We knew the legal landscape for women in 2011 would be bumpy by the way it began: with Antonin Scalia, one of the Supreme Court’s most senior members, saying that women did not qualify as “persons” under the Civil Rights Act, just a few weeks after the Senate had failed, once again, to pass the Paycheck Fairness Act. Those concerned about upcoming cases knew we had to be more alert than ever.
And some of the year’s news was indeed harsh.
- In the high-profile Wal-Mart v. Dukes, Justice Scalia led the five-judge majority that ruled against the million-plus women who would otherwise have been able, as a class, to pursue redress from Wal-Mart for wage discrimination. The ruling immediately led to review of all such cases and recently to some similar “decertifications,” which may make it harder than ever for women to join forces to remedy discrimination.
- In Flores-Villar v. United States, the Court punted when asked about immigration statutes with potentially unequal effects on women, ruling 4-4 (with Justice Kagan not participating) to allow the discriminatory statute to stand. “In doing so,” stated the National Women’s Law Center, “four Justices indicated by their vote that they would not have applied the strong heightened scrutiny standard for laws that discriminate on the basis of sex established in past Supreme Court cases. For those who have assumed that such strong protection is secure, it was an ominous sign.”
Still, there was also encouraging Supreme Court news, in our first term with a fully one-third female Court. The presence of two younger women, Elena Kagan and Sonia Sotomayor, turned the usually stately court into a “hot bench,” with Sotomayor in particular being unafraid to pepper litigants with persistent questions. As for Kagan, she impressed many who’d questioned her appointment: Kagan’s work so far suggests that “she is in fact the opposite of a progressive zealot,” writes Washington Post’s Ezra Klein. “By the end of Kagan’s first term, conservatives like former Bush solicitor general Paul Clement (who will likely argue against the health-care law this coming spring) and Chief Justice John Roberts were giving Kagan high marks.” While the center of the court is still Scalia, Chief Justice John Roberts, and Justice Anthony Kennedy, “The addition of Justices Sotomayor and Kagan has brought two fresh voices and new perspectives,” Irv Gornstein of Georgetown University Law School told USA Today.
Beyond the Court, some of the year’s highlights were better news.
- The Equal Rights Amendment, once championed by First Lady Betty Ford and long left for dead, has been revived in Congress with an unusually diverse set of co-sponsors, and new coalitions like United4Equality are developing innovative plans to secure ratification by 2015. Stay tuned.
- Even with its inconclusive ending, the legal response to Nassifatou Diallo’s assault charges against IMF director Dominique Strauss-Kahn was a pioneering example of a woman being taken seriously when up against a powerful man. It stunned three countries, ended Strauss-Kahn’s presidential prospects in France, and energized advocates as they remembered the trailblazing Anita Hill.
- Domestic workers, building on a historic 2010 legislation in New York State, will now receive further long-denied workplace protections, including a minimum wage and overtime provisions, under new rules published just this week by the Department of Labor under Secretary Hilda Solis. Currently, workers classified as ‘companions’ are exempt from the FLSA’s minimum wage and overtime pay requirements. When established in 1974, such exemptions were meant to apply to casual babysitters and companions for the elderly and infirm, not workers whose vocation was in-home care service, and who were responsible for their families’ support. With an aging American population, there has been increased demand for long-term in-home care, and as a result the in-home care industry has grown substantially. The proposed rule would expand minimum wage and overtime protections for the 1.79 million home-care workers employed by third parties, like staffing agencies, and would ensure that those employed by families and performing skilled in-home care work are covered. “The care provided by in-home workers is crucial to the quality of life for many families,” said Solis as she announced the changes. “The vast majority of these workers are women, many of whom serve as the primary breadwinner for their families. This proposed regulation would ensure that their work is properly classified so they receive appropriate compensation and that employers who have been treating these workers fairly are no longer at a competitive disadvantage. “
- Another perennial, the U.N. Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW), has received new oomph this year at the United Nations and by Secretary of State Clinton, whose Strategic Plan for Women, Peace and Security includes a specific push for CEDAW ratification. Last week, President Obama today also signed an executive order to mandate the implementation of a sweeping National Action Plan on Women, Peace, and Security (link leads to a pdf version). The plan stresses CEDAW as it instructs the disparate elements of the government’s foreign policy machine to proactively seek women’s engagement and women’s empowerment abroad, as a tool to advance American economic and security interests.
What’s on the horizon for 2012? It’s hard to predict legislative futures, and the Supreme Court docket is far from complete. But there are already some things we will be following.
- Coleman v. Maryland Court of Appeals. Daniel Coleman, an employee of the Maryland Court of Appeals, claims he was fired on account of his race and because he requested sick leave, in violation of Title VII and the FMLA, respectively. The lower court dismissed both claims, and the court of appeals affirmed. The Court is set to decide whether state employees can sue for damages for violations of the Family and Medical Leave Act (FMLA).
- Magner v. Gallagher. The Fair Housing Act prohibits housing discrimination on the basis of race, color, religion, sex, familial status or national origin. In Magner v. Gallagher, a group of rental-property owners in St. Paul, Minnesota, sued the city and several officials over aggressive code enforcement. At question, perhaps echoing Wal-Mart, are competing interpretations of whether policies have “disparate impact.” The question before the Court: whether rules or practices that seem neutral on their face but that have the effect of harming minorities or women can be challenged under the Fair Housing Act.
- But there’s no doubt that all eyes will be on the unprecedented five-hour argument, scheduled for June, about the numerous challenges to the national health care law, the Affordable Care Act. The Court will rule on four different questions, and if the challenges are upheld, these rulings may leave all or some of the programs currently up and running in tatters. Either way, such a major shift in health care policy cannot help but have serious implications for all of us in the Women’s Voices for Change community.
There will no doubt be surprises in at least some of the above, and wild cards yet to come. In this election year, legal issues will make more (and bigger) ripples than usual. With so much hanging in the balance, here at WVFC we’ll be watching it all. We invite you to join us.