Outten & Golden: Empowering Employees in the Workplace

Yet Another Out-of-Step Judicial Nominee: Janice Rogers Brown

October 28th, 2003 | Paula Brantner

They just keep coming: one of the latest (but unlikely to be the last) way-out-of-the-mainstream judicial nominees to come before the Senate Judiciary Committee is Janice Rogers Brown, who has been nominated to the D.C. Circuit Court of Appeals, the court that is widely viewed as the second most influential court in the country after the U.S. Supreme Court, due to its role in interpreting many federal laws and regulations issued by federal government agencies.

Brown currently serves as a justice on the California Supreme Court, a position she has held since 1996. Born in 1949, Justice Brown grew up in the Deep South as the daughter of Alabama sharecroppers, and one might think that she would thus be compassionate towards employees who experience workplace discrimination and harassment. But nothing could be further from the truth.

Instead, Justice Brown’s record shows a consistent opposition to efforts to remedy workplace injustice, with often outright hostility toward those seeking to remedy perceived injustice, including workplace discrimination claims. Her civil rights opinions have been characterized as “perhaps the most troubling area of a very troubling body of work,” as she has consistently taken positions hostile to discrimination claims based on race, age, gender, and disability, as well as affirmative action, and workplace privacy. (See People for the American Way/NAACP Report) In addition, serious questions have been raised about her ability to judge fairly and in a manner that is free of bias, as she tends to inject her own personal opinions and biases into her written opinions, raising serious questions about whether she is ruling based on her personal conservative views or on what the law requires.

Now that the Senate Judiciary Committee has concluded Justice Brown’s hearing, the Committee is likely to vote on her nomination soon, so please act now!

We urge you to oppose the nomination of Janice Rogers Brown for the following reasons:

Justice Brown believes free speech is more important than preventing workplace harassment. In a case involving a group of Latino employees who were subjected to a constant barrage of demeaning racial comments and other discriminatory conduct by their supervisor, Justice Brown stated in a dissenting opinion that racially discriminatory speech in the workplace is “free speech” protected by the First Amendment and can never be limited by an injunction, after the lower court had issued an injunction prohibiting the supervisor from uttering racial slurs. Justice Brown’s position that laws against workplace harassment might be unconstitutional under the First Amendment would lead to uncontrollable chaos in the workplace. Rather than employers having a duty to discourage and prevent harassment, management would be powerless to prevent minority employees from being subjected to demeaning comments from racist coworkers. (Aguilar v. Avis Rent A Car Systems, Inc. pdf)

Justice Brown disregards existing civil rights law and legislative intent. In a case involving a landlord’s discriminatory renting practices, Justice Brown was alone in dissent, stating that the state agency charged with enforcing California’s anti-discrimination laws does not have the authority to award emotional distress (pain and suffering) damages to victims of housing discrimination, even though the California Legislature had made specific attempts to ensure the availability of emotional distress awards in administrative proceedings. (Konig v. Fair Employment and Housing Commission pdf) In another discrimination case, Justice Brown went even further than the U.S. Supreme Court and Clarence Thomas in a California case holding that discrimination could include evidence of acts which occurred outside the statute of limitations as long as they were sufficiently connected to other acts within the statute of limitations (known as a “continuing violation.”) Justice Brown in dissent argued that it was unfair to hold employers responsible for their ongoing discriminatory behavior without providing some notice of the intent to sue. Instead, she argued, victims ought to be obliged to file a lawsuit for each individual wrongful act, which would only clog the courts and administrative agencies, and prevent discrimination cases from being considered in their entirety, rather than a series of discrete events. (Richards v.Ch2m Hill, Inc. pdf)

Justice Brown lacks compassion for employees seeking to preserve their workplace rights. In a case involving workplace drug testing, Justice Brown rejected the 30-year old balancing test used by California courts in all privacy cases, reasoning that employees wanting to preserve their privacy rights could avoid a drug test altogether by not applying for a job or promotion. While purportedly acknowledging the difficult choice between taking a drug test and getting a promotion, Justice Brown stated: “Such choices are neither easy nor comfortable. But that is life. Sometimes beauty is fierce; love is tough; and freedom is painful.” (Loder v. City of Glendale pdf) She demonstrated a similar lack of compassion for age discrimination victims in a dissent where she wrote that “[d]iscrimination based on age is not, however, like race and sex discrimination. It does not mark its victims with a ‘stigma of inferiority and second class citizenship’; it is the unavoidable consequence of that universal leveler: time,” and argued that in a society in which the number of jobs are finite, it makes sense in many cases to replace older workers with younger ones, so that policies against such replacement are not necessarily in the public’s interest. (Stevenson v. Superior Court pdf)

In reviews of Justice Brown’s competency to be a judge, she has frequently been found “not qualified.” The California Judicial Nominees Evaluation Commission twice found Justice Brown not qualified for a seat on the California Supreme Court, and a substantial minority of the American Bar Association Federal Judiciary Committee found her not qualified for a seat on the D.C. Circuit. While some dismiss these evaluations as politically motivated, both groups have extensive review processes designed to objectively evaluate a potential judge’s qualifications. (See Alliance for Justice Report on Janice Rogers Brown)

Justice Brown’s opinions indicate hostility to plaintiffs who bring employment discrimination and civil rights cases and an overwhelming tendency to substitute her personal views for the law. Brown’s view of employment discrimination and civil rights cases seriously place in doubt her ability to maintain an open mind about these matters were she to be confirmed as a federal judge. Your voice is needed to help insure that your Senators look closely at Brown’s anti-civil rights record.

Take Action Now: Demand Fair Judges: Stop Janice Rogers Brown

More Information on Janice Rogers Brown:

Judicial Pick Not Fit for U.S. Court (Atlanta Journal Constitution editorial)

Will Democrats Keep Right-Wing Judge in Limbo? (San Francisco Examiner editorial)

Out of the Mainstream, Again (New York Times editorial)

Another Clarence Thomas? (MSNBC article)

Bush Appeals Court Choice Under Fire (Los Angeles Times article)

Alliance for Justice Report on Janice Rogers Brown

Alliance for Justice Law Professors’ Letter

NELA Position Statement on Janice Rogers Brown Nomination

Loose Cannon: People for the American Way/NAACP Report

(note: some information for this blog entry was provided by the National Employment Lawyers Association and the Alliance for Justice.)

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