Supreme Court 2008-2009 Term Wrap-Up
The Supreme Court’s 2008-09 term serves as a powerful illustration of how important it is
for women that we have Supreme Court Justices who have a demonstrated commitment to
equal justice. While women enjoyed a handful of victories this term, overall, the decisions in
this term weakened existing anti-discrimination laws and showed a continuing trend by the
conservative majority of the Court to use its power to limit protections for workers and
individuals that have historically been victims of discrimination. Regularly, the decisions
that went against the rights of women and workers were 5-4 opinions controlled by the
conservative Justices (Chief Justice Roberts and Justices Alito, Kennedy, Scalia, and
Thomas).
At the close of the Court’s 2008-2009 term, the Senate confirmed Justice Sonia Sotomayor;
she replaced Justice Souter in 2009. While her addition will not, in all likelihood, change
the balance of power in close cases, Justice Sotomayor has a demonstrated commitment to
ensuring victims of discrimination receive a fair hearing in court, and her voice and
perspective will be a welcome addition to the Court.
Employment Discrimination Cases
 In Ricci v. DeStefano (decided 5-4) the conservative majority on the Court radically
limited an employer’s ability to make its hiring practices less discriminatory. The
town of New Haven, CT, refused to use the results of a fire department promotional
exam that would have resulted in no Black or Hispanic firefighters being promoted.
The city was concerned that if it used the test results, it would be sued by Black and
Hispanic applicants. Instead, the white applicants sued the city, and the Supreme
Court announced a new standard for employers that want to take voluntary steps to
avoid discriminatory examinations—such employers must now have a “strong basis
in evidence” that their hiring practice is illegal before they abandon it. The opinion in
this case, which limits an employer’s ability to get rid of discriminatory examinations,
is a step back for equal opportunity for women. Women have been kept out of wellpaying, male dominated professions like firefighting for decades through the use of
physical tests. Now, employers will have a higher hurdle to clear before they can
voluntarily get rid of such examinations.

The Court limited relief for pregnancy discrimination in AT&T v. Hulteen (decided 72) holding that an employer did not have to correct its pension payments even when
the seniority service credits that determined those payments were tainted by
pregnancy discrimination. Because AT&T’s calculation of service credits to the
detriment of pregnant employees was legal at the time it was done, the Court allowed
the discriminatory pension system to continue. Justice Ginsberg wrote a strong
dissent in this case objecting to the majority’s perpetuation of pregnancy
discrimination and reliance on a Supreme Court case that the Pregnancy
Discrimination Act overruled. This decision was particularly disappointing because
it was written by Justice Souter and joined by Justice Stevens.

In Gross v. FBL Financial Services (decided 5-4), the Court limited the types of
claims that can be brought under the Age Discrimination in Employment Act
(ADEA) and possibly many other anti-retaliation statutes. Under Title VII, claims of
discrimination on the basis of race or sex or national origin can succeed if the plaintiff
proves that the protected characteristic was one, but not the only reason, for the
negative employment action. In Gross, the Court refused to apply this standard to age
discrimination cases, requiring instead that the plaintiff show that age was “the but
for” reason for the discrimination. This decision flies in the face of decades of
precedent finding that the ADEA to provide parallel protections with those contained
in Title VII, but continues the trend of this Court offering less protection to the
victims of age discrimination.

One of the few wins for women and workers came in the case of Crawford v.
Metropolitan Government of Nashville and Davidson County (decided 9-0). Vicky
Crawford participated in her employer’s investigation of a sexual harassment claim
brought by another employee. Crawford confirmed the allegations of harassment and
was fired soon after. The Court ruled that civil rights anti-retaliation laws protect not
only those who report illegal employment practices on their own initiative, but also
those, like Crawford, who identify such practices in response to an employer’s
inquiry. This ruling will protect workers who participate in sexual harassment
investigations and thus will help such investigations be more accurate.
Voting Rights Act Case
 In Northwest Austin Municipal Utility District No. One v. Holder (decided 8-1)the
Court let stand a key provision of the Voting Rights Act, Section 5, which requires
that certain states and voting districts with a history of discrimination have all
changes to their voting procedures pre-approved by federal judges or the federal
government. The Court decided that the Utility District of Austin could apply for
exemption to the preclearance rule and avoided the question of the VRA’s
preclearance requirement’s constitutionality. Troublingly, the language in the
opinion suggests that at least some Justices would be willing to find the preclearance
requirement unconstitutional.
Civil Rights in Schools
 In a positive civil rights decision, Fitzgerald v. Barnstable School Committee
(decided 9-0), the Court allowed claims of student-on-student sexual harassment in a
school to be brought under multiple statutes. The case involved a claim that a school
district did not take adequate action to protect a five year old girl who was being
harassed by an older male student. The Court recognized that the constitutional
guarantee of equal protection on one hand, and Title IX of the Civil Rights Act’s
mandate for gender equity in education on the other, have differing scopes and
coverage. Thus, the girl and her parents could seek to vindicate their rights under
both laws. This decision will help protect the rights of students subject to harassment
at school.
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
In Safford Unified School Dist. #1 v. Redding (decided 8-1), another victory for civil
rights, the Court found that the strip search of a thirteen year old girl by school
officials was unconstitutional. A smaller majority (7-2) found that the school
officials could not be held liable in this specific case because the right not to be strip
searched in such a situation had not previously been clearly established. Justice
Ginsberg agreed with the decision regarding the unconstitutionality of the search; she
and Justice Stevens would have also found that the school officials in this case should
be liable for money damages for their actions.
Access to Justice
 In a decision likely to have far-reaching negative implications for “average-Jane”
litigants, the Court ruled in Ashcroft v. Iqbal (decided 5-4) that in order to progress
past the filing of a lawsuit to depositions and discovery, the complaint filed by the
plaintiff must be found by a judge to allege “plausible” facts, not merely facts that
would create a valid legal case if true. This heightened and highly subjective
standard increases a judge’s ability to dismiss cases before plaintiffs have even had
the chance to request information that proves that what they allege is true. The facts
of the case itself illustrate the danger in the decision: the Supreme Court went on to
decide that it was not “plausible” that former Attorney General Ashcroft and other top
officials had personally helped craft and approve policies that resulted in the
disproportionate arrest and abusive detention of immigrants of Arab descent postSeptember 11.

An established Court trend of limiting access to federal courts intensified with the
Court’s decision in 14 Penn Plaza v. Pyett (decided 5-4). The plaintiffs in this case
were unionized employees who claimed they had been discriminated against because
of their ages. Their union’s contract with the employer required that any claims of
employment discrimination be litigated in private arbitration, a forum which lacks the
protections and transparency of federal court proceedings, does not guarantee
plaintiffs the full protection of the law, and which often favors employers’ positions.
The Court held the union’s agreement to be binding on the individual employees, and
denied the workers their day in court to present their claims to a neutral judge.

In Caperton v. A.T. Massey Coal Co. (decided 5-4) the Court increased access to
justice by putting limits on a judge’s ability to hear a case involving a party that
donated a great deal of money to that judge’s election campaign. A.T Massey Coal, a
West Virginia coal company, lost a legal case to Caperton and was ordered to pay $50
million dollars. While the case was on appeal, West Virginia held elections for
justices for the State Supreme Court of Appeals, the court that would hear Massey’s
appeal of the $50 million verdict. The Chairman of Massey gave $3 million dollars to
the election campaign of Brent Benjamin for a position on the State Supreme Court of
Appeals. Massey’s donation was larger than the amount spent by all other Benjamin
supporters and by the Benjamin campaign itself. Benjamin won the election, heard
Massey’s appeal, refused to take himself off the case, and voted in favor of Massey.
Five Justices (Kennedy, Souter, Breyer, Ginsburg, and Stevens) ruled that given the
egregious circumstances, Benjamin should have recused himself from the case. The
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dissenters would have allowed Justice Benjamin to rule on Massey’s case, thus
essentially allowing justice to be bought and paid for.
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