Before July of this year, the Supreme Court will hand down decisions in three separate cases that together will determine what a “right” is in federal civil-rights laws. The Court will be deciding whether such laws are legal measures based on intention and the definitions of words or open-ended legislative measures designed to ensure outcomes and re-arrange society. Two of the three cases concern federal employment law, and the third deals with the making of contracts. Thus, their subjects are work and commerce, a fundamental basis of current American culture and society.
Oral arguments were heard on Wednesday of this week in the age-discrimination case of Babb v. Wilkie. The plaintiff, a pharmacist at the Department of Veteran’s Affairs, had filed suit under the federal Age Discrimination in Employment Act, a federal law that prohibits age discrimination only in the federal work force (29 USC 633a.). Unlike the related federal law which prohibits age discrimination in the private sector and state/local governments “because of” age, 29 USC 623(a), the federal workforce law states only that personnel actions shall be “made free from any discrimination based on age.”
The plaintiff, a woman over the age of 50, alleged that she was passed over for promotion and denied other employment benefits because of her age, when other pharmacists “in their 30s” received the benefits. She alleged a long list of grievances occurring over two-year period, and even though she did receive a promotion in the end, she still found herself “very upset” concerning one of the conditions of that new job. The Supreme Court certified arguments only about age discrimination, but the Babb plaintiff sweetened the pot with claims of sex discrimination as well. “Most” of those “30s” pharmacists were “male.”
Babb argued that she did not have to prove that “age” was the sole and determinative reason — that is, “but for” age she would not have been denied benefits. It was sufficient, she said, that age be only “a factor” and that the “making free”-from-discrimination language of the law required only that. The federal government, the defendant in the suit, argued that the “based on,” not the “making,” language of the law defined the required but-for intent, which is also the “common law default” rule of intentional causation.
The government cited and made a comparison with the 2013 Nassar decision, in which the Supreme Court ruled in a Title VII private-sector employment-retaliation case, that discrimination based on the lesser statutory standard of “motivating factor” still required but-for causation. The Nassar standard was essentially the same as the “making free” statutory standard of the federal public-sector age discrimination law, the government contended. In addition, the government argued that a ruling for Babb would give federal employees “greater rights” on a lesser and more easily proved standard than private-sector employees.
In Comcast v. National Association of African-American-Owned Media, argued in the Supreme Court in November, Entertainment Studios Network (ESN), an African-American corporate owner of several television networks, invoked the first federal civil-rights law, 42 U.S.C. 1981, originally enacted in 1866 — before the Fourteenth Amendment — to claim that Comcast, the telecommunications conglomerate, had racially discriminated against it by refusing to carry ESN’s networks. After extensive negotiations, Comcast had in the end declined to enter into a contract with ESN in violation, ESN asserted, of 1981’s guarantee of “the same right” as is “enjoyed by white citizens” to “make and enforce contracts.”
The case was dismissed three times in federal district court, but the Ninth Circuit, although acknowledging “the default rule” of “but-for” causation in federal civil-rights litigation, held for ESN that race needed only to have played “any role,” even if not “the sole cause,” in Comcast’s refusal to contract with ESN. The Circuit essentially ruled in that fashion because it said that 1981’s use of the phrase “same right” and its lack of any “because” or “but-for” type of language as in other civil-rights statues left open more opportunities to make a case of racial discrimination. In the Supreme Court, ESN endorsed that ruling and argued that the overall sense of 1981 allowed suits to be based on race merely as a “motivating factor.”
In disagreement, Comcast noted that Congress had made major revisions in federal civil-rights laws in 1991, including adding the statutory standard of “motivating factor” to Title VII federal-sector employment-retaliation law, but had not added a “motivating factor” as a basis for a private-sector 1981 lawsuit. And like the government in Babb, Comcast also argued that the Nassar “but-for causation” holding is the “default rule” that Congress “is presumed to have incorporated.” The Justice Department, while not a party to the suit, filed an amicus brief and was granted oral argument by the Court. The Department supported Comcast and argued for the “but-for” standard.
In Zarda and two companion cases, argued in the Supreme Court in October, the plaintiffs asked the Court to expand the term “sex” in Title VII of the Civil Rights Act of 1964 to include “sexual orientation” as a “function” of sex. All three cases involved alleged employment discrimination based on sexual orientation. The defendants were private employers, but the Justice Department requested and was granted oral argument to defend the meaning of the word “sex.” The standard rule of construction concerning the definition of legislative terms is: “Unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.” Perrin v. United States, 444 U.S. 37,42 (1979). In its enactment in 1964, Title VII did not define “sex” because it occurred to no one that sex needed defining. Proposals to include sexual orientation in Title VII have been repeatedly introduced into the Congress beginning as far back as 1974 but have never been enacted.
Two of these three cases awaiting decisions by the Supreme Court have been conceived in grandeur and even megalomania. It is proposed to have the Court enact a new Title VII sex-orientation law — that is, to legislate — about a subject that no one can claim was ever in the minds of the members of Congress who passed the original and still unchanged sex-discrimination law. How can Americans, particularly employers, be expected to know what “sexual orientation” includes, as opposed to the simple question “what are the two sexes?” And how will it continue to evolve? The former “gay” is now at least LGBT and is regularly said to include more categories. We deal here with a national employment law that applies and has daily force in that part of society, commerce and the marketplace that every American participates in. Has there ever been a similar case?
The originating civil complaint filed by ESN against Comcast had its own grand sweep. First, it sought $20 billion dollars in damages. Second, in recognition of the inconvenient fact that Comcast already carried other partially-African-American-owned networks, ESN decided to make its stand as the only “100% African American-owned” media corporation. It then alleged a conspiracy against not only the federal government’s Federal Communications Commission as a defendant and a co-conspirator but these others as named co-defendants: the NAACP, the Urban League, the National Urban League, Al Sharpton, Time-Warner Cable. Al Sharpton and the federal government in league with each other! Third, ESN took panoramic advantage of the special history of 1981, referring to “slavery” and a general “racism” and calling 1981 “an expansive statute.”
In this era of ever-increasing identity politics, three coming decisions of the Supreme Court will have a direct bearing on what was the original purpose of federal civil-rights laws: individual rather than group rights.