Change is in the Air

Two days before the anniversary of its decision in Ledbetter v. Goodyear Tire and Rubber Co. -- which has visited high-profile criticism upon the court and sparked corrective legislation in Congress -- the Roberts Court released two more employment discrimination decisions this week. The outcome of the cases came as a big surprise to court-watchers, and Robert Barnes of The Washington Post said it best: “The Supreme Court this week made big news because it hardly changed the law at all.”

In 6-3 and 7-2 decisions, the Court relied on its own precedent to find that civil rights laws do protect against retaliation for complaining about discrimination in the workplace. Chief Justice Roberts voted to protect against reprisals in one case but not the other, and Justice Alito authored one of the majority decisions upholding the right to sue for retaliation.

The uncharacteristically pro-worker decisions puzzled the experts.

Why, after casting vote after vote to benefit big businesses, would Chief Justice Roberts and Justices Alito suddenly veer from the Chamber of Commerce’s position and take a less cramped view of civil rights laws? Why would Justice Alito, the author of the much-maligned decision in Ledbetter, abruptly pivot to now consider claims that are “well-embedded in the law,” given his harsh dismissal of a strikingly similar argument in Ledbetter?

Quizzical about the unexpected deviation, commentators have suggested that perhaps the Ledbetter backlash played a role in this week’s decisions. New York Times reporter Linda Greenhouse posited that maybe “the conservative justices were taken aback by the public response to the Lilly Ledbetter case.” Robin Conrad, Vice President of the U.S. Chamber of Commerce, also hypothesized that they “may be reacting to the criticism of the court” after Ledbetter, saying, “I would have to think there is some connection there because our batting average this term is pretty bad in labor and employment cases.”

Justice Alito’s more generous interpretation of employment discrimination law in this week’s decisions belies not only his votes on the Supreme Court but his long record of hostility to such claims on the Third Circuit. But if his eyes have been opened to the “realities of the workplace” by Lilly Ledbetter’s story, then we certainly owe her a huge debt of gratitude.