Economic Inequality

  • June 28, 2013
    Guest Post

    by Emily J. Martin,  Vice President and General Counsel at the National Women's Law Center

    You may have missed it in the flurry of newsmaking by the Supreme Court this week, but on Monday, five of the Justices gave early Christmas presents to defendants accused of employment discrimination, when the Court handed down important decisions in two Title VII cases: Vance v. Ball State University and University of Texas Southwestern Medical Center v. Nassar.  In both Vance and Nassar, the 5-4 decisions ignored the realities of the workplace and the ways in which employment discrimination and harassment play out every day.  Placing new obstacles in the path of workers seeking to vindicate their rights, the Court set aside the longstanding interpretations of the Equal Employment Opportunity Commission (the agency charged with enforcing Title VII), and closed out a term in which the Court repeatedly limited the ability of individuals to challenge the actions of powerful corporations.

    Justice Samuel Alito wrote the Vance decision.  Prior cases have held that when a plaintiff shows she was sexually harassed, or racially harassed, or harassed on some other unlawful basis by a supervisor, her employer is liable, unless the employer can prove that the plaintiff unreasonably failed to take advantage of a process that the employer provided for addressing harassment. An employer is only liable for harassment by a co-worker, however, when a plaintiff can show that the employer was negligent in controlling working conditions—a far tougher standard.  Vance posed the question of who is a supervisor: Is it only someone who has the authority to hire, fire, or take other tangible employment actions? Or is it anyone who oversees and directs the plaintiff’s work on a day-to-day basis? Ignoring the ways in which day-to-day supervisors have been invested with authority over other employees that empowers them to harass, the Court ruled on Monday that employers are not vicariously liable for harassment by day-to-day supervisors who do not have the authority to hire, fire, and the like. Indeed, showing even more solicitousness for the interests of employers than the defendant in the case had shown for itself, the majority adopted an even narrower interpretation of the word “supervisor” than had been urged by Ball State.

  • June 21, 2013

    by E. Sebastian Arduengo

    Since the rise of the tea party in 2010, conservative Republican Congressmen have come to Washington with the goal of dismantling government as we know it. In the last three years their biggest legislative accomplishment has been the sequester– a package of federal spending cuts that does very little to accomplish the tea partiers stated goal of reducing the federal deficit, but goes a long way towards gutting government programs millions of Americans depend on, like Head Start. At the 2013 ACS National Convention, Maryland Governor Martin O’Malley offered a contrasting vision of a government that met the constitutional directive of providing for the general welfare.

    O’Malley, who joked that he was far from the most accomplished jurist in his family (3 of his siblings are attorneys and his wife is a state court judge in Baltimore), told the audience that for all the questions facing Americans today, from creating jobs to making sure that greater freedom, opportunity, and justice are available for all, “a working and effective government is an indispensable and essential part of the answer.”

    The governor decried the fact that citizen engagement is down, and court rulings like Crawford v. Marion County Election Board, embolden states around the country to pass restrictive voting laws in the guise of preventing “voter fraud.” At the same time, Republican controlled state legislatures have perfected the subtle art of choosing constituents for conservative incumbents, resulting in unbending ideologues being sent to Congress. The result, as former Secretary of Labor Robert Reich recently put it is a “quiet closing of Washington,” A place with, “No jobs agenda. No budget. No grand bargain on the deficit. No background checks on guns. Nothing on climate change. No tax reform. No hike in the minimum wage. Nothing so far on immigration reform.”

    Gov. O’Malley contrasted the gridlock at the federal level to the progress being made in Maryland, where recognizing things like “equal rights, inclusion, diversity, an open society, respect for the dignity of every individual” are seen as making the state a “more innovative and creative place” that benefits all Marylanders.

  • May 9, 2013

    by Jeremy Leaming

    It seems whenever given the opportunity to weaken the judiciary, Sen. Chuck Grassley (R-Iowa) runs with it and in the process spreads lots of misinformation about the federal courts.

    Grassley, who has helped his Republican colleagues in the Senate block or slow-walk President Obama’s judicial nominees, has called for cutting the number of judges on the U.S. Court of Appeals for the District of Columbia Circuit, discussed here.

    Now as the Senate Judiciary Committee begins consideration of the bipartisan comprehensive immigration bill, S. 744, the Ranking Member Grassley has offered 77 amendments to the legislation. Among them is one, dubbed Grassley17, which would isolate immigration court rulings from federal court review. As it stands now, the bill provides for some judicial review. For example, individuals denied citizenship could seek review in a district court or court of appeals pursuant to the Administrative Procedures Act.

    But Grassley’s effort to alter the comprehensive immigration measure would close the door to federal courts, except for one – in Washington, D.C. and only for review of constitutional challenges. Thus if immigration judges improperly deny or revoke citizenship, their actions will largely go unchallenged.

    Not only is Grassley’s effort an affront to judicial review, it is, let’s be honest, a part of a wider attempt to greatly slow or scuttle immigration reform. S. 744 is a rather large bill and far from perfect. It includes stringent enforcement provisions including billions of dollars for the Department of Homeland Security to spend on border enforcement. It also requires undocumented immigrants to wait at least 10 years until they can apply for legal residence and another three years until naturalization, according to The New York Times.

    But senators have offered more than 300 amendments to the immigration reform bill. Seth Freed Wessler of ColorLines says the Republican amendments “would largely gut the promise of a path to citizenship and impose nearly unachievable benchmarks for border security.” Nonetheless Wessler notes Democrats control the committee and are thus likely to hold off many of the amendments. Wessler though notes some of Grassley’s other amendments, such as one that would strike language aimed at protecting “immigrants from being deported because” of anti-immigrant laws, such as the one enacted by Arizona.

  • May 8, 2013

    by Jeremy Leaming

    While the Obama administration has done much to diversify the federal bench, Senate Republicans have so far successfully kept one of the nation’s most important appellate courts free of any diversity. The U.S. Court of Appeals for the District of Columbia Circuit rules on significant and often complex matters, including national security concerns; but it also rules on matters that are of great concern to corporate America.

    Since the Republican Party is the primary coddler of the super wealthy, it’s hardly surprising that its leaders in the Senate are working feverishly to ensure that President Obama has little if any opportunity to change the ideological makeup of the D.C. Circuit. The graphic (right) produced by People For The American Way is a compelling and accessible picture of the matter. (Senate Judiciary Committee Ranking Member Chuck Grassley is also pushing legislation that would cut the number of judges on the bench; he claims the D.C. Circuit has enough judges and a light caseload. For the truth, read retired D.C. Circuit Chief Judge Patricia Wald’s piece for The Washington Post.)  

    For many years now, the D.C. Circuit has been controlled by conservative judges. There are four vacancies on the bench and Senate Republicans have successfully blocked the president from filling them. As Miranda notes in a PFAW blog post, because of Senate obstructionism Obama is the “first president since Woodrow Wilson to serve a full first term without placing a judge on the D.C. Circuit.”

    An opinion yesterday by a three-judge panel of the D.C. Circuit provides yet another example of the Court’s pro-business tilt. It knocked down a rule by the National Labor Relations Board (NLRB) requiring employers to post notices about the rights of workers, such as joining a union or advocating for safer working conditions. In a post for AFL-CIO NOW, Mike Hall calls the NLRB rule “commonsense and evenhanded,” noting that such notices also inform workers that they do not have to join a union. But the D.C. Circuit found a way to side with corporations that aren’t especially eager to inform workers of their rights pursuant to the National Labor Relations Act.

    That opinion follows one from earlier in the year, Canning v. NLRB, where the D.C. Circuit invalidated the president’s appointments to the five-member NLRB. That opinion has been appealed by the Obama administration. In short, the three-judge panel of the D.C. Circuit essentially redefined what a recess appointment is, one that differs greatly from practice and federal court precedent. (See Sec. 2 of Article II of the U.S. Constitution.)

    The D.C. Circuit has also proven hostile to environmental regulations that are often challenged by corporations. In a post for grist, the Constitutional Accountability Center’s Simon Lazarus and Doug Kendall say the D.C. Circuit, on “any given day … has the power to throw the environmental movement into complete disarray.” (They could have added to the great delight of many corporations or the Koch brothers.)

  • May 6, 2013

    by John Schachter

    Lest anyone still doubt corporate influence (or is it control?) over the nation’s high court, Adam Liptak’s nearly 3,000-word article in yesterday’s New York Times should resolve any uncertainties. The Court’s business rulings, Liptak notes, “have been, a new study finds, far friendlier to business than those of any court since at least World War II. In the eight years since Chief Justice Roberts joined the court, it has allowed corporations to spend freely in elections in the Citizens United case, has shielded them from class actions and human rights suits, and has made arbitration the favored way to resolve many disputes.”

    The latest report, published in April in The Minnesota Law Review, looks far beyond cursory glances and anecdotal examples, studying 2,000 court decisions over a 65-year-period ending in 2011. “The study ranked the 36 justices who served on the court over those 65 years by the proportion of their pro-business votes; all five of the current court’s more conservative members were in the top 10,” Liptak notes. “But the study’s most striking finding was that the two justices most likely to vote in favor of business interests since 1946 are the most recent conservative additions to the court, Chief Justice Roberts and Justice Samuel A. Alito Jr., both appointed by President George W. Bush.”

    Before right-wing skeptics criticize the latest report as biased propaganda, we should note that the authors who prepared the report – Lee Epstein, a USC professor of law and political science; William M. Landes, an economist at the University of Chicago; and Judge Richard A. Posner, of the federal appeals court in Chicago, who teaches law at the University of Chicago – are no one’s idea of a leftist cabal.

    This study, meanwhile, comes on the heels of a new report by the Constitutional Accountability Center (CAC) that found that the Supreme Court continues to hear more cases involving business interests and “that the Chamber [of Commerce] continues to win the vast majority of its cases pending before the Roberts Court.” ACS’s own Jeremy Leaming took a look at this report and the broader issue just four days ago in a post for ACSblog.