Media Disregard Justice Ginsburg's Warnings About Ramifications Of Employment Discrimination Decisions

Ruth Bader GinsburgEvening television news outlets have largely not reported on two important cases issued by the Supreme Court that rolled back workplace anti-discrimination law, despite the urgent call for congressional action issued by Justice Ruth Bader Ginsburg in her dual dissents.

Ginsburg, in addition to being one of the most accomplished justices in history due to her trailblazing civil rights work, has also been a crucial participant in the dialogue between the Court and Congress over the scope of anti-discrimination law. Most famously, it was Ginsburg who successfully called upon Congress to act after the notorious Ledbetter v. Goodyear Tire & Rubber Co. (2007) decision, when the conservative majority twisted the intent of Title VII's protections against employment discrimination to make it easier to illegally pay women less than their colleagues.

When the five conservative justices once again attacked Title VII at the end of the Court's latest term and similarly dismissed long-standing law to make it harder for workers to protect themselves from sex and race discrimination, Ginsburg reprised her liberal dissent and asked Congress to undo the conservative damage to this vital component of the Civil Rights Act.

But a Media Matters search of Nexis transcripts since these two opinions were issued reveals that not only have most network and cable evening news programs completely ignored Ginsburg's plea to Congress to take corrective action and "restore the robust protections against workplace harassment the Court weakens" - similar to what legislators did in passing the Lilly Ledbetter Fair Pay Act of 2009 - they are not reporting on the two new Title VII decisions at all. PBS' The NewsHour was the sole exception, with a solitary mention.

While this most recent term will rightly be remembered in part for the important step forward the Court took in according the LGBT community with equal civil rights under law, it will also go down in history as a term where protections for other groups were rolled back, most significantly in the gutting of the Voting Rights Act of 1965.

Indeed, the Court's rightward jerk under Chief Justice John Roberts was even more apparent in the continuation of closely divided pro-business decisions that undermine regulations and law that guard against corporate abuse. As reported by, "[i]n one measure of the strong term for corporations, the Chamber of Commerce was on the winning side for 14 of the 17 cases in which it filed briefs, and a perfect 8-0 in closely divided cases."

The Chamber closed out this sweep with the two decisions that Ginsburg highlighted as betrayals of worker protections, Vance v. Ball State University and University of Texas Southwestern Medical Center v. Nassar.

The Chamber's winning interest in these two discrimination cases resulted in redefinitions of Title VII that will make it harder for workers to fight against illegal abuse. Georgetown Professor of Law David Cole concluded the decisions marked a serious defeat for workers "who will almost certainly now face more racial and sexual harassment and retaliation, without legal recourse," unless Congress acts pursuant to Ginsburg's directions:

In [Nassar], the Court overturned a longstanding Equal Employment Opportunity Commission (EEOC) interpretation and imposed a new, demanding standard on “retaliation” claims...Under [the new] approach, the employer who retaliates in part because of an individual's filing of a race discrimination claim will escape any liability if it can show that it acted for multiple motives, only one of which was to retaliate. As Justice Ginsburg pointed out in dissent, this double standard makes little sense. Congress and the Court have long recognized that to protect against discrimination, one must equally protect against retaliation for filing discrimination complaints; they are part and parcel of the same problem, and the same liability standard should govern both.

In [Vance], the Court adopted a similarly employer-friendly interpretation of Title VII. Under Title VII's anti-harassment provisions, employers have greater liability for the racial and sexual harassment of supervisors than of co-workers...Here, too, the Court's conservative majority rejected the view of the EEOC, which had sensibly defined “supervisor” as one who has authority to direct an employee's daily activities. The 5-4 majority instead adopted a stricter standard, limiting supervisors to those who have the authority to take tangible employment actions--such as hiring, firing, or denial of promotion--against an employee. Again, Justice Ginsburg persuasively noted that this more stringent standard does not square with the statute's language and purpose, much less the reality of the working world[.]

Nevertheless, evening news outlets are not reporting on this serious setback for civil rights that potentially affects far more people than the overdue, but incremental, steps the Court is taking toward marriage equality. By ignoring the term's right-wing decisions that immunize corporations from liability over Ginsburg's sharp protests read from the bench, the media are enabling both Congress and corporate America to do the same.