Whatever Happened to Precedent?

Partisan Court Quick to Reject Past Decisions

The U.S. Supreme Court and Tea Party Republicans have something in common.

Tea Party legislators in Congress have forced a shut down of the U.S. government because they oppose “Obamacare.”  This  tactic upsets longstanding practice and rejects the reality that the Patient Protection and Affordable Care Act is the law of the land and was effectively ratified when voters returned President Barack Obama to office.

The conservative majority on the U.S. Supreme Court doesn’t have to shut down the government to change a law. It merely uses it’s majority status to vote to overturn a precedent that it disfavors.

The New York Times reports the five-justice conservative majority on the U.S. Supreme Court is now poised to use the case of McCullen v. Coakley, No. 12-1168, to overturn a 2000 precedent that placed restrictions on anti-choice protests at reproductive health care facilities.

Adherence to precedent – or the collective judgments of prior courts – dates back to English Common law. It is part of the concept of “stare decisis” that posits upholding precedent strengthens the legal system by placing decision-making in the realm of neutral legal principles and the accumulated wisdom of many judges and courts rather than at the whim of self-interested individuals and partisan courts.

Just as the GOP in the House appear to have little regard for the political process that led to the adoption of Obamacare, the current conservative majority on the U.S. Supreme Court appears to have little respect for decisions of prior U.S. Supreme Courts.

The Precedent

In Hill v. Colorado,  the Supreme Court in 2000 upheld a Colorado law that made it unlawful for any person within 100 feet of a health care facility’s entrance to “knowingly approach” within 8 feet of another person, without that person’s consent, in order to pass “a leaflet or handbill to, displa[y] a sign to, or engag[e] in oral protest, education, or counseling with [that] person … .”.

The Massachusetts law at issue in the McCullen case makes it a crime for speakers other than clinic “employees or agents . . . acting within the scope of their employment” to “enter or remain on a public way or sidewalk” within thirty-five feet of an entrance, exit, or driveway of “a reproductive health care facility.”  If the Court  determines that Hill  permits enforcement of the Massachusetts law, it will decide whether Hill should be limited or overruled.

The growing partisanship of the Court can be seen by examining the Hill majority.

Hill was was decided by a vote of 6-3. Three Republican appointees on the Court voted with three Democratic appointees to uphold the Colorado law.  They were the late Chief Justice William Rehnquist and retired justices Sandra J. O’Connor and David Souter. The Hill Court ruled:

The State’s police powers allow it to protect its citizens’ health and safety, and may justify a special focus on access to health care facilities and the avoidance of potential trauma to patients associated with confrontational protests.”

 The Court said that rules providing specific guidance to enforcement authorities serve the public’s interest in evenhanded application of the law. The majority also ruled the statute dealt not with restricting a speaker’s right to address a willing audience, but with protecting listeners from unwanted communication.

Prior to Hill, anti-choice protesters gathered daily in unruly mobs at reproductive health care facilities. They held graphic signs and shouted through bullhorns in an effort to intimidate women and deter them from entering the health care facility. This was part of a wider climate of fear in America that included anti-choice protesters targeting and, on several occasions, murdering health care providers and personnel who worked at reproductive health care facilities.

More Partisan

So, what’s different today? Primarily it’s the Court.

The Court was less partisan in 2000 when Hill was decided.

The three conservative justices who dissented in Hill  are Antonin Scalia, Clarence Thomas, and Anthony M. Kennedy, all appointed by Republican presidents. The Hill dissenters are joined on the Court today by Republican appointees Chief Justice John G. Roberts, Jr. and Justice Samuel A. Alito, Jr.,  who  are among the most conservative justices since World War II.  The five-justice conservative majority on today’s Court outnumbers the four-justice Democratic-appointed, more liberal minority, Ruth Bader Ginsberg, Stephen J. Breyer, Sonia Sotomayor and Elena Kagan.

Justice Kennedy is sometimes considered a swing vote  but the dissent that he registered in Hill  signals a  vote in favor of overturning restrictions on anti-choice demonstrators.

There were several cases in the last term of the Court that were marked by bitter partisanship, as the majority overturned established and long-held precedent.

There is something rather surreal about it all. To quote from Lewis Carroll:

Alice: [as a giant] And as for you… Your Majesty! Your Majesty indeed! Why, you’re not a queen,

[shrinking]

Alice: But just a – a fat, pompous, bad tempered old ty…!

[normal size]

Alice: Tyrant.

Queen of Hearts: [giggles] And uh, just what were you saying, my dear?

Cheshire Cat: Why, she simply said that you’re a fat, pompous, bad tempered old tyrant!

 [chuckles]

Lots of Work for New Labor Secretary

Perez Faces Daunting Obstacles

Labor Secretary Tom Perez pledged this week to aggressively defend workers rights in a speech to the AFL-CIO but it may be a bit early to break out the balloons and confetti.

For one thing, Perez, who was appointed by President Barack Obama in July, has little power to overcome some of the daunting obstacles facing both the labor movement and American workers generally.

Research earlier this year documented what many casual observers already knew – the U.S. Supreme Court is, in fact,  the most anti-employee rights court in modern U.S. history.

In the past two years, the Court has issued decisions that make it far more difficult for plaintiffs to prevail in employment discrimination lawsuits, retaliation lawsuits and class action lawsuits. See One-Two Punch by Anti-Worker Court and Wal-Mart Doges Bullet.

Congress has done little or nothing to repair these devastating blows to worker rights.

Congress has not even addressed the Court’s absurd 2009 decision in Gross v. FBL Financial Services  to treat plaintiffs in age discrimination lawsuits less favorably than plaintiffs in race or sex discrimination lawsuits.

Finally, Congress’ so-called budget compromise – the sequester  – threatens to devastate the U.S. Department of Labor, which faces a potential budget cut of up to 26 percent in 2014.

Still …  Let the wind be at his back as Perez defends collective-bargaining rights, aggressively enforces wage laws and takes steps to improve workplace safety.

He also plans to crack down on employers who unlawfully misclassify workers as contractors instead of as employees and extend wage protections—such as overtime pay—to groups like home health-care workers who now have limited protections. Mr. Perez also said the DOL also will focus on job-training skills, calling he agency the “Department of Opportunity.”

And there’s no time like the present!

Union membership is down from a high of 20 percent in 1983 to 11.3 percent in 2012 (of which only 6.6 percent are private sector workers).

 

Few Consequences for Sexual Harassment

sexual-harassmentUPDATE:  Shortly after this story was written, the U.S. Supreme Court made it more difficult to win a sexual harassment lawsuit by raising the bar for who constitutes a “supervisor” in the workplace – a designation that has important consequences with respect to the employer’s liability. See Vance v. Ball State University.

Sexual harassment in the military underscores a much bigger problem in American society.

 Sexual harassment is a major problem in all workplaces but it is extremely difficult – if not impossible – for victims  to hold abusers accountable for their illegal conduct. Surveys show that third of American women say they have experienced sexual harassment on the job.

For years, women in the military complained that the military did little or nothing about complaints of sexual abuse.  Then two military officers whose duties include preventing sexual harassment and assault were arrested for alleged sexual assaults and the military was forced to confront the issue.

 Defense Secretary Chuck Hagel  recently offered a solution that seems oddly misdirected.  Hagel said that  all of the Pentagon’s sexual assault prevention coordinators and military recruiters will be retrained, re-credentialed and rescreened. But there is no evidence that this is a problem of training; the evidence points to a problem of lack of consequences.

Members of the military who commit sexual harassment and assault have not been held to account by the “employer”  and so it continues. And this is also the problem in the wider society. There is a yawning lack of accountability for perpetrators of sexual abuse and the employers who tolerate this behavior.

Victims in non-military workplaces also complain to supervisors and human resource officers who often do little or nothing to hold the perpetrator accountable.

At that point, the victim’s only  recourse is to file a complaint with the U.S. Equal Employment Opportunity Commission (EEOC) – which is a necessary precursor to filing lawsuit alleging a violation of Title VII of the Civil Rights Act of 1964.  The  EEOC receives about  30,000 sex discrimination complaints a year and, of these,  the agency targets systemic cases involving numerous victims. If the victim’s case doesn’t fit its parameters, the EEOC likely will do nothing but issue a “Right to Sue” letter.  That can take 180 days.  

 Now the victim’s only recourse is to file a lawsuit.  The first hurdle is finding a private attorney willing to take the case.  This can be very difficult for mid- to –low wage earners because there are more than enough high-earner victims with potentially higher damages. The victim also must pay the attorney’s up-front retainer – which in some areas is $25,000 or more.. People like to blame money-grubbing lawyers but legislatures and judges have made these cases very difficult to win and very costly.

 If the case ever gets to court it may be there for only a short time. Federal judges dismiss discrimination cases in the early stages at a much higher rate than other types of cases. If that happens, the victim’s only option is to file a costly appeal.  But if the case is not dismissed, it will take years to wind it way through the system. 

Occasionally one hears of a particularly egregious case of sexual assault that results in a spectacular jury verdict. These are rare.

In short, it is extremely difficult for victims of sexual abuse in the workplace to hold perpetrators accountable for  sexual abuse, not to mention the employers that tolerate abusive work environments. The system screens out all but the most dedicated victims and the most egregious cases. It’s like a lottery that few will win. And that’s a huge part of the problem.

It could get worse
If that’s not bad enough – the situation could get worse.

The  U.S. Supreme Court, the most pro-business Court since WWII,  heard arguments last year on a case that involves who qualifies as a “supervisor” under a federal employment discrimination law. This  question is important because it goes to the issue of damages and whether the employer – rather than the individual abuser –  is liable for the conduct of the abuser.

 The 7th U.S. Circuit Court of Appeals has ruled that only a person with the ability to fire or hire employees can be considered a supervisor,  not managers who supervise workers but cannot fire them. Other federal appeals courts and the EEOC  define a supervisor as a person with authority to direct daily work activities and can undertake or recommend “tangible employment decision affecting employees.”

 The case was brought by Maetta Vance, an African-American catering specialist at Ball State University, who accused a co-worker, Shaundra Davis, of racial harassment and retaliation in 2005. She  claimed the university was liable because Davis was her supervisor. A federal judge dismissed her lawsuit, saying that Davis was not her supervisor because she could not fire Vance. The judge also ruled the university was not liable because it  took corrective action. The 7th Circuit of Appeals upheld that decision, and Vance appealed to the Supreme Court.

When Workplace Bullying is Illegal

blackandwhiteWhat is the  difference  between workplace bullying and illegal harassment?

The major difference is that no law at present prohibits workplace bullying –  despite the fact that workplace bullying can severely impact an employee’s emotional and physical well-being.  And most other industrialized countries have enacted laws or regulations that address workplace bullying.

However, bullying  can become illegal when it creates a hostile or abusive work environment in violation of  federal or state civil rights laws, including Title VII of the Civil Rights Act of 1964.

 Generally, two factors must exist:

  •  The harassing conduct must create a “hostile work environment.”
  •  The harassing conduct must be directed toward a characteristic that is protected under  federal and state  civil rights laws.  Title VII makes it an unlawful employment practice for an employer to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.

Therefore, workplace bullying may be illegal if it creates a hostile or abusive work environment and it is directed toward an individual who has protection under federal and state civil rights laws on the basis of race, sex, religion, national origin, etc.

What is a hostile work environment?  The U.S. Supreme Court says a hostile work environment  is a workplace that is permeated by discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive as to alter the conditions of a victim’s employment and to create an abusive working environment.  Harris v. Forklift Sys., 510 U.S. 17 (U.S. 1993).  The Court has repeatedly said that Title VII  does not prohibit simple teasing or a merely offensive utterance.

NOTE:  A  target of illegal harassment does not have to suffer a nervous breakdown to gain the protection of Title VII. The U.S. Supreme Court says that as long as the environment would reasonably be perceived and was perceived as hostile or abusive, there is no need for it also to be psychologically injurious. The court says psychological harm could be taken into account but is not required by the statute.

To sum up,  there may be no substantive difference between  the conduct that constitutes serious workplace bullying and the conduct that is acknowledged under the law to create an illegal hostile or abusive work environment.  The harassing conduct can be identical, with the exact same devestating  result.

The significant difference between serious workplace bullying and illegal harassment  is a legal distinction pertaining to  the characteristics of the  target of the conduct.

Nevada State Sen. Richard Segerblom has proposed making Title VII “status blind” so that the law provides a remedy for  all targets of a hostile or abusive workplace, whether or not they fall within a category that is now  protected under the law.

 As Shakespeare once observed: “If you prick us, do we not bleed.”

Individuals who are targets of workplace bullying may have other legal recourse, in addition to federal and state civil rights laws.  All targets of workplace bullying  are  encouraged to consult an attorney who specializes in employment law for employees (not companies) to discuss the specific facts of their case and any potential legal remedies within their jurisdiction.