Nomination Watch

Victory in the 6th Circuit: something to cheer about in Michigan

Today, the 6th Circuit Court of Appeals reaffirmed a decision finding that the Michigan High School Athletic Association (MHSAA) discriminates against female high school athletes by scheduling only their sports in nontraditional and less advantageous seasons, in violation of the U.S. Constitution and Title IX.  The National Women's Law Center’s Co-President Marcia Greenberger had this to say about the ruling, “After eight long years, Michigan girls can finally cheer. The court has once again ruled that the facts and the law are on the side of Michigan high school girls.  MHSAA must stop forcing these girls to play second string and instead ensure that they have the athletic opportunities they deserve.” To read the full press release go here.

Fourth Circuit: sticks and stones may break your bones, but hearing African Americans called “black monkeys” is no big deal – and if you complain about it, you can be fired!

This week, a divided panel of the Fourth Circuit reaffirmed its previous decision throwing out a case brought by an African American employee of IBM who was fired after complaining to his supervisors that a co-worker, in the office, had referred to African Americans as “black monkeys.”  The court of appeals originally decided the case in May, then vacated its ruling and granted rehearing by the same panel in July, causing some observers (like us!) to hope that it had had a change of heart and would allow the claim to go forward.  No such luck.  The same majority, over the same vigorous dissent, has now reaffirmed the dismissal of the case.

Here’s what the plaintiff alleged in Jordan v. Alternative Resources Corporation.  Robert Jordan, an African-American employee, was watching a news report on the office television about the capture of the two alleged Washington, DC-area snipers when a fellow employee exclaimed, “They should put those two black monkeys in a cage with a bunch of black apes and let the apes f-k them.”  He also learned that the same co-worker had made similar comments to other employees on many occasions in the past.  Not surprisingly, Jordan was offended and complained to his supervisors.  He was then given a less desirable work shift and had his workload increased, and – less than a month later after complaining – he was fired.  Jordan sued under Title VII of the Civil Rights Act, which prohibits not only race and sex discrimination in the workplace, but also retaliation by an employer for complaining of discrimination.   But two of three members of the Fourth Circuit panel (Judges Neimeyer and Widener) ruled that his claim could not even go forward to a jury.

To win on a retaliation claim, a plaintiff has to show only that he or she reasonably believed that the conduct complained of violates Title VII – in this case, because there was a racially hostile environment in the workplace.  The majority opined that no objectively reasonable person could have believed that a hostile work environment existed or might develop if unchecked.  In contrast, dissenting Judge Robert King understood the deep bigotry the comments in question would convey to a reasonable African American listener, and concluded that it was “entirely reasonable for Jordan to believe that, in reporting the racially charged ‘black monkeys’ comment to his employers, he was opposing a racially hostile work environment.”  Judge King also criticized the majority for ignoring the Supreme Court’s recent directive in Burlington Northern v. White that Title VII’s anti-retaliation provision be broadly construed.

As Judge King noted, the ramifications of the Fourth Circuit’s opinion in this case will extend far beyond Robert Jordan.  This ruling means that employees (in the Fourth Circuit states) who confront harassing conduct – not only racial harassment, as in this case, but also sexual harassment or other discrimination – have to decide between reporting the offensive incidents to their supervisors and thereby risking retaliation (as Jordan did), or keeping quiet and enduring an abusive or degrading workplace.   As Judge King put it, they have to choose between “their livelihoods and their dignity.”  No one should have to put up with such an untenable choice.  Moreover, to the extent this ruling deters employees from complaining about early signs of a hostile environment, it will make it harder for management to act quickly and prevent escalation of the problem.  Too bad that even after rehearing, these basic principles were lost on the majority of this Fourth Circuit panel.

Judge to domestic violence victim: Get out of my courtroom or I'll deport you!

Any domestic violence victim who goes to court for a restraining order against her batterer is in a dangerous situation, and victims who also happen to be immigrants have even more at risk, especially if they are depending on an abusive spouse to obtain legal residency.  The last thing a woman in this position needs is to be threatened with deportation by the court she turns to for help.  But this is exactly what happened to Aurora Gonzalez when she entered the courtroom of Los Angeles Superior Court Judge Pro Tem Bruce Fink on July 14.

As reported in the Los Angeles Times, Ms. Gonzalez, who had moved into a domestic violence shelter, went to court for protection from the abuse of her husband.  Judge Fink’s response?  He asked if she was a legal immigrant, and when she said no, he warned her to either leave his courtroom by the time he counted to 20 or risk arrest and deportation to Mexico.  Then he started counting!  Ms. Gonzalez left the courtroom and her case was dismissed.  Two days later, the LA Times – noting that experts said Fink had no authority as a state judge to order an arrest for violation of federal immigration law -- reported that Fink, a family law attorney, was dropped from the roster of lawyers who can be used as substitute judges.  Fink has not acknowledged that he did anything wrong and said that all he “saw was nothing more than some yelling and screaming between a husband and wife…[and] that they really didn’t want to not be together anymore.” Thankfully, Aurora Gonzalez resubmitted her request for a restraining order and it was granted.

Supreme Court to review Eleventh Circuit decision giving the ok to employers who underpay working women

At the tail end of its Term, the Supreme Court announced that it will review a ruling of the Eleventh Circuit in Ledbetter v. Goodyear Tire & Rubber Co., Inc., in which the court of appeals threw out a jury verdict in favor of a woman who alleged sex discrimination under Title VII because she was paid less than her male counterparts.  Lilly Ledbetter worked at a Goodyear tire manufacturing plant in Alabama for about 19 years – one of only three women managers at the plant during that whole time.  While she worked at the plant, Ledbetter was told that “the plant did not need women” and that women “caused problems.”  All three women were paid less than the male managers, and at the end of her time at the plant, Ledbetter’s salary was more than 20 percent lower than the lowest-paid male with equivalent experience in her job position.  This was enough for a jury to find that Goodyear discriminated against Ledbetter on the basis of sex, but not for a panel of the Eleventh Circuit, including the controversial Bush appointee William Pryor.

Contrary to a 1986 Supreme Court decision finding that each discriminatory paycheck is unlawful regardless of when the discrimination began – and the rulings of several other Circuit Courts as well -- the Eleventh Circuit panel ruled that a court could look no further into the past than the employer’s most recent pay decision.  While the court did not question that Ms. Ledbetter’s lower salary was the result of earlier sex discrimination, it concluded that the evidence was not sufficient to show that her most recent denials of a raise had been based on her sex.  And because Ms. Ledbetter had missed the deadline for filing a complaint with the EEOC on the earlier discrimination, the court wiped out the jury verdict.

On the one hand, the Supreme Court’s decision to hear this case is good news because it is an opportunity to reverse a bad Eleventh Circuit decision. On the other hand, it is worrisome if the newly constituted Court, with Chief Justice Roberts and Justice Alito, decides to revisit the Court’s 1986 decision in favor of victims of discriminatory pay disparities and finds a way to disregard or undermine that precedent.  Stay tuned for more on this case as it’s briefed and argued in the Supreme Court Term that begins in October.