Justice O’Connor To Retire: What Does it Mean for Workers?

Last Friday, U.S. Supreme Court Justice Sandra Day O’Connor turned an otherwise ho-hum holiday news weekend into a firestorm of analysis and strategizing, when she announced her retirement from the Court. Until a new justice is seated on the Court, Americans can expect a barrage of information and speculation about a new candidate and his or her potential impact on the Court, as compared to Justice O’Connor. It is also likely that we will see a partisan battle waged that’s nearly equivalent to a presidential election in nature, with so much at stake for everyone involved in the debate. Why should workers care about all of this? An analysis of some of Justice O’Connor’s decisions holds the key.

Until Friday, the speculation about retiring Supreme Court justices had focused primarily on Chief Justice William Rehnquist. At the beginning of last week, when the Court had concluded its term for the year, many expected the Chief Justice to announce his retirement. (See Los Angeles Times article.) Chief Justice Rehnquist missed several months of the term while undergoing treatment for thyroid cancer, and some believed his health status would force him to retire. Chief Justice Rehnquist has the last laugh, for now, as the attention has been deflected to his soon-to-be former colleague, fellow Arizonian O’Connor (who he briefly dated while at Stanford Law School). (See Washington Post article.)

O’Connor’s statement was simple and brief:

Dear President Bush:

This is to inform you of my decision to retire from my position as an associate justice of the Supreme Court of the United States, effective upon the nomination and confirmation of my successor. It has been a great privilege indeed to have served as a member of the court for 24 terms. I will leave it with enormous respect for the integrity of the court and its role under our constitutional structure.


Sandra Day O’Connor

(See SCOTUS Blog posting of July 1.) The news instantly jolted Washington into awareness. Suddenly all the groups who had begun to cautiously relax when the logical point for a Rehnquist resignation announcement had seemingly passed were gearing up for a different battle than expected. (See Bloomberg article.)

The rest of the summer is likely to be filled with news of the confirmation, and the battle that is likely to ensue no matter who is selected to fill O’Connor’s spot. But is this a battle mostly for inside-the-Beltway insiders? After all, the American people do not get to vote on who the next justice will be: that task is left to the U.S. Senate. Given the intense battles over judicial nominations that we’ve already seen in the Senate this past year alone, a cynic might question whether there are any Senators left with open minds, or whether the reaction to any nominee will be merely a partisan, knee-jerk response, designed to either support or embarrass the President, depending on which side you’re on.

Whatever happens, its clear that workers have something at stake. Some have characterized O’Connor’s decision-making philosophy as “pro-business,” and they’re not wrong: she voted to cut punitive damages, curb class-action lawsuits and enforce arbitration agreements against consumers. (See Bloomberg article.) She is considered so business-friendly, in fact, that so-called “business conservatives” (as opposed to “social conservatives” whose top priorities include abortion and gay marriage) fear that her replacement might not be as good for business interests.

Nonetheless, the first woman appointed to the Court has shown considerable sensitivity to the interests of women and minorities, which often reach the court in the guise of discrimination cases. Here’s a flavor of some of her more notable employment decisions:

A discriminatorily abusive work environment, even one that does not seriously affect employees’ psychological well being, can and often will detract from employees’ job performance, discourage employees from remaining on the job, or keep them from advancing in their careers. Moreover, even without regard to these tangible effects, the very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their race, gender, religion, or national origin offends Title VII’s broad rule of workplace equality.

Harris v. Forklift Sys. (92-1168), 510 U.S. 17 (1993).

Proof that the defendant’s explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive. In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose. Such an inference is consistent with the general principle of evidence law that the factfinder is entitled to consider a party’s dishonesty about a material fact as “affirmative evidence of guilt.” Moreover, once the employer’s justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision. Thus, a plaintiff’s prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.

Reeves v. Sanderson Plumbing Products, Inc. (99-536) 530 U.S. 133 (2000) (citations omitted.)

If recipients were permitted to retaliate freely, individuals who witness discrimination would be loathe to report it, and all manner of Title IX violations might go unremedied as a result. Reporting incidents of discrimination is integral to Title IX enforcement and would be discouraged if retaliation against those who report went unpunished. Indeed, if retaliation were not prohibited, Title IX’s enforcement scheme would unravel.

Jackson v. Birmingham Board of Educ. (02-1672) 309 F.3d 1333 (2005) (citations omitted)

For this reason, the diffusion of knowledge and opportunity through public institutions of higher education must be accessible to all individuals regardless of race or ethnicity….Effective participation by members of all racial and ethnic groups in the civic life of our Nation is essential if the dream of one Nation, indivisible, is to be realized.

Grutter v. Bollinger (02-241) 539 U.S. 309 (2003). , affirmed.

She has written several other decisions under Title IX that have addressed harassment in a school setting (See Davis v. Monroe County Board of Educ. (1999) and Gebser v. Lago Vista, 524 U.S. 274 (1998)), and has been part of other key 5-4 majorities protecting civil rights. (See, e.g., Tennessee v. Lane (2004) (disability access to courts).

Her jurisprudence is not completely exemplary on all forms of discrimination: when it comes to age, in particular, her opinions leave some to be desired.

Moreover, the Wirtz Report correctly concluded that–unlike the classifications protected by Title VII–there often is a correlation between an individual’s age and her ability to perform a job. That is to be expected, for “physical ability generally declines with age,” and in some cases, so does mental capacity. Perhaps more importantly, advances in technology and increasing access to formal education often leave older workers at a competitive disadvantage vis-a-vis younger workers.

Smith v. City of Jackson (03-1160) (2005) (concurring in the judgment, citations omitted). See also Hazen Paper v. Biggens, (91-1600), 507 U.S. 604 (1993).

When the employer’s decision is wholly motivated by factors other than age, the problem of inaccurate and stigmatizing stereotypes disappears. This is true even if the motivating factor is correlated with age, as pension status typically is….The decision would not be the result of an inaccurate and denigrating generalization about age, but would rather represent an accurate judgment about the employee–that he indeed is “close to vesting.”

However, as many are now arguing, we could do a lot worse than the judicial pragmatism Justice O’Connor exemplified. (See, for example, Alliance for Justice statement.) We can only hope that whoever is appointed will be in her mold, and not further roll back the rights of disadvantaged workers.

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Madeline Messa

Madeline Messa is a 3L at Syracuse University College of Law. She graduated from Penn State with a degree in journalism. With her legal research and writing for Workplace Fairness, she strives to equip people with the information they need to be their own best advocate.