repeal of Title VII that hasn’t caught the public’s attention.”
And as if this term hasn’t been bad enough for workers, next term they could fare even worse. In These Times’ excellent labor blog, Working, reports that the Court has agreed to take two cases that have could have far-reaching consequences for organized labor. In one case, the Court will look at whether President Obama’s recess appointments to the National Labor Relations Board are constitutional. (I wrote about those appointments here). The other case involves labor-management “neutrality” agreements in union organizing campaigns. As Bruce Vail writes:
At issue are the so-called neutrality agreements between unions and employers in which the employer agrees beforehand not to actively oppose the union organizing process at a specific workplace. Typically, such agreements specify that both sides refrain from inflammatory or divisive tactics, and that the workers be allowed to choose or oppose union representation free from any pressure or intimidation from either side.
Vail notes that “[a]n anti-union decision from the high court would make labor organizing more difficult and threaten labor organizations at a national level, labor experts say.” Yikes!
The New York Times’ Supreme Court reporter, Linda Greenhouse, has a fine, and scary, Opiniator piece about Roberts that was published yesterday. Read the whole thing, but this conclusion about Roberts’ judicial philosophy is especially disturbing:
Congress can’t be trusted. The executive branch is out of control. What’s left?
The Supreme Court. There’s a comforting thought as we await Year 9 of the Roberts court.
Where are those conservatives screaming bloody murder about “activist judges” when you need them?