June 2012

By Sarah Crawford, Director of Workplace Fairness, National Partnership for Women & Families

Fairness and equal opportunity are among our nation’s most basic values. They are especially critical in the workplace due to families’ increasing dependence on the wages of both men and women. That’s why Congress has passed landmark civil rights laws designed to protect workers’ right to hold jobs and provide for their families free from harmful discrimination. Yet, just last year, the United States Supreme Court eroded that right with its decision to deny more than one million women the ability to join together to challenge the discriminatory practices of the nation’s largest private employer. Fortunately, Congress now has the chance to undo the damage. 

The Supreme Court’s decision in Wal-Mart v. Dukes was a devastating blow to the right of all workers to combat systemic discrimination in the workplace. In short, the Court said that Betty Dukes – a female greeter at Wal-Mart who received lower pay and fewer promotion opportunities than her male co-workers – could not join with other female Wal-Mart workers to hold the company accountable for unlawful widespread discrimination through a class action lawsuit. In doing so, the decision created significant barriers to justice for future victims of discrimination.

Now, workers who seek to challenge the widespread discriminatory practices of their employers must meet stringent new standards to show that their claims are similar enough to be joined together. This makes it more difficult for workers to challenge discrimination that occurs through the subjective judgments that often factor into personnel decisions. And it opens the door for companies to hide behind the existence of written nondiscrimination policies, despite evidence that discrimination exists in practice.

It should not be so difficult for workers who suffer discrimination to combat unlawful employer practices and have their day in court. The Equal Employment Opportunity Restoration Act of 2012, which was introduced today, would reverse the damage done by the Wal-Mart decision and restore the right of workers to join together to challenge systemic discrimination. It is critical legislation that would give workers who suffer from unlawful practices a fighting chance.

By Brandon L. Garrett, a professor at the University of Virginia School of Law. Garrett’s book, Convicting the Innocent: Where Criminal Prosecutions Go Wrong, is coming out in paperback later this summer, and updates are at the book’s Facebook page here.

Yesterday the Supreme Court Justices splintered over the meaning of the Confrontation Clause in cases involving forensic DNA testing – making a muddle of an important problem and with few discernible arguments that hold much water. The case involved a sexual assault, but the Illinois State Police did not test crime scene evidence – they tested a sample of blood from the suspect and obtained his DNA profile. The evidence from the rape kit was DNA tested by an outside lab, Cellmark. The prosecutor did not call the Cellmark technician at trial, the one who did the most important DNA testing in the case, the testing that identified the DNA profile from the semen of the assailant. Instead, the prosecutor called the crime lab technician who described the defendant’s profile – and sneaking the match in through the back door, by having that technician say how it matched the profile identified in the Cellmark report. The DNA was central evidence at trial, although the victim also identified the defendant in a line-up. The defense had no opportunity to cross-examine the Cellmark analyst who did the crucial DNA work.

The case called for a straightforward application of the Court’s recent precedents in the Confrontation Clause area. Just last year, the Court held in Bullcoming v. New Mexico, a case where DUI test results were not presented by the technician who did the tests, that this was a Confrontation Clause problem. The defense must have an opportunity to cross-examine the person who did the relevant work. That decision reinforced the Court’s 2009 decision Melendez-Diaz v. Massachusetts, stating that the Confrontation Clause requires live testimony, not merely introduction of a certificate stating the conclusion of a forensic test used to identify drugs. 

The new answer to the question of whether a forensic DNA analyst must testify is “maybe.”