Marriage cases move nation towards equality

Marriage cases move nation towards equality


By Guest Blogger:  David Duchrow

The United States Supreme Court issued two landmark civil rights cases which, together, provide the strongest support to date for same-sex marriage.

These cases remind us that the civil rights movement does not travel a linear path.  Historically there have been notable steps forward and back, as well as many missteps.  The United States Supreme Court has issued decisions which, at times, have reflected popular opinion, and at other times it has held contrary to the will of “the people.”

Proponents of civil rights have pressed their cases based on compelling facts and moral imperatives, while those defending against progressive reform seem to utilize every procedural tool available to them (issues of standing, venue, and timeliness to name just a few) to defeat lawsuits against their clients.

This morning’s two marriage equality cases both follow and defy those historic trends.   In United States v. Windsor, the case involving the federal Defense of Marriage Act (“DOMA”), the Court issued a ruling aligned with what polls suggest is an overwhelming “will of the people,” which itself had dramatically changed over the course of the litigation.  Yet, in the case involving California’s Proposition 8, the high court avoided addressing the compelling trial court record that was carefully developed by those challenging Proposition 8.  Instead, the opinion in Hollingsworth v. Perry relies on a procedural maneuver to reinstate the trial court’s opinion invalidating Proposition 8.

In the DOMA case, Justice Kennedy wrote: “The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.” Justice Kennedy’s writing tracks language used in an amicus brief signed by 56 pro-civil rights organizations (including the California Employment Lawyers Association, on whose behalf I was honored to sign).  That brief emphasized the stigma for same-sex unmarried couples and their children.  DOMA “undermines” same-sex marriages in visible ways and “tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition.”  With the new decision, the federal government must now honor “dignity” states confer on same-sex couples if they choose to legalize gay marriage.

After the Court announced its DOMA decision, it issued its decision on Proposition 8.  California voters passed Proposition 8 to ban same-sex marriage in 2008, after 18,000 same-sex couples had already married under a state Supreme Court decision legalizing gay marriage.  A married lesbian couple with children, Kris Perry and Sandy Stier, sued the state of California when their six-month-old marriage was invalidated by the ballot initiative.  They argued that Proposition 8 discriminated against them and their union based only on their sexual orientation, and that the state had no rational reason for denying them the right to marry.  Two lower courts ruled in their favor, and then-Governor Schwarzenegger announced he would no longer defend Proposition 8 in court, leaving a coalition of Proposition 8 supporters led by a former state legislator to take up its defense.

Chief Justice Roberts joined with Justices Scalia, Ginsburg, Breyer and Kagan to rule that the initiative supporters did not have the standing to defend the ban in court.  The unusual coalition of traditionally liberal and conservative justices held that the Proposition 8 supporters could not prove they were directly injured by the lower court’s decision to overturn the ban and allow gay people to marry.

With the Proposition 8 decision, the Supreme Court refused to wade directly into the constitutional issues surrounding the California gay marriage case, side-stepping the pro-Proposition 8 argument on procedural grounds, meaning that a lower court’s ruling making same-sex marriage legal in California will stand and opening the door to marriage for gays and lesbians, without directly ruling on whether there is a constitutional right to same-sex marriage.

Thus, in DOMA the Supreme Court kept pace as public opinion shifted during the litigation, to the point where same-sex marriage is overwhelmingly supported now, even by those who opposed it initially when the litigation began.  And in the Proposition 8 case, procedure, not substance (alone) decided the outcome.  In any event, it is a proud, historic day for those who believe in equality and those who work to ensure civil rights for all.


Charlotte Fishman

About Charlotte Fishman

Charlotte Fishman is a San Francisco attorney with over 30 years of experience handling employment discrimination cases on the plaintiff side. In 2005 she launched Pick Up the Pace, dedicated to overcoming barriers to women’s advancement in the workplace through legal advocacy and public education. She has authored amicus curiae briefs in major cases before the United States and California Supreme Court and writes and speaks to a wide audience on cutting edge employment issues affecting women.

Supreme Court’s changing definition of supervisor: What does it mean to employees? 2

By Sharon Vinick

In 1998, the Supreme Court issued two key decisions regarding an employer’s liability for work place harassment — Burlington Industries , Inc. v. Ellerth, 524 U.S. 742 (1998) and Farragher v. Boca Raton, 524 U.S. 775 (1998) – which held that if a supervisor harasses an employee, the employer is strictly liable for the harm that is caused by the harassment.

Relying upon the ruling in these two cases, as well as the federal Equal Employment Opportunity Commission (“EEOC”) guidelines that define a “supervisor” as being anyone with authority to take tangible employment actions or to direct an employee’s daily work activities, Meatta Vance, who worked as a substitute server and a part-time catering assistant, sued her employer, Ball State University (BSU) for racial harassment.

Ms. Vance claimed that another BSU employee, Saundra Davis, had racially harassed her and created a hostile work environment, and that BSU was strictly liable for Ms. Davis’ acts, because Ms. Davis was her supervisor.  The lower courts  rejected Ms. Vance’s claim, finding that Ms. Davis was not Ms. Vance’s supervisor, because Ms. Davis did not have the authority to “hire, fire, demote, promote, transfer or discipline” Ms. Vance.

In Vance v. Ball State University, the Supreme Court rejected the EEOC guidelines regarding the definition of supervisor and the arguments offered by the Government’s attorneys.  Justice Alito, writing for the majority, held that for the purpose of holding an employer strictly liable, the term supervisor is limited to only those individuals who have been “empowered” by the employer to hire, fire, demote, promote, transfer of discipline.

As Justice Ginsberg points out in her dissenting opinion, this definition of “supervisor” is blind to the realities of the workplace.  Harassing employees who lack the authority to discharge or demote, are often “responsible for the day-to-day supervision of the workplace” and are authorized to make decisions which result in tangible employment actions against the employees whose work they are directing.  To hold that an employer is not strictly liable for the actions of these managers, is tantamount to giving job site bosses, and line managers, carte blanche to harass employees until such time as the employee actually files a complaint.

The implications of the Supreme Court’s decision in Vance will be wide-reaching.

First, many individuals with managerial authority will no longer be considered to be supervisors, leaving employees subjected to harassment by these individuals without a remedy unless they can prove that the employer knew about the harassment and failed to act.  For example, under the definition of supervisor adopted by the majority opinion, a law firm associate who supervises paralegals and gives out plum assignments, but cannot hire or fire the paralegals, is not a supervisor for purpose of imposing liability on the law firm for the associate’s acts of harassment.  Similarly, an employer is not strictly liable for the harassing conduct of a job-site boss, as long as the employer doesn’t invest the boss with the authority to hire and fire.

Second, employers are likely to strip responsibility for hiring, firing and promotion away from managers, in order to limit the company’s liability for acts of harassment by those managers.  This is likely to impact those employees who are most vulnerable to harassment, such as individuals who work at far-flung job sites where harassment can go uncheck and unnoticed (including individuals working in construction or agriculture),  and people who work in the food-industry where there are multiple shifts.

While the impact of the decision in Vance will not be known for some time, the decision is clearly a “win” for employers.  As Justice Ginsberg so eloquently stated, “the Court embraces a position that relieves scores of employers for responsibility for the behavior of the supervisors they employ.”  One can only hope that members of Congress read to the very end of Justice Ginsberg’s dissent, where she invites them to enact legislation to “correct the error to which this Court has fallen, and to restore the robust protections against workplace harassment the Court weakens today.”

Sharon Vinick

About Sharon Vinick

Sharon Vinick is the Managing Partner of Levy Vinick Burrell Hyam LLP, the largest women-owned law firm in the state that specializes in representing plaintiffs in employment cases. In more than two decades of representing employees, Sharon has enjoyed great success, securing numerous six and seven figure settlements and judgments for her clients. Sharon has been named by Northern California Super Lawyers for the past five years. Sharon is a graduate of Harvard Law School and UC Berkeley. In addition to being a talented attorney, Sharon is an darn good cook.

In two 5-4 decisions, Supreme Court narrows Title VII protection against harassment and retaliation

By Charlotte Fishman

What Senator Warren has labeled “the Corporate Capture of the Federal Courts”  was on full display at the United  States Supreme Court today.  The Court issued Vance v. Ball State University and University of Texas Southwestern Medical Center v. Nassar, two 5-4 pro-employer decisions authored by Justice Samuel Alito and Justice Anthony Kennedy, respectively.  Justice Ginsburg authored two impassioned dissents that she read from the bench.

To attorneys who represent victims of discrimination of harassment  and retaliation, these decisions illustrate a depressingly familiar scenario of judicial bias:    the majority is far more concerned with protecting employers from lawsuits than vindicating employees’ statutory right to be free from discrimination and retaliation.

In Nassar, Justice Kennedy’s words convey solicitude for the welfare of employers that is in sharp contrast to his disdainful view of employees:  “The fair and responsible allocation of resources in the judicial and litigation system” requires raising the standard for retaliation claims because “[i]t would be inconsistent with the structure and operation of Title VII to so raise the costs, both financial and reputational, on an employer whose actions were not in fact the result of any discriminatory or retaliatory intent.”

The majority’s lack of comparable concern for the “financial and reputational” cost of retaliatory harrassment to the employee is noteworthy, as is its unquestioning acceptance of the hypothetical danger rarely, if ever, encountered by employee-side practitioners:  “Consider…the case of an employee who knows that he or she is about to be fired for poor performance, given a lower pay grade, or even just transferred to a different assignment or location.  To forestall that lawful action, he or she might be tempted to make an unfounded charge of racial, sexual, or religious discrimination: then when the unrelated employment action comes, the employee could allege that this is retaliation.”

In Ball, Justice Alito’s opinion reveals the majority’s staggering ignorance of (or indifference to) the power of low level supervisors to use their employer-delegated authority to harass employees under their control.  The opinion limits employer’s vicarious liability for workplace harassment to the actions of supervisors who have the power to “hire, fire, demote, promote, transfer or discipline.”   In so ruling, the Court threw out EEOC Enforcement Guides in effect since 1999, and made it harder for employees to obtain redress for harassment by defining individuals who control day-to-day schedules and assignments as mere “co-workers.”

The tendency of the federal courts to favor corporate interests over that of individuals has become the subject of increasing public concern, and today’s decisions provide additional fuel for the argument that  we need greater experiential diversity on the federal bench.  Hopefully, Congress will accept Justice Ginsburg’s invitation to “correct this Court’s wayward interpretations of Title VII” and  restore the Title VII protections that are weakened by today’s cases.  But in the long run, what is needed to restore balance to our judicial system is the appointment of federal judges who are better attuned to the rights of individuals.

Charlotte Fishman

About Charlotte Fishman

Charlotte Fishman is a San Francisco attorney with over 30 years of experience handling employment discrimination cases on the plaintiff side. In 2005 she launched Pick Up the Pace, dedicated to overcoming barriers to women’s advancement in the workplace through legal advocacy and public education. She has authored amicus curiae briefs in major cases before the United States and California Supreme Court and writes and speaks to a wide audience on cutting edge employment issues affecting women.

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