March 13, 2013

Federal Courts Undercut Efforts to Combat Workplace Discrimination, ACS Issue Brief Says

Cyrus Mehri, Ellen Eardley, Title VII of the Civil Rights Act of 1964, Toward a More Perfect Union: A Progressive Blueprint for the Second Term


March 13, 2013


Jeremy Leaming


Washington, D.C.– More must be done by the president to combat a federal bench that is increasingly hostile to workers’ claims of discrimination write two lawyers in a new ACS Issue Brief.

Landmark measures such as Title VII of the Civil Rights Act of 1964 and President Lyndon Johnson’s executive order banning federal contractors from employment discrimination have been undermined by federal judges far too eager to protect the rights of employers, write Ellen Eardley and Cyrus Mehri in “Defending Twentieth Century Equal Employment Reforms in the Twenty-First Century.” 

The authors of “Defending Twentieth Century Equal Employment Reforms in the Twenty-First Century” cite a study from the Harvard Law & Policy Review, the official journal of ACS, which reveals data showing that from 1979 through 2007 judges have increasingly sided with employers in employment discrimination cases and that the rare victories for workers are frequently invalidated at the appellate level. The study by Stewart J. Schwab and Kevin Clermont “found that the anti-plaintiff effect on appeal particularly disturbing because employment discrimination cases are fact-intensive and often turn on the credibility of witnesses.”

Citing Simon Lazarus, an attorney with the Constitutional Accountability Center, Eardley and Mehri also write that lower federal court judges “have been ‘aggressively activist in narrowing, undermining, and effectively nullifying an array of progressive statutes,’ including statutes involving civil rights and affirmative action.” Eardley and Mehri, attorneys with Mehri & Skalet, PLLC, also note that former federal court judge Nancy Gertner has “recently declared that ‘changes in substantive discrimination law since the passage of the Civil Rights Act of 1964 [are] tantamount to a virtual repeal.’”

And it’s not just the lower courts that have made it difficult for workers to vindicate their rights, the authors add, noting that the U.S. Supreme Court has issued opinions making it tougher to bring class actions claims and providing federal courts with greater power to quickly dismiss workers’ employment discrimination cases.

“The Draconian view of Title VII, distortion of the basic principles of civil procedure, and the new hurdles to class certification adopted by the federal judiciary make it difficult for employees to vindicate their rights,” Eardley and Mehri write.

The two encourage President Obama to take a number of steps to reverse the situation. The authors argue that Obama must first nominate a more diverse group of people to the federal bench, primarily more people “who understand the imbalance of power in the courts … and the injustice of procedural roadblocks that deny employees their day in court.”

This would mean selecting more attorneys from “public interest” groups. Too many of the presidents’ selections to the federal bench have corporate backgrounds. “Packing the court with corporate lawyers does little to protect Title VII or employees’ access to the courthouse door,” the authors write. “President Obama must nominate judges with experience representing employees, advocating for civil rights, or working for non-profit organizations that promote the public interest. The nation needs judges who understand how Title VII and the rules of civil procedure have been manipulated. Nominees who have experience representing American workers are more likely to guard against premature disposition of employment discrimination and distortion of the rules of procedure.”

The authors also urge the president to continue the administration’s efforts to increase oversight of compliance with federal anti-discrimination laws and go further by requiring publicly traded companies to provide more transparency about their efforts to abide equal employment laws. For example, the authors suggest that the Securities and Exchange Commission (SEC) require companies to file publicly available information about the diversity of their workforces.

“In addition to helping investors make sound decisions, mandatory disclosure of diversity data will create a marketplace in which companies will strive to improve compliance with equal opportunity laws,” they write.

The authors’ work is a part of a larger ACS project: “Toward a More Perfect Union: A Progressive Blueprint for the Second Term,” a series of ACS Issue Briefs offering ideas and proposals that we hope the administration will consider in its second term to advance a vision consistent with ACS’s mission and the progressive themes President Obama raised in his second Inaugural Address. The series should also be useful for those in and outside the ACS network – to help inform and spark discussion and debate on an array of pressing public policy concerns. The series covers a wide range of issue areas, including immigration reform, campaign finance, climate change, criminal justice reform and judicial nominations.

Read the Issue Brief here. To speak with the authors, contact Jeremy Leaming at or (202) 393-6181.

The American Constitution Society for Law and Policy (ACS), founded in 2001 and one of the nation's leading progressive legal organizations, is a rapidly growing network of lawyers, law students, scholars, judges, policymakers and other concerned individuals. For more information about the organization or to locate one of the more than 200 lawyer and law student chapters in 48 states, please visit