Chemerinsky: Two narrow wins for civil rights
In talks about Supreme Court litigation, I often begin by saying that the most important thing to remember is that the court can do anything it wants. The first time I was co-counsel in a Supreme Court case, the justices decided the case on grounds that had been raised by none of the parties in their briefs or arguments. On March 25, the Supreme Court decided two civil rights cases. They share in common that Justice Stephen G. Breyer wrote the majority opinion in both and that the holding in each was an argument advanced by neither side in the litigation.
Both Alabama Legislative Black Caucus v. Alabama and Young v. United Parcel Service are victories for civil rights plaintiffs from a court that often has ruled to narrow federal civil rights laws, especially in the areas of voting rights and employment discrimination. Each is decided on narrower grounds than the civil rights plaintiffs urged, but each is unquestionably a victory for civil rights litigants.
Alabama Legislative Black Caucus v. Alabama and Alabama Democratic Conference v. Alabama
After the 2010 census, election districts were redrawn for both houses of the Alabama state legislature. In drawing these districts, the goal was to preserve the same number of districts with an African-American majority and the same percentage of African-American voters in each district.
To accomplish this, while also fulfilling the constitutional mandate that each district for each house have close to the same population, Alabama packed minority voters into districts where they already were in political control, thus reducing their chance of having influence elsewhere in the state. This also worked to the advantage of Republicans who controlled both houses of the Alabama legislature. African-Americans vote overwhelmingly Democratic and packing them into fewer districts strengthened the Republicans’ political advantage throughout the state.
The question was whether this denied African-Americans voters equal protection. A three-judge federal court, in a 2-1 decision, rejected the constitutional challenge. Under Supreme Court decisions, such as 1993’s Shaw v. Reno and 1995’s Miller v. Johnson, it is impermissible for the government to use race as a predominant factor in drawing election districts unless strict scrutiny is met.
But in Easley v. Cromartie, the court held in 2001 that the government may use race as a factor in districting if the goal is political, such as protecting a safe seat for an incumbent or creating a district which has a majority of one political party. The three-judge court found that the districting was constitutional because it was designed to preserve a political advantage for Republicans and because it was intended to be sure that there was no retrogression in minority voting strength in violation of Section 5 of the Voting Rights Act of 1965.
The Supreme Court reversed the three-judge court in a 5-4 decision. Justice Breyer’s decision for the majority held that lower court erred in focusing on whether the redistricting plan as a whole was an unconstitutional racial gerrymander. The court said that the focus had to be on whether any individual districts had been improperly drawn with race as a predominant factor. The court strongly indicated that some of the districts violated this constitutional requirement. Justice Breyer wrote that “there is strong, perhaps overwhelming evidence that race did predominate as a factor when the legislature drew the boundaries of Senate District 26, the one district the parties have discussed here in-depth.” The case was remanded to the three-judge court to consider whether individual districts were improperly drawn with race as a predominant purpose.
Justice Antonin Scalia wrote the lead dissent, joined by Chief Justice John G. Roberts and Justices Clarence Thomas and Samuel A. Alito. Justice Scalia lamented that it was “a sweeping holding that will have profound implications for the constitutional ideal of one person, one vote, for the future of the Voting Rights Act of 1965, and for the primacy of the [s]tate in managing its own elections.” His dissent primarily objected to the majority deciding the case on the need for district-by-district analysis, a ground that had not been raised by the parties. Justice Breyer’s majority opinion disagreed, and he included an appendix with citations to the record of where the issue had been raised below.
The holding seems narrower and less remarkable than Justice Scalia’s dissent made it seem. The court ruled that whether race was used as a predominant factor in districting should be decided looking at each district and not at the state as a whole. This seems implicit in earlier cases such as Shaw v. Reno, Miller v. Johnson, and United States v. Hays, decided in 1995. What makes this case different is the identity of the plaintiffs. In the earlier cases, it was white voters objecting that race was used to benefit racial minorities by creating districts with a majority of minority voters. In Alabama, it was African-Americans objecting that race had been used to dilute their voting influence.
Young v. United Parcel Service
Peggy Young worked as a part-time driver at United Parcel Service. The company requires that drivers lift up to 70 pounds. Young became pregnant and was told that she should not lift more than 20 pounds during the first weeks of her pregnancy or more than 10 pounds thereafter, especially in light of her having had several miscarriages. UPS told Young she could not work while under a lifting restriction.
Young therefore did not work during her pregnancy, was not paid and lost her health insurance.
Young pointed out that UPS let others work who could not meet the lifting requirement. But UPS responded that the others whom it had accommodated were (1) drivers who had become disabled on the job, (2) those who had lost their Department of Transportation certifications, and (3) those who suffered from a disability covered by the Americans with Disabilities Act of 1990. UPS said that because Young did not fall within any of those categories, it had not discriminated against Young on the basis of pregnancy but had treated her just as it treated all other relevant persons.
Young sued under the Pregnancy Discrimination Act. The act says that it is sex discrimination to discriminate against a woman on “the basis of pregnancy, childbirth, or related medical conditions.” The second clause of the act says that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes … as other persons not so affected but similar in their ability or inability to work. …”
The Supreme Court rejected Young’s argument that pregnant women should get the same accommodation when they cannot perform their normal jobs as any other worker gets for any other condition that similarly impairs their ability to work. But the court also rejected the argument of UPS that it had not engaged in pregnancy discrimination because it treated pregnant women the same as all others who could not meet the lifting requirement and who did not fit into the three categories of exemptions.
The court then outlined its own approach: A woman must show that she asked to be accommodated in the workplace when she could not fulfill her normal job because of pregnancy; that the employer refused to do so; and that the employer did actually provide an accommodation for others who are just as unable to do their work temporarily. Once the employee does this, the burden shifts to the employer to show that it had a neutral business reason for its decision and was not biased against pregnant workers. The employee then gets to respond and can argue that the neutral reason was not a real one, but only a pretext for bias, and can attempt to show that the workplace policy puts a “significant burden” on female workers. This is based on the burden shifting approach articulated in McDonnell Douglas Corp. v. Green, decided in 1973.
Justice Scalia, dissenting, again complained of the court devising an approach that neither side had urged. He wrote: “Faced with two conceivable readings of the Pregnancy Discrimination Act, the court chooses neither. It crafts instead a new law that is splendidly unconnected with the text and even the legislative history of the act.”
It is interesting that in two cases decided on the same day, involving different civil rights issues, the court ruled for the plaintiffs but on grounds narrower than the plaintiffs urged and with approaches urged by none of the parties. Still, these are victories for civil rights plaintiffs from the Roberts Court, something that has been rare in its first decade.
Erwin Chemerinsky is Dean and Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law at the University of California, Irvine School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s the author of seven books, including The Case Against the Supreme Court (Viking, 2014).
