Archive for the ‘Rights’ Category

Is the Health Care Reform Act a Civil Rights Act?

Written by Rebecca Zietlow on March 23rd, 2010

59971869Should we consider the health care reform act, which President Obama signed into law today to be a civil rights act? There is good reason to do so. Though the Act is far from perfect, it does represent a commitment by Congress to expand access to a fundamental human right. Article 25 of the Universal Declaration of Human Rights states that “Everyone has the right to a standard of living adequate for the health and well being of himself and his family, including . . . medical care.” Martin Luther King called access to medical care a civil right. Though our Constitution does not include a right to health care (or any other substantive economic rights), it does give Congress the authority to create such rights. And, in a speech after the passage of the Act, House Speaker Nancy Pelosi invoked the Declaration of Independence’s statement that all people are guaranteed a right to “life, liberty and the pursuit of happiness.” Before the vote, Pelosi and other congressional leaders marched through protesters hurling racial epithets, an act that self-consciously harkened back to civil rights demonstrations of the past. The Act falls within the tradition of Congress enforcing the rights of social citizenship – economic rights that are essential preconditions to one’s ability to exercise other civil and political rights.

Strangely, opponents of the Act also think the Health Care Reform Act is a civil rights act, and argue that this is a reason to oppose it. In February, Rush Limbaugh called the Act a “civil rights act,” a “reparations” bill which people should oppose. Last week, Newt Gingrich compared the Act to the 1964 Civil Rights Act, arguing that Obama’s support of the Health Care Reform Act would wreck the Demcratic party like Lyndon Johnson’s support of the 1964 Act did.

How ironic! I have always thought of the passage of the 1964 Civil Rights Act as one of the great moments in American history. I also thought that as a society we had achieved a consensus that civil rights were a good thing. What could Gingrich possibly mean by his critique? Johnson was re-elected by a landslide in the fall of 1964, and he relied on that mandate to push through the Medicare Act and the 1965 Voting Rights Act the next year. When Gingrich says the 1964 Act wrecked the Democratic party, could he be referring to the fact that after passage of the Civil Rights Act, many of the pro-segregationist southern Democrats became Republican, eventually turning the South from a solid Democratic block to the solid Republican block we have today?

If so, why would Gingrich want to remind us of the southern Republican party’s roots in segregationism and racism? It’s hard not to see a connection between Limbaugh and Gingrich’s remarks and the racial slurs hurled by protestors against the African American and Latino members of Congress on Sunday. Like Congress’ tradition of expanding human rights in acts like the 1964 Civil Rights Act, the Social Security Act and the Medicare Act, there is an equally strong tradition of using race baiting as a tactic in American politics. One of the vestiges of segregation in our society is the racial disparity that still exists in our health care system. If this act helps to remedy this disparity, then it truly is a civil rights act.

Health Care – Now?

Written by Rebecca Zietlow on September 10th, 2009

It’s been quite a week. I watched folks marching in the Labor Day parade carrying “Health Care Now” signs, and heard an enthusiastic crowd member call out, “Health care yesterday!” I talked to tmpphpzd3xO3my friend whose husband lost his job about her difficult decision about whether or not to take her son to the doctor for an ear infection since it would cost over $100. I think of my friend who was just diagnosed with cancer. Thank goodness she has health insurance – I can’t bear to think of her having to forego treatment, as so many have who can’t afford it and lack the insurance to pay for it. I think of my friend with the severely disabled daughter who can’t move because after years, she finally got her daughter on state supported health care. I think, maybe relief is finally here for her and the 46 million uninsured in this country.

Yesterday, President Obama said that health care reform is not just an economic issue, it’s a moral issue. I agree. Why do the people who suffer bad luck such as loss of job or severe illness then have the further bad luck of not being able to afford health care? It’s just not fair, and it’s not in this way in any other advanced industrialized nation. Health Care (Reform) Now? I sure hope that it will be here soon.

The End of “an End of an Era”

Written by Rebecca Zietlow on September 3rd, 2009

As I watched Ted Kennedy’s funeral and listened to the coverage of his life and death last week, I heard the phrase “the end of an era” so many times, it convinced me that people should stop using the term “the end of an era.” What does an “era” mean? According to the Oxford English dictionary, an “era” is defined as “a system of chronology reckoning from a noteworthy event.” Perhaps the commentators mean their observation to refer to the era beginning with the birth of Joseph Kennedy Sr.’s children. True, a genertion of Kennedy brothers had passed away now, ending the era of that generation of the Kennedy brothers. True, many of us (including myself, born the year that Ted Kennedy entered the Senate) cannot remember a time when Ted Kennedy was not in the Senate. True, thousands of liberals in America can no longer count on Senator Ted Kennedy to always speak for us in the Senate, and never apologize for being liberal. But what is the point of calling this an “era?’ What more do we learn from this phraseology?

Perhaps those who called Ted Kennedy’s death “the end of an era” intend announce the end of liberalism in America that was most prevalent in the 1960s but lingered until Ted Kennedy’s death. If thatmpphpH7AOUT[1]t is the case, then I must, most emphatically, object, not only to the phrasing but to the sentiment behind the phrase. There remains a strong progressive tradition in the Democratic party, shared by many members of he general public who dop not affiliate themselves with that party. The progressive tradition was most recently re-affirmed by the election of President Obama (with Ted Kennedy’s crucial support) and his numerous Demcratic colleagues in Congress. It is reaffirmed in the polls that show that despite months of the healthcare industry spending over a million dollars a day to fight health care reform, the American public still strongly supports it, and still demands a change to our health care system. So, let’s put an end to this talk about “the end of an era” and concentrate on what we need now. There’s never an end of the era of need for the poor and middle class folks in this country who demand health care reform.

Referenda on the Rights(?) of Others

Written by Henry L. Chambers, Jr. on June 17th, 2009

In a ruling a few days ago, election officials in Washington, D.C. decided that a referendum on whether the District of Columbia could recognize the marriages of same-sex couples who were legally married in another jurisdiction could not occur.  The officials determined that allowing a referendum on the issue would itself authorize discrimination that the D.C. human rights law forbids.  Not tmpphpxy9y7i1.jpgsurprisingly, the referendum’s backers were not happy.  This issue is a variation on the question of whether a majority can vote to take away the rights of a minority.  The answer to that question is, obviously, no.  However, the answer begs the question of whether the subject of the referendum really is a right of the minority. Whether having one’s valid marriage from one state validated in another state is a right protected by a D.C. statute is the crux of the issue.  Though the supporters of the referendum argue that the determination of that issue ought to go to the voters, there is little reason to agree.  The majoritarian impulse to use 51% (or more) support for an issue to get that issue resolved in one’s favor is strong, but is sometimes wrong.  Majoritarian impulses can be used to deal with a great many important issues.  However, they cannot be used to deal with all of them.  The initial determination of whether a right exists or can be abolished by referendum is a task best left to that most non-majoritarian of bodies – the courts.  Given that the supporters of the referendum have vowed court action, that is just where the issue will be resolved.

Sotomayor and Race

Written by Rebecca Zietlow on June 4th, 2009

Given the years of virulent racism that minorities in our country have faced throughout our history, it is a bit shocking to see right wingers like Newt Gingrich and Rush Limbaugh accuse Suprefinal-4.jpgme Court nominee Sonia Sotomayor, the first Hispanic ever nominated to that Court, of being a “racist,” based solely on one remark that she made in a speech seven years ago.   On this subject, I highly recommend Charles Blow’s recent New York Times editorial, “Rogues, Robes and Racists.”   As Blow notes, there is no evidence in Sotomayor’s life, legal career or judicial record of her ever acting like a racist.  Blow contrasts Sotomayor’s record with that of Chief Justice John Roberts, who was reported by Newsday magazine to have made racist and sexist jokes while working in the White House for the President Reagan.  What is most significant is that Roberts didn’t just talk the talk, he has spent his entire career walking the walk, working to roll back the civil rights gains of women and minorities from the 1960s and 1970s.  As Bobby notes below, quoting Jeffrey Toobin, Roberts has continued this pattern as Chief Justice, ruling against criminal defendants, non-white civil rights plaintiffs (he ruled in favor of the white plaintiff challenging the use of race to avoid the re-segregation of Seattle public schools) and plaintiffs suing corporations.  Does that mean Roberts is a racist?  Not necessarily, but as Blow observes, there is a heck of a lot more evidence of his racism than there is of Sotomayor’s.

Blow’s editorial is so powerful and eloquent that I really don’t have much to add.  What I can add, however, is a bit of context to the speech that has gotten Sotomayor into so much hot water.  In a speech during a symposium on Latino judges, hosted by La Raza Law Journal, Judge Sotomayor said that “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”  Why would Sotomayor say such a thing?  It is clear from reading her speech that Sotomayor was asked to comment on how her experience as a Latina woman colors her perception of issues on the bench.  This subject is understandable given the Critical Race Theory roots of the La Raza publication that hosted Sotomayor’s speech.  At the risk of over-simplification, one theme of critical race theory is questioning the assumption that law is neutral and un-biased, and examining the ways in which our laws reinforce the existing power structures in our society, including the privileging of the concerns of white people, men, and the rich.

I have no idea what Sotomayor thinks about critical race theory, but it is clear from her speech that she is responding to this CRT critique of the law.  In her speech, Sotomayor describes her personal experiences as a “NewYorkrican” and acknowledges that these experiences have an effect on how she sees the world.  But in a much less quoted remark at the end of the speech, Sotomayor goes on to observe, “I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires.”  That’s the most we can hope for from any judge, and Sotomayor’s judicial record reflects the fact that she has been pretty successful at it.

In his majority opinion striking down two local school districts’ attempts to use race as one factor in school assignments in order to reduce racial stratification in the public schools, Justice Roberts famously noted, “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”  I agree with Roberts’ sentiment, but I also agree with the Critical Race Theorist view that race discrimination is more complicated than Roberts’ remarks suggests – that we are all affected by unconscious bias.  Given the choice between Roberts’ overly simplistic remark and Sotomayor’s sophisticated evaluation, and the choice between their records on racial issues, I prefer Sotomayor.

Is Obama Proposing Preventive Detention?

Written by Robert Justin Lipkin on May 22nd, 2009

Preventive detention is incarcerating someone considered too dangerous to be permitted walk freely in Ameff.jpgrican society. Such an individual cannot be tried either because he or she has not committed a crime or because for one reason or other they cannot be convicted in a court of law. The reason for incarcerating such villains is to protect the innocent. This is clearly a noble and righteous goal that any responsible government should pursue. There’s only one problem. Indefinitely incarcerating someone whose not been convicted of a crime is anathema to American constitutionalism, fundamental American rights and values, and the rule of law.  It’s precisely the sort of practice that is arbitrary, tyrannical, and intolerable in any constitutional democracy worth the name. Moreover, it’s the sort of practice President Obama campaigned against. So can the president now be contemplating instituting a practice that was one of the central elements in the Bush administration’s lawless regime?  Consider Obama’s remarks from his May 21st speech:

I am not going to release individuals who endanger the American people. Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture — like other prisoners of war — must be prevented from attacking us again. Having said that, we must recognize that these detention policies cannot be unbounded. They can’t be based simply on what I or the executive branch decide alone. That’s why my administration has begun to reshape the standards that apply to ensure that they are in line with the rule of law. We must have clear, defensible, and lawful standards for those who fall into this category. We must have fair procedures so that we don’t make mistakes. We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified.

I know that creating such a system poses unique challenges. And other countries have grappled with this question; now, so must we. But I want to be very clear that our goal is to construct a legitimate legal framework for the remaining Guantanamo detainees that cannot be transferred. Our goal is not to avoid a legitimate legal framework. In our constitutional system, prolonged detention should not be the decision of any one man. If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight. And so, going forward, my administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.

It’s difficult to see how any of these standards designed to create a system of prolonged (aka preventive) detention can conceivably comport with the rule of law. Perhaps the president has deluded himself into believing that it’s possible to construct “an appropriate legal regime” that enables us to transform preventive detention into a constitutionally permissible practice. But it can’t be done. No matter what “safeguards” are conscientiously put in place in such a legal regime when you put lipstick on a pig, to borrow from the campaign rhetoric used by both sides of the electoral contest, you still have a pig. All the clever contrivances designed to make preventive detention appear benign and consistent with the underlying reasons for launching the American republic in the first place will fail and with it the constitutionally grounded hope Obama had promised the American people.”Yes, we can” didn’t stand for “yes, we can violate the Constitution.” Did it?

Barack Obama and Post-Equal Protection Equality

Written by Rebecca Zietlow on February 5th, 2009

Much has been said about the relationship between Barack Obama and former civil rights leaders.  On the one hand, the inauguration was full of parallels between Obama and Martin Luther King.  Obama was said to have realized tmpphpw3ebwl1.jpgthe dream that King spoke about in the 1963 March on Washington.  Without the efforts of Dr. King and the movement that he led, Barack Obama would probably not have had the opportunity to become President.  However, as Prof. Hank Chambers has pointed in an earlier post, there is a danger that the election of a Black man as President will cause many to believe that Blacks as a whole have achieved equality in our society.  There are many indicators that that is not the case.  The chief indicator is that Blacks are still significantly poorer than whites.  Hence, it is understandable that some in the older generation of civil rights leaders are uncomfortable with Obama’s emphasis on unity, downplaying the racial differences that still plague our society.

I have been thinking a lot about this issue as I consider the possibility of a post-Equal Protection vision of equality in constitutional law.  By its very nature, the Equal Protection Clause requires the comparison of groups of people, including racial groups, to determine whether they are being treated equally.  This vision of racial equality is the basis of most of our civil rights law, including both Court rulings and most civil rights statutes enacted by Congress during the Twentieth Century.  Equal Protection based civil rights have been the basis of significant accomplishments of minorities and women in our society.  However, our equal protection based equality law is flawed because it assumes that people start at the same place.  Women and members of racial and ethnic minority groups are entitled to nothing more than equal treatment, regardless of the fact that centuries of discrimination mean that we simply don’t start all at the same place.

A post-Equal Protection vision of equality focuses not on comparing groups of people, not on conflicts between racial groups, but on the substantive rights to which we are all entitled.  In a very real sense, this was the vision of equality of the Reconstruction Congress.  Their landmark 1866 Civil Rights Act, which preceded the Fourteenth Amendment, required that all people be entitled to the same rights as white citizens, and listed some of those rights, including the right to engage in the economy that slaves had lacked.  These members of Congress also empowered themselves to create more substantive rights which would enable freed slaves to live as fully integrated members of our society.  Future members of Congress could determine which substantive rights would be necessary to fulfill this vision.

Several generations later, during another time of crisis, the New Deal Congress relied on a substantive vision of equality as they enacted legislation creating economic rights such as the right to organize into a union, the right to unemployment benefits, and the right to economic security if one retired or became disabled.  Unfortunately, African Americans were largely excluded from this promise of economic security because the jobs that most of them performed at the time, domestic and agricultural labor, were not covered by these statutes.   Since then, many African Americans have benefited from the right to organize, and from the safety net that the New Deal Congress enacted.  However, the lack of New Deal economic rights also contributed significantly to the lack of economic progress of African Americans as, thanks to the Civil Rights movement, they emerged from the Jim Crow South’s system of racial apartheid.

We’ve come a long way towards realizing equality in our society, but wtmpphpp6uijs1.jpge still have a long way to go.  What we need now is a post-Equal Protection vision of equality, a vision based on substantive economic rights for all.  Which brings me back to President Obama.  There are early indications that Obama believes that equality, including racial equality, will come from economic empowerment.  Last week, the Obama administration announced a project to revive the middle class.  One of the President’s first economic measures was to revive the labor movement by rescinding restrictions on unions.  Obama has said that he believes that unions are part of the solution to our economic crisis.  His administration is also working to create new jobs that should be available to all.  Government employment has been a crucial path to economic security for African Americans since the New Deal Era.  These are promising indications that the Obama will pursue a post-Equal Protection model of equality.  Obama’s presidency itself is a symbol of the progress that we have achieved thanks to the Equal Protection based civil rights movement.  If he continues to champion substantive economic rights, I am hopeful that more people of all races may be enjoy a future of full participation in our society.

The Legacy of Dr. Martin Luther King, Jr.

Written by Robert Justin Lipkin on January 19th, 2009

Racial apartheid has taken a terrible toll on African Americans by shutting them out of America’s promise.  But racism has exacted a terrible cost on all Americans. The symbol of this oppression can be best captured in the introduction to the film “Mississippi Btmpphp6mpgve.jpgurning.” The movie opens with the camera focusing on two water fountains, one marked “white,” the other marked “colored.” An adult white man approaches the white fountain and drinks and then walks off. A young African American male then approaches the colored fountain, drinks and also walks off. This metaphor has special currency in my own life. During my family’s first trip to Florida, we stopped for refreshments at a Dairy Queen in Georgia. My older sister, Julia, approached the water fountain marked “Colored,” and was about to drink when an angry white employee redirected her to the fountain marked “Whites.” My sister was thirteen, at the time, and no activist, so she refrained from drinking from the “Colored” fountain.  Nonetheless, she could not bring herself to drink from the “Whites” fountain and thus refrained from drinking at that Dairy Queen at all. An eight year old neighbor, accompanying us on our vacation, spied the “Colored” water fountain and shouted gleefully and in earnest, “Look colored water.” In retrospect, the starkness of Günnar Myrdal’s “two Americas” has no greater reality than through the conduct and words of children.

Why did this experience have such a poignant impact on me?  After all, I was just a little kid. The answer lies in the fact that I grew up in a household where racism was viewed as America’s original sin. Racism was wrong and America needed to redeem its promise by extirpating the practice once and for all.

Of course, in a few short years, the force of  Dr. King and the Civil Rights Movement was beginning to hold segregation up to the American social mirror forcing all of us to decide whether we could embrace the image that we saw. But Dr. King’s approach was not merely an exercise in civil obedience. Indeed, there exists a powerful philosophy behind his activism that needs to be articulated.

Dr. King’s non-violent civil disobedience required enormous courage and self-discipline. Dr. King recognized that individuals are not the measure of all things, but more importantly, he recognized the interconnectedness of everyone. We are community, of one sort of another, and the type of community we choose determines who we are individually. Consider:

[W]e have made of this world a neighborhood and yet we have not had the ethical commitment to make of it a brotherhood [and sisterhood]. But somehow, and in some way, we have got to do this.  We must all learn to live together as brothers [and sisters] or we will all perish together as fools. We are tied together in the single garment of destiny, caught in an inescapable network of mutuality.  And whatever affects one directly affects all indirectly.

These words bespeak the idea of community, but more than that also. King goes on to state what I think is the best statement of his conception of community.

I can never be what I ought to be until you are what you ought to be.  And you can never be what you ought to be until I am what I ought to be.

This states the thread that connects every American. It also states a dynamic process of making sure that both you and I are what we ought to be.  But most important, it seems to me, it captures the importance of deliberation and conversationalism.  We must deliberate with one another, engaging in a conversation that never ends, but continues to refine and perfect our Union. Dr. King recognized that the true spirit of the American experiment was a continued process of deliberating over what both you and I ought to be and the recognition that it is impossible for this moral “ought” to be just for whites, or just for Americans. This sense of continued community is contained in the Declaration of Independence: “all men are created equal” and Dr. King helped to make this aspiration real.

Dr. King realized the difficulty of this moral project, which is among other things, the moral project of justice and freedom. He quotes the Prophet Amos as saying “Let Justice roll down like waters in a mighty stream.” King believed that “America ha[d] made progress toward freedom, but measured against the goal the road ahead is still long and hard.”

And then came Barack Hussein Obama. In May, the University of Pennsylvania’s Journal of Law & Social Change will publish an article of mine which casts President-elect Obama’s philosophy as committed to tmpphpn0yo3h1.jpgdeliberative conversationalism, a methods for engaging in political dispute resolution. His philosophy includes endless respect for others and civil conversation.  He requires us to take one another seriously and see ourselves in others. President-elect Obama sees the need for resurrecting America’s sense of community.  Rather than adhering to weaponized reason which often devolves into an insistence that I’m right and your wrong, President-elect Obama sees commonality in our differences. The possibility that the man and his philosophy can actually change our politics and help re-create our sense of community is not a given.  It requires supporting him not by rubber-stamping his policy decisions, but rather by a continued commitment to his deliberative conversationalism. In my view, the American attempt to rid ourselves of racism begins with the Declaration of Independence, and then marches on to the Civil War amendments, Martin Luther King, Jr. and the civil rights movement, Brown, the Civil Rights Acts of 1964 and 1965, and now the Presidency of Barack Obama. While racism unfortunately still exists in our nation. We are entering a new phase that I believe will prove to be the beginning of the end of this national malady.

I am incredulous and amazed that shortly America will begin to overcome its brutal racial past by swearing in the first African American to the presidency of this great nation. But we should celebrate President Obama not only because he is African American but more importantly because of the truly extraordinary person he is. In my mind’s eye I am overwhelmingly eager to see and hear him finish his oath with the words “ . .  . so help me God,” so that the Chief Justice can say, “Congratulations Mr. President.” This is truly the legacy of Dr. King.

What’s the Constitution Got to Do With It?

Written by Rebecca Zietlow on December 11th, 2008

Admist the avalanche of bad economic news, what does the constitution have to do with it?  Abstract concepts simages3.jpguch as federalism, separation of powers, and preemption seem so insignificant when thousands of people around us are losing their jobs, their homes and their health care.  What, if anything, can the Constitution do to help our country now?  Nothing –  if by the constitution, we mean court enforcement of the constitutions provisions.  The United States Supreme Court long ago made it clear that there are no individual constitutional rights to a job, a home, or even economic subsistence.  However, the Constitution means more than just what the Court says it does.  The United States Constitution also embodies the fundamental values of our country, and as Larry Kramer argues, the “people themselves” (ourselves) have a say in interpreting those values.

During the New Deal, our country experienced what Bruce Ackeman called a “constitutional moment” as Congress and the president transformed our government.  New Deal measures expanded federal power, creating the modern administrative state and an economic safety net with programs such as Social Security, and protecting the right of workers to organize into unions and bargain collectively.   As our representatives consider such unprecedented measures as the bailout of the financial sector and the automobile industry, this may be time for another constitutional moment.

What individual rights do we believe in – the “right” of workers to compete without government protection as the automobile industry goes bankrupt, or the right of all Americans to health care?  What should the goals of members of Congress be as they regulate interstate commerce?  The growth of the economy no matter who benefits, or an economy that provides decent jobs for middle class workers?  We the people have a say in answering these questions, which are fundamental to the values, the structure and the future of our country.  Then, we must demand that our representatives implement our constitutional vision.

What’s Wrong with Anti-Discrimination Law

Written by Rebecca Zietlow on November 12th, 2008

sdn.jpgLast term in Engquist v. Oregon Department of Agriculture, the U.S. Supreme Court held that a state employee could not bring an Equal Protection claim to challenge her employer for treating her unfairly.  Anup Engquist claimed that her Equal Protection rights were violated because her employer had no rational reason for treating her poorly and constructively firing her.  Despite the fact that Engquist’s employer admitted that there was no performance related reason for demoting her, the Court held that she had no Equal Protection claim.  Engquist had relied on the Court’s recent decision in Village of Willowbrook v. Olech in which the Court had held that plaintiff could prevail in a “class of one” Equal Protection claim if she could show that the government had treated her unfairly and arbitrarily.  The Engquist Court distinguished Olech because that case involved a challenge to a city’s zoning decision.  Chief Justice Roberts explained, “There are some forms of state action . . . which by their nature involve discretionary decisionmaking.”  According to Roberts, employment related decisions fall within that category.

The Court’s ruling in Engquist is not surprising.  As Roberts pointed out, our system of employment law is based on “employment at will” – your employer can fire you for any reason, or for no reason at all.  If Anup Engquist had a cause of action, that would arguably invite courts to second guess numerous employment related decisions and could undermine our “employment at will” system.  Yet Engquist was a divided decision, and as Justice Stevens pointed out in his dissent, it is the first time that the Court has articulated such a large exception to civil rights suits based on the content of the suit.  As Stevens argued, the Court’s concern about “floodgates” is questionable because only state employers who could not give any rational reason whatsoever would be liable for suits like Engquist’s.  Engquist’s case illustrates not only the basic problem with our system of employment law, but also the most serious flaw in the Court’s Equal Protection jurisprudence.

My friend and colleague Joe Slater claims that the “employment at will” system is the cause of a number of doctrinal erros and inconsistencies in employment and labor law.  Engquist’s case well illustrates Slater’s point.  Engquist was clearly treated unfairly – her employer admitted it.  Yet under our system of employment law, she had to prove that her unfair treatment was motivated by discriminatory animus against her on the basis of one of her immutable charateristics.  Engquist originally claimed that her employer discriminated against her on the basis of race, sex and national origin.  Those claims were strong enough to get her a jury trial, but the jury wasn’t convinced that her unfair treatment was based on one of those characteristics.  Without understanding why Engquist was treated so poorly, the jury found in her favor on her “class of one” claim.  After the Supreme Court’s decision, an employee like Engquist will be completely without recourse as long as her employers conceal the reason why they fire her.

Anup Engquist’s case thus highlights one of the biggest flaws in the Court’s Equal Protection jurisprudence – the requirement that a plaintiff must show that defendant intended to discriminate based on plaintiff’s immutable characteristic in order to win a claim.  In today’s post Archie Bunker world, few supervisors openly discriminate based on race, gender or national origin.  Instead, numerous female workers, and workers of color of both genders, will simply be left to wonder, over and over, why their supervisor passed them over for the choice assignment or the promotion that they deserved, even eventually fired them, without being able to do anything about it.