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“Let’s End the Great Society Week” Begins

[ 71 ] June 24, 2013 |

The Voting Rights Act might be the main course, but the Civil Rights Act is the appetizer.

I alluded to this in the article, but it’s worth repeating Ginsburg’s examples of what, according to the definition announced today by reasonable, moderate, thinking person’s reactionary Sam Alito, does not constitute harassment by “supervisors” (as opposed to co-workers):

Yasharay Mack, an African-American woman, worked for the Otis Elevator Company as an elevator mechanic’s helper at the Metropolitan Life Building in New York City. James Connolly, the “mechanic in charge” and the senior employee at the site, targeted Mack for abuse. He commented frequently on her “fantastic ass,” “luscious lips,” and “beautiful eyes,” and, using deplorable racial epithets, opined that minorities and women did not “belong in the business.” Once, he pulled her on his lap, touched her buttocks, and tried to kiss her while others looked on. Connolly lacked authority to take tangible employment actions against mechanic’s helpers, but he did assign their work, control their schedules, and direct the particulars of their workdays. When he became angry with Mack, for example, he denied her overtime hours. And when she complained about the mistreatment, he scoffed, “I get away with everything.”

Clara Whitten worked at a discount retail store in Belton, South Carolina. On Whitten’s first day of work, the manager, Matt Green, told her to “give [him] what [he] want[ed]” in order to obtain approval for long weekends off from work. Later, fearing what might transpire, Whitten ignored Green’s order to join him in an isolated storeroom. Angered, Green instructed Whitten to stay late and clean the store. He demanded that she work over the weekend despite her scheduled day off. Dismissing her as “dumb and stupid,” Green threatened to make her life a “living hell.” Green lacked authority to fire, promote, demote, or otherwise make decisions affecting Whitten’s pocketbook. But he directed her activities, gave her tasks to accomplish, burdened her with undesirable work assignments, and controlled her schedule. He was usually the highest ranking employee in the store, and both Whitten and Green considered him the supervisor.

CRST Van Expedited, Inc., an interstate transit company, ran a training program for newly hired truckdrivers requiring a 28-day on-the-road trip. Monika Starke participated in the program. Trainees like Starke were paired in a truck cabin with a single “lead driver” who lacked authority to hire, fire, promote, or demote, but who exercised control over the work environment for the duration of the trip. Lead drivers were responsible for providing instruction on CRST’s driving method, assigning specific tasks, and scheduling rest stops. At the end of the trip, lead drivers evaluated trainees’ performance with a nonbinding pass or fail recommendation that could lead to full driver status. Over the course of Starke’s training trip, her first lead driver, Bob Smith, filled the cabin with vulgar sexual remarks, commenting on her breast size and comparing the gear stick to genitalia. A second lead driver, David Goodman, later forced her into unwanted sex with him, an outrage to which she submitted, believing it necessary to gain a passing grade.

Needless to say, this irrationally parsimonious definition of supervisor is pretty much the opposite of how Republicans have defined “supervisor” with respect to labor law, because in that case it’s a broad definition that’s necessary to dilute the rights of workers.

In conclusion, these two 5-4 civil rights cases prove that elections don’t matter and the parties are pretty much the same. I mean, who knows, Alito and Roberts could be the new Warren and Brennan; certainly, the Republican coalition hasn’t changed at all in the intervening time period.

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  1. wengler says:

    I think your concluding paragraph undermines your point, since at this time no nominated Supreme Court justice would be able to get through the Senate confirmation process without being filibustered. And the last time that it mattered when Alito was up, the Democrats decided not to do a damn thing.

    • somethingblue says:

      Indeed, four of them voted for him.

      Hey, that powder isn’t going to keep itself dry!

    • Erik Loomis says:

      I wonder if we are about to find out whether this is true, meaning I wonder if Ginsburg or Breyer will choose to step down in the next couple of months.

    • And how many Democrats voted for Roberts, despite there being plenty of evidence that he’d vote on cases exactly as he has?

      • Scott Lemieux says:

        As I’ve said many times, the idea that serially rejecting Supreme Court nominees is a workable strategy for Senate Dems makes no sense.

        • janastas359 says:

          Scott, do you think that Dems could take advantage of this by appointing liberal judges and relying on the fact that Republicans couldn’t possible reject every single one forever?

          As a related point, do you think it’s only impossible to serially reject judges at the Supreme Court level, where it’s high profile?

      • Warren Terra says:

        Serious question: when was the last time the opposition (non-Presidency) party torpedoed a nomination? I think it might be Robert Bork, who not only had one of the most obviously justified rejections but also lost six senators from his own party’s caucus of 44 (admittedly the six include Chalfie and Weicker, who later left the party).

        Other nominees who’ve fallen have typically failed because the nominating President’s party didn’t rally behind them.

        We need more liberal judges, and we desperately need more liberal judges, what with all the vacancies to be filled. But I think there’s little evidence a President can feasibly be prevented from getting a Supreme Court nominee more-or-less of their own choosing, so long as their base is reasonably happy and the nominee isn’t as obvious a monster as Bork.

        • Scott Lemieux says:

          I think it might be Robert Bork

          Yup. .

        • rea says:

          I think there’s little evidence a President can feasibly be prevented from getting a Supreme Court nominee more-or-less of their own choosing

          Well, jeez, they can’t use the filibuster too much or it will hurt them politically, right?

          • Warren Terra says:

            Snark aside, and at the Supreme Court level: yes. So long as the President has the smarts to nominate a John Roberts (strong resume, robotic self-control, has spent their career avoiding outright controversial stances even if their privately held beliefs should be an utter scandal) their nominee to the Supreme Court will probably be confirmed. There just isn’t all that much public tolerance for mindless partisanship when the media actually covers it, and even Fox News et al probably can’t turn every Democratic nominee into the love child of Malcolm X and Timothy Leary; certainly it works this way in the other direction.

            For the lower courts – even the DC Appeals Courrt – there isn’t the same public attention, and so nominees can be blocked by the busload indefinitely, without need for justification and with no political price.

    • Incontinentia Buttocks says:

      As is usually the case, while the claim that there is no difference between the two parties is absurd, the claim that the Democrats are inadequate isn’t. Alas, the best thing about the Democratic Party remains that it’s not as bad as the GOP.

      • Because Democrats voting against Alito and Roberts in unanimity before they joined the Supreme Court would have meant…something.

        • Incontinentia Buttocks says:

          Because had Democrats been willing or able to credibly threaten to filibuster Alito and Roberts, they might have had an impact on Bush’s nominating strategy. And if the GOP had had to use the “nuclear option” then, we’d be in a better place vis a vis judicial nominations now.

    • janastas359 says:

      Sorry, I’m not sure I understand your meaning. After all, Kagan was filibustered (as Jonathan Bernstein likes to say, she required 60 votes even if no one said the word “filibuster”), but Kagan is clearly preferable to whichever nominee a President Mccain might have picked. Do you mean that it would be impossible for Obama to appoint someone who is a liberal counterpart to Alito?

      • rea says:

        There is no such thing as a liberal counterpart to Alito. If you act like Alito, you aren’t liberal.

        • Rarely Posts says:

          I can think of some liberal/democratic counterparts to Alito currently sitting on the federal courts, and I am sure some of them could get appointed.

          The distinguishing aspect of Alito is that he seems unusually outcome oriented — his vote basically always corresponds to the Republican/corporate party-line. You can guess his vote based on the names of the parties, knowing almost nothing about the case. Sadly, I can think of some democratic appointees to the lower courts who are likely similar (in that they vote for the allegedly “liberal” party in almost every case, regardless of the merits). Personally, I hope Obama doesn’t appoint them.

    • NonyNony says:

      I think your concluding paragraph undermines your point, since at this time no nominated Supreme Court justice would be able to get through the Senate confirmation process without being filibustered. And the last time that it mattered when Alito was up, the Democrats decided not to do a damn thing.

      I believe that Scott was actually alluding to the fact that if the 2000 election had been less stupid, it might have been President Al Gore who was nominating people to fill the slots that Alito and Roberts have taken, instead of President George W. Bush.

    • This comment is…odd. I almost find myself wondering if you honestly don’t realize that there have been two justices confirmed since Alito.

    • Scott Lemieux says:

      nd the last time that it mattered when Alito was up

      So, your argument is that the fact that Bush nominates people like Alito and Obama nominates people like Kagan proves that elections don’t matter? Fascinating.

      • wengler says:

        No. My point is that you continually harp on voting for Democrats. Well, we are in Obama’s on his second term.

        The most decisive pick was during Bush’s second term whom the Democrats did nothing to stop, and the makeup of this court isn’t going to change anytime soon.

        • Scott Lemieux says:

          So, the fact that Supreme Court nominees are pretty much never stopped by Senate minorities proves that elections don’t really matter. Fascinating.

          Also, had McCain won the median vote on the Court would be Antonin Scalia. That seems pretty significant to me.

  2. Another Anonymous says:

    As obnoxious as it was predictable.

  3. Derelict says:

    This is all of a piece with current conservative reasoning. Women do not and cannot have agency in any respect. Thus, the definition of “supervisor” must necessarily be narrowed to the point where it loses all meaning in the average work context. And, as written, the ruling also removes responsibility from the actual supervisor for doing anything about these kinds of situations.

    This is absolutely fantastic news for every troglodite in the workplace. Finally, they can force their unwanted attentions on their co-workers without fear of reprisal or even rebuke.

    • Sev says:

      Also, the law’s sheer majesty is best impressed upon us underlings by these sharp reminders of its utter remoteness from our frivolous concerns.

    • cpinva says:

      “Finally, they can force their unwanted attentions on their co-workers without fear of reprisal or even rebuke.”

      however, absent those avenues, the targets of the unwanted attention may feel it necessary to resort to other, less legal, and more potentially lethal, means of discouraging said trogs.

  4. Josh G. says:

    We all know the current Supreme Court sucks.

    What I want to know is whether a future Supreme Court, less right-wing than this one, is going to let these decisions stand as precedent, or overturn them. Stare decisis, like the Senate filibuster, is always a convenient tool for Democrats who want to stab the party’s progressive base in the back. When Kennedy and/or Scalia kick the bucket, we need someone appointed who will roll back what they have done, not just hold the line. I’m tired of Democrats respecting bullshit “traditions” with no legal force while Republicans crap all over them with impunity.

    • Isn’t the proper question just who Obama has in mind to nominate if he has to appoint any more justices? Are any more Kagans going to fire up the base?

    • Incontinentia Buttocks says:

      As Ginsburg pointed out in her dissents, like Ledbetter, these bad decisions can be solved legislatively. The biggest problems in these cases aren’t that the SCOTUS is tough to change or that it is too bound by precedent but that: 1) due to gerrymandering, retaking the House will be very difficult and; 2) due in part to opposition to reform by a significant group of Democratic Senators, even the Senate likely couldn’t pass legislation correcting these problems.

      • janastas359 says:

        If I recall correctly, didn’t the court a few years back talk about how they would only strike down the voting rights act if congress didn’t act to fix the flaws perceived by the court?

      • Scott Lemieux says:

        As I said in the piece, I agree, with the caveat that as the Court showed today is can undermine the fixes Congress comes up with.

        • chris says:

          But you also said in the piece that the statute didn’t define “supervisor”. The statute was most likely written under the assumption that the courts would make a good-faith attempt to apply it according to the legislature’s purpose in passing it, which probably seemed like a safe assumption at the time, but in hindsight looks charmingly naive.

          That doesn’t necessarily mean it couldn’t be rewritten to defend it against malicious interpretation, or at least to make it more difficult and blatant to claim that the person who gives the orders is not a supervisor.

          Also: I have complained before that there is no one like Brennan on the court today, but at this rate, Ginsburg is going to make me eat those words.

        • Anonymous says:

          As I said in the piece, I agree, with the caveat that as the Court showed today is can undermine the fixes Congress comes up with.

          Err…that’s the job of the court, to interpret the law independent of what congress does.

          Will you feel the same way about the court if they nullify California’s ban on gay marriage?

          Doubtful. Your argument(s) on constitutionality and the value of the court seem to morph depending on whether is serves your agenda or not.

          I like consistency.

          • Rarely Posts says:

            Err… Not when the Court is interpreting a statute passed by Congress. The question here is: what does the Civil Rights Act, as passed and amended by Congress, mean? Interpreting the statute “independent of what congress does” is flatly wrong. Of course, there are five Justices on the Court who (apparently) agree with you, but they wouldn’t admit it.

            • Anonymous says:

              …what does the Civil Rights Act, as passed and amended by Congress, mean? Interpreting the statute “independent of what congress does” is flatly wrong.

              Err….that’s the whole idea behind the court…to be independent of congress.

              Your “flatly wrong is….flatly WRONG as demonstrated by the constitution.

              • rea says:

                [beating head on wall in frustration] No, no, no, the Supreme Court is not supposed to conduct statutory interpretation “independent of what Congress does.” You’ve heard the crazy rightwingnut cariacature, and decided it sounded like good policy.

                • Rarely Posts says:

                  Sadly, I suspect “anonymous” is on the Republican short-list to be appointed to the Fifth, Eighth, Ninth, or Eleventh Circuits.

          • Scott Lemieux says:

            What did these cases have to do with the Constitution?

    • Rarely Posts says:

      It’s not fair to compare stare decisis to the Senate filibuster. The Senate filibuster is a completely irrational and unfair rule that makes the Senate even less democratic, representative, and accountable than it already is (which is not very). In contrast, stare decisis plays an important role in ensuring continuity in the law, reducing the discretion of individual judges, and allowing people to form reasonable expectations about potential legal consequences in the future and to rely on those expectations in taking action.

  5. bk says:

    Awful decision. Also handed down today was UT SW Med Ctr v. Nassar which is just as bad and also involved statutory interpretation and Title VII. Now employees claiming they were retaliated against for engaging in protected activity like reporting discriminatory treatment (as required to defeat affirmative defenses like faragher-ellerth) must show the retaliatory treatment would not have happened “but for” the employee engaging in the protected activity rather than the more lenient motivating factor standard. Now employees have to show what was in the mind of the decision maker when the decision maker made the decision.

    Ginsburg had another great (but its depressing that it is necessary) dissent. She really cuts through the majority’s statutory interpretation to get to the “but for” reason behind the majority’s opinion.

    “The Court holds, at odds with a solid line of decisions recognizing that retaliation is inextricably bound up with status-based discrimination, that §2000e–2(m) excludes retaliation claims. It then reaches outside of Title VII to arrive at an interpretation of “because” that lacks sensitiv­ity to the realities of life at work. In this endeavor, the Court is guided neither by precedent, nor by the aims of legislators who formulated and amended Title VII. Indeed, the Court appears driven by a zeal to reduce the number of retaliation claims filed against employers. See ante, at 18–19. Congress had no such goal in mind when it added §2000e–2(m) to Title VII. See House Report Part II, at 2. Today’s misguided judgment, along with the judgment in Vance v. Ball State Univ., post, p. 1, should prompt yet another Civil Rights Restoration Act.”

  6. daveNYC says:

    The damn court is going to 5-4 us back to the 1920s before there is any chance to alter the makeup.

    Fuuuuuuuuuu…

  7. Rarely Posts says:

    http://www.theatlantic.com/national/archive/2013/06/justice-alitos-inexcusable-rudeness/277163/

    Also interesting. I have no idea if it’s true, but if it is, then it really is inexcusable.

    • rea says:

      It seems to be true, given the accompanying GIF showing him doing it.

      And of course, he famously reacted much the same way to Obama at a State of the Union adddress.

      The man has the gravitas of a badly socialized 6-year old.

  8. Joe says:

    As noted here, the Vance majority also disagreed with the EEOC. There should be some deference there if the EEOC provided a reasonable (even if possibly wrong) approach.

    Also:

    And although Justice Alito leaves out these allegations in his description of the facts, Vance also alleged that Davis used the racial slurs “Buckwheat” and “Sambo” to refer to Vance, both in Vance’s presence and outside it.

    As to another comment, don’t wish upvote function anywhere close to an after publishing editing function.

  9. e.a.foster says:

    The best way to protect yourself against other workers who act in this manner is a small voice activated tape recorder. Then add it to the emails going to every body in the company. Works every time. it is also handy when you go to the police to have them charged. it works well in a court of law. Works even better when you sent it to their wives.

    it is why it is always useful to do something our great grandmothers used to do, carry a hat pin. Works like a hot dam each and every time.

    Women should not have to put up with this shit. But unless women tell men in no uncertain terms in a public place that their attentions are not wanted, it will continue.

    Of courts will support people who harass. If they don’t they might find themselves in some trouble also.

  10. [...] to estimates I’ve read), they’ve got nothing to lose. In another decision, the Court ruled that if someone at your workplace harasses you and has authority over you, but can’t actually [...]

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