Today, the United States Supreme Court issued two opinions, both 5-4 decisions with the majority opinion authored by Justice Breyer, in cases involving equality issues.
The first case, Young vs. United Parcel Service, involved Title VII (precluding discrimination in employment based on race or gender). Specifically, it involved the interpretation of the Pregnancy Discrimination Act — an amendment to Title VII passed in the 1970s after the Supreme Court had originally ruled that discriminating based on the fact that an employee was pregnant or might get pregnant was not discrimination based on gender. The generally understood intent of Congress was that an employer could not discriminate against an employee simply because the employee was pregnant or might get pregnant. The particular provision at issue in the case was the requirement that employers had to treat pregnant workers the same as other workers who are similar in their ability to work or not work. The employee in this case had a medical restriction due to her pregnancy that limited the weight that she could lift. This weight limit was less than what UPS expected its drivers to be able to lift; so the employee asked for the company to accommodate her condition, but UPS refused. The employee claimed that the decision violated Title VII because UPS was willing to make that accommodation for other drivers who had a medical restriction.
The majority (by one vote) decided in favor of the employee. But rather than following the spirit of the law — requiring an accommodation unless it was unreasonable if the employer granted a similar accommodation to other workers — the majority crafted a balancing test to determine what workers are similar. Under this balancing test, the fact that an employer was willing to accept a medical restriction for other workers (for example, one who got injured on the job) would merely be one factor in determining whether the distinction that the employer makes between pregnancy and other conditions that require accommodation is based on a legitimate reasons or whether the reason given seems to be a pretext for discriminating against pregnant women.
The second case, Alabama Legislative Black Caucus v. Alabama, involved Alabama’s current district lines for legislative elections. After the 2010 census, many of the “minority-majority” districts in Alabama were under-populated. In adding new voters to these districts, Alabama added mostly minority voters on the theory that the Voting Rights Act required it to maintain the same percentage of minority voters. The Legislative Black Caucus and others challenged asserting that these new lines discriminated on the basis of race.
In rejecting this theory, the majority made three significant points that will apply in future case. First, challengers to state lines can challenge specific districts that are drawn in unusual shapes to constitute a racial gerrymander and do not need to challenge all of the districts. Second, because the Equal Protection Clause already requires equal population, the desire for equal population is not a justification for racial discrimination. Third, the requirement of Section Five of the Voting Rights Act (which no longer applies due to another decision) that new lines do not decrease the ability of minorities to participate does not require the same percentage of minority voters in districts. It merely requires a sufficient number of minority voters to keep the level of influence over the district the same (i.e. there is no need to have 70% of the district be minority voters if 60% is enough to guarantee that minority voters will control who wins).
On both of these cases, the majority included all four Democratic appointees, and the dissent included the three hard-core Republican appointees (Justices Scalia, Thomas, and Alito). The other two Justices (Chief Justice Roberts and Justice Kennedy) flipped between the two cases (each joining the majority in one and dissenting in the other). This voting pattern has been typical in civil rights cases for the past five years with the two “center-right” judges willing to recognize some protections for minorities, but not as willing to go as far as the Supreme Court used to go. Heading into the 2016 election, the simple fact is that those concerned about civil rights can’t afford to have a Republican president having the ability to replace one of the Democratic appointees and really need to have a Democratic president in charge when Justice Scalia or Justice Kennedy retires.