Out the Window--Prospects for the EPA and FMLA After Kimel V. Florida Board of Regents (original) (raw)
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Social Science Research Network, 2009
This Article examines the Supreme Court's recent "class-of-one" equal protection case, Engquist v. Oregon Department of Agriculture, where the Court held that the class-of-one equal protection theory did not apply in the government workplace. The Article concludes that Engquist reflects an implicit balancing of employees' equal protection rights against the government's legitimate interests in a flexible workplace and avoidance of litigation, with the Court imposing a categorical rule favoring the government's side of the balance. This Article critiques this categorical balancing. It argues that such a categorical rule is generally inappropriate where interests of constitutional stature exist on both sides of the balance. However, it is the Engquist Court's method that carries with it the most troubling implications for equal protection and constitutional rights generally. Engquist disregards the sub-constitutional decision rules that lower courts developed to apply the constitutional principle the Court announced when it officially endorsed the class of one theory in 2000. Those rules were designed to honor both sides of the balance described above, and drew on trial courts' ability to impose appropriate pleading requirements, sift carefully through facts, and thus cull meritless claims at early stages of litigation while allowing potentially meritorious claims to progress. The Court's disregard of the doctrinal rules developed by the lower courts hearkens back to its analogous disregard of congressional factfinding supporting legislation enforcing the Fourteenth Amendment. While the Court's relationship to the lower courts is quite different from its relationship to Congress, the lower courts nevertheless have unique talents useful to
Limiting Equality: The Divergence and Convergence of Title VII and Equal Protection
2014
1361-63 (1988) (describing the neoconservative embrace of colorblindness and retreat from civil rights enforement as retrenchment). 29 403 US 217 (1971). so Davis, 426 US at 242-45. s Palmer, 403 US at 224 (1971) (" [N]o case in this Court has held that a legislative act may violate equal protection solely because of the motivations of the men who voted for it."). 32 Id at 225. " Davis, 426 US at 242-45 (describing Palmer as a case in which dicta, but not the holding, indicated the relevance of disproportionate impact). 34 Id at 256 (Brennan and Marshall dissenting).
Utility Air Regulatory Group v. EPA: A Shot Across the Bow of the Administrative State
Duke Journal of Constitutional Law & Public Policy, 2014
In Utility Air Regulatory Group v. Environmental Protection Agency (UARG), decided in June of this year, the Supreme Court reached a split decision on a pressing but arcane issue related to the scope of the Environmental Protection Agency’s (EPA) authority to regulate greenhouse gases. From the bench, Justice Scalia described his opinion for a shifting majority of the Court as, in essence, a win for the agency: “‘EPA is getting almost everything it wanted in this case,’” he said. “‘[The agency] sought to regulate sources it said were responsible for 86 percent of all the greenhouse gases emitted from stationary sources nationwide. Under our holdings, [it] will be able to regulate sources responsible for 83 percent of those emissions.’” Some in the press accepted Scalia’s characterization, while others emphasized the partial nature of the victory. Sample headlines include Justices Uphold Emission Limits on Big Industry and Supreme Court Upholds Rules Curbing Greenhouse Gases from Pow...
Washington and Lee Law Review, 2018
While public and scholarly concern about ideological decision making in Supreme Court cases has traditionally focused on abortion rights and other constitutional issues, the Gorsuch nomination brought forth some concern that ideology might influence statutory construction as well. This paper offers a case study in the evolution of statutory interpretation over time in the Supreme Court by examining the Court’s Clean Air Act jurisprudence, which now reaches back almost half a century. It examines the influence of both politics and evolving norms of statutory interpretation on the Supreme Court’s Clean Air Act case law.
New Groups and Old Doctrine: Rethinking Congressional Power to Enforce the Equal Protection Clause
Social Science Research Network, 2009
This Article considers the Supreme Court's current approach to judicial review of federal legislation enforcing the Equal Protection Clause. It starts from the assumption that the Court will not abandon the judicial supremacy principle it expressed in City of Boerne v. Flores; thus, any approach to congressional enforcement power must accommodate that supremacy. The Article begins by critiquing the Court's current understanding of Boerne, and explaining how new and pending enforcement legislation pose major challenges under that doctrine. It then sketches a theory of the enforcement power which requires Congress to abide by judicial statements of constitutional meaning, but where judicial opinions are read more carefully to distinguish between true statements of constitutional law and subconstitutional decision rules. Congressional enforcement power must not conflict with the former. In addition, to the extent those statements are vague or general, they nevertheless channel congressional enforcement discretion by pointing to follow-on inquiries that Congress must satisfactorily answer in order for the Court to uphold its legislation. The Article then applies this new approach to three new pieces of equality legislation that are either currently in force or under consideration: the Employment Non-Discrimination Act, employment protection for transgendered people, and the Genetic Information Nondiscrimination Act. This application illustrates the theory in action. It also allows us to draw more general conclusions about the theory's workability and appropriateness as a tool for reviewing future enforcement legislation, both under the Equal Protection Clause and other components of the Fourteenth Amendment.
Brigham Young University Journal of Public Law, 2002
more strict when dealing with equitable considerations regarding time limitations, or more employer friendly. 7 Courts have varied in how broadly they define the term "employee" in deciding whether an employer has the minimum number of employees to be covered by the act under which the discrimination claim is brought. Some have strictly interpreted the term "employee." Other courts have construed the term "employee" more broadly, often including all persons over which the employer has control. A survey of case law emanating from courts within the Tenth Circuit reveals that several courts, at both the state and federal level, are predictably employer friendly in employment discrimination suits. This Note argues for a more evenhanded approach by courts within the Tenth Circuit toward employees. Part II briefly describes the EPA, Title VII, the ADEA, and the ADA, and explains the charge filing process. Part III gives the facts, procedural background, and holdings of three cases within the Tenth Circuit. Two are federal cases dealing with equitable tolling of time limitations in cases where claimants have been assisted by an attorney and where employer actions have been blamed for a claimants' failure to make a timely filing. The third, a Utah Supreme Court case, deals with the small employer exemption in state anti-discrimination acts. Analysis of this case will focus primarily on the dissent's opinion. Part IV argues for broader interpretations of the applicable act in each case. Specifically, it argues that the broader interpretation of filing requirements used within other circuits is the more evenhanded approach, especially given the realities faced by claimants in employment discrimination suits and the remedial nature of anti-discrimination laws. II. A DESCRIPTION OF FEDERAL ANTI-DISCRIMINATION ACTS This Note deals with four federal anti-discrimination acts: the EPA, Title VII, the ADEA, and the ADA. A basic understanding of those acts is necessary to understand the analysis of the courts and this Note. This part gives a brief description of each statute listing the categories each protects. It also describes the method for processing charges of discrimination. 7.
Is the Ellerth Faragher Test as Important as Brown v. Board of Education?
The Constitutionalist, 2024
The Ellerth-Faragher liability test may seem an obscure legalistic oddity of importance only to employment lawyers. But in fact the pair of cases that were brought together to form this legal test for employment discrimination liability crystalizes many important changes to Title VII of the Civil Right Act of 1964 that, taken together, are arguably as important to the character of modern democratic politics today as Brown v. Board of Education was seventy years ago.
SSRN Electronic Journal, 2000
CONCLUSION: THE CHALLENGE OF POINTILLIST CONSTITUTIONALISM ..... 412 * Professor of Law, Brooklyn Law School. Thanks to Joel Gora and Eric Berger for helpful comments on an earlier version of this Article, and to Emmanuel Fashakin and Michael Teitel for fine research assistance. The Author also wishes to acknowledge the financial support provided by the Brooklyn Law School Dean's Summer Research Stipend Program. BOSTON UNIVERSITY LA W REVIEW Clause. That jurisprudence, requiring that there be "congruence and proportionality" between enforcement legislation and the constitutional violation the law targets, has relied heavily on the suspect class status of the benefitted group. Until very recently, the results of the congruence and proportionality inquiry were predictable; legislation that enforced the equal protection rights of suspect or quasi-suspect classes would enjoy deferential judicial review, while legislation enforcing the rights of nonsuspect classes would receive a skeptical judicial reception. While recent cases potentially call this template into question, it remains for now a basic feature of the Court's Enforcement Clause doctrine. Windsor, by abjuring suspect class and even 'fit" analysis, undermines the Court's approach to the enforcement power. This Article examines the challenge Windsor poses to the Court's Enforcement Clause doctrine. It argues that Windsor requires the Court to reconsider its approach to the congruence and proportionality standard. In particular, it argues that Windsor's more particularized equal protection methodology requires the Court to consider how Congress may legitimately translate such judicial pointillism into enforcement legislation's inevitably broader brushstrokes. It is urgent that the Court consider a new approach to the enforcement power. Congress either has enacted or is poised to enact several significant pieces of enforcement legislation benefitting groups whose suspect class status has not been determined and likely never will. Unless the Court is prepared to exclude Congress from participating in the equality projects the Court itself has embarked on, the Court needs to consider how to harmonize its newfound interest in constitutional pointillism with enforcement legislation's broader brushstrokes. This Article suggests such an approach, one that recognizes Congress's institutional competence and legitimacy to make broad judgments about the same sort of animus the Court found through its more precisely targeted inquiry in Windsor. This approach would not immunize enforcement legislation from judicial review. As explained in this Article, however, this approach does call for a change in the way the Court performs congruence and proportionality review. This Article closes by applying this new approach to a pending piece of enforcement legislation, the Employment Non-Discrimination Act, which would offer federal employment discrimination protections to gay and lesbian workers.