The Corporate Court's War on Women
October 10, 2012 · By Martha Burk
So far, not so good.
When President George W. Bush nominated John Roberts and Samuel Alito for the Supreme Court, women's groups mobilized to no avail. Senate Majority Leader Harry Reid refused to filibuster either nomination despite personal pleas from feminist leaders. Our main worry was reproductive freedom.
But many of us feared something that has proven to be just as menacing — a strong bias in favor of corporations. Women's rights at work have been under constant assault since Congress passed the Equal Pay Act and Title VII of the Civil Rights Act prohibiting sex discrimination in the workplace in the 1960s.
History has proven that our fears of a Roberts Court were well founded. In 2007, it overruled six lower federal courts by upholding a ban on one abortion procedure with no exception for a woman's health. The same year, in Ledbetter v. Goodyear, the Court overturned 40 years of precedent when it severely curtailed a woman's right to sue for sex discrimination in pay. And in 2011 it piled on the punishment with Walmart v. Dukes, cutting the heart out of women's ability to sue as a class when they're unfairly denied pay and promotion.
So far, not so good. The one semi-bright spot for women was the decision upholding the Affordable Care Act, when Chief Justice Roberts surprised the world and wrote the majority opinion. That decision puts an end to some insurance company abuses like gender rating — charging women more than men for the same coverage — and counting pregnancy and domestic violence as preexisting conditions. But those victories were incidental since the health care decision wasn't about tackling sex discrimination head on, nor pitting a giant corporation against its female workers.
With the Supremes' new term underway, women again have a lot at stake. The justices will make new rulings on affirmative action and the right to sue for sexual harassment at work.
Affirmative action levels the playing field for women, opening up universities and banning "no girls allowed" rules in virtually all workplaces. But no law can erase all bias in society. Women of color still face the double whammy of sex and race discrimination in all kinds of places, including college admissions. The University of Texas has sought to remedy that by instituting a race-conscious (not race-preferential) admissions policy, based on the fact that the consideration of race in admissions at the University of Michigan was upheld in 2003.
Now the Texas plan is being challenged. What happens if the Supremes overturn it? The Supreme Court didn't have to take the case. Could it be, as some of its closest observers believe, that the Roberts Court wants to take this opportunity to do away with affirmative action altogether, which could have widespread national implications?
Also at risk is a woman's right to sue her employers for sexual harassment. Prior rulings have held employers accountable for harassment by supervisors. But in one case going before the court, the employer is claiming that it isn't liable for sexual harassment by a day-to-day supervisor unless that person has the ability to fire or demote the employee. So the Court could hold the employer unanswerable regarding a woman who endures harassment daily by someone who oversees her work. Talk about national implications.
The future of the Court and some fundamental rights for women could also be at stake in the presidential race, particularly if Mitt Romney is elected. The former Massachusetts governor has said he's going to appoint justices in the mold of the ultraconservative Robert Bork, who failed to be confirmed by the Senate in 1987. And of course the Republican platform has an anti-abortion plank with no exceptions.
So where does that leave women? Time — and the Court — will tell.