Second installment of the First Monday partnership with Alliance for Justice.
Civil rights law is often discussed in terms of racial equality and discrimination, because that is the context in which most people have studied the fight for lifting the less powerful to a more equal footing. We have come a long way from the days of Frederick Douglass through to the mountaintop of Dr. King and beyond, but in so many ways we still have a long, long way to go.
Given the level of dog-whistle discussion on immigration, on crime, and on any number of other issues in the political arena and on talk radio in this country, no one should have any doubt that racial and ethnic discrimination is alive and well.
As a woman, especially one who has worked in some fairly male-centric environments in her day, I’m certainly well aware of the sort of blatant sexism that can derail or sideline someone solely because of gender, with nothing to do with talent or ability. Sometimes, that can work in your favor — underestimation can be a potent advantage if you work it correctly in a courtroom — but all too often it can sneak up on you, and you find out by chance that you’ve been shortchanged your whole working life.
Which is exactly what happened to Lilly Ledbetter, who is one of the people featured in the film "Supreme Injustices" above. (More on the Ledbetter case here and here.) Watch the film, meet Lilly…and realize that her story could be yours. Or someone you know and love.
Civil rights laws were put into place precisely to even the field, to put the much less powerful in a place to challenge decisions which were made on the basis of power and differences: the color of someone’s skin, their age, their gender, their disability, who they happen to love, whatever might make an individual stand out for a reason that has nothing at all to do with how they might do their job. Or learn in school. Or whatever it is that they might dream of doing…but are blocked from achieving because of their difference.
"Equal justice under the law" should not simply be a phrase. It ought to be a guiding principle. In the film, Lilly Ledbetter says that she felt if she had a problem that needed to be addressed, that she could take it to the courts and get a fair hearing. But did she?
Our political decisions impact the composition of the federal courts — because the judges who are appointed to a lifetime on the federal bench are selected for appointment by the President. One of the many important reasons to be involved in the political process is to help select a President who will take on that duty with a commitment to justice and fairness, and not simply as a plum reward position for political cronies.
The law is never simply a straight line. If it were, Brown v. Bd. of Education would never have been successful, and separate but equal would not have been struck down. We evolve, thankfully, and as we do the laws ought to change to our better understanding.
It is when the laws take a change backward toward past practices that questions arise as to why that has happened — especially where the rationale for such a decision is as opaque as that in Ledbetter v. Goodyear. Where you have applicability across a wide range of civil rights laws — as you do with Ledbetter — a clear spelling out of the reasons that there is such an abrupt deviation from the accepted stare decisis in that area would have been helpful, if not expected. Unfortunately, it was not forthcoming from the Roberts Court. (See footnote 10 of the majority opinion on the discovery issue to see what I mean by opaque.)
But there is also a third branch of government involved in this process: the legislative branch. The House has already passed the Lilly Ledbetter Act to correct the decision from the Roberts court. From Rep. George Miller, the chief sponsor:
"With this vote, the House reaffirmed its commitment to America’s promise of fair and equal treatment for all people, and repudiated the Supreme Court’s ruling that made it easier for employers to discriminate against their workers," said Rep. George Miller (D-CA), chairman of the committee. “This issue is as basic as it gets. You should not be paid less because you are a woman. You should not be paid less because of the color of your skin or your religious beliefs. The Supreme Court has tried to roll back the clock on this issue of basic fairness, but Congress will not stand for it."
The Lilly Ledbetter Fair Pay Act would clarify that every paycheck or other compensation resulting, in whole or in part, from an earlier discriminatory pay decision constitutes a violation of the Civil Rights Act. As long as workers file their charges within 180 days of a discriminatory paycheck, their charges would be considered timely. This was the law prior to the Supreme Court’s May 2007 decision.
This act would apply across the board to discrimination based on "race, sex, color, national origin, religion, age, or disability." The full House passed this on July 31st, 2007, and the Senate is currently working on matching legislation (S. 1843) spearheaded by Sen. Ted Kennedy and a number of others as well. (Long-time readers will note that we had Sen. Clinton on last year to talk about this legislation.) Additionally, Sen. Kennedy along with Rep. John Lewis have introduced new civil rights legislation to strengthen accountability for discrimination.
Where does this apply to you? Two ways:
Some day, you may be a victim of discrimination: some of us are people of color, or women, or disabled…but we all get older every day, and age discrimination is also a growing problem in terms of termination from employment and other issues. Also, you vote, and when you cast your ballot, something to keep in mind is that the person receiving your vote may either be a president who will appoint judges to sit on the federal bench, or they may be a Senator who will "advise and consent" on that appointment prospect. Or pass legislation to quash the overruling of a law that the court has recently struck down.
Whatever the case may be, our daily lives are filled with moments where a decision from a court somewhere along the line has made a difference. And our political decisions today can make an enormous difference in who will sit on those courts making decisions for the generations that follow. We need to choose more wisely. And to begin that process, we should discuss how to do just that.
Part I of Supreme Injustices is embedded at the top. Part II at the bottom left. For those needing other formats, Alliance for Justice has Windows and Quicktime available here.
Please welcome Nan Aron, president of AfJ, and some other folks from the Alliance for Justice, who put together the film we are seeing today. And also welcome Deborah Vagins, Policy Counsel for Civil Rights and Civil Liberties at the ACLU.