Nomination Watch

A Sobering Lesson from Burlington Northern: the Power of the Lower Courts

Although we are pleased with the Supreme Court’s decision in Burlington Northern v. White, the decision is also a harsh reminder of the power of the lower courts, and the irrevocable damage they can cause before the Supreme Court straightens them out on the correct legal standard – when it does.

In Burlington Northern, the Supreme Court held that an employee can win if she shows that in retaliation for her complaint of discrimination, her employer took some action against her that might deter a reasonable employee from complaining of discrimination.  The employer’s action doesn’t have to be as extreme as firing her. For example, the Court said depending on the circumstances, it could be a schedule change that would matter enormously to a young mother with school age children.  But before the Supreme Court ruled, two Courts of Appeals (the Fifth and the Eighth Circuits) applied a more restrictive standard.  They held that an employee could bring a successful retaliation claim only if, after complaining of discrimination, the employee suffered an “ultimate employment action,” such as firing or a change in pay.  In the states where that standard has been applied, countless employees who have suffered retaliation by their employers have been left without a remedy.  In fact, Sheila White’s brief in the Supreme Court has an appendix of about 40 cases in which sexual harassment victims complained and were retaliated against, but received no relief under the “ultimate employment action” standard, and there are undoubtedly many more victims as well.

To give just one example, in a case called Mattern v. Eastman Kodak Company, Jean Mattern, an employee who was enrolled in the company’s mechanic apprenticeship program, complained of sexual harassment, and her employer retaliated.  A supervisor threatened to fire her, she was reprimanded for not being at her assigned work station when she was meeting with the human resources department to discuss her complaint, she missed a pay increase, and she was placed on “final warning.”  The jury awarded Mattern $50,000 in damages.  Nonetheless, the Fifth Circuit held that all of this was not enough for Jean Mattern to win her retaliation case, and it overturned the jury’s award. 

So while Burlington Northern is a huge victory for employees in these circumstances in the future, it will not undo the harm suffered by women like Jean Mattern, who lost their cases in the lower courts for many years before the Supreme Court ruled.

Burlington Northern v. White 

Fourth Circuit agrees to rehear sexual harassment case against UNC

We reported in May on a decision by a panel of the Fourth Circuit to throw out the Title IX claim of students at the University of North Carolina on the women’s soccer team who alleged that they had been subjected to ongoing sexual harassment by their coach.  Now it turns out we were not alone in questioning this ruling; some members of the Fourth Circuit itself apparently have their doubts about it.  On June 8, the Fourth Circuit granted rehearing en banc – that is, re-argument of the case before all 12 judges on the court.  This means the panel decision is no longer binding, so that’s very good news.  But while it takes a majority of the active judges on the court to vote for rehearing, we won’t know what they think about the merits of the case until they issue an en banc decision.  In our view – and that of the dissenting judge the first time around -- the plaintiffs should have been given a chance to convince a jury that the coach took advantage of his position of power and created a sexually hostile environment in violation of Title IX.  We will be watching closely to see if a majority of the Fourth Circuit agrees.

Watching the Courts: New Line-up on Supreme Court Is Making Its Mark

The “new” Supreme Court – with John Roberts at the helm as Chief Justice and Samuel Alito in place of Sandra Day O’Connor -- is issuing important decisions as its 2005-06 Term winds down.  We’re seeing some troubling decisions and ominous warning flags, interspersed with occasional good news.

• Good news for victims of discrimination in the workplace who are penalized for complaining, and for victims of domestic violence.  Burlington Northern & Santa Fe Railway v. Sheila White was brought by a forklift operator in a railroad yard who was transferred to less desirable job duties and suspended without pay after she complained of sexual harassment. The Court unanimously ruled that this kind of retaliation is prohibited by Title VII, the federal law against discrimination on the job.  All the Justices except Alito rejected the argument of the railroad and the Bush Administration for a more limited protection against retaliation – a standard that, as NWLC Co-President Marcia Greenberger put it, “would have created a hole in civil rights protections large enough to drive a forklift through.”  In another case, the Court ruled unanimously that a domestic violence victim’s 911 call can be admitted into evidence at trial even if the victim is not present for cross-examination, recognizing that women are often afraid to appear in court in these cases because of intimidation from their abusers – although it did not extend that principle to victim statements to police when there is no emergency in progress.
• But new conservative block rears its head, showing impact of Justice O’Connor’s departure.  In other important cases, a solid block of four conservative votes has been sticking together: Justices Scalia, Thomas, Alito and Roberts.  When Justice Kennedy, also a conservative, joins them to make a majority, the court’s rulings can look very different from its decisions when Justice O’Connor was on the court.  One example is Hudson v. Michigan, in which the Court ruled 5-4 (opinion by Scalia, with Kennedy joining the hard core four) that even though the Constitution requires police with a search warrant to “knock and announce” themselves before entering someone’s home, when they fail to do so the evidence they obtain may nonetheless be used in court.  The four dissenters (Breyer, Stevens, Souter, Ginsburg) called this a “significant departure” from past precedent, and suggested that it may be the beginning of the end of the longstanding “exclusionary rule” whereby evidence obtained in violation of constitutional rights must be excluded from trial.  The press noted that it was clear Justice Alito cast the decisive vote because the Court was evenly split after Justice O’Connor retired, and the case had to be re-argued to break the tie once Justice Alito took her place.
  
  One editorial said this ruling “means that while the Constitution is on your side, the Supreme Court isn’t.”  We’ll find out all too soon whether it means the same thing with respect to the right to choose and affirmative action in particular, since the Court has agreed to hear cases involving those issues next fall.
  
  
• Federal power to protect the environment, and other national concerns, at risk.  A case involving the scope of the Clean Water Act is another example of how extreme the four-vote block of conservatives can be.  In Rapanos v. United States, Justices Scalia, Thomas, Alito and Roberts went too far even for Justice Kennedy, when they took a shockingly narrow view of the application of the Clean Water Act to the nation’s wetlands and waterways.  Justice Kennedy broke ranks with them – although he did not join the more expansive reading of the law offered by Justice Stevens and the other three dissenters, either.  He offered his own approach, which is now the governing one since neither of the others commanded five votes. 
  
  Following these decisions, one scholar commented: “This is what everybody expected when O’Connor left the court. . . . Roberts and Alito push[ing] the court to the right. . .“  Time will tell just how profound and extensive their impact will be.

Problematic Court of Appeals nominees: more in store?

Having succeeded in putting Brett Kavanaugh on the D.C. Circuit – he was confirmed on May 26 in a very divided Senate vote, 57-36, and sworn in to his seat on the bench on June 1 – those trying to pack the courts with far-right ideologues do not seem to be taking a breather.  A publication called The Hill reports that the White House and outside conservative groups are planning to work closely with their friends in the Senate to get more Court of Appeals nominees confirmed.  Among those they have in mind are Terrence Boyle for the Fourth Circuit and Michael Wallace for the Fifth Circuit.  We’ve previously noted some of the problems surrounding those two nominations (like Wallace’s unanimous rating of “Not Qualified” by the ABA). 

And there are other divisive nominees waiting in the wings as well.  One awaiting Senate action is William J. Haynes, currently General Counsel in the Defense Department and nominated to the Fourth Circuit.  Haynes has drawn opposition from important Republican Senators like Judiciary Committee member and former military lawyer Lindsay Graham (R-SC) and former military officer John McCain (R-AZ), as well as a number of retired military lawyers, who object to Haynes’ role as the Pentagon’s top lawyer when controversial policies were adopted allowing harsh treatment of detainees captured in Afghanistan, Iraq and elsewhere.  There’s also William G. Myers III, nominated to the Ninth Circuit and strongly opposed by environmental groups who say he favored miners and ranchers at the expense of the environment when he was Solicitor in the Interior Department from 2001-2003.

And if that’s not enough to make your hair stand on end, WH officials Karl Rove and Harriet Miers (remember her?) reportedly have told conservative activists and Senate staff that the administration will soon send the names of more than 20 additional nominees to the Senate for confirmation.  More battles lie ahead if the new nominees are anything like the ones mentioned above.

It's June and Supreme Court rulings are in the air

As we’ve noted before, June is a popular month for weddings and Supreme Court retirements.  We’re not anticipating any retirement announcements – the changes we’ve seen in the Court’s composition over the past year were more than enough for a while, in our view – but June is also when the Court usually hands down its most controversial decisions, and that pattern is expected to hold.  As of today, 31 cases remain to be decided, including rulings on thorny issues such as military courts and civil liberties, the death penalty, campaign spending, and the environment.  “The heavy lifting is coming up,” as one report put it.

One case we’ve got our eye on is Burlington Northern & Santa Fe Railway Co. v. Sheila White.  The plaintiff in this case, the only woman in her department of a rail yard, was subjected to harassment by coworkers and a supervisor who believed that women did not belong in the railway yard.  After complaining about the harassment, she was transferred to less desirable job duties and then suspended from her job without pay.  A jury found that she was the victim of unlawful retaliation in violation of Title VII of the Civil Rights Act of 1964, and the Court of Appeals for the Sixth Circuit upheld the award.  Burlington Northern asked the Supreme Court to reverse that decision.  NWLC filed an amicus brief supporting the plaintiff, on behalf of itself and over two dozen women’s rights and other organizations.  As NWLC Co-President Marcia Greenberger said when NWLC’s brief was filed, “The discrimination and retaliation White experienced is not uncommon for women attempting to break into traditionally male-dominated fields.  Although such jobs pay far more than positions traditionally filled by women, the risk of sexual harassment is also much higher.  In far too many cases, employees have also faced the added danger of retaliation by their employees.  Congress enacted Title VII to protect employees from these types of retaliation, and the Court must not take these protections away.”