The last Supreme Court Term was a disaster for the American worker, with workplace anti-discrimination law taking an especially hard beating since the Court convened last October. The good news, however, is that momentum is building for a Lilly Ledbetter-like Congressional override of one of the Court’s most egregious recent decisions, Gross v. FBL Financial Services.
In Gross, the Court not only stripped many older Americans of their right to be free from age discrimination in the workplace; it thumbed its nose at a 20 year-old precedent protecting workers from employment discrimination, explaining itself simply by saying that “it is far from clear that the Court would have the same approach were it to consider the question today in the first instance.” Translation: the right-wing controls the Court now, so they’ll do whatever they want.
Shortly after Gross was handed down, Senate Judiciary Chair Pat Leahy (D-VT) criticized it for “disregard[ing] and ignor[ing] the plain reading and common understanding” of the Age Discrimination in Employment Act. House Education and Labor Committee Chair George Miller (D-CA) went even further, promising to hold hearings on whether Congress should overrule Gross. Last week, a news site for corporate attorneys warned that a Gross override could be in the pipe.
Although health care and the Sotomayor nomination are currently monopolizing Congress’ attention, there is no good reason why a Gross override shouldn’t be an easy lift in the coming year–especially because the economic downturn has created an unexpected constituency for a Gross override: senior corporate executives. With profits shrinking, many businesses are looking to cut their most expensive workers–generally their oldest and most experienced employees–possibly replacing them with younger, cheaper faces. Thus, Gross creates the unusual circumstance where wealthy, powerful businessmen and women are lined up against their employers and their employers’ lobbyists, and thus can provide a heavy counterweight to corporate America’s inevitable efforts to keep Gross alive.
But even if the stars are aligning against one of the Court’s most ill-considered and arrogant recent decisions, the real question is whether Congress has the courage to think bolder. Last Term alone, the Court handed down four major decisions cutting back on civil rights in the workplace, if Gross is the only case on the chopping block, that sends a clear message to the Roberts Court that its right-wing agenda will succeed 75% of the time–and that’s just within the past year. Simply overriding Gross does nothing to correct the backlog of wrongly-decided cases handed down during the last several decades of conservative rule.
Rather than take a single potshot at a single bad decision, Congress should consider something in the vein of Senator Edward Kennedy (D-MA) and Rep. John Lewis’ (D-GA) Civil Rights Act of 2008, which would roll back nearly a decade of inexcusable Supreme Court decisions–decisions which left many recipients of federal funds free to engage in discrimination, immunized state employers from accountability for age discrimination, and allow employers to force their employees into a secretive, privatized justice system that overwhelming favors corporations.
It’s unquestionably good news that Congress is setting the wheels in motion to overturn Gross, but the American people must not be satisfied with a single drop-in-the-bucket. The Court declared war on civil rights a long time ago, and Congress simply doesn’t have time to clean up the justices’ mess one piece at a time.