Nomination Watch

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

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

The Fourth Circuit: A Chance for Change?

All eyes will be on President Bush’s judicial nominations in the new year. The Fourth Circuit, long considered a conservative stronghold, now has several open seats. That court has consistently sided with the Bush administration in legal challenges to its national security policies, and more than one of its judges was believed to be on the President’s short list for the Supreme Court. However, as the Washington Post highlighted this week, the departure of a number of prominent conservatives to private sector jobs and retirement will leave the court split with six Republican and five Democratic appointees in July, with four spots to be filled. Thus, the court’s reliability as an unfailing conservative ally of the administration is now uncertain.

Even under the Republican controlled Senate, some of the President’s nominees to the Fourth Circuit were too controversial to win approval, including U.S. District Judge Terrence W. Boyle, Jr. whose nomination the Center opposed due to his record of ignoring established legal precedents regarding important anti-discrimination protections. Now that the balance of power in the Senate has shifted, nominees will face greater scrutiny by the Judiciary Committee. Whether this will lead the President to nominate candidates who are not conservative ideologues, and who respect constitutional rights and civil liberties, remains to be seen. We will be watching  – and ready to respond!

Fourth Circuit judicial nominations

Nominations speak louder than rhetoric . . .

As has been widely reported, the President has chosen to follow up his pledge to work for bipartisanship and cooperation with the renomination of four controversial candidates for the federal bench. By renominating individuals whose collective records reflect disdain for civil rights and individual liberties, contempt for environmental protection, questionable ethics and dubious qualifications, President Bush places partisan pandering over the national interest in a fair and competent judiciary. The Senate has had occasion - in some cases multiple occasions - to consider nominees Terrence Boyle, Michael Wallace, William G. Myers and William J. Haynes, and has not seen fit to bring their nominations to a floor vote. The President’s refusal to respect either the Senate’s concerns or the national sentiment shunning divisiveness suggests that the judicial nominations battle may be far from over.

judicial nominations civil rights

. . . and a reminder about why what we are hearing is a problem

A recent decision by the Sixth Circuit demonstrates the importance of the role played by Court of Appeals judges. With very few cases reviewed by the Supreme Court, the Courts of Appeals frequently provide the final authority on cases that raise critical issues surrounding women’s health and welfare. For example, in a recent case, Cincinnati Women’s Services v. Taft, the Sixth Circuit reviewed two provisions of an Ohio statute that could be dangerous to women. While the Court did strike down one provision, it upheld the second - using an analysis that spells trouble for women’s reproductive rights.

Under the Supreme Court’s “undue burden” test, states may impose restrictions on a woman’s access to abortion only if they do not create an undue burden, or substantial obstacle, in her path. Instead of focusing on the severity of the burden imposed on an individual woman’s exercise of her right to choose, as courts have traditionally done, the Sixth Circuit required that a restriction, even if extremely burdensome to some women, could be upheld as long as, in its view, not enough women would be harmed.

Using this dangerous rationale which explicitly sanctions government restrictions that clearly harm some women, the court upheld a requirement that women must have an in-person meeting with a physician at least 24 hours before the procedure despite the fact that it was harmful and even life-threatening for some abused women. Those women for whom this law forecloses the option of abortion do not suffer any less because others may still be able to obtain abortions. This case starkly portrays why judges matter, and how those who are hostile to women’s rights can cause great harm to women across the country.

abortion court of appeals reproductive rights