Wednesday, May 30, 2007

To Congress!

Good news! In response to the aforementioned abysmal statute of limitations ruling by the Supreme Court on pay discrimination cases, Rep. George Miller (D-CA), chair of the House Education and Labor Committee, has announced he's going to begin trying to fix the problem.

I'm about to write to my Congressman (and head of the DCCC), Chris Van Hollen (D-MD) to get on board. While I'm at it, I'm going to ask him to try and fix the statute that led to Jordan v. ARC, my original "labor law really screws people" case. I'm lucky in that I have a hook--Jordan came out of my district. But that shouldn't stop you! Both are cases in which employment discrimination law proved itself utterly incapable of remedying employment discrimination.


Here's the letter:

In the wake of the Supreme Court's disappointing decision in Ledbetter v. Goodyear, I was pleased to read that your colleague Congressman George Miller has announced he will be seeking to rewrite the law so as to close the loophole Ledbetter opened. I have been a proud supporter of you since volunteering for you in the 2002 Democratic primary, and I hope (and have no doubt) you will support him in that endeavor.

However, I wanted to make a plea for reviewing another aspect of Title VII that led to another hideous employment discrimination decision recently. Last summer, Jordan v. Alternative Resources Corporation was decided by the 4th Circuit (458 F.3d 332 (2006)). That case, which I regret to report stemmed from Montgomery County, was a retaliation case. When the D.C. snipers were arrested, Mr. Jordan (who is Black) overheard a White coworker say to the TV screen: "They should put those two black monkeys in a cage with a bunch of black apes and let the apes fuck them." After discussing the incident with colleagues who reported that this worker had a history of making similarly racist remarks, and pursuant to a company policy which mandated that he report any racial harassment, Jordan filed a complaint. In response, his supervisor retaliated by changing his work hours to less convenient times, making a derogatory gesture and comment towards him at an office party, and within a month firing him.

This is precisely the sort of retaliatory action Title VII is supposed to protect against. Yet the 4th Circuit held that Jordan’s claim was barred, because he could not have even “reasonably believed” that the actions of his coworker constituted racial harassment. To be clear, the ruling wasn’t that the actions of the coworker did not rise to the level of racial harassment. It’s that Jordan was could not have even reasonably believed that they did (Title VII bars retaliation in such cases even if the original action would not have been a violation). And thus, the company which demanded that Jordan report racial harassment was legally permitted to fire him for doing just that. Clearly, this Catch-22 is a perversion of the intent and purpose of Title VII.

Jordan’s case was not heard by the Supreme Court, so it has not gotten the same attention as Ledbetter. But it is an injustice in my and your backyard, and one that cannot be allowed to go unanswered. I do not know if Mr. Jordan is one of your constituents, or merely a man who worked in our great district. Either way, it is appalling that a company could treat him as they did, and get away with it. The narrow and narrow-minded decision by the 4th Circuit is a cousin of the wrongheaded view of Title VII that gave us Ledbetter. The outrage over Ledbetter gives us an opportunity to fix this injustice as well. In the process of remedying the Supreme Court’s recent ruling, I hope that you will also work with Representative Miller to clarify the language on retaliation in Title VII so that it provides meaningful protection to men and women like Mr. Jordan.

David Schraub
Carleton College ‘08
The Debate Link: http:/

1 comment:

OutOfContext said...

I'm glad to see someone in Congress with the proper response to the Supreme Court's tortuous logic in Ledbetter. Do you have any more details on what the proposed changes to title VII are? I assume it will have to do with making the discrimination and ongoing crime rather than isolating it to the initial incident.
I'll write to Boehner, but it'll probably result in much the same response I got when I wrote him about habeas and detainees a few weeks back: a 'thanks but you don't understand' email.