2008-2009 Supreme Court Term Begins

Emily Douglas

This winter, the Supreme Court will hear arguments in a number of cases that could expand or curtail women's ability to challenge discrimination in the workplace.

Today the Supreme Court resumes
hearing oral argument, ushering in the 2008-2009 term.  Over the
past several years, the Court’s significance in the lives of women
and in the progress or rolling back of reproductive rights and women’s
access to reproductive health care has become only more pronounced.   

This winter, the Court will
hear arguments in four cases with particular significance for women
in the workplace. In October, the Court will consider Crawford v. Metropolitan
Government of Nashville
,
which will ask whether employees who comply with their employers’
internal sexual harassment investigations are protected from retaliation. The plaintiff in Crawford lost her job after confirming allegations
of sexual harassment made by another employee.  

In December, the Court will
hear three more cases that deal with employees’ right to challenge
discrimination. 

In Fitzgerald v. Barnstable,
the Court will examine whether public school students can sue for sex
discrimination both under Title IX, the law that bars sex discrimination
in schools that receive federal funds, and as a Constitutional violation,
or whether the existence of Title IX prevents public school students
from challenging sex discrimination as a violation of the Constitution. 
An amicus brief filed by the ACLU, the National Women’s Law Center,
and other civil rights groups argues that, "Properly understood, Title IX
was intended to supplement, not replace, the right to equal protection
guaranteed by the Constitution itself." The case concerns a kindergarten
girl who brought claims of sexual harassment against a male classmate,
explains the National Women’s
Law Center’s blog Womenstake

Because of the high standard for proving sexual harassment, lower courts
did not let the girl’s case go to trial and the Court of Appeals for
the First Circuit said that "remedies under Title X [were] the only
ones she could pursue, and therefore upheld dismissal of her claims
under the Constitution."  National Partnership for Women &
Families observes that "The
case may determine whether women have a wide range of legal options
to challenge discrimination in education." 

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Whether pregnant women who
worked for AT&T will be discriminated against not once but twice
is at issue in AT&T v. Hulteen.  Before the Pregnancy
Discrimination Act was enacted, in 1978, employers could offer substantially
less leave for pregnancy than for other short-term disabilities;
AT&T was one such employer.  Now, the discriminatory treatment of
pregnancy is showing up in women’s pensions. Womenstake explains, "Hulteen is one of four women who
sued AT&T after they received notice of their pension benefits.
They learned that those benefits were lower than they would otherwise
have been because they did not get credit for most of their pregnancy
leave."  The 9th Circuit Court ruled in favor of Hulteen
and the other women, but the Supreme Court has agreed to review the
case. 

And in 14 Penn Plaza LLC
v. Pyett
, the Court will decide whether, when a collective bargaining
agreement stipulates that employees must address discrimination complaints
through arbitration, employees lose the right to sue for violation of
anti-discrimination statutes. 

"The Fitzgerald,
Crawford
, and Hulteen cases are of critical importance for
women’s statutory and constitutional rights," Marcia Greenberger,
president of the National Women’s Law Center, says. In this term,
"All who care about maintaining hard-fought legal rights for women
will be watching next term to make sure that their right to fair pay
and benefits, equal education, and protection from discrimination is
not undermined." 

At the close of the 2007-2008
Supreme Court session, Greenberger observed, "We squeaked by this
term without major precedents being overturned. But this was not a term
where the Court considered a broad array of key legal protections for
women, including those affecting their health and privacy rights."  

The Supreme Court’s term
begins just as the question of judicial nominees and court-related issues
are moving up as an issue of concern for voters and, certainly, for
the presidential candidates themselves. "Judges are what you refer
to as a ‘last 30 days’ issue, and it’s hard to know how it might
play," Evan Tracey, of CMAG, a company that monitors political advertising,
told the New York Times. “Now is the time when you start hearing messages that connect with the
single-issue core voters — guns, abortion, civil rights. And it’s all
about judges.”

President Bush will deliver
a speech today on his judicial philosophy, likely highlighting the difference in judicial nominations between Sen. John McCain and Sen.
Barack Obama. "Both presidential campaigns are gearing
up for the possibility that court-related issues will become an X factor
in some swing states," writes Patrick Healy
for the Times
.  

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