Archive for the 'Judges & Supreme Court' Category

Supreme Court to Take Up Supervisor Harassment Case

Published on November 26, 2012 in Judges & Supreme Court, Sarah Crawford and Workplace Fairness. 0 Comments

Director of Workplace Fairness

Cross-posted from the American Constitution Society.

Later this term, the Supreme Court will decide the case of Vance v. Ball State, a case that will have critical implications for the ability of our nation’s civil rights laws to root out unlawful workplace harassment. At issue in the case is the meaning of “supervisor” and whether employers may be held vicariously liable for harassment committed by supervisors who have the authority to direct and oversee employees’ work, as compared to those who have the authority to hire or fire.  The Court’s decision will have important ramifications for the ability of victims of supervisor harassment to hold their employers accountable.

With so much at stake, the National Partnership for Women & Families led a group of ten top civil and workers’ rights organizations in filing a friend-of-the-court brief in Vance that calls on the Court to reject an overly restrictive definition of supervisor that is limited to those with the authority to make “tangible” employment decisions like hiring and firing. Quite simply, this definition does not reflect the realities of the workplace or the Court’s previously demonstrated understanding of what it means to be a supervisor.

Petitioner Maetta Vance worked at Ball State University as a catering assistant for the university’s dining services department when she was harassed by an employee that she considered to be a supervisor with the authority to direct and oversee her work. Vance alleges that, as a result of the harassment and physical intimidation she suffered, she lived and worked in a constant state of fear. Despite her complaints to the university, the harassment persisted.

Ultimately, Vance filed claims for harassment and retaliation under Title VII of the Civil Rights Act of 1964. The district court granted the employer’s motion for summary judgment, ruling in pertinent part that the supervisor in question lacked the power to hire, fire, demote, transfer, or discipline Vance. As such, the court applied a mere negligence standard of liability applicable to co-worker harassment, rather than the vicarious liability standard applicable to supervisor harassment. Under established precedent, if the harasser is deemed to be a supervisor, vicarious liability is imputed to the employer. However, if the harasser is deemed to be a co-worker, under a negligence standard, the employer is liable only if the target of the harassment can prove that the employer knew or should have known of the harassment.

On appeal, the Seventh Circuit affirmed, approving a narrow definition of “supervisor” for purposes of imposing vicarious liability by including only those supervisors with the formal authority to make tangible employment decisions. The Seventh Circuit noted that it “ha[d] not joined other circuits in holding that the authority to direct an employee’s daily activities establishes supervisory status under Title VII.” The Seventh Circuit joins the First and Eighth Circuits in concluding that only those supervisors with the power to fire, hire, promote, etc. should be treated as supervisors under Title VII.

By contrast, the Second, Fourth, and Ninth Circuits have affirmed a rule consistent with Equal Employment Opportunity Commission (EEOC) guidance stating that:

An individual qualifies as an employee’s “supervisor” if:

the individual has authority to undertake or recommend tangible employment decisions affecting the employee; or

the individual has authority to direct the employee’s daily work activities.

An amicus brief filed by the Solicitor General affirms this well-reasoned interpretation as well, concluding that “an employee who directs another employee’s daily work activities but cannot take tangible employment actions is a supervisor for purposes of vicarious liability under Title VII.”

The Supreme Court did not distinguish between various types of supervisors when it considered the issue of supervisor harassment in Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth in 1998. In those cases, the Court drew distinctions between supervisors and co-workers, rather than drawing arbitrary distinctions between different types of supervisors. The same common sense approach should be applied in Vance.

The Court should also recognize that even though high-level supervisors are undoubtedly responsible for maintaining a workplace free from discrimination, it is the supervisors who direct and control workers’ daily activities who are delegated the most immediate control over their subordinates’ working conditions and the greatest opportunity to inflict harm on employees.

Vance v. Ball State offers the Supreme Court an opportunity to set a standard that comports with the realities of the workplace, established precedent and well-reasoned EEOC guidance. The case is a chance for the Court to affirm a standard that furthers the purposes of Title VII – to root out harassment and make clear that employers will be held accountable when supervisors violate the law. A contrary ruling will have grave consequences for victims of harassment and the rights guaranteed by our nation’s equal employment opportunity laws.

The case will be argued November 26.

Supreme Court Erodes State Workers’ FMLA Rights

Published on March 21, 2012 in Judges & Supreme Court, Sarah Crawford and Work & Family. 1 Comment

Director of Workplace Fairness

Cross-posted from the American Constitution Society.

“This grading of Congress’s homework is a task we are ill suited to perform and ill advised to undertake.” 

– Justice Scalia’s concurring opinion in Coleman v. Maryland Court of Appeals

By a narrow majority, the U.S. Supreme Court’s decision in Coleman v. Maryland Court of Appeals has eroded the right of millions of state workers to take job-protected leave under the Family and Medical Leave Act of 1993 (FMLA) when faced with a serious illness, injury, or pregnancy. In these tough economic times of high unemployment, the Supreme Court has dealt another devastating blow to millions of workers – making them vulnerable to losing their jobs if they need time off for medical leave. The Court ruled that states cannot be sued for monetary damages for violating the FMLA’s medical leave provision, leaving state workers with little meaningful recourse if their employers deny the self-care leave guaranteed by the plain language of the FMLA.

The FMLA set an important family and medical leave standard that guarantees eligible workers – both women and men – up to 12 weeks of job-protected, unpaid leave to recover from a serious illness or medical condition, including pregnancy or childbirth, or to care for a newborn, a newly adopted child or a seriously ill family member.

Since its enactment 19 years ago, workers have used the FMLA more than 100 million times. The law has helped workers disabled by pregnancy or recovering from childbirth, workers with new babies and dying parents, workers who have had heart attacks and hysterectomies – in short, workers for whom job-protected leave is of critical importance.

Petitioner Daniel Coleman was one such worker facing a serious illness who sought to exercise his rights to medical leave. He was working for a Maryland court when his doctor ordered bed rest. After requesting medical leave, Coleman was fired the next day. He then filed a lawsuit alleging a violation of the FMLA.

After years of litigation, the Supreme Court rejected his claim for monetary relief. While the Court left the door open for workers like Coleman to seek injunctive relief such as reinstatement, such limited relief provides little incentive for employers to comply with the law from the outset, without the risk of monetary liability for violating the law. Additionally, few workers will have the resources to pursue costly, protracted litigation just to be reinstated.

Justice Kennedy’s plurality opinion was joined by Chief Justice Roberts and Justices Thomas and Alito. Justice Kennedy’s opinion acknowledged that:

[d]ocumented discrimination against women in the general workplace is a persistent, unfortunate reality, and, we must assume, a still prevalent wrong. An explicit purpose of the Congress in adopting the FMLA was to improve workplace conditions for women.

Yet the plurality concluded that the medical leave provision of the FMLA was not directed at gender-based discrimination, and therefore, Congress did not validly abrogate state sovereign immunity under the Eleventh Amendment under the “congruence and proportionality test” developed to analyze legislation enacted under the Equal Protection Clause of the Fourteenth Amendment.

However, as Justice Ginsburg’s forceful dissent makes clear, Congress did in fact collect an enormous amount of evidence of discriminatory workplace policies relating to family and medical leave. Congress found that women continued to face persistent sex discrimination relating to pregnancy and childbirth, even in the wake of the protections against sex discrimination and pregnancy discrimination established by Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978.

Justice Ginsburg’s dissent, which was joined by Justices Breyer, Sotomayor, and Kagan, asserts that “the plurality undervalues the language, purpose, and history of the FMLA, and the self-care provision’s important role in the statutory scheme.” The dissent recognizes that Congress enacted the FMLA pursuant to its power to address sex discrimination under the Fourteenth Amendment. Justice Ginsburg’s opinion explains that the FMLA offered leave on a gender-neutral basis rather than creating a special right to self-care leave for medical illness surrounding pregnancy, in part to avoid creating perverse incentives for further discrimination against women.

Notably, the Court refrained from overturning Chief Justice Rehnquist’s 2003 opinion in Nevada Department of Human Resources v. Hibbs. In Hibbs, the Court ruled that Congress validly abrogated state sovereign immunity pursuant to its Fourteenth Amendment authority with respect to the FMLA’s family-care provision. Hibbs made it clear that state workers can sue their employers for monetary damages for violations of the family-care provision of the FMLA. Writing for a 6-3 majority in Hibbs, Chief Justice Rehnquist concluded that Congress clearly intended to protect state workers from sex discrimination by providing job-protected leave to care for a family member.

Contrary to the legislative purpose of the FMLA, the Coleman decision establishes an unintended, unnatural distinction between the FMLA rights of public and private sector workers.  In the absence of additional protections set out by state law, state employers will not be held accountable for violations of the FMLA’s medical leave provisions to the same extent that private employers are held accountable.

The decision also establishes an unnatural distinction between the rights of public workers to take medical leave and caregiving leave. As the dissent points out, “It would make scant sense to provide job-protected leave for a woman to care for a newborn, but not for her recovery from delivery, a miscarriage, or the birth of a still born baby.” But by drawing a distinction between self-care and family care rights, the plurality has opened the door for such a nonsensical framework.

Sadly, the Coleman decision erodes the rights of millions of state workers who need leave to care for their own medical illness, injury, or pregnancy. The decision denies state employees access to a meaningful remedy when their employers violate the FMLA, and could force workers to choose between their health and their jobs. The decision must serve as an urgent call to policymakers to ensure that workers need not make that impossible choice.

Defending Progress on Health Care

Published on January 17, 2012 in Health Care, Judges & Supreme Court and Kirsten Sloan. 8 Comments

Kirsten Sloan, Vice President

In March, the United States Supreme Court will hear a challenge to the Affordable Care Act (ACA) – the health reform law enacted in 2010.  Attorneys general of 26 states and the National Federation of Independent Businesses are challenging the new law.

The National Partnership for Women & Families has joined the National Women’s Law Center and other women’s groups in filing an amicus brief supporting the ACA. 

For decades women in the U.S. have been struggling to find and keep affordable health coverage as insurance companies raised premiums based on gender, age or health status, denied coverage for essential health services or dropped coverage altogether when enrollees got sick.

The ACA is progressively putting a stop to those outrageous practices between 2010 and 2014 — and it’s already beginning to deliver for women and their families.  We no longer face deductibles or co-pays to get essential preventive services like mammograms and cervical cancer screenings.  We are now able to keep our children on our health insurance policies until age 26.  Plus, health plans can no longer rescind our coverage or hit us with lifetime caps or low annual limits on coverage just when we need coverage the most.

And more improvements are right around the corner – like, at long last, the elimination of ratings based on gender and health status, and exclusions for pre-existing conditions in insurance policies.

These are changes worth fighting for and the National Partnership for Women & Families will be there every step of the way.  We simply cannot let opponents convince the Court to undo the progress that we have made.  We owe it to our families.  We owe it to ourselves.

Supreme Court to Decide State Workers’ Rights Under FMLA

Published on January 11, 2012 in Judges & Supreme Court, Sarah Crawford, Work & Family and Workplace Fairness. 0 Comments

Director of Workplace Fairness

Cross-posted from the American Constitution Society.

The U.S. Supreme Court is hearing oral argument today in Coleman v. Maryland Court of Appeals – a case that could erode the right of millions of state workers to take job-protected, unpaid leave under the Family and Medical Leave Act (FMLA) when faced with a serious illness.

The FMLA set an important family and medical leave standard that guarantees eligible workers – both women and men – up to 12 weeks of job-protected, unpaid leave to recover from a serious illness or medical condition, including pregnancy or childbirth, or to care for a newborn, a newly adopted child or a seriously ill family member. The FMLA offered leave on a gender-neutral basis rather than creating a special right to self-care leave for medical illness surrounding pregnancy, in part to avoid creating perverse incentives for further discrimination against women.

Since its enactment 18 years ago, workers have used the FMLA more than 100 million times. The law has helped workers disabled by pregnancy or recovering from childbirth, workers with new babies and dying parents, workers who have had heart attacks and hysterectomies – in short, workers for whom job-protected leave is of critical importance. An adverse decision from the Supreme Court could put access to FMLA self-care leave at risk for millions of state workers. At stake is their fundamental right to take time off to address their own serious medical needs, including pregnancy and childbirth.

Petitioner Daniel Coleman was working for a Maryland court when his doctor ordered bed rest due to serious illness. Within hours of requesting medical leave, Coleman was fired. He then filed a lawsuit alleging a violation of the FMLA. Contrary to the plain language of the statute, the lower courts ruled that the state of Maryland could not be sued for monetary damages under the FMLA’s self-care provision.

The Supreme Court is now poised to decide whether Congress validly abrogated the states’ Eleventh Amendment sovereign immunity by acting to address unconstitutional discrimination.

In point of fact, when the legislation was being considered, Congress collected an enormous amount of evidence demonstrating clearly that outdated workplace policies and practices denied women equal employment opportunity, including discriminatory policies and practices by state governments. Congress found that women continued to face persistent sex discrimination relating to pregnancy and childbirth. Thus, Congress enacted the FMLA pursuant to its power to address unconstitutional discrimination under section 5 of the Fourteenth Amendment.

Joined by a broad coalition of civil rights groups, workers’ rights groups, and labor organizations, the National Partnership for Women & Families filed an amicus brief urging the Court to uphold the plain language of the FMLA, which established critical leave rights for state workers. Like private employers, states must be held accountable when they violate their employees’ rights to self-care leave.

Notably, the Supreme Court already has established that state workers can sue their employers for monetary damages for violations of the family-care provision of the FMLA. In the 2003 case of Nevada Department of Human Resources v. Hibbs, the Court ruled that Congress validly abrogated state sovereign immunity pursuant to its Fourteenth Amendment authority with respect to the FMLA’s family-care provision. Writing for the majority, Chief Justice Rehnquist concluded that Congress clearly intended to protect state workers from sex discrimination by providing job-protected leave to care for a family member. Indeed, the Court got it right in the Hibbs case, and the same analysis applies under the self-care provision at issue in the Coleman case.

The millions of state workers who are struggling with their own medical illness or who may face a serious illness in the future have to fervently hope that the Court gets it right again. Those workers have a tremendous amount at stake in this case.

Shameful: Partisan Politics Block Another Highly Qualified Judicial Nominee

Published on December 7, 2011 in Debra Ness and Judges & Supreme Court. 1 Comment

Debra Ness, President, National Partnership

Cross-posted from Huffington Post.

All year, we’ve seen partisan politics impede the progress America needs — from jobs to anti-discrimination measures to work and family advances to the safety net. On Tuesday, we had a stark reminder that our system of justice too can fall victim to political gamesmanship.

After more than a year of stall tactics and procedural roadblocks, the Senate failed to close debate and hold an up-or-down vote on the nomination of an impeccably qualified lawyer, Caitlin Halligan, to the U.S. Court of Appeals for the District of Columbia Circuit. By blocking a nominee with exemplary qualifications and bipartisan support in the legal community, the Senate has put politics ahead of qualifications and competence for judicial nominees, threatening access to justice in this country.

Caitlin Halligan has the kind of impressive academic and legal background that has won support from those on both sides of the political aisle in the past. She graduated with honors from Georgetown University Law Center, clerked for Justice Stephen G. Breyer on the Supreme Court and Judge Patricia M. Wald on the D.C. Circuit Court, and she has spent much of her career in government service. She is currently the general counsel to the New York County District Attorney’s Office and previously served as the solicitor general of the state of New York. As solicitor general, she argued five cases before the Supreme Court and was counsel of record in more than 50.

These outstanding qualifications and demonstrated commitment to equal justice garnered Halligan praise and support from diverse legal scholars and organizations with diverse agendas and judicial philosophies since she was nominated 14 months ago. And her background prompted the ABA’s Standing Committee on the Federal Judiciary to give her a “highly qualified” rating by unanimous agreement.

If an eminently qualified nominee like Caitlin Halligan cannot get an up-or-down vote in the Senate, how will any future nominee be seriously considered? And how will the nation get out of the judicial crisis we are facing?

More than one in eight federal judgeships in the country — 99 positions — are, or soon will be, vacant. And 29 of them qualify as judicial emergencies. Members of the Senate not only chose to ignore Caitlin Halligan’s merits, but they also ignored the urgent need to fill three vacancies on the D.C. Circuit. Arguments that the court can adequately handle its caseload as is are nothing more than a short-sighted attempt to mask the obstructionist, partisan tactics that drove Tuesday’s vote. The court’s caseload demands a full bench. Without it, justice for more Americans will be delayed.

The Senate also missed an important opportunity to add diversity to the court. When our courts are more reflective of the population, people have more confidence that judges understand the real-world implications of their rulings. Caitlin Halligan would have been only the sixth female judge in the 118-year history of the D.C. Circuit, which makes the failure to bring her nomination to a vote even more disappointing.

Justice in this country depends on having qualified judges on our courts who have a demonstrated commitment to equal justice for all. Americans depend on our court system to resolve disputes as efficiently as possible, and we depend on judges to provide equal consideration and to apply the law without regard to politics or personal agendas. What happened with Caitlin Halligan raises deep concerns about the courts’ future ability to do so. The Senate must end the partisanship, objectively consider all of the nominees who are awaiting confirmation, and act quickly to put an end to this judicial crisis.

Remembering a Major Step toward Equality in the Courts

Published on September 25, 2011 in Judges & Supreme Court and Judith Lichtman. 2 Comments

Judith L. Lichtman, Senior Advisor

Thirty years ago today, women and girls in every corner of the country watched with pride as Sandra Day O’Connor raised her right hand, took an oath and became the first woman justice on the Supreme Court. As a lawyer who has spent my entire career fighting for equality and justice, it was an extraordinary moment and, as it turns out, one that began an overdue march toward greater representation for women on our courts.

Today, nearly 46 percent of law school graduates are women – a significant jump from 32.8 percent 30 years ago. But it will be many years before some of those new graduates take their places on the bench. Of the more than 17,100 federal and state judges in this country today, only 26 percent are women.

The Senate’s failure to put aside partisan politics and confirm highly qualified judicial nominees is a big part of the problem. President Obama has nominated many strong candidates for the federal bench, including 71 women, but the confirmations of many have been stalled in the Senate. Currently, the confirmations of more than 18 women have been stalled. More than one in seven federal judgeships in the country – 103 positions – are or soon will be vacant. And 31 of them qualify as judicial emergencies.*

Last December, National Partnership President Debra Ness said it was time to sound the alarm on judicial vacancies. “Justice depends on having judges in place to enforce our laws, resolve disputes and protect the rights of those who face discrimination and violations of their rights,” she said. That remains true, and deeply troubling, because the intransigence in the Senate shows no sign of abating.

Unless it does, and unless senators routinely confirm qualified female and male nominees who have a deep commitment to equal justice under the law for women, people of color, workers, seniors, immigrants and everyone who faces discrimination, we will not fully realize the promise of that extraordinary moment 30 years ago – and equal justice will remain elusive.

—–

* Nominee and vacancy numbers updated November 17, 2011

The Power of Three

Published on October 4, 2010 in Judges & Supreme Court and Judith Lichtman. 0 Comments
Judith L. Lichtman, Senior Advisor

Judith L. Lichtman, Senior Advisor

It’s the first Monday in October, and the Supreme Court convenes today for a new term.  But this term is different from all others because, today for the first time ever, three women are serving together on our highest court. It is significant — momentous — that one-third of the Court is female, even though that fraction does not yet represent our proportion of the population.  But it is a sign of progress that was once almost unimaginable for me and most of my peers.

Elena Kagan’s appointment is about more than just numbers. Her appointment brings us closer to the day when it is no longer surprising to see a woman on the Supreme Court or in other positions of power, closer to the day when powerful female role models are the norm.

I’ve known Justice Kagan for many years, and I know she will make us all proud.  As she rules on cases, she will have the chance to demonstrate her towering intellect, fairness, independence, and fierce commitment to justice for all.  I know that she will continue to be an inspiration to me and to all of us who strive for justice.

So I look forward to this new Supreme Court term, and to seeing three female justices together on our highest court. So today, we celebrate our new Supreme Court Justice and tomorrow, we continue to work toward the day when we there are four — or even five! — female justices and, someday soon, true equality in all branches of government and our society.

And Kagan Makes Three!

Published on August 5, 2010 in Debra Ness and Judges & Supreme Court. 7 Comments
Debra Ness

Debra Ness, President

I am thrilled that the Senate has confirmed Elena Kagan to serve on the Supreme Court. This is an important milestone in our journey toward equal rights for women – and our nation will be stronger as a result.

Elena Kagan will be a superb justice. Her presence on our highest court will maintain and strengthen our nation’s commitment to equal justice and privacy, and to fairness for women, people of color, workers, seniors and every person who may face discrimination.

When she is sworn in, for the first time in history, three women will serve together on our highest court. This confirmation brings us closer to the day when it is no longer surprising to see a woman on the Supreme Court or in other positions of power.

I want to thank every Senator who voted to confirm Elena Kagan, and President Obama for appointing her. This is a historic moment for our nation.

The Sweet Smell of Progress

Published on June 9, 2010 in Judges & Supreme Court and Judith Lichtman. 0 Comments
Judith L. Lichtman, Senior Advisor

Judith L. Lichtman, Senior Advisor

Earlier this month, I was invited by the White House to watch President Obama nominate Solicitor General Elena Kagan to serve on the Supreme Court. The ceremony was even more moving than I expected, and that took me a little by surprise. I had tears in my eyes for much of that morning ceremony in the East Room. If Kagan is confirmed, women will comprise one-third of the Supreme Court. That’s a fraction that does not yet represent our proportion of the population — but it’s a stake that was once unimaginable for me and most of my peers.

Read the full post on WomensEnews.org »

Kagan: Supremely Intelligent, Eminently Qualified

Published on May 13, 2010 in Judges & Supreme Court and Judith Lichtman. 0 Comments
Judith L. Lichtman

Judith L. Lichtman

I had the honor and privilege of attending a special announcement ceremony at the White House on Monday, and I couldn’t be more pleased with President Obama’s decision to nominate Solicitor General Elena Kagan as the next United States Supreme Court justice.  I have known her for many decades and have deep respect for her commitment to equal justice.

photo.email.blog.kagan

Judges are the gatekeepers of our fundamental rights, and Elena Kagan gets it. She knows that the Supreme Court decides cases every year that touch women’s lives. And she has a proud history of public service, a fair and thoughtful approach to legal issues, a record of extraordinary accomplishment, and a history of working effectively with people who hold diverse political and legal views.

She has also had a distinguished career as a law school professor, the first woman Dean of Harvard Law School, and our nation’s first woman Solicitor General.  There is no doubt that Kagan is eminently qualified for this post.

The Senate confirmed Elena Kagan as Solicitor General with strong Republican support in March 2009.  It should once again confirm her, quickly and without controversy.