Yesterday, the Supreme Court ruled 5-4 that gender discrimination must have occurred within 180 days of filing the complaint – even if the discriminiation occurred gradually over years or decades. My fellow S&R co-blogger Robert Silvey blogged about this yesterday the decision was released (Women need not apply). Reading Justice Alito’s suggestion that corporations needed protection from lawsuits that are older than 180 days turned my blood cold, but at least the decision was made 5-4. And I was happy to see that Justice Ginsburg read her scathing dissent from the bench, something that should give the majority pause (it probably won’t, unfortunately).
And thus far, I can’t find any response from Congress about this. Maybe it’s too soon, but my inner cynic says that Congress is “too busy” to care about updating Title VII of the the Civil Rights Act of 1964 so that it makes this Supreme Court precedent moot. I wonder if Congressional Democrats just haven’t seen the political value of this Supreme Court decision yet.
Updating Title VII to be more inclusive of gender discrimination that has a profile similar to that of Ledbetter v. Goodyear (ie looks more like “hostile workplace” than direct discrimination of the “sleep with me or lose your job” variety) is one of those few political causes on which you just can’t lose. If Congressional Democrats take up the issue, anyone who votes against it (Republican or conservative Democrat) is anti-woman. The same is true of President Bush if he vetoes the bill. And either way, the Democrats have a legislative issue that they can use in the 2008 elections to energize the electorate, either trumpeting their victory or mudslinging at their opponents.
Unfortunately, recent Congressional history says that women who want real action on workplace discrimination might be better off taking their complaints to the states instead of to Congress.
After the Supreme Court ruled in Kelo vs. the City of New London that governments could “take” private property via condemnation with the express purpose of reselling the property to another private entity that would make the government more tax revenue, 34 states passed laws that limited the use of eminent domain and six others passed state Constitutional amendments that limited eminent domain in cases like these. The U.S. House of Representatives passed The Private Property Rights Protection Act of 2005 (House Resolution 4128), but it died in Senate committee.
In League of United Latin American Citizens, et al. v. Rick Perry, Governor of Texas, et al., the Supreme court ruled in another 5-4 decision that the Texas redistricting in 2003 was Constitutional, but remarkably unwise. In response, the states of California, Florida, Ohio, and Pennsylvania took up measures to change how their states redrew their congressional boundaries. Not all passed, and some are still pending. In addition, 12 states total have non-partisan commissions that redraw congressional boundaries instead of using the legislature, and several other states have laws or state Constitutional amendments that prohibit mid-Census redistricting (including my home state, Colorado). Following LULAC v Perry, the a committee in the U.S. House of Representatives took up a bill that addressed this issue too. And it died in committee.
We should put pressure on Congress to update Title VII as soon as possible. But we should also pressure the state governments to act on this issue even without Congress’ involvement. If we don’t, we may never see action.
Links to Congress:
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[Crossposted: The Daedalnexus, The 5th Estate]
Categories: Politics/Law/Government
Progressive Culture | Scholars & Rogues 
Great point, Brian. As Ginsburg said in her dissents to both Ledbetter (employment) and Carhart (abortion), the ball in now in Congress’s court. I think we American liberals have fallen into the trap, ever since the Warren court overturned school segregation in 1954, of thinking that large social issues should be handled by the courts because Congress is hopeless. For the next few years (or the next few decades), we have to get used to the fact that the Roberts court will be hopeless, retrograde and reactionary and ready to find the slightest statutory loophole to advance its antidemocratic, corporate, authoritarian agenda. So our focus should be, as you say, on Congress and on the state governments. As well as the presidency, of course. By the way, Hillary Clinton has announced that she will introduce a bill in the Senate to close the 180-day loophole that Alito exploited in Ledbetter.
Good for Hillary. I’m glad that someone on the Democratic side saw the political advantage to this one.
Great post, Brian – your points about the “limited” response of Congress and the need for pursuing remedy through the individual state legislatures make perfect sense and offer at least an avenue for redress of what I noted in my response to Robert’s post might be the beginning of a pattern of anti-labor rights/pro-corporate rights decisions by the Court.
But one issue haunts me – it’s hard to determine whether a state legislature might be amenable to addressing employee grievances. It occurs to me, for instance, that while Southern legislatures might be amenable to grievances based on race (odd seeming, perhaps, but I believe true, especially for the upper South), they’d be less amenable to grievances based on gender (which seems to be the last bastion of Southern paternalism). And it seems to me that Western legislatures might be more amenable to gender grievances than to those based on race/ethnicity.
I’d be interested in finding out if you and others have had similar thoughts about the problematic nature of labor grievance appeals to the states.
Jim, I wish I could say that you’re wrong, but you’re probably not. Addressing this issue state-by-state isn’t ideal by any definition, but if Congress won’t address it even if pressured by voters, then there’s really no other choice.
And there’s little doubt in my mind that the various state Chambers of Commerce will fight a state-by-state “solution” tooth and nail. Corporations like universal laws because universal laws are easier to work with and thus cheaper. And corps are all about cheap.