2014 Public Policy

Carolyn Cowgill

  • This is a continuation of last month’s discussion of cases before the 2014 Supreme Court which affect women.
  • Fair Housing
  • In Mount Holly v. Mt. Holly Gardens Citizens in Action, the Court will decide an issue critical to combating segregation in housing and to ensuring all individuals—no matter their race, ethnicity, sex, disability, or status as parents—have an equal opportunity to seek a home and fair treatment in any neighborhood. In this case, a New Jersey township declared an entire community “blighted.” Residents were offered between $30,000 and $50,000 for their homes, which were to be replaced with $200,000 buildings that they could not afford to buy. While the lawsuit challenging these actions was pending, the township demolished the vast majority of these homes. The plaintiffs sued under the Fair Housing Act, arguing that the township’s behavior had a “disparate impact” on racial minorities—that it disproportionately harmed African-American and Hispanic families and did not have a necessary and manifest relationship to a legitimate, nondiscriminatory interest. 
  • The ability to challenge disparate impact housing discrimination is especially important to women in low-wage jobs and women of color, who are disproportionately affected by predatory lending practices when seeking mortgages. The disparate impact standard is also important for challenging housing discrimination against victims of domestic violence or sexual assault, who are often forced to vacate their homes when landlords impose “zero tolerance” policies for crimes committed in the home, or when jurisdictions penalize households to which police are dispatched on multiple occasions: such actions, which have the effect of doubly victimizing those who experience violence, will often have a disparate impact on women.
  • Age Discrimination
  • In Madigan v. Levin, the Court will decide whether state and local government employees may bring age discrimination claims directly under the Equal
  • Protection Clause and or must rely on the procedures set out in the Age Discrimination in Employment Act (“ADEA”). In Madigan, a 55-year-old Illinois senior assistant attorney general was terminated and replaced by a woman in her thirties. He sued and alleged unconstitutional age discrimination. The Seventh Circuit concluded that the plaintiff was allowed to bring this constitutional challenge, even though he had not exhausted administrative remedies as required in order to bring suit under the ADEA. If the Court decides that the ADEA forecloses a constitutional claim for public employees, they will be required to proceed exclusively through a cumbersome and often backlogged administrative process in order to bring a claim of age discrimination.
  • The Court’s decision will impact state and local government employees with age discrimination claims, and depending on its reach, might also have implications for other discrimination claims against state and local governments. Federal Courts of Appeals are split as to whether Title VII, which protects against sex discrimination in employment, forecloses state and local government employees from pursuing an equal protection claim challenging employment discrimination. (While the Supreme Court has not weighed in explicitly, in the past it has proceeded under the assumption that Title VII cases are not foreclosed.) In 2009, the Supreme Court unanimously held that a student can bring a claim alleging sex discrimination by a public school in violation of the Equal Protection Clause, rather than proceeding exclusively through Title IX.
  • Labor
  • In National Labor Relations Board v. Noel Canning, the D.C. Circuit Court of Appeals held that the National Labor Relations Board (NLRB) could not issue valid decisions because three of its then-members were appointed by President Obama during a congressional recess, after Senate Republicans prevented confirmation votes that would have allowed the NLRB to function. The D.C. Circuit held that the President could not validly appoint these individuals under the Constitutional provision authorizing recess appointments, because they were appointed in a recess during a Congressional session, rather than the recess that occurs between one Congress and the next, and because the vacancies that the President appointed
  • these members to fill did not arise during the recess. 
  • The ramifications of the D.C. Circuit’s decision are significant, potentially calling into question every order issued by the NLRB between when the appointments were made on January 4, 2012, and August 2013, when new members of the NLRB were confirmed by the Senate. In many instances, NLRB decisions are critical to vindicating the rights of low-wage working women. What is more, similar reasoning could threaten past and future decisions of other federal agencies and prevent a President from staffing vacancies if the Senate failed to confirm any nominees, further disrupting the process of Executive Branch appointments.
  • Looking Ahead
  • This Term, the Court is likely to hear one or more of the percolating challenges to the Affordable Care Act’s (“ACA”) guarantee that women receive insurance coverage without cost-sharing for all FDA-approved methods of contraceptives. These challenges, brought by private, for-profit businesses, raise claims under the Religious Freedom Restoration Act, which prevents the federal government from “substantially burden[ing] a person’s exercise of religion” unless the government’s action advances a compelling government interest and is the least restrictive means of achieving it. At issue in these cases is whether the boss of a for-profit company should be allowed to trump women’s health and women’s access to the health care they need by refusing to comply with the birth control benefit. The Center has submitted “friend of the Court” briefs in many of these contraceptive coverage cases in the Courts of Appeals, arguing that the ACA’s contraceptive coverage requirement does not substantially burden religion and that it furthers the compelling state interests of safeguarding public health and promoting gender equality.

EQUAL PAY DAY – APRIL 8, 2014

“Equal Pay Day is particularly significant because it falls between two legislative anniversaries that have helped women make progress in the workplace – but not quite enough progress. January 29, 2014 is the fifth anniversary of the Lily Ledbetter Fair Pay Act and July 2, 2014 is the 50th anniversary of the Civil Rights Act.

As usual, AAUW will host special events and distribute Equal Pay Day resources to help celebrate the work that has been done and that still needs to be done to ensure women receive equal pay for equal work. Last year AAUW members nearly outdid themselves with more than 130 activities happening across the country!”

Visit the Minute Activist to see what you can do to get the support Equal Pay! www.aauw.org/what-we-do/public-policy/two minute activist/