So the quiet period between late June and the first Monday in October, when the annual case argument schedule begins, presents vacation opportunities for those who cover the Court as well.  But while little attention is paid to the Court during its annual “siesta,” appeals can and do get filed during this lull.

Amidst the hoopla over the debt-ceiling crisis, one of those appeals not surprisingly went almost unnoticed.  In fact, it rated no better than a minor story on page A-18 buried in a recent edition of The New York Times.  This appeal, though, will be front-page news if the justices choose to accept the case.  That’s because it marks the first legitimate challenge to the new health care law, the Patient Protection and Affordable Care Act.

On July 27^th, a petition was filed challenging a recent Sixth Circuit decision which upheld the constitutionality of the law.  The 2-1 decision was notable because the Cincinnati-based appellate court tends to be conservative, and one of the judges in the majority was Jeffrey Sutton, a one-time law clerk with Justice Scalia.

While there have been a number of federal district court rulings on the health care law in the past year, the Sixth Circuit stands by itself as the lone appellate court to have addressed the issue.   The Supreme Court typically agrees to hear a case only after there has been a circuit split among the appellate courts.  But that does not mean the health care law’s supporters should take comfort that the justices will necessarily sidestep this appeal.

Cases such as Citizens United and the more recent Wal-Mart opinion are clear examples of the Court reaching out to decide hot-button disputes in the absence of a circuit split.  And Chief Justice Roberts’ famed line about “wanting to decide cases on the narrowest grounds possible,” has not always matched his record or that of his colleagues.  That’s a fact of which the appellants are well aware.

So there is reason to believe the Supreme Court could wade into the health-care controversy, and sooner rather than later.  In fact, if the justices decided to grant this challenge, a ruling could come down late next spring as the 2012 presidential campaign season approaches its apex.

If there is one thing I learned from covering the Court for more than a decade, it is that predicting outcomes there is sometimes only slightly easier than taking your chances in Las Vegas or Atlantic City.  Few people are privy to what the justices really feel, and journalists are hardly among them.

But if the justices upon their return to Washington take up the appeal of this Sixth Circuit ruling in the absence of a conflict, chances are they are not doing so to affirm the outcome.  No matter what the result, however, it will have obvious ramifications for what health plans employers offer to their employees going forward.

Supreme Court review of some sort on the health care law eventually seems inevitable.  But if it happens at this still relatively early juncture, another partisan battle is a near certainty.  And things at the nation’s highest court will be quiet no longer.

About the Author: David Weisenfeld served as U.S. Supreme Court correspondent for LAWCAST from 1998 through June 2011.  During that time, he covered every employment law case heard by the Court, and also wrote and co-anchored the company’s employment law newscasts.  In addition, his work has appeared in the American Bar Association’s Supreme Court Preview magazine.

The Wal-Mart holding will make it especially difficult for employees in differing job classifications to team together to win a class action discrimination lawsuit.  Meanwhile, the AT&T case arose not from the employment realm at all, but rather from a seemingly mundane consumer dispute.

A California couple, Victor and Liza Concepcion, claimed they had unknowingly signed away their right to initiate a class action against AT&T as part of a form agreement.  They were upset after being charged $300 for a cell phone that had been touted as free.  The Concepions argued that the arbitration clause they signed should be struck down as unconscionable because its classwide ban would leave them and other similarly-situated consumers without representation.

But just as in Wal-Mart v. Dukes, the AT&T case broke down along strict ideological lines with the five conservative justices voting to uphold the classwide ban in another 5-4 opinion.  Writing for the Court, Justice Antonin Scalia asserted that courts must place arbitration agreements on equal footing with other contracts and enforce them according to their terms.  “Requiring the availability of classwide arbitration,” he said, “creates a scheme which is inconsistent with the Federal Arbitration Act.”

While the underlying facts arose from some unhappy consumers, it does not take much of a leap to see how the holding’s language could affect employees confronted with similar arbitration agreements by their employers.  No less an authority than veteran San Francisco plaintiff’s employment attorney Cliff Palefsky has said of AT&T v. Concepcion, “There’s a potential for mischief.” He adds that the ruling is sure to extend to arbitration clauses in the employment realm.

When the Wal-Mart and AT&T opinions are coupled together, the picture at the Supreme Court from this past term may not be a pretty one for employees.  But for those willing to dig a little deeper, the term actually reveals gains for workers when it comes to workplace anti-retaliation protections.

In a trio of cases, the justices ruled decisively for employees who alleged they were the victims of retaliation under Title VII of the Civil Rights Act, the Fair Labor Standards Act and the Uniformed Services Employment and Reemployment Rights Act (USERRA).  In two of the disputes, the decisions were unanimous while the third resulted in a 6-2 victory for the plaintiff employee.

The civil rights case, Thompson v. North American Stainless, involved a Kentucky man who said he was fired from his job because his fiancé had filed an EEO complaint against their employer.  While the Sixth Circuit Court of Appeals had held there is no cause of action for third-party retaliation on behalf of friends and family members who have not engaged in protected activity themselves, the Supreme Court soundly rejected that ruling.

In an opinion that was authored by Justice Scalia, the Court called it “obvious” that retaliating against an employee by firing her fiancé could dissuade that person from filing an EEO complaint or engaging in other legally-protected acts.

In another unanimous pro-employee outcome, Staub v. Proctor Hospital, the High Court held that employers may be liable for discrimination even when the decisionmaker herself harbored no discriminatory animus toward the plaintiff.  That marked yet another Justice Scalia opinion.

The case involved the claims of a military reservist who purportedly had been terminated from his job at an Illinois hospital for insubordination.  The plaintiff Vincent Staub said, however, that the real reason was because his immediate supervisor and another supervisor had an anti-military bias.  He claimed both were upset because of time he had missed while serving on active duty in Iraq.

The actual decisionmaker, though, was an HR vice president who had acted with no apparent bias.  Nonetheless, the Supreme Court found that lack of hostility to be irrelevant.  That’s because the supervisor who allegedly frowned on Staub’s military obligations was the same one who wrote up the report that the HR vice president relied upon in making her decision.

Meanwhile, another employee prevailed at the nation’s highest court in the Fair Labor Standards Act retaliation case of Kasten v. Saint-Gobain.  The justices ruled that the FLSA protected a Wisconsin factory worker’s complaints about the placement of time clocks even though he never made them in writing.

The Court found that oral complaints to company officials were enough.  In reaching their ruling, the justices reasoned that it was unlikely Congress would have wanted to limit the labor law’s effectiveness by excluding those who would find it hard to reduce their complaints to writing, namely illiterate, less educated or overworked employees.  It’s an opinion that is sure to aid the rights of blue-collar workers.

So what can we draw from these results?  The Supreme Court has a well-earned a reputation as a pro-business court.  And these three opinions hardly represent a seismic shift.  But while none of them are on the scale of the Wal-Mart or AT&T rulings, they ARE significant.

In all three of those retaliation cases, the employees had lost at the federal appellate level.  The fact that the Supreme Court saw fit to hear all three of those disputes and to issue one-sided reversals each time is a sign that the justices are willing to take a strong stand against retaliation in the workplace, at least when individual employees are affected rather than a large class.

About the Author: David Weisenfeld served as U.S. Supreme Court correspondent for LAWCAST from 1998 through June 2011.  During that time, he covered every employment law case heard by the Court, and also wrote and co-anchored the company’s employment law newscasts.  In addition, his work has appeared in the American Bar Association’s Supreme Court Preview magazine.

The gender-discrimination lawsuit against the world’s most notorious retail giant had been pending for years. Now the Court’s majority opinion has declared that, in light of “Walmart’s size and geographical scope,” the plaintiffs could not provide “significant proof that Wal-Mart operated under a general policy of discrimination. That is entirely absent here.”

And with that, Justice Antonin Scalia rendered perhaps hundreds of thousands of working women absent from the discussion on gender discrimination in today’s sink-or-swim economy. The split in the most significant part of the judgment, the class-action aspect, was five to four, putting all the female justices in the minority. The division ironically suggested a lack of self-reflection on how structural gender discrimination works in powerful institutions.

The core of the decision is not about whether Walmart did indeed discriminate. There’s ample evidence of that, though, including records of pay scales skewed against women, unequal hiring patterns in managerial positions, and expert testimony on the social implications of these trends. The Court’s opinion doesn’t examine that, but rather whether America’s discount paradise can be held legally accountable for systematic mistreatment of female workers.

The ruling was a high-five moment for the right, as it allows Wal-Mart executives to skirt a gargantuan liability. Going forward, the decision will in many circumstances leave the women on their own in seeking legal redress, since their claims can’t be in a mega-suit. Although Wal-Mart’s main defense is that it’s not responsible for lower managers who violate non-discrimination rules, the plaintiffs alleged a crime of omission: that the corporation failed in its responsibility to prevent bias against women as a matter of policy. A statment from the case sums up their position:

The discrimination to which they have been subjected is common to all Walmart’s female employees. The basic theory of their case is that a strong and uniform “corporate culture” permits bias against women to infect, perhaps subconsciously, the discretionary decision-making of each one of Walmart’s thousands of managers—thereby making every woman at the company the victim of one common discriminatory practice.

By enabling discrimination, the suit contended, Walmart should be held liable all the way through the command chain, from the exec in the boardroom down to the greeter at the store entryway. That’s where lead plaintiff Betty Dukes got stuck. She was demoted to greeter after working higher positions at a Pittsburgh, California store, she alleged, primarily because management retaliated against her for formally complaining about her treatment. Male colleagues who behaved similarly, Dukes says, never faced the same discipline.

There’s also Edith Arana. The former employee, who like Dukes is a black woman, claimed that after five years of working at Walmart in Duarte, California, she sought management training and was told, “there’s no place in management for people like you.”

After leaving the job, Arana told PBS NewsHour in 2004:

I have never seen a man that has, like, struggled, done everything he was supposed to do, worked overtime, sacrificed his family time, come in on days that he wasn’t supposed to—I’ve never seen a man that would go through that and not get what he was promised. But the women, they do it over and over and over again.

The setback in this suit doesn’t mean women can’t go after Walmart for discriminatory practices. We may in the near future see more targeted, smaller-scale litigation (including suits related to racial discrimination)—or perhaps even more grassroots political pressure campaigns on this issue.

But the decision will no doubt discourage legal action by giving many women no choice but to go through the arduous process of filing suit on an individual, not group basis. Meanwhile, Walmart will continue to expand its influence on the workforce gender divide by employing more female employees, and subjecting more women to the indignities of discrimination, gradually eclipsing workers’ civil rights in the shadow of the Big Box industry.

Following the ruling, Debra L. Ness, president of the National Partnership for Women and Families warned in a statement that the case would open the door to more discrimination with impunity in the corporate world:

Today’s ruling sets a dangerous precedent that will make it easier for employers – especially large ones – to discriminate against their employees while, at the same time, making it harder for workers to come together to challenge it. This creation of a potential ‘large company’ exception to our civil rights laws is a perversion of justice.

In other words, the bigger the company, the larger the workforce, the greater the potential for discrimination, the deeper the economic injustice throughout our communities… and the smaller a worker’s chances of getting her day in court.

This article originally appeared on the Working In These Times blog on June 21, 2011. Reprinted with permission.

About the Author: Michelle Chen ’s work has appeared in AirAmerica, Extra!, Colorlines and Alternet, along with her self-published zine, cain. She is a regular contributor to In These Times’ workers’ rights blog, Working In These Times, and is a member of the In These Times Board of Editors. She also blogs at Colorlines.com. She can be reached at michellechen @ inthesetimes.com.

The Supreme Court’s landmark decision on Monday in Wal-Mart v. Dukes understandably garnered front-page headlines in the nation’s newspapers. After all, the case was the largest employment discrimination case in history, dwarfing all other competitors by far with its potential to have included more than one-million current and former female Wal-Mart employees.

But in reality, this mammoth pattern and practice class action was decided December 7, 2010. That’s the day the Supreme Court agreed to hear the dispute. The women who brought this 10-year-old case had won every step of the way. In fact, Ninth Circuit Judge Susan Graber said in her 2010 concurrence in one of the plaintiffs’ victories, “There is nothing unique about this case except for its size.”

As it turned out, however, size mattered. There was no direct circuit split on this issue. Indeed, there was no other case that was truly directly on point. So when the Supreme Court decided to wade into the fray, there was no chance it was doing so to pat the West Coast appellate court on the back for a job well done. Instead, the Court was going to place limits on class actions.

Lead plaintiffs’ counsel Brad Seligman fought hard and fought well throughout this ten-year-old litigation. But a case that could have led to billions of dollars in litigation was going to face a difficult hurdle at the nation’s highest court, and it did. The cries that plaintiffs now cannot proceed in employment class actions, however, could be premature.

The Wal-Mart case included hourly greeters, company vice presidents earning six figures, and female employees in all sorts of jobs between those extremes. The claim by the plaintiffs’ attorneys that Wal-Mart provided “unchecked discretion” to its managers was one that swing voter Anthony Kennedy undoubtedly found difficult to square with the allegation that the company had a top-down culture of discrimination emanating from Wal-Mart’s Arkansas headquarters.

In fact, during the oral arguments Justice Kennedy said as much when he wondered aloud what the unlawful policy was. “It seems to me there’s an inconsistency there,” he said. “If it’s standardless and recordless, then why is there commonality?” If there was any doubt as to the outcome, that comment and question put it to rest.

This was less a case of Wal-Mart being “too big to sue” than the majority of the justices wondering how 1.5-million women at 3,400 stores in widely divergent positions could have something in common besides their gender.

The opinion was notably silent, however, about whether or not the retailer had engaged in sex discrimination. And, it leaves open the possibility of smaller groups of employees banding together, ideally from similar job classifications.

Wal-Mart’s attorney Theodore Boutrous said immediately following the decision, “Under [this] ruling, the way we read it, no class can be certified in this case.” But that seems to be more than a bit of hyperbole.

Will it be tougher for plaintiffs to proceed? Unquestionably. And when they do so, the litigation will be much smaller in scope. But the women and those who represent them have vowed to continue fighting Wal-Mart over what they see as unequal treatment. Smaller class actions against other big companies have succeeded before and likely will again. Those cases just need to be more focused than ever on complying with the Supreme Court’s call for commonality among class members.

About the Author: David Weisenfeld served as U.S. Supreme Court correspondent for LAWCAST from 1998 through June 2011. During that time, he covered every employment law case heard by the Court including Wal-Mart v. Dukes, and also wrote and co-anchored the company’s employment law newscasts. In addition, his work has appeared in the American Bar Association’s Supreme Court Preview magazine.

The decision also allowed Arizona to continue the so-called “business death penalty,” which entails denying a business license to employers found guilty more than once of violating a 2007 law against hiring undocumented workers.

The e-Verify system has been widely criticized for errors, including flagging legal and native-born residents as undocumented. That’s among the reasons Illinois sought to ban its use by private employers. A federal court shot down those efforts, but the Illinois legislature did pass a state law trying to safeguard against the misuse of the system.

All employers with federal contracts are required to use E-Verify, and Texas Republican Congressman Lamar Smith is among those pushing to make it mandatory nationally.

Immigrants rights groups are allied with employers – even those that they allege exploit undocumented immigrants – in stridently opposing mandatory e-Verify use. The Supreme Court decision was the result of a lawsuit filed by the Chamber of Commerce opposing Arizona’s law. The U.S. Chamber of Commerce and other employer groups also sued unsuccessfully over the mandate that E-Verify be used by federal contractors. Florida has proposed a bill similar to Arizona’s regarding E-Verify. The Hispanic Chamber of Commerce opposes it.

Agricultural employers and immigrants rights groups point out that the nation’s guest worker program and overall immigration system are so badly broken that agricultural growers will simply not be able to find the needed employees especially during harvest times if they really are barred from hiring undocumented workers.

Lynn Tramonte, deputy director of the group America’s Voice Education Fund, said in a press release:

Yesterday’s Supreme Court ruling is a dagger in the heart of Arizona agriculture.  If this type of law spreads nationwide, we will essentially deport the entire agriculture industry—including jobs held by Americans—and be forced to import more of our nation’s food supply. Passing a mandatory E-Verify law without comprehensive immigration reform will kill American jobs and farms, burden small businesses, reduce tax revenue, and drive undocumented workers further underground.

U.S. Agriculture Secretary Tom Vilsack made similar points in an op-ed:

As Secretary of Agriculture I have met farmers and ranchers all over the country who worry that our immigration system is broken. They are unable to find the necessary number of farmworkers and sometimes struggle to verify their work authorization papers – all while wondering if they’ll have enough help for their next harvest.

And while some American citizens step up and take these jobs, the truth is that even when farmers make their best efforts to recruit a domestic work force, few citizens express interest, and even fewer show up to spend long hours laboring in the hot sun.

In a twist on the misguided idea that immigrants “steal” American jobs, Vilsack described immigrant farm workers essentially protecting U.S. jobs through their crucial role on U.S. farms:

If American agriculture lost access to adequate farm labor, it could cost the industry as much as $9 billion each year. Already, some American producers are opening up operations in Mexico. So we must take action to prevent the further outsourcing of farm-related jobs.

Meanwhile, the Bay Citizen nonprofit news outlet described how lucrative wineries in Napa Valley, Calif., have found it in their own self-interest to treat undocumented workers fairly, rather than paying them as little as possible or sometimes not at all as is often the case in agriculture and other industries that hire large numbers of undocumented workers.

Emmy-winning producer Scott James reported:

Without migrant labor, most of it from Mexico, the wine producers in Napa would be hard pressed to fill a carafe, much less the valley’s nine million annual cases. Experts estimate that 8,000 to 12,000 illegal migrants reside (often seasonally) in Napa, although the number is impossible to confirm.

Ten years ago, they could be found living in the woods in makeshift camps, sleeping on fetid mattresses and drinking from dirty streams. Today they receive subsidized housing, or can reside in three tidy dormitory complexes near St. Helena and Yountville where up to 180 workers pay $12 a day for room and board.

This Blog Originally appeared in These Working Times on May 30, 2011. Reprinted with Permission.

About the Author: Kari Lydersen is an In These Times contributing editor, is a Chicago-based journalist whose works has appeared in The New York Times, the Washington Post, the Chicago Reader and The Progressive, among other publications. Her most recent book is Revolt on Goose Island. In 2011, she was awarded a Studs Terkel Community Media Award for her work. She can be reached at kari.lydersen@gmail.com.

The call brought back, with surprising immediacy, those 1991 hearings. For those too young to remember, the hearings may be little more than a paragraph in a history text. But it’s hard to overstate their importance.

For women at the time, Professor Hill’s testimony was riveting and unforgettable. The country watched on TV as Hill related her personal story — describing the sexual harassment she said she endured while working for Thomas as a federal government employee — before a Judiciary Committee composed entirely of men. Not a single woman senator. (Thomas denied the allegations.)

The issue of sexual harassment was out of the shadows.

Before Hill’s testimony, sexual harassment was viewed as a problem for victims, predominantly women, to solve on their own. Most women suffered in silence rather than jeopardize their careers by complaining, even though sexual harassment had been defined as a form of sex discrimination that could be illegal more than a decade earlier by the courts and the federal Equal Employment Opportunity Commission (or EEOC).

Professor Hill was berated and personally attacked during the hearing. Former Wyoming Sen. Alan Simpson waited until Anita Hill’s testimony was concluded to announce, for example, that “I really am getting stuff over the transom about Professor Hill,” without providing any details or substantiation about what he was referring to.

Such treatment became the subject of dinner table conversations around the country, as did the problem of sexual harassment itself. And those conversations continued wherever women met.

Pundits speculated that the Anita Hill testimony would forever intimidate women from ever coming forward again, but the opposite happened.

After the hearings, the number of claims of sexual harassment filed with the federal EEOC (the very agency headed by Clarence Thomas where Anita Hill said he had sexually harassed her) more than doubled between 1991 and 1998 (from 6,883 to 15,618).

And women demanded better legal protection. Congress strengthened remedies for victims of sexual harassment at work by passing the Civil Rights Act of 1991, providing damages for the full range of injuries that victims might suffer and giving victims the right to trial by a jury of her peers.

Major victories in the courts struck blows against widespread sexual harassment that women suffered in the workplace, from the mines to Wall Street. Employers took notice, so that now anti-harassment policies are more robust and company training programs are commonplace.

In the aftermath of Anita Hill’s testimony, Justice Thomas was narrowly confirmed to the Supreme Court by a vote of 52 to 48. In what became known as “the Year of the Woman,” record numbers of women were elected to Congress: 28 women were elected to the House of Representatives, more than doubling the total number of female representatives to 47, and four new women joined the only two women then serving in the Senate.

One of those new female senators from the class of 1992, Dianne Feinstein of California, now sits on the Senate Judiciary Committee. Anita Hill dedicated her career to combating discrimination, including sexual harassment, and opening equal opportunity to all in the workplace and beyond.

The voicemail message from Justice Thomas’s wife is a reminder of a moment in time that put a spotlight on sexual harassment. But our country still needs more discussion about the serious harm it causes.

Sexual harassment has certainly not gone away.

The National Women’s Law Center, for example, recently filed an amicus brief in a lawsuit where a female electrical maintenance technician in a male-dominated workplace says she was constantly harassed — with supervisors and co-workers routinely referring to women with demeaning and derogatory words, displaying provocative photos of naked and partially clothed women in common areas throughout the workplace (and not responding to her repeated requests that the photos be taken down), and excluding her from key daily meetings.

Whether bullying and harassment in schools or making women’s lives miserable in the workplace, it’s time to make sure our laws are strong enough, our institutions committed enough, and our public debate serious enough to give women and girls the protections they need and deserve.

There’s still work to be done. For example, Congress needs to eliminate arbitrary limits on damages for sexual harassment victims and to change current legal standards that make it more difficult for students to prove sexual harassment than other claims of discrimination in schools.

Any less not only does an injustice to women and girls, but to our country as well, which needs the talents and skills of us all to thrive.

The opinions expressed in this commentary are solely those of Marcia Greenberger.

This article was originally posted on CNN.

About The Author: Marcia D. Greenberger is Co-President, and co-founder, of the National Women’s Law Center, which since 1972 has been involved in virtually every major effort to secure and defend women’s rights. She testified at the Senate hearings against the nomination of Clarence Thomas to the Supreme Court based on his record, before the information concerning Anita Hill became public. Anita Hill currently serves as a board member of the National Women’s Law Center.

Justice Sandra Day O’Connor coined the term in a 1989 U.S. Supreme Court decision, writing that “stray remarks” made by “non-decisionmaking coworkers or remarks made by decisionmaking supervisors outside of the decisional process” are insufficient evidence of an employer’s discriminatory attitude. Without additional evidence of discrimination, she wrote, a gender discrimination claim can be and should be dismissed by the court before trial.

In Price Waterhouse v. Hopkins (1989) 490 U.S. 228, the worker presented evidence that a partner of the firm told her to “walk more femininely,” “talk more femininely,” “dress more femininely,” “wear make-up,” “have her hair styled,” and “wear jewelry” to improve her chances for partnership. Justice O’Connor concluded that though such “stray remarks” might constitute evidence of a discriminatory attitude in the workplace, they are not sufficient evidence of discrimination on their own. When combined with more direct kinds of evidence of discrimination, however, stray remarks evidence can tend to support a discrimination claim.

Since 1989, some federal courts have expanded the stay remarks doctrine substantially. In Hill v. Lockheed Martin, for example, the Fourth Circuit Court of Appeals ruled that remarks by non-decisionmakers that the worker was a “useless old lady” “who needed to retire” and was a “troubled old lady,” did not influence the decisional process directly and, therefore, were completely irrelevant to the worker’s discrimination claim.

In its August 5th decision, the California Supreme Court concluded that the wholesale rejection of evidence of stray remarks, as suggested by the Fourth Circuit, is improper. It explained that such evidence can tend to show discriminatory animus or attitudes within the workplace. Under California law, then, stray remarks are relevant and cannot be completely ignored by the trial courts in ruling on pre-trial motions for summary judgment.

While the California Supreme Court’s decision focuses on evidentiary issues and pretrial procedures, the importance of the decision for California workers is significant. Although a racial, sexual or age-based slur might not conclusively demonstrate employment discrimination, such stray remarks combined with other more direct evidence of discrimination (statistics, testimony, emails and the like) can be used to defeat a defendant’s motion for summary judgment before trial.

The California Supreme Court explained that “[T]he stray remarks doctrine contains a major flaw because discriminatory remarks by a non-decisionmaking employee can influence a decision maker.” Thus, stray remarks can constitute evidence of discriminatory animus. The Supreme Court of California found another federal appellate court’s position on the stray remarks doctrine persuasive. In Shager v. Upjohn Co. (7th Cir. 1990) 913 F.2d 398, the Seventh Circuit Court of Appeals wrote: “If [the formal decision maker] acted as the conduit of [an employee‘s] prejudice – his cat‘s paw – the innocence of [the decision maker] would not spare the company from liability.”

Thus, for example, discriminatory comments by a worker capable of influencing the actual decisionmakers can provide admissible evidence of discrimination by the employer.

This is good news for workers in California who often find it difficult to unearth more direct evidence of discrimination. While the California Supreme Court ultimately concluded that, on their own, inappropriate stray remarks by non-decisionmakers do not prove discrimination, its decision will permit workers to present evidence of stray remarks in the context of other discriminatory practices in the workplace.

About the Author: Patrick Kitchin is a labor rights attorney with offices in San Francisco and Alameda, California. He has represented thousands of employees in both individual and class action cases involving violations of California and federal labor laws since founding his firm in 1999. According to retail experts and the media, his wage and hour class actions against Polo Ralph Lauren, Gap, Banana Republic, and Chico’s led to substantial changes in the retail industry’s labor practices in California. Patrick is a 1992 graduate of The University of Michigan Law School and is personally and professionally committed to the protection of workers’ rights everywhere.

In his statement, Leahy called the Rent-a-Center decision “a blow to our nation’s civil rights laws and the protections that American workers have long enjoyed under those laws.” He noted that “more than one hundred million Americans work under binding mandatory arbitration agreements” and that “most Americans are not even aware that they have waived their constitutional right to a jury trial when they accept a job to provide for their families.”

Congress worked for years on a bipartisan basis to pass laws to protect workers from race discrimination, gender discrimination and age discrimination.  . . . Rent-a-Center is unfortunately just the latest in a line of divisive and devastating Supreme Court decisions where five justices have, in effect, gutted those statutory protections. … Congress should now take a closer look at the way in which binding mandatory arbitration is creating a legal underground where American workers are left without protection.

There is no rule of law in arbitration. There are no juries or independent judges in the arbitration industry. There is no appellate review. There is no transparency. And as a result of today’s divisive ruling, there will likely be no justice for millions of American workers and their families.  The courthouse doors have simply been closed to them.  Today’s opinion also gives big business a disincentive to treat their employees fairly and will no doubt lead to virtually all companies requiring their employees to sign one-sided arbitration agreements as a condition of employment.

Senator Whitehouse’s opening statement at the Kagan hearings struck a similar chord:

Unfortunately, the conservative wing of the current Supreme Court has departed from [the Court's] great institutional traditions. Precedents, whether of old or recent vintage, have been discarded at a startling rate. Statutes passed by Congress have been tossed aside with little hesitation, and constitutional questions of enormous import have been taken up hastily and needlessly. Only last week, the Rent-A-Center decision concluded that an employee who challenges as unconscionable an arbitration demand must have that challenge decided by the arbitrator. And the Citizens United decision — yet another 5-4 decision — created a constitutional right for corporations to spend unlimited money in American elections, opening our democratic system to a massive new threat of corruption and corporate control. There is an unmistakable pattern. For all the talk of umpires and balls and strikes at the Supreme Court, the strike zone for corporations gets better every day.

Finally, Senator Franken this morning used the hearings as an opportunity to sharply critique not only the recent Rent-a-Center decision, but also the Court’s 2001 decision in Circuit City v. Adams, which rewrote the Federal Arbitration Act to include most employee claims.  The relevant portion of the transcript form this morning’s hearings is available after the jump.

Sen. Franken: I want to discuss something that is denying more and more working Americans that precious day in court, that fair shake, and that’s mandatory arbitration. Now, arbitration has its place. I’m talking about mandatory arbitration. Chances are if you have a cell phone or credit card or if you work, you’re likely to have signed a contract with a mandatory arbitration clause. These clauses basically say if we violate your rights, you can’t take us to court. You have to take it to an arbitrator. But then the fine print essentially says an arbitrator that we pay who depends on us for work and who makes decisions in secret. So a lot of people are denying their opportunity to come before the court.

Circuit City v. Adams

Unfortunately, we’ve seen a series of decisions from the Supreme Court that have made it even harder for people to get that fair shake, as you put it. In 2001 in a case called Circuit City, the Court was asked to decide whether workers’ employment, employment contracts could be subject to mandatory arbitration. This really should have been a no-brainer, because the Federal Arbitration Act of 1925, the law that says that arbitration agreements should be enforced — specifically exempts, quote, “contracts of employment of seamen, railroad employees or any other class of workers engaged in foreign or interstate commerce.”

Organized labor had asked for this specific language to be included to make sure the act would not apply to workers’ employment contracts. In fact, then commerce secretary Herbert Hoover said during a Senate hearing, quote, “if the objection appears to be inclusion of workers’ contracts in the law’s scheme, it might well be amended by states but nothing herein contained shall apply to the contracts of seamen, railroad employees or any other class of workers engaged in interstate commerce.”

Secretary Hoover was saying that if congress wanted to make clear that the Federal Arbitration Act did not apply to employment contracts, Congress should put this language in the statute. So Congress put the language in the statute. But when Justice Kennedy wrote the majority opinion in circuit city, he ignored the history. He wrote, and I quote, “we need not assess the legislative history of the exclusion provision.” Let me repeat that. “We need not assess the legislative history of the exclusion provision.” And based on a strained reading of the law he decided that the exception only applied to workers in the transportation business. Not any class of workers.

This means that instead of all workers getting their day in court in Congress . . . like Congress clearly intended, only transportation workers would get it, and that excludes the vast majority of american workers. General Kagan, I really disagree with this case and the way the court ignored Congress’ intent. That why I was glad to hear your response to one of Senator Schumer’s questions about how the court should interpret statutes. You said that among other things, quote, I think a judge should look to the history of the statute in order to determine Congress’ will. General Kagan, we spent a lot of time in hearings and on the floor debating legislation. How much weight do you think a judge should give to the deliberations of congress and the reasons why we pass the law in the first place?

EK: Senator Franken, the most important thing in interpreting any statute, in fact, the only thing that matters is Congress’ intent. Congress gets to make the laws under Article One of the Constitution. And what the Court should be doing in applying those laws is trying to figure out what Congress meant and how Congress wanted the laws to be applied. That is the only thing that the Court should be doing. Now, sometimes that can be a difficult task. New situations come up. The statutory language is not clear how it applies to those new situations or sometimes congress might simply not have thought of particular situations. Language is by necessity an exact, and so there are going to be cases which –

Sen. Franken: Do you agree with Justice Kennedy, “we need not assess the legislative history” of something?

EK: I would say this. I would say where the text is clear, a court should go with the text. Where the the text clearly covers some situation, the court should do that. The court shouldn’t be writing law.

Sen. Franken: Should the court assess that and make an assessment there?

EK: I think if the text is clear, the court should not rewrite the law. But where the text is ambiguous, which often happens –

Sen. Franken: Wouldn’t you have to assess whether it is ambiguous?

EK: Yes.

Sen. Franken: What Justice Kennedy said doesn’t stand up to that, does that? Let us me move on on that. We in Congress, we want to make sure all of us intentions are clear so 75 years from now the Supreme Court doesn’t just ignore the purpose behind the laws we’re passing. How can we do that? How do we do that? How do we make it clear to future Justices?

EK: Well, the courts surely would be helped if Congress spoke as precisely and exactly and as comprehensively as it could in all situations. You know, there are some instances where the Court just has legitimate difficulty trying to figure out what congress intended and where judges all of whom agree what they should be doing is doing what Congress intended, have difficulty determining that or disagree about what that means. Certainly to the extent Congress can make its intentions clear in legislation and can specifically spell out how it intends for the law to operate, congress ought to do so. To the extent that the court gets something wrong with respect to a statute, and this has happened many times in recent years and in prior years as well. To the extent that the court gets something wrong, of course Congress can come back and change it and make clear that the court got it wrong and also use it as an opportunity even to make clear its intentions with respect to a general area of law.

Sen. Franken: Okay. It’s hard to do 78 years from now, but we’ll try. Circuit City was a Rehnquist court decision.

Rent-a-Center v. Jackson

Just last week the Roberts Court did something better to keep workers out of court and in arbitration. Rent-a-Center has 21,000 workers and hundreds of milions of dollars in annual profits. It forces its workers to sind a mandatory arbitration agreement as a condition of employment. Antonio Jackson, an African-American account manager in nevada had been working for Rent-a-Center for years, but he was frustrated because he watched his company pass him over for promotions again and again. Instead they promoted workers who had less experience and who weren’t black. Although Jackson signed an employment contract agreeing to arbitrate all employment claims, this seemed blatantly unfair and he sued Rent-a-Center.

But the company argued that only the arbitrator could decide whether the arbitration clause was unfair. Let me repeat that.  Rent-a-Center argued that only the arbrator could decide whether the arbitration clause was unfair. Last week the Roberts Court sided with Rent-a-Center.

Talk about not getting your day in court. Now you can’t get your day in court to get your day in court. Now, general Kagan, I know I probably can’t ask you whether I can ask you, but you won’t answer, whether this case was correctly decided, but I would like to ask you still agree with what you said yesterday to Senator Kyl, that one of the glorious things about courts is they provide a level playing field in all circumstances, and that we need to make sure that every single person gets the opportunity to come before the court and gets the opportunity to make his best case and gets a fair shake.

EK: Well, I do agree with that very strongly, Senator Franken. If I might just return to this question of statutory interpretation that you started off with, because I did want to make clear that when a text is ambiguous, which you know frequently happens, which frequently happens, then I think the job of the courts is to use whatever evidence is at hand to understand Congress’ intent. And that includes exploration of Congress’ purpose by way of looking at the structure of the statute, by way of looking at the title of the statute, by way of looking at when the statute was enacted and in what circumstances and by way of looking at legislative history. Now, I think the courts have to be careful about looking at legislative history and make sure that what they’re looking to is reliable, but courts shouldn’t at all exclude signs of congressional intent and should really search hard for congressional intent when the text of the statute itself is unclear.

Sen. Franken: Good. Then I think you and I agree that Justice Kennedy may have been in error when he said that — that the Court doesn’t have to assess the legislative history.

EK: Well, I suspect that — i don’t know the case very well. I suspect that Justice Kennedy may have meant he thought the text was clear, and therefore, the legislative history was not something that should appropriately be explored, but I’m just guessing on that.

Sen. Franken: Okay. I think you’re guessing wrong.

EK: Okay.

This article was originally posted on Consumer Law & Policy Blog

About The Author: Deepak Gupta is a staff attorney at Public Citizen Litigation Group, the litigating arm of the national, non-profit consumer advocacy organization Public Citizen. He also teaches a course in public interest law as an adjunct professor at Georgetown University Law Center, and he previously taught a course in appellate advocacy as an adjunct professor at the Washington College of Law at American University.

The case arose out of circumstances all too familiar to older workers at all levels in our economy, especially in the hard times from which much of the nation has barely begun to recover. In 2003, Jack Gross, aged 54 and a 32-year employee of FBL Financial, was demoted from his position as claims administration director, and transferred to a newly created position with drastically reduced responsibilities. Gross sued, and at trial introduced “evidence suggesting that his reassignment was based at least in part on his age” (as stated by Justice Clarence Thomas writing for the majority). Gross’ employer responded with the claim that the reassignment was part of a “corporate restructuring.” The jury found for Gross and awarded him $46,945 in lost compensation, after receiving the judge’s instructions that they must rule for the employee if he proved by a preponderance of the evidence that “age was a motivating factor” in his demotion. “However,” the judge instructed, the jury must rule for the employer if the employer proves by the preponderance of the evidence that the employer would have demoted Gross “regardless of his age.” This instruction tracked settled law. But the Supreme Court majority changed the law, and held that Gross and others in his situation needed to show that age was the “but for” cause of their adverse treatment, and that evidence that age was a motivating factor would not shift the burden of proof to the employer to prove that the adverse action would have occurred regardless of the employee’s age.

After the Supreme Court bounced him back to square one, Mr. Gross testified before Congress that the conservative Justices had “hijacked” his case to make an ideological point. His view cannot be dismissed as sour grapes. On the contrary, this 5-4 reversal of the jury verdict in Mr. Gross’ favor creates a veritable perfect storm for older workers. Numerous surveys show that the current financial crisis has forced older workers at all economic levels to shelve plans for retirement, and attempt to stay in, or re-enter the job market. Or hope to. When recession strikes, employers often target veteran employees in reductions in force, and disfavor older candidates for whatever new positions they may need to fill. Age discrimination claims submitted to the Equal Employment Opportunity Commission spiked nearly 30 percent in June 2009 compared with the same month a year earlier.

For these claimants, the Supreme Court’s decision offers a Catch-22. The aptly named decision will largely nullify the ADEA and guarantees that a vast proportion of age bias complaints will fail, whatever their merit. As Senate Health, Education, Labor, & Pensions Committee Chair Tom Harkin (who blogged for ACSblog here) observed in his committee’s March 6 hearing on the bill, in real-world workplaces, employers create paper trails purporting to justify adverse actions on legitimate business-related grounds. In such circumstances, it will rarely be possible to prove that age was the “but-for” cause (a standard some courts have interpreted to mean “exclusive”), rather than a “motivating” factor. Virtually any evidence of any other factors, whether business-related or not, suffices to throw a legitimate age discrimination victim out of court. Employee-side lawyers will know that, so they will rarely waste their time and resources to bring cases when age bias victims come to them for help. Business lawyers will also know that, and will counsel clients that they have nothing to fear if they pay lip-service to the ADEA but ignore it in practice.

As noted above, few cases confirm more clearly than Gross v. FBL President Obama’s observation that recent conservative judicial activism “ignores the will of Congress” and “democratic processes.” “Not only,” Justice Stevens wrote in his impassioned dissent, did the Court’s own precedents reject the “but-for” standard, but “so did Congress when it amended Title VII (of the 1964 Civil Rights Act) in 1991.” Moreover, the majority’s “far-reaching” new rule answered a question completely different from the one the parties had raised with the Court or the courts below and which the Court “granted certiorari to decide.”

When issued a bit less than a year ago, the Gross decision provoked indignant opposition on Capitol Hill, and on October 6, 2009, Senators Harkin and Patrick Leahy and Representative George Miller, simultaneously introduced identical corrective bills, entitled the Protecting Older Workers Against Discrimination Act. The fact that legislative hearings have now occurred on both sides of the Capitol indicates that Congress may well restore equal opportunity guarantees for older workers – just as it did in February 2009, when it overturned the infamous 2007 5-4 Ledbetter v. Goodyear decision that undermined equal pay opportunity safeguards in Title VII. Only through such prompt action can Congress prevent the further metastasizing of this threat to the economic security of older Americans, and all Americans.

*This post originally appeared in American Constitution Society on May 7, 2010. Reprinted with permission.

About the Authors:

Simon Lazarus is Public Policy Counsel for the National Senior Citizens Law Center, where he is responsible for the Washington DC advocacy effort of NSCLC’s Federal Rights Project. He writes frequently on the politics of judicial nominations, on Congressional authority to protect ordinary Americans’ basic needs, and on the ability of individuals to enforce rights under federal and state law.  His articles have appeared in the Atlantic, the Washington Post, The American Prospect, Roll Call, and Huffington Post.  His DePaul Law Review article, “Federalism R.I.P.? Did the Roberts Hearings Junk the Rehnquist Court’s Federalism Revolution?,” expanded an issue brief he authored for the American Constitution Society.  His ACS issue brief, “Mandatory Health Insurance: Is it Constitutional?,” has been widely referenced in the current debate.  His Atlantic article, “The Most Dangerous Branch?”, was republished in two anthologies, The Best American Political Writing 2003, Royce Flippin, ed., and Principles and Practice of American Politics: Classic and Contemporary Readings, 2d ed., Samuel Kernell and Steven S. Smith, eds. (CQ Press 2003).   Si has served as Associate Director of President Jimmy Carter’s White House Domestic Policy Staff (1977-81), as a partner in Powell, Goldstein, Frazer, and Murphy LLP (1981-2002), and as Senior Counsel to Sidley Austin LLP (2002-2006). A Trustee of the Center for Law and Social Policy, he graduated from Yale Law School, where he was Note & Comment Editor of the Yale Law Journal.

Sergio Eduardo Munoz is a staff attorney for the Federal Rights Project. Most recently, he was the Public Policy Director of a health reform organization where he coordinated advocacy for the amelioration of health difficulties facing adolescents of color and limited income. This position built upon Sergio’s work directing Latino outreach in the greater Denver area for federal Democratic candidates in the successful 2008 elections. He specialized in bringing first-time voters into the political process, preventing voter suppression, and laying the groundwork for a sustainable and diverse political majority. A graduate of Brown University and the University of Michigan Law School, he has completed legal fellowships at the ACLU of Michigan, the Center for Reproductive Rights, and the Pediatric Advocacy Initiative. Prior to starting law school, Sergio was a social worker for foster children with medical conditions and a civil rights and liberties investigator of police misconduct in New York City.