Nomination Watch

Update

NominationWatch.org is currently on hiatus until major developments in nominations occur. In the meantime, please visit Womenstake.org, NWLC's multi-issue blog. Please continue to come to here for archival information and resources on court decisions, trends, and lower court nominations.

Can it be that employers aren’t discriminating against women when they don’t cover prescription contraceptives?

In December 2000, the Equal Employment Opportunity Commission (EEOC), the agency that enforces Title VII, the federal law prohibiting sex discrimination in employment, ruled that an employer that does not cover prescription contraceptives in a generally comprehensive prescription drug plan is discriminating against women in the fringe benefits they provide. Since then, several district courts around the country have reached the same conclusion, and many companies - including Wal-Mart, the nation’s largest private employer - have begun providing contraceptive coverage for their employees. This coverage is not only fair - it is cost effective for employers.

But, last week, the Court of Appeals for the Eighth Circuit, in a 2-1 decision, rejected the views of the EEOC, reversed the Nebraska district court and found no discrimination against women in the employer’s failure to cover prescription contraceptives. In re: Union Pacific Railroad Employment Practices Litigation. The court’s 2-1 vote is a stark reminder of the importance of who our judges are - the decision was written by one of President Bush’s appointees, joined by a Reagan appointee, and the dissent was written by a Clinton appointee.

The good news is that Union Pacific recently changed its plan to include prescription contraceptives, and has announced that it would not take away the coverage following the court of appeals decision. But this erroneous court decision leaves women in the states it covers (Nebraska, North Dakota, South Dakota, Minnesota, Iowa, Missouri and Arkansas) without the legal protection they should have under Title VII so that all covered employers do the right thing.

contraceptive coverage Title VII Eighth Circuit

A Supreme Court decision protecting rights reverberates . . .

In Jackson v. Birmingham Board of Education, in which the National Women’s Law Center represented plaintiff Roderick Jackson, the Supreme Court ruled in 2005 that individuals are protected under Title IX if they are retaliated against for protesting sex discrimination in their schools. Justice O’Connor wrote the decision for the Court (which split 5-4), in which she recognized that even though retaliation is not specifically mentioned in the statute, “if retaliation were not prohibited, Title IX’s enforcement scheme would unravel.” 

Jackson recently proved to be directly on point when the Seventh Circuit Court of Appeals held that an associate manager of a Cracker Barrel restaurant who contended that he had been fired because he complained about the unequal treatment of African-American employees could seek relief under Section 1981, another civil rights law that does not explicitly protect against retaliation (Humphries v. CBOCS West, Inc.).  The court saw no basis for treating Section 1981 differently from Title IX.  So, a good Supreme Court decision led to another good decision protecting victims of race discrimination.

Jackson retaliation discrimination

. . . and so does one denying them

A cut back in protection for individual rights came last term, when the Supreme Court held in Garcetti v. Ceballos that the First Amendment does not protect a government employee from being punished for speech made pursuant to the employee’s official duties.  Justice Kennedy wrote the decision in Garcetti for a 5-4 Court that included the new Chief Justice and Justice Alito.

The consequences of the Garcetti decision were dramatized by another recent decision of the Seventh Circuit in Mayer v. Monroe County Community School Corporation.  During a current events class, a student asked elementary school teacher Deborah Mayer whether she had ever participated in a political demonstration. Mayer answered that she had once driven past demonstrators holding a “honk for peace” sign and had honked.  Hearing of her response, some parents complained, leading the school to dismiss Mayer and to admonish teachers to not take sides in any political controversy in the classroom.  The Court of Appeals upheld her firing under Garcetti, stating that a teacher’s speech is a “commodity” that has been sold to the state.  Here, a bad Supreme Court decision led to a teacher being fired for simply answering a student’s question.

Garcetti First Amendment precedent

Court decisions affect people’s lives

In June 2006, we told you about a Supreme Court decision in a case called Burlington Northern v. White that protects employees against retaliation for complaining about discrimination.  We also told you about the many employees who did not receive any relief in court under earlier cases that applied a harsher standard for determining whether the adverse action taken by an employer was bad enough to be considered retaliation under the law.  Recently, the Supreme Court looked at one of those cases and sent it back to the Court of Appeals to be reconsidered in light of its decision in Burlington Northern.  This action reminds us of the many employees who lost their cases too long ago to be able to ask the Supreme Court to review their plight, and of the significance of the decisions of the Courts of Appeals.

Ironically, the employer in the case the Supreme Court sent back to the lower court is the Equal Employment Opportunity Commission (EEOC) – the federal agency that enforces Title VII, the federal law that bars employment discrimination.  The plaintiff in the case is Davidson Momah, who is black.  After working in the EEOC’s Detroit office for several years, Momah, a lawyer, was selected for a better position in the Memphis office.  But, after Momah had to be hospitalized after being assaulted by a white supremacist, his wife did not want to move to Memphis.  Momah’s request for a transfer back to Detroit was denied.  Then Momah’s daughter was diagnosed with scoliosis, and needed treatment by specialists in Detroit and Chicago.  He again requested a hardship transfer, but was denied on the ground that the EEOC did not need more staff in Detroit.  But, Momah learned that several whites had been granted hardship transfers to Detroit, and filed a complaint with the agency.  He later filed suit, complaining about both discrimination and retaliation against him for filing with the EEOC.  The Sixth Circuit Court of Appeals affirmed the district court’s judgment in favor of the agency.  On the retaliation, claim, it found, among other things, that the denial of his request to transfer could not be the basis for recovery, because he had not been demoted or suffered a reduction in pay.  But, Burlington Northern requires a court to look at the full context of an employer’s action and its real impact on the employee – not just on the effect on his or her pay. Now the Sixth Circuit will have to go back and take a much harder look at Momah’s experience with an awareness of the many forms that retaliation can take and that the law at last recognizes.

employment discrimination Burlington Northern

South Dakota update

Last November, we blogged about a positive decision striking down a biased consent law in South Dakota that required doctors to provide anti-choice ideological propaganda to patients seeking an abortion. That decision by a three-judge panel of the Eighth Circuit Court of Appeals is now in jeopardy because the court has decided that the case should be heard again in April before all eleven of the Eighth Circuit judges.

abortion South Dakota Eighth Circuit

No state money, no medical services, no recourse

For evidence of the wide impact of federal court of appeals decisions, look no further than the Tenth Circuit Court of Appeals, which recently held in a case called OKAAP v. Fogarty that there is no relief available for a group of children in Oklahoma whose parents brought suit because they were unable to obtain basic health screenings and treatment services through Medicaid due to the low rates the state pays to health care providers. In doing so, the court followed its equally problematic September 2006 decision in Mandy R. v. Owens, a case involving Colorado Medicaid recipients.

In Mandy R., six developmentally disabled individuals sued after trying unsuccessfully for some time to be accepted into the state’s programs for comprehensive residential services. The opinion narrowly interpreted the Medicaid law to require only that states pay some amount for medical care, even though the state knew it wasn’t paying enough for necessary services to actually be provided. The court also interpreted a Supreme Court decision in 2002 narrowing the right to sue under federal law to support its decision that, even if the state were in violation of its obligation to make proper payments, individuals do not have the right to challenge that violation. Judge McConnell, a Bush appointee whose nomination was opposed by NWLC, wrote this decision.

The interpretation of the Medicaid law that put form over substance now binds the entire Tenth Circuit, which covers Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming. Unfortunately, people across all those states will suffer from the lack of judicial protection for their access to health services.

Medicaid Tenth Circuit McConnell

Controversial nominees to the Courts of Appeals withdrawn

As we reported earlier, four highly controversial nominees to the federal courts were resubmitted by President Bush right after the election. Now, we can happily report that none of those nominees – Michael B. Wallace, Terrence W. Boyle, Jr., William J. Haynes II and William G. Myers III– will be resubmitted to the new Senate. Wallace withdrew in December and the other three withdrew Tuesday. Marcia D. Greenberger, NWLC Co-President, had this to say following Tuesday’s announcement: “These three nominees were controversial for a reason – they were wrong for the job and wrong for the country. As we start a new year and a new Congress, the President should look to consensus nominees for future vacancies.”

These nominees were extremely controversial for varied reasons. NWLC opposed Wallace because his record presented troubling questions about his most basic commitment to equality under the law. Moreover, he was the first federal court of appeals nominee in almost 25 years to receive a unanimous “Not Qualified” rating from the American Bar Association due to concerns about his judicial temperament and bias. Judge Boyle drew criticism from NWLC for his rulings flouting anti-discrimination laws, his apparent violation of judicial ethics standards, and the large number of his decisions that were rejected and criticized by higher courts. Haynes’ central role in the Bush administration’s anti-terrorism detainee and interrogation policies caused many to question his respect for civil liberties. Finally, Myers’ past anti-environmental actions raised concern about whether he would faithfully enforce our environmental laws as a federal judge.

Fortunately, Senator Leahy’s vow to move forward only on consensus nominees as the new Chairman of the Senate Judiciary Committee seems to have convinced these four and President Bush that their records would not survive the scrutiny of the committee. Now, it’s up to the Judiciary Committee, under Chairman Leahy’s leadership, to ensure that future nominees to the judiciary get the scrutiny that the American people deserve to protect our hard won rights.

Court of Appeals nominees Wallace Boyle Haynes Myers Senate Judiciary Committee

Federal Court of Appeals requires reluctant Michigan top elected officials to end affirmative action immediately

In November, Michigan’s “Proposition 2” passed, amending the state constitution to bar government sponsored affirmative action programs, including in admissions programs in the state’s university system. In December, a Michigan district court approved an agreement by Michigan’s governor and its Attorney General to allow three state universities to finish their admissions cycle using an affirmative action plan that was consistent with principles upheld by the Supreme Court. But in an opinion written by Judge Jeffrey Sutton, the Sixth Circuit Court of Appeals refused to allow the agreement to go into effect – thereby forcing the Michigan schools to change their admission criteria midstream. Judge Sutton, one of President Bush’s appointees, was opposed by NWLC and other groups, in part because of his extreme use of principles of “federalism,” or deference to states, to prevent individuals from getting relief under federal civil rights laws. The other two judges, who joined the opinion, were appointed by the first President Bush. Judge Sutton cited federalism considerations here – finding that the state’s interest in not changing the rules in the middle of the admissions cycle should be considered by the state courts, not the federal courts.  Yet again, he used these arguments in a way that frustrated civil rights principles – and in a way that was particularly ironic given that he, as a federal judge, was overriding what state officials wanted to do.

Michigan affirmative action Judge Jeffrey Sutton

Former President Gerald Ford - a different Republican

A recent Op Ed by Jeffrey Toobin in the New York Times reminds us of how different Gerald Ford was from many Republican leaders of today.  Toobin reports that Ford had no regrets about his appointment of Justice Stevens, who is a supporter of key constitutional protections for women, including Roe v. Wade and the right to privacy, and nondiscrimination in employment and education. Toobin also describes Ford’s recent support of affirmative action at his alma mater, the University of Michigan. When the program came under attack, Ford stated that ending affirmative action would lead “future college students to suffer the cultural and social impoverishment that afflicted my generation.” In addition, Ford provided the impetus for a “friend of the court” brief in the Supreme Court filed on behalf of high-ranking retired military leaders that is often credited with helping to convince swing vote Justice O’Connor to allow affirmative action at the University of Michigan Law School. In sharp contrast, the current Administration opposed the use of affirmative action at the University of Michigan, and other efforts to promote diversity. The country would be well-served by more Supreme Court appointments like the one made by President Ford 31 years ago.

Gerald Ford Supreme Court affirmative action