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Recent Posts
- Election Night Preview — Part Six (Post-Midnight Eastern)
- Election Night Preview — Part Five — The Local News and the West Coast (11:00 To 11:59 P.M. Eastern)
- Election Night Preview — Part Four — Prime Time Hour Three (10:00 to 10:59 P.M. Eastern)
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- Election Night Preview — Part Two — Prime Time Hour One (8:00 to 8:59 p.m. Eastern)
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Tag Archives: Title VII
Supreme Court Preview — October Term 2023 — Part 2
Last week, we took a look at the cases that are set for argument in October and November. This week, we look at the cases that have been accepted for argument, but have not yet been set for an argument date. These cases will probably be heard in December or January.
The primary job of the Supreme Court (reflected in the criteria that it lists on its rules for what applicants need to demonstrate before the Supreme Court will accept review) is to assure that courts uniformly interpret and apply federal law. As such, every case is important to some groups of people. But the focus in these posts are on those cases which could have a political impact.
First on this list is Muldrow. This case involves Title VII — the law barring discrimination based on race and gender in employment. The issue in this case is “transfers.” Basically, by transfer, we are talking about the reassignment of employees from one job to another job. Generally, Title VII only applies to “adverse” actions. As such, the issue is what type of damage/impact does the employee have to show. At least the argument from the employer is that if the transfer is truly a lateral move with no impact on pay or promotion opportunity, then there is no discrimination. Obviously, there are other things that impact what qualifies as a desirable job. Here, the employer is a police department and the transfer is from a detective-type squad to a patrol squad. Technically, the ranks are equal, but there are reasons why a detective squad is a preferred position. Needless to say, this case could either indicate an approach to Title VII that would allow it to broadly apply to transfer decisions or an approach in which transfers to nominally equivalent positions will rarely implicate Title VII. From a practical standpoint, there seems something wrong with an interpretation that would, for example, let an employer assign most women to a night shift and most men to a day shift on the theory that the positions are equivalent, but I would not put such a myopic view past some of the current justices.
Posted in Civil Rights, Judicial
Also tagged Bankruptcy, Chevron deference, income tax, non-delegation doctrine, Supreme Court
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The Only Protected Class — White Evangelicals
For the past several decades, the U.S. Supreme Court has been on a crusade to end the “special status” of minority groups. While it is abundantly clear that the purpose of the Civil War Amendments and the various Civil Rights Acts were to help, first African-Americans, and then women, achieve equality, the current majority of the U.S. Supreme Court want to act as if the law requires a “color-blind” (and implicitly a “gender-blind”) approach in which any effort by the government (or private institutions) in taking steps to assure that minority and women have a chance at success will be struck down. Simply put, African-Americans, Hispanics, and women are no longer going to benefit from a “most-favored nation” status in civil rights laws. On the other hand, the favored group of the Republican Party (White evangelicals) are entitled to such status.
This week saw the new legal order exemplified in three opinions.
First, and most obvious, was the decision in “Students” for “Fair” Admissions, Inc, vs. President and Fellows of Harvard College. While the outcome of the case is not surprising as an exercise in raw power by the six Republicans on the Supreme Court, the bottom line is the equal protection clause and Title VI ban any attempt to help African-Americans overcome centruries of discrimination by giving them a “plus” in consideration for spots at “selective” universities and professional schools. The opinion does leave a limited exception in recognizing that these universities use essays as part of the admissions process and, of course, free speech would bar the government from implementing a ban on references to the racial background of the applicant in these essays. The Supreme Court directs, however, that in considering these essays, admissions offices should solely consider how these essays reflect barriers that the applicant has overcome or other aspects of the applicant’s character. Of course, nothing in the majority opinion bans giving a plus to “legacy” candidates even if legacy candidates will be primarily composed of wealthy whites. The one positive aspect of these opinions is that, like with last year’s abortion decision, this decision costs Republicans their wedge issue. For the past fifty years, affirmative action has placed minorities against those with lower levels of white privilege for the last spots in government program and kept both groups from focusing on the slots that were reserved for those with Privilege. Whether, with affirmative action no longer around, the powers that be in the Republican Party can keep folks from taking a look at the preferences given to the children of alumni and wealth donors that take aways spots from both middle class whites and minorities who actually earned a slot at the top colleges will be a big question going forward.
Posted in Civil Rights, Judicial, LGBT
Also tagged Affirmative Action, Free Exercise Clause, Free Speech Clause, same-sex marriage, Supreme Court
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Supreme Court — The COVID-19 Term (Updated)
In normal years, the Supreme Court would probably have wrapped up business for the term by now. It has been a long time since the last time that the Supreme Court was still issuing opinions in an argued case after June. There is still a chance that the Supreme Court might finish this term by June 30, but we are getting mixed messages from the court. (I do expect to see opinions in all of the cases before the Supreme Court recesses, but there is a chance that some cases could be set for reargument in the fall.)
On the one hand, we have yet to get any opinions from the May arguments. While the May arguments were two weeks later than the usual time for the April arguments, it is usual to have some of the April opinions by the early part of June. We also have not seen the pace of opinions pick up. In the last weeks of the term, it is not unusual to see three or more opinion days per week, and multiple opinions on each opinion day. At the present time, while we have had second opinion days for the last two weeks, we have only gotten a total of five opinions over the last two weeks (as opposed to the more usual eight to ten opinions per week). And the Supreme Court has only announced two opinion days for this upcoming week.
On the other hand, the Supreme Court has announced that they will have a conference on Wednesday and release orders on Thursday (rather than the normal Monday order day). That sounds like Wednesday could be the “wrap-up” conference.
Posted in Judicial
Also tagged Abortion, Affordable Care Act, Consumer Finance Protection Bureau, electoral college, Faithless Electors, Free Speech, Native American Rights, Religious Freedom Restoration Act, Supreme Court, Trump Finances
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Equality Maybe?
In a somewhat surprising decision, the United States Supreme Court issued its long awaited decision on Title VII and the LGBTQ community. There were several unexpected things in the opinion. Going in the best bet was that the Supreme Court would find that discrimination against transgender individuals fit the requirement that the discrimination was “on the basis of sex,” but that the Supreme Court would find that “on the basis of sex” did not cover sexual orientation. Second, because of this potential split in the reasoning, there was a good reason to expect two separate opinions, one dealing with the two homosexual employees and one dealing with the transgender employees. Third, as I noted on Saturday, it looked like Chief Justice Roberts would be writing at least one of the opinions.
Instead, what we got was one opinion covering all three cases that sided with the employees. Even more unexpected was that the justice holding the stolen Supreme Court seat — Justice Neal Gorsuch — was the author of the opinion. (Yes, part of me is having thrills of joys at how Trump is going to be able to explain this one to the folks who just voted out a conservative Republican congressman for officiating at a same-sex marriage.) Of course, the opinion was not unanimous, (6-3 with Chief Justice Roberts joining the majority) and two justices (Justice Alito and Justice Kavanaugh) wrote dissents driving the total length of the opinions in this case to 172 pdf pages.
Now for the bad news. First, the dissenters tried to hide their true colors on the issue of equality by painting this case (like the previous decisions in the gay marriage cases) as being about what the law is, not what the law should be. They even went so far as to express the incredible belief that, but for this decision, we are within years of Congress acting to expand anti-discrimination laws to cover sexual orientation, claiming that the Supreme Court was overstepping its bounds by acting. (Of course, they failed to identify the reason why the proposed fix has never managed to get past both houses in the same session — Republican Party control of the other house. See the above-mentioned result this weekend in the nominating convention for Virginia’s Fifth District.)
Posted in Civil Rights, Judicial, LGBT
Also tagged employment discrimination, Justice Neal Gorsuch, Supreme Court
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Supreme Court October 2019 Term — COVID 19 Reset
As with other institutions of government, COVID 19 has caused a degree of chaos in the court system. The judicial system requires a degree of interaction between parties and judges, and social distancing requires finding new ways to handle these interactions.
The Supreme Court, like every other judicial institution, has had to find ways to cope. Of course, the Supreme Court has been a notoriously slow institution to adapt to modern technology. It was the last federal court to accept electronic filing. As recently as a few years ago, everything but emergency petitions were filed by mailing (or having somebody personally deliver them) to the Supreme Court.
As this site has discussed over the years, the Supreme Court is what lawyers call a discretionary court. That means that, with a limited number of exceptions, a party has to request that the Supreme Court take a case (the formal name for the request is a petition for writ of certiorari). The Supreme Court then decides if it wants to hear the case. So most of the decisions of the Supreme Court are decisions to not take a case. There are also two small categories of cases in which the Supreme Court takes and immediately decides the case — both involving a reversal of the lower court. One category is frequently referred to as “grant, vacate, and remand.” Those cases typically involve an issue that the Supreme Court decided while the application for review is pending. In these cases, the Supreme Court grants review, vacates the decision on that issue by the lower court, and remands (sends the case back) for the lower court to reconsider in light of the recently decided Supreme Court case on the issue. The other is summary reversal. These cases typically involve the unanimous conclusion that the lower court simply ignored the prior decisions of the Supreme Court. But every year, the Supreme Court decides that it wants to fully hear approximately 70 cases per year (representing about 1% of the applications that the Supreme Court receives).
Posted in 2019-nCoV, Civil Rights, Judicial, LGBT
Also tagged Affordable Care Act, Congressional Investigations, Consumer Finance Protection Bureau, Faithless Electors, Free Exercise Clause, Supreme Court
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Title VII and Sexual Orientation/Gender Identity — Some Thoughts on the Supreme Court Argument
Most summaries of the Supreme Court arguments on the three Title VII cases on sexual orientation/gender identity reflect that the arguments were a rather convoluted mess. While I have a hunch that we are heading toward a 5-4 decision with the judges splitting on partisan lines, there was enough in the argument to blur the lines as justices seemed to depart from their traditional stances.
One of the big debate in legal fields over the past 100 years is about the theory of “legal realism.” In oversimplified terms, legal realism contends that judges are just politicians wearing robes and that they decide cases based solely on their policy preferences. The alternative theory, as expounded by Chief Justice Roberts during his confirmation hearing, is that judges are just umpires calling the balls and strikes based on rules drawn up by others. In this latter school of thought, judges are trying to interpret the meaning of texts and should not be concerned about the real world consequences of their decisions.
Much of the debate in the ball and strikes theory is about the proper method of interpreting legal texts. In recent years, conservatives have been big on textualism. Textualism posits that words in a text have meaning. If some of the terms are ambiguous, there are rules that can be applied to clarify the text (e.g., by looking at the term in the context of that statute and how that term is used in other similar statutes). The alternative to textualism is often a reference to legislative history, but — as many statutes were written during a time when liberals had the upper hand in Congress — legislative history (primarily the reports summarizing what a bill was intended to achieve) often supported a more liberal result. So conservative judges argued that those reports were never actually approved by Congress and that judges should only look at what Congress actually passed — the statutory language itself.
Posted in Civil Rights, Judicial, LGBT
Also tagged employment discrimination, gender identity, Sexual Orientation, Supreme Court
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Supreme Court Term Preview — October 2019 Term (Part I)
It’s that time of year again. October 7 is the First Monday in October meaning that the Justices of the United States Supreme Court will be back in D.C. for another term of arguments. This term is a little bit unusual for recent terms in that — when the Supreme Court had left for the summer — they had already granted review in enough cases to fill the first four (October, November, December, and January) argument sessions. Recently, the Supreme Court has had trouble granting enough cases to fill the first three argument sessions and have had (at most) one or two cases left over for January when they meet at the end of September to begin adding cases.
(For a little explanation of what I mean about argument sessions and filling them. From October through April, the Supreme Court has seven argument sessions. Each session consists of arguments on Monday, Tuesday, and Wednesday — excluding any federal or religious holidays. A “normal” argument day consists of two arguments on two cases. Ech argument is one hour split evenly between the two-sides although time is often allocated to the Solicitor General to express the government’s position. Typically, there is a two-week gap between each argument session except for longer breaks after the December and maybe January session. A Supreme Court case has two rounds of written arguments. The first round is an application to the Supreme Court to take a case — officially called a petition for writ of certiorari. These pleadings have relatively short page limits and are designed mostly to explain why the case is important enough for the court to take. While there are time limits on these pleadings, the Supreme Court is relatively liberal about granting extensions. If the Supreme Court decides to grant review, there is a second round of written arguments on the merits of the case followed by the oral argument. The time limits to complete the second round of written arguments is approximately 105 days or 10 days before oral argument whichever is earliest — and extensions are almost unheard of. Thus, oral argument has to be at least three months after the case is accepted for full briefing and argument — and four is better. So, any case heard in the first three months has to be accepted before the Supreme Court recesses at the end of June, And once the Supreme Court returns, any January cases have to be accepted by the end of the October session, etc. until all of the cases for this year’s term have to be accepted by the end of the January session. Any case accepted after January is for the next year’s term barring an unusual case in which the Supreme Court orders accelerated briefing like what happened last term on the Census case.)
At this point in time, the Supreme Court has issued its argument calendars for the October, November, and December argument sessions. While it has not yet released the calendar for the January session, it is likely that most of the remaining accepted cases will be heard in January (although some add-ons from cases accepted in October is possible). Each of the first three parts of this series will focus on one argument session with the fourth part focusing on the cases left over for likely January argument and possible cases that might be granted for the rest of the term. Any attempt to guess what is likely to be granted is highly speculative. The Supreme Court accepts about 1% of the cases for actual full review. Even weeding out the significant amount of long shot petitions, the strongest cases have — at most — a 1 in 10 shot at being granted review.
Posted in Civil Rights, Judicial, LGBT
Also tagged Chief Justice John Roberts, employment discrimination, Justice Anthony Kennedy, Justice Brett Kavanaugh, Puerto Rico, Sexual Orientation, Supreme Court
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Supreme Court and Sexual Orientation
While we wait for the major decisions from this term over the next seven weeks, the Supreme Court has added three cases for next term (likely to be argued in the Fall and decided next Spring) involving sexual orientation and employment. Two cases involve gay men who allege that they were terminated for being homosexual and one involves a transgender individual who alleges discrimination based on that status. While at the lower court level, all three claimed, in part, that one of the factors in the employment decision was their failure to comply with gender stereotypes (i.e. they did not conform to the employer’s expectations for male behavior), that claim is only part of the Supreme Court case for the transgender individual.
These cases are going to be difficult for the employees to win, especially the two gay men. Their claim is statutory, based on Title VII (of the Civil Rights Act of 1964 as amended) which bars discrimination in employment “because of sex.” And the natural reading of “because of sex” is “because of gender.” That is the way that the Supreme Court has always read the provision. And, even today, many states and government agencies use “sex” when they mean gender (e.g., on driver’s licenses and application forms). The arguments of the employees is hindered by the fact that their claim is statutory rather than constitutional. Other than the most conservative justices, the justices are somewhat willing to apply constitutional texts and principles to new issues. Put simply, a constitutional amendment is viewed as an extraordinary thing. Thus, if a claim is similar enough to existing constitutional protections, courts will sometimes find that it fits under those protections.
On the other hand, notwithstanding the current problems in Congress, courts tend to see statutory problems as something that the legislature could fix if the legislature wanted to fix the problems. And Congress has failed to pass proposed legislation that would amend Title VII to include sexual orientation (or create Title VII-type protections against discrimination based on sexual orientation).
Posted in Civil Rights, Judicial, LGBT
Also tagged Sexual Orientation, Supreme Court
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Civil Rights and the Supreme Court
Depending on how you define a civil rights case, this past term was, at least, on the surface a very good year for civil rights groups. I say on the surface because some of the “wins” were only partial wins. Of the cases most viewed as “civil rights” cases, the side seeking to protect/expand civil rights won 4-6 cases and the only loss was on a procedural issue.
It was a particularly good year if your claim involved religious discrimination. In Holt v. Hobbs, the Supreme Court found (in a rare win for an inmate) that Arkansas had to permit an inmate to have a half-inch beard under the Religious Land Use and Institutionalized Persons Act. In E.E.O.C. v. Abercrombie & Fitch, the Supreme Court held that a person suing an employer for religious discrimination need only show that the employer’s perception of the possibility that the prospective employee would need a religious accommodation was one of the factors behind the decision to not hire that person. (In this case, the applicant was a female Muslim who wore a hijab to the interview. While the applicant’s religious beliefs were not expressly discussed during the interview, the store declined to hire her based on the belief that she would want an exemption from the company’s policy that employees could not wear any head covering.)
In a very technical decision, in two companion cases out of Alabama, the Supreme Court indicated that — even though preclearance is no longer required — the rules against a racial gerrymander of legislative districts will still have bite. This case has already had a cascading effect on other reviews of the lines drawn for the 2012-20 elections. Of course, the fact that we are on the eve of the third round of elections under these lines is one of the reason why pre-clearance was such a big deal.
The last big win was the same sex marriage cases. As noted in an earlier post on that decision. the only disappointment in those cases was the lack of a clear standard of review for cases involving state laws discriminating based on sexual orientation.
The remaining two wins were only partial wins. In Young v, United Parcel Service, the Supreme Court held that a pregnant worker did have a potential claim for discrimination if the company refused to provide pregnant workers with the same accommodations (here light duty) that it provided to other workers who had similar difficulties in performing the full duties of the job. However, the Supreme Court found that the employer still could offer evidence supporting its decision not to offer a similar accommodation to pregnant workers. In other words, there may be cases when an employer does not have to offer pregnant workers the same-type of accommodation that it offers to employees with injuries. In a long-awaited (two earlier cases had been settled by the parties before the Supreme Court could review the issue) fair housing case, the Supreme Court held that victims of housing discrimination could pursue a case based on a disparate impact theory (that a facially-neutral practice actually had the effect of discriminating against minorities seeking housing). However, the Supreme Court used this case to emphasize that disparate impact claims require something more than merely showing a statistical disparity (i.e. disparate impact claims are not meant to establish quotas).
The only loss was on a procedural case, Mach Mining v. E.E.O.C. Employment discrimination laws require the Equal Employment Opportunity Commission to attempt to resolve disputes with employers by negotiation before filing law suits. The Supreme Court held that, to assure compliance with the requirements, courts could conduct a minimal review of the EEOC’s efforts to negotiate a settlement. This review consists of determining if the EEOC sent an appropriate notice fully detailing the allegations and offered to meet to discuss how to resolve the alleged violations. If courts stick to the standard set forth by the Supreme Court, this loss should only impose a minor procedural burden on the EEOC. However, the fear going into this case is the potential for employers and courts to decide that the offer to meet to discuss a resolution was not a “real” offer as the EEOC was unwilling to negotiate in “good faith.” The decision establishes a much more limited review of the efforts to negotiate, but how faithfully lower courts will comply with these limits remains to be seen.
Posted in Civil Rights, Judicial
Also tagged civil rights, RUILPA, Supreme Court
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