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Last week, while gay marriage proponents were celebrating the Supreme Court’s favorable rulings on what they’ve called today’s Civil Rights issue, the Court was quietly dismantling the Civil Rights victories of the past.
The Court disabled the Voting Rights Act of 1965 by striking down Section 4, the part of the law that determines which jurisdictions must submit voting law changes to the Justice Department. And through its rulings in two employment discrimination cases, the Court also took a sledgehammer to the Civil Rights Act of 1964.
In University of Texas Southwestern Medical Center v. Nassar, the Court reversed rulings by two lower courts, making it more difficult for employees to sue employers who engage in illegal retaliation tactics. In Vance v. Ball State University, a decision that hinged on the interpretation of the word “supervisor,” the Court held that employers are liable for harassment by supervisors, but are not always liable for such acts committed by co-workers. Together, the two cases have a chilling effect on American workers. They make all workers more vulnerable to the whims of employers, and leave workers with few options for relief.
That should make every employee nervous, because in America’s still-recovering economy, decreasing workers’ job security not only sets a dangerous precedent. It sets up workers for abuse. This is especially true in cities like Philadelphia, where, ironically, complaints of employer retaliation are among the most common heard by the Equal Employment Opportunity Commission (EEOC), the federal agency charged with handling employment discrimination.
To be sure, Philadelphians occasionally come out on the winning side, as in the recently settled religious discrimination case the EEOC filed against ABM Security Services on behalf of former security officer Tahira B. El, who was denied a religious accommodation when the company refused to allow her to wear her Islamic head scarf while in uniform. But make no mistake. In a city with a 28 percent poverty rate, workers are particularly vulnerable, because when people are poor and unskilled, they have few choices when it comes to employment, and few places to turn with complaints.
That reality was not lost on the EEOC in the wake of the Court’s employment rulings.
“We are disappointed that the Supreme Court issued two 5-4 decisions limiting protections for workers under the anti-discrimination laws,” said David Lopez, the EEOC’s General Counsel. “What may appear to some as decisions involving technical legal issues will have serious consequences for workers to be free from workplace harassment and to complain about discrimination without fear of retaliation. We are also disappointed by the Supreme Court’s failure to defer to long-standing EEOC interpretations of the law.”
The EEOC is accustomed to operating at a disadvantage. When the agency was created as part of the Civil Rights Act of 1964, its mission was to investigate workplace discrimination based on race, color, national origin, sex, religion, and retaliation, but the EEOC had no real enforcement authority. Instead, what was then a five-member bipartisan commission could only receive, investigate, and conciliate complaints where it believed discrimination had occurred. If the EEOC couldn’t conciliate the complaints, private lawsuits could be filed, or where patterns of discrimination were present, the EEOC could refer the matter to Justice Department.
Over the years, the role of the EEOC changed, and resources increased or decreased depending on economic resources and political will. Today, the agency has lawyers and the power to file cases in federal court.
In recent years, Philadelphia has been a focal point of the agency’s operations, and Debra Lawrence, the Regional Attorney for the Philadelphia District who has been with the EEOC since 1984, has seen the ups and downs firsthand.
“When I got to the EEOC, if a person was discriminated against based on race, you’d go before a judge and the person would get back pay,” Lawrence said in an interview. “In 1991 we got the ability to go before a jury to get compensatory and punitive damages. The remedies became more generous. I still have a problem with the remedies because there is a cap of $300,000. Besides the fact that I think the cap is unconstitutional, $300,000 is nothing to a mega company.”
Caps aside, there have been substantive changes at the agency over the years, Lawrence said. Disability discrimination was added to the types of cases the agency could pursue, and Cancer and AIDS were added as disabilities after 20 years of not being on the list. The agency now tries cases involving transgendered individuals, where there was a hesitancy to do so in years past, Lawrence said. But there is one fact that’s hard to ignore.
“In terms of resources we have shrunk tremendously [since 1984],” Lawrence said. “I can’t give exact numbers, but it has been dramatic.”
In 2006, Lawrence said, the EEOC was reconfigured and Philadelphia became a District office. That meant Lawrence, as the regional attorney, was assigned not just to Philadelphia, but all of Pennsylvania, plus Delaware, West Virginia, Maryland, South Jersey, and most of Ohio. Those states comprise the Philadelphia District.
With so much ground to cover, budget cuts and political posturing have left the Philadelphia District strapped, she said. Lawyers have been forced to take unpaid furloughs, and in some parts of the district, there just aren’t enough attorneys.
“I am down to two lawyers in Cleveland,” Lawrence said. “That’s all I’ve got. But discrimination still happens in Cleveland. I borrow from Peter to pay Paul in this situation.”
And make no mistake. The EEOC is in a tough situation. The Supreme Court rulings mean that it will be more difficult for workers who complain about discrimination and are retaliated against by their employers. It will also be harder for employees who face workplace harassment to win in the courtroom.
The EEOC has seen this kind of thing before, Lawrence said, and there is a remedy. When court rulings make it difficult to win discrimination cases, it is up to Congress to change the law. But just like in the Court’s recent Voting Rights decision, getting Congress to move will be a tough sell, since key conservative lawmakers have been unwilling to compromise.
Such political gridlock, in combination with the recent Supreme Court decisions, could mean employees will face a new workplace reality; one that completely reshapes what the Civil Rights Act defines as employment discrimination.
This should be of utmost concern to every working American, because if life, liberty and the pursuit of happiness are America’s unalienable rights, then the chance to work without discrimination must surely be a right, as well.