US Justices curb activism, temporarily, after reaction to Ledbetter case

Last term, the US Supreme Court decided that a woman couldn't sue for blatant discrimination because she didn't learn about it within 180 days of the first adverse employment action.  A strong negative public reaction led to an attempt to re-write the necessary legislation that was only blunted by Republican filibustering and veto threats.  The Court had signalled an intent to pursue further activism this term, but apparently some of the activists got cold feet and the law on employer retaliation wasn't changed to favor employers.

In an earlier blog entry, we described the Ledbetter case in which a woman secured a jury verdict against Goodyear Tire and Rubber after presenting overwhelming evidence of gender bias (if you aren't familiar with the case, we urge you to look it up under employment decisions on this blog or in other internet sites).  The Supreme Court, voting 5-4, took away the verdict, holding that Ledbetter was required to file suit within 180 days of the first adverse employment action, even if she was completely unaware of it.  Public reaction was immediate, adverse and vehement.  A majority of moderates in Congress attempted to re-write the act in question but were blocked by a conservative minority.

In the meantime, the Court signalled an intent to overturn other prior decisions by granting leave to appeal in two retaliatory discharge cases during this term.  Retaliatory discharge cases arise where an employee suffers discharge or other punishment for exercising a protected right.  In these cases, one victim was a hispanic who maintained she was passed over for a transfer.  The second was a black restaurant manager who was fired after objecting to what he believed was racially-based mistreatment of another employee by an assistant manager.

One of the latter decisions, in particular, clearly signalled an activist intent, since it granted leave where there was no conflict in the lower courts:  all of the courts that had considered the retaliatory discharge claims in the context of this case had ruled that employees had the right to challenge retaliation by employers, even if the federal statute had not explicitly outlawed retaliation.  Normally, where the lower courts have been unanimous on a topic, if the Supreme Court grants leave on that topic, there is a logical assumption that the Court intends to reverse existing law.

In decisions decided by 7-2 and 6-3 votes, however, the majority reaffirmed that these two employees had the right to argue that they were fired in retaliation for the expression of legally-protected civil rights, despite the fact that the subject legislation did not explicitly outlaw retaliation.  Apparently the swing Justices were startled by the reaction to Ledbetter and did not want to create another firestorm against conservative activism in an election year.  It is a sad commentary on civil and employment rights that these decisions-- which merely left standing well established status quo holdings going back as far as 1969--and which would be considered plain common sense by most citizens--are considered "victories" for employees.  They are victories which probably will not be preserved or duplicated after November, if the fall elections give anti-employee interests another four years in the White House to nominate replacement Supreme Court Justices.