Today, the Supreme Court heard the first arguments of the 2012-13 Term. A number of cases that the Court will review this Term could have a significant impact on women’s legal rights.
This Term, the Court’s review of affirmative action policies in state university admissions presents a troubling opportunity to turn back the clock, particularly given that Justice O’Connor, a key vote in the Court’s 2003 decision upholding affirmative action in admissions (and its author), has since left the Court. In Fisher v. University of Texas at Austin, the Fifth Circuit ruled that the University of Texas’s undergraduate admissions policy, which uses race as one of multiple factors in making admissions decisions, was constitutional under the Supreme Court’s aforementioned 2003 decision in Grutter v. Bollinger. Affirmative action policies intended to promote not only racial but also gender diversity are particularly necessary in vocational and higher education—for example, by eliminating barriers to women’s entrance into historically male-dominated fields, such as engineering and computer science. The Center submitted an amicus brief in support of the University of Texas, explaining that an educational experience in a diverse community of learners can dispel both race and gender stereotypes, which are often intertwined, and that this diversity is essential to preparing students to succeed as leaders in communities and businesses. Fisher will be argued next Wednesday.
In addition, women’s advocates are closely watching cases interpreting the Court’s prior precedents on protections against sexual harassment and raising issues related to class action litigation; given the success of corporate interests before the Court to the detriment of individual rights, during Chief Justice Roberts’ tenure, these cases bear close scrutiny. In Vance v. Ball State, the Supreme Court this Term will tackle the question of whether an employer can be vicariously liable for harassment by a plaintiff’s immediate or day-to-day supervisor, as opposed to a supervisor who has the ability to hire and fire her. This case provides a critical opportunity for the Supreme Court to clarify the scope of Title VII’s protections for women and minorities who face harassment on the job, which remains a problem of enormous scope – for example, one recent study indicated that over a quarter of female doctors have experienced harassment by a supervisor. It is set for argument in November.
Class actions and collective actions are important tools for women workers seeking to enforce their rights, because when workers stand together, they do not face the same risk of retaliation from their employer, are less burdened by the costs of litigation, and are more able to obtain legal representation. But in 2011, the Court made it significantly more difficult for workers to band together as a group to challenge discriminatory actions by their employers with its ruling in Walmart v. Dukes. This Term, the Court will hear the case of Comcast v. Behrend in November. The question presented in Comcast is whether the district court may certify a class action without resolving whether the plaintiff class has introduced admissible evidence, including expert testimony, to show that damages may be awarded on a class-wide basis. The Court will also consider issues related to class actions in Genesis Healthcare Corp v. Symczyk. In this case, which will be heard in December, the Court will address whether a defendant can stop a collective action (the vehicle by which employees can litigate as a group under the Fair Labor Standards Act, the Equal Pay Act, and the Age Discrimination in Employment Act) in its tracks by offering to fully satisfy the claims of the named plaintiff in a putative collective action under the Fair Labor Standards Act (FLSA) before other plaintiffs have opted in. These cases are important for workers—especially women—who wish to sue their employers as a class. Depending on how the Supreme Court rules in these cases, additional hurdles may confront workers seeking to litigate their claims, but for whom bringing lawsuits as individuals is impracticable.
Finally, in addition to the cases that the Court has already decided to review, the Court is considering whether to hear cases challenging the constitutionality of Section 5 of the Voting Rights Act and cases implicating marriage equality, both of which have the potential to affect women in profound ways.
With all of the potential blockbusters before the Court as this term begins, significant questions remain about the ramifications of last Term’s final decision, the Court’s 5-4 split in National Federation of Independent Business, et al v. Sebelius, which largely upheld the constitutionality of the Affordable Care Act (ACA). It remains to be seen whether that decision nevertheless opened the door to new constitutional challenges to important social programs predicated on the portion of the Court’s decision permitting states to refuse to participate in the expansion of the Medicaid program set out in the ACA.
The decisions of the Supreme Court will have a profound, and lasting, impact on the women of this nation for generations to come. Women will be watching the decisions that the Court will make during the 2012-2013 term. For more information, and for links to amicus briefs that the National Women’s Law Center has written or joined, click here.