This week, the biggest show in town (Washington, DC, that is, and perhaps the rest of the country too) is the hearings on Samuel Alito’s nomination to be a Supreme Court justice. Senators purport to be hanging on every word Alito says in the hearings to divine whether he will make an appropriate Supreme Court justice. Whether that’s true, or whether instead, most senators minds are pretty much made up, it’s hard to put that much stock in Alito’s testimony at the hearings, when we have so much evidence of his views from his published opinions over his last fifteen years as a federal judge. And that’s not good news for workers, regardless of what Judge Alito says this week.
Our sister organization, the National Employment Lawyers Association, has joined a wide array of over 50 progressive organizations in opposing Alito’s confirmation: strongly opposing, in NELA’s case, as NELA’s “extensive review of Judge Alito’s employment rulings raises serious concerns about whether he will place the interest of employers over the rights of employees.” (See NELA Press Release.) [Since this blog post was initially written, NELA has also issued a report on Alito’s testimony, Judge Samuel Alito’s Testimony About Workplace Rights, which concludes, “Judge Alito’s testimony concerning his earlier rulings in employment cases frequently contained exaggerations, if not outright misstatements, that tended to obscure his record of decisions in employment discrimination cases.”]
NELA joins general advocacy groups involved in judicial nominations such as the Alliance for Justice, Leadership Conference for Civil Rights, and People for the American Way, workers rights organizations such as the AFL-CIO and American Rights at Work, as well as groups representing specific constituencies, such as the National Women’s Law Center, the National Partnership for Women & Families, the Human Rights Campaign, and the Mexican American Legal Defense & Education Fund, among others, in opposing Alito’s nomination.
If you’ve followed judicial nominations battles before, you might not be surprised by the opposition of all these groups. Those supporting Alito’s nomination would call them the “usual suspects,” when it comes to opposing this Administration’s nominees. But you might be surprised just how many times Judge Alito has had the opportunity to rule in favor of workers, and just how scrupulously he has avoided doing so. Judge Alito’s few opinions that are favorable to victims of employment discrimination are limited to certain kinds of cases involving religious and disability discrimination. However, in the rest of his opinions, he has made it almost impossible for workers to prove they were discriminated against, by ignoring persistent racial and gender stereotyping that still exists in the workplace, and by showing deference to employers’ explanations, rather than letting juries decide whether a particular employer discriminated.
While many examples abound, here are just a few:
Direct Evidence of Age Bias: In the case of Keller v. ORIX Credit Alliance, a 50-year-old executive was told by the company’s CEO that “If you are getting too old for the job, maybe you should go hire one or two young bankers.” This was several months after the plaintiff had been rejected as the company’s chief operating officer, and only five months before the CEO initially decided to terminate him. Judge Alito wrote for the majority that while a jury could infer discrimination from this comment, it alone wasn’t enough to prove a discriminatory motive, referring to the passage of several months before the decision to terminate the plaintiff. He ultimately ruled that no reasonable jury could find that the worker was fired due to age discrimination. We have to ask: if this isn’t enough, what would be enough to show the CEO was biased against older workers?
Excluding Evidence of Discrimination: In Glass v. Philadelphia Electric Co., although the majority of Judge Alito’s colleagues on the Third Circuit Court of Appeals found that a lower court had erred in excluding evidence of racial harassment which prevented plaintiff from telling his side of the story, Alito disagreed. The plaintiff had not been allowed to present evidence that his allegedly poor work performance earlier in his career, on which his employer justified its decision not to promote him, was the result of racial harassment to which he was subjected in that job assignment. According to Judge Alito, including the evidence would prejudice the employer at trial more than it would contribute to helping the jury to determine what happened. Heaven forbid that a jury might have enough evidence that would allow them to hold an employer responsible for discrimination!
Ignoring Gender Stereotyping in Allowing States to Discriminate: In Chittister v. Dep’t of Community & Economic Development, Judge Alito ruled that Congress did not have the authority to hold states responsible for violating the Family & Medical Leave Act (FMLA). A state worker who was fired while on leave sued his employer, a state agency. For Congress to pass anti-discrimination laws binding state agencies, the laws must be for the purpose of remedying unconstitutional conduct, such as sex discrimination. Although the U.S. Supreme Court, in an opinion written by former Chief Justice William H. Rehnquist (Nevada Dept. of Human Resources v. Hibbs) found that there was a sufficient history of unconstitutional sex discrimination to warrant the applicability of the FMLA to state agencies, not so for Judge Alito. Judge Alito wrote, “Notably absent [from the FMLA] is any finding concerning the existence, much less the prevalence, in public employment of personal sick leave practices that amounted to intentional gender discrimination in violation of the Equal Protection Clause.” Contrast this to what Chief Justice Rehnquist (hardly known for being a flaming liberal) had to say: “the States’ record of unconstitutional participation in, and fostering of, gender-based discrimination in the administration of leave benefits is weighty enough to justify the enactment of [legislation such as the FMLA].”
While all will be eagerly watching to see if Judge Alito disavows some of these opinions (assuming he is aggressively questioned on employment discrimination issues), will you believe what he says now, attempting to convince the U.S. Senate that he was worthy of sitting on the Supreme Court, or what he has said throughout his legal career? If you believe his past actions speak louder than any words he carefully chooses in this week’s hearings, then take action now to oppose Judge Alito’s nomination.
Take Action Now: Oppose the Supreme Court Nomination of Samuel Alito