U.S. Supreme Court

It’s been a busy week for employment law and civil rights.  The impact of the past week’s Supreme Court decisions on these two areas of law cannot be understated.  The Voting Rights Act was gutted, killing protections put in place to prevent discrimination at the ballot box.  The Civil Rights Act was substantially weakened, stripping minority employees across the country from access to Title VII remedies. And although the news for same-sex couples was brighter, the Court’s narrow decisions on that front leave much work to be done in the struggle for equality.

Wednesday, the Supreme Court released its decisions in United States v. Windsor (the “DOMA” case) and Hollingsworth v. Perry (the “Prop 8″ case).  These two cases each had the potential to become landmark civil rights precedent, with monumental significance for gay and lesbian Americans; they were heralded by pundits as the most important civil rights cases of our generation.

Indeed, the decision in Windsor will go down as one of the most significant decisions in Supreme Court history; it struck at the heart of DOMA and declared gay and lesbians deserving of equal protection under the law.  The Court’s decision in Perry, on the other hand, will soon be brushed into the dusty corners of irrelevance; in that case, a group of five strange bedfellow Justices entirely ducked the question of whether same-sex couples are entitled to marriage equality.  Thus, the struggle for gay civil rights marches on – and there is a lot of ground to cover. [click to continue…]

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Today, the United States Supreme Court, in a 5-4 vote, struck down a key provision of the Voting Rights Act (“VRA”), which is considered by many to be the most important civil rights law to have ever been authored by Congress. In short: the Supreme Court gutted our country’s chief mechanism for preventing the South from engaging in racially discriminatory voting practices.

Minnesota Civil Rights Attorneys

From Justice Ginsburg’s dissent in Shelby County v. Holder:

Congress approached the 2006 reauthorization of the VRA with great care and seriousness. The same cannot be said of the Court’s opinion today. The Court makes no genuine attempt to engage with the massive legislative record that Congress assembled. Instead, it relies on increases in voter registration and turnout as if that were the whole story. See supra, at 18–19. Without even identifying a standard of review, the Court dismissively brushes off arguments based on “data from the record,” and declines to enter the “debat[e about] what [the] record shows.” Ante, at 20–21. One would expect more from an opinion striking at the heart of the Nation’s signal piece of civil-rights legislation.

The Court has time and again declined to upset legislation of this genre unless there was no or almost no evidence of unconstitutional action by States. See, e.g., City of Boerne v. Flores, 521 U. S. 507, 530 (1997) (legislative record “mention[ed] no episodes [of the kind the legislation aimed to check] occurring in the past 40 years”). No such claim can be made about the congressional record for the 2006 VRA reauthorization. Given a record replete with examples of denial or abridgment of a paramount federal right, the Court should have left the matter where it belongs: in Congress’ bailiwick.

Instead, the Court strikes §4(b)’s coverage provision because, in its view, the provision is not based on “current conditions.” Ante, at 17. It discounts, however, that one such condition was the preclearance remedy in place in the covered jurisdictions, a remedy Congress designed both to catch discrimination before it causes harm, and to guard against return to old ways. 2006 Reauthorization §2(b)(3), (9). Volumes of evidence supported Congress’ determination that the prospect of retrogression was real. Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.

The sad irony of today’s decision lies in its utter failure to grasp why the VRA has proven effective. The Court appears to believe that the VRA’s success in eliminating the specific devices extant in 1965 means that preclear­ ance is no longer needed. Ante, at 21–22, 23–24. With that belief, and the argument derived from it, history repeats itself. The same assumption—that the problem could be solved when particular methods of voting discrim­ ination are identified and eliminated—was indulged and proved wrong repeatedly prior to the VRA’s enactment. Unlike prior statutes, which singled out particular tests or devices, the VRA is grounded in Congress’ recognition of the “variety and persistence” of measures designed to impair minority voting rights. Katzenbach, 383 U. S., at 311; supra, at 2. In truth, the evolution of voting discrim­ination into more subtle second-generation barriers is powerful evidence that a remedy as effective as preclear­ance remains vital to protect minority voting rights and prevent backsliding.

Beyond question, the VRA is no ordinary legislation. It is extraordinary because Congress embarked on a mission long delayed and of extraordinary importance: to realize the purpose and promise of the Fifteenth Amendment. For a half century, a concerted effort has been made to end racial discrimination in voting. Thanks to the Voting Rights Act, progress once the subject of a dream has been achieved and continues to be made.

The record supporting the 2006 reauthorization of the VRA is also extraordinary. It was described by the Chairman of the House Judiciary Committee as “one of the most extensive considerations of any piece of legisla­ tion that the United States Congress has dealt with in the 271⁄2 years” he had served in the House. 152 Cong. Rec. H5143 (July 13, 2006) (statement of Rep. Sensenbrenner).

After exhaustive evidence-gathering and deliberative process, Congress reauthorized the VRA, including the coverage provision, with overwhelming bipartisan support. It was the judgment of Congress that “40 years has not been a sufficient amount of time to eliminate the vestiges of discrimination following nearly 100 years of disregard for the dictates of the 15th amendment and to ensure that the right of all citizens to vote is protected as guaranteed by the Constitution.” 2006 Reauthorization §2(b)(7), 120 Stat. 577. That determination of the body empowered to enforce the Civil War Amendments “by appropriate legis­lation” merits this Court’s utmost respect. In my judg­ment, the Court errs egregiously by overriding Congress’ decision.

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From Justice Ginsburg’s dissent in today’s Supreme Court Decision in Vance v. Ball State, which narrowly defined “supervisor” so as to limit employer liability (thus, employee protection) in workplace harassment cases:

Minnesota Employment Harassment Lawyers

Exhibiting remarkable resistance to the thrust of our prior decisions, workplace realities, and the EEOC’s Guidance, the Court embraces a position that relieves scores of employers of responsibility for the behavior of the supervisors they employ. Trumpeting the virtues of simplicity and administrability, the Court restricts supervisor status to those with power to take tangible employment actions. In so restricting the definition of supervisor, the Court once again shuts from sight the “robust protection against workplace discrimination Congress intended Title VII to secure.”

Regrettably, the Court has seized upon Vance’s thin case to narrow the definition of supervisor, and thereby manifestly limit Title VII’s protections against workplace harassment. Not even Ball State, the defendant-employer in this case, has advanced the restrictive definition the Court adopts. See supra, at 5. Yet the Court, insistent on constructing artificial categories where context should be key, proceeds on an immoderate and unrestrained course to corral Title VII. Congress has, in the recent past, intervened to correct this Court’s wayward interpretations of Title VII. See Lilly Ledbetter Fair Pay Act of 2009, 123 Stat. 5, superseding Ledbetter v. Goodyear Tire & Rubber Co., 550 U. S. 618 (2007). See also Civil Rights Act of 1991, 105 Stat.1071, superseding in part, Lorance v. AT&T Technologies, Inc., 490 U. S. 900 (1989); Martin v. Wilks, 490 U. S. 755 (1989); Wards Cove Packing Co. v. Atonio, 490 U. S. 642 (1989); and Price Waterhouse v. Hopkins, 490 U. S. 228 (1989). The ball is once again in Congress’ court to correct the error into which this Court has fallen, and to restore the robust protections against workplace harassment the Court weakens today.

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Prior to Tuesday, six states (New York, Massachusetts, Vermont, New Hampshire, Connecticut, Iowa) and the District of Columbia had full marriage equality.

As a result of Tuesday’s historic election, three additional states will now have marriage equality as well. Those states are Maine, Maryland, and Washington. (Technically, at the time of this post, Washington’s results are still coming in, but its referendum on the matter looks almost certain to pass.)

Another result of the election is that Minnesota defeated a hurtful and divisive amendment that would’ve constitutionally banned marriage equality. Since last night’s election also gave the DFL control of the Minnesota legislature, and since Governor Dayton is pro-marriage equality, it is almost certain that, despite initial words to the contrary, Minnesota is now on the fast-track to also establishing marriage equality.

The real question is whether Minnesota’s democratically-elected government will beat the United States Supreme Court to the punch. [click to continue…]

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The rights, privileges, and responsibilities afforded to married individuals in the United States are vast and varied.  As a matter of clear public policy, federal, state, and local governments grant married individuals everything from tax breaks to survivorship rights.  Gay and lesbian couples across the country have sought to be included in these benefits and obligations.  They have seen success in recent years in various state courts and legislatures, including being granted inclusion in marriage in a few, civil unions in some, and domestic partnerships in others.  Despite such gains for these couples, 31 states have recently amended their constitutions to specifically deny such recognition.  In these states, gay and lesbians are left with no other option than to attempt to contract around their inability to obtain governmental recognition of their unions; Minnesota is currently considering whether to pass a similar amendment.

http://www.freedomtomarry.org/states/

Project 515, based here in Minnesota, has discovered that “most of the rights provided to married couples cannot be replicated by signing legal documents or contracts.” [click to continue…]

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Andrew Cohen, contributing editor at The Atlantic, discusses in Supreme Court Review: The Tyranny of the Majority how four of this week’s controversial decisions from the nation’s highest Court were decided by one vote. Cohen’s piece is a solid reminder that, despite the complexity and nuance of constitutional law, it is the ballot box during presidential-election years that remains the most powerful force in the determination of Supreme Court decisions.


Reuters

The future of same-sex marriage and voting rights, among other matters, rest in the hands of voters this November. Supreme Court decisions have wide-sweeping and significant controlling authority.  With regard to sexual orientation, the court will be considering the validity of California’s Proposition 8 .  On voting rights, the Court will be set to review key statutory provisions recently upheld by a federal appellate court.

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In Bradwell v. Illinois, (U.S. 1873), the Supreme Court declared that allowing a woman to practice law would surely destroy her femininity. According to the 8-1 decision, law is a man’s profession and  women simply aren’t well-suited for such rigor. While that may seem archaic, it wouldn’t be until 1971 that the Court invalidated such discrimination by government against women. Reed v. Reed, (U.S. 1971). And while the Civil Rights Act of 1964 and various other laws have sought to end such discrimination, today’s United States women make only 78 cents for each dollar made by their male counterparts.

Although Bradwell was decided 140 years ago, there are those who believe such sentiments are still alive and well within some industries. In a federal lawsuit against Kleiner, Perkins, Caufield & Byers, Ellen Pao has prompted a discussion regarding whether such a culture pervades Silicon Valley.  In her three-count Complaint, Pao alleges gender discrimination, sexual harassment, hostile work environment, and retaliation; the suit also makes reference to purported discrimination and harassment against multiple female employees of the firm, including assistants and other junior partners. Some highlights from the Complaint that suggest Pao’s allegations are broader than her personal circumstances: Read More . . .

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Justice Kennedy

Tuesday’s decision in Perry v. Brown (the “Prop 8” case) means that roughly one year from now, it is likely that the United States Supreme Court will be giving its opinion on the now infamous 2008 ballot proposition that resulted in barring Californian gay couples from joining in marriage. Justice Anthony Kennedy will ultimately decide the fate of millions of gay people who wish to join in the civil institution of marriage, and his opinion will likely  have a significantly broader impact on cases involving sexual orientation discrimination.

Why I think the Court will:

  1. grant certiorari to take the case;
  2. find “Prop 8” and the 30-plus similar state ballot measures and amendments unconstitutional; and
  3. declare that gay people are a class deserving of heightened (if not strict scrutiny) analysis, which will have important implications for sexual orientation discrimination cases and employment law;

all, after the jump…

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The U.S. Supreme Court will hear arguments regarding the constitutionality of The Patient Care and Affordable Care Act in March 2012.  The Affordable Care Act stands as President Obama’s signature domestic achievement, promising affordable health insurance to every American.  Congress narrowly passed the statute in March 2010 after a heated national debateopponents quickly filed suit to have key provisions declared unconstitutional.  Of the four federal appellate courts to rule thus far, three have upheld the law in its entirety while one declared the Act’s key provision – the individual mandate – unconstitutional.  This newsletter will discuss the background and important provisions of the Act, key arguments on both sides of its constitutionality, and what will likely prove to be the most important factor in the Supreme Court’s ultimate decision.

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In Connick v. Thompson, the Supreme Court reversed both the federal district court and Fifth Circuit Court of Appeals to hold that a District Attorney could not be held liable for failure to train his prosecutors regarding their obligation to turn over exonerating evidence to defense attorneys.  In a 5 to 4 decision divided on ideological lines, the Court held that, in order to recover damages for civil rights violations by prosecutors, plaintiffs must demonstrate a “pattern of violations” similar to the violations that are the subject of their case.  This holding will make it much more difficult for victims to be compensated for wrongs committed against them by municipalities.

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Can Wisconsin’s new law limiting collective bargaining in the public sector be challenged in court?

March 15, 2011

Recently, the state of Wisconsin passed a bill by special assembly that critically limits collective bargaining rights for most workers in the public sector.  It appears that the dispute between proponents and opponents of the bill may find its way into the courtroom.  Legal precedent disfavors those challenging the bill, but there are both procedural […]

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The Lilly Ledbetter Fair Pay Act makes it easier to sue for unlawful employment discrimination

December 15, 2010

Congress passed the LLFPA to reverse the Supreme Court’s 2007 holding in Ledbetter v. Goodyear Tire and Rubber Co., Inc.    In that case, Justice Alito led a 5-4 majority in concluding that Ledbetter could not sue Goodyear under Title VII of the Civil Rights Act of 1964 for gender based pay discrimination that she had experienced […]

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California’s Proposition 8 is struck down – what next?

August 12, 2010

Ted Olson and David Boies teamed up for equality Last week, Judge Vaughn Walker issued a highly anticipated ruling in Perry v. Schwarzenegger striking down California’s Proposition 8 – which amended California’s state constitution to restrict marriage to “a man and a woman” – on the grounds that Proposition 8 violated the U.S. Constitution’s Fourteenth […]

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