Activist Judges

[Guest]

I noticed today that activist judges on the Supreme Court overturned previous standards for evaluating discrimination complaints. They have now passed the burden of proof in age discrimination complaints to the person suing. Even though the person may demonstrate that age was a factor in their suit, they have now shifted the burden of proof and made it extremely difficult to win such a case.

This deviates from previous rulings and establishes a new policy by judges who wish their views to replace that of our elected representatives.

[Guest]

I noticed today that activist judges on the Supreme Court overturned previous standards for evaluating discrimination complaints. They have now passed the burden of proof in age discrimination complaints to the person suing. Even though the person may demonstrate that age was a factor in their suit, they have now shifted the burden of proof and made it extremely difficult to win such a case.

This deviates from previous rulings and establishes a new policy by judges who wish their views to replace that of our elected representatives.

For those interested in this case, the SCOTUS decision can be seen at http://supreme.justia.com/us/557/08-441/ and all of the briefs presented to SCOTUS are at http://www.abanet.org/publiced/preview/briefs/march09.shtml#gross .

The Court's decision affirmed an 8th Circuit Court of Appeals ruling with regards to what Congress stated in the Age Discrimination in Employment Act showed that Congress intended that the plaintiff in such cases had to provide direct evidence to show that age was the "but for" cause of a negative employment decision.

[Guest]

Man, lawyer talk.:o I'm still confused about disgraced ex-president Clinton's statement " It depends on what the definition of "is"....is...."

[Guest]

Man, lawyer talk.:o I'm still confused about disgraced ex-president Clinton's statement " It depends on what the definition of "is"....is...."

He really didn't say anything that most married men "caught after the act" don't say. It's just that he was more articulate in his "but, honey...."

[Guest]

Did the SCOTUS decision pertain only to litigation in federal courts? Most age discrimination suits occur in state courts. And I'm not sure that SCOTUS recent decision makes much of a difference in state court proceedings.

In Illinois, as an example, the burden of proof was that of the plaintiff in Illinois for decades. Employers could take any action they wished with regard to employees, but it was up to the plaintiff who thought he had been harmed to prove that the employer's action was discriminatory based on age.

As an example, if an employer fired all the employees who were the highest paid, or who had the effect of increasing employer-paid health insurance premiums, that would be perfectly legal. The fact that almost all those employees would tend to be the oldest is immaterial unless the plaintiffs--the older workers--could prove that the management actually made their decision based on age. The plaintiff would have to find a memo or get someone to testify that the layoffs were based on age, not other factors. That's an almost impossible burden for the employee who feels he has been harmed to meet.

I guess I'm not certain how big a change this is in the federal courts.

[Guest]

Don't really know anything about the law but I do like to think I have an ounce of common sense. If I was to trim a payroll I would have to look at the highest ones first, right? Reason would say that it takes time to work your way up the ladder and therefore a person naturally increases in age. Therefore if you trim your payroll you are going to get a higher percentage of people in the older age bracket, right? So therefore conscientiously or unconscientiously you are discriminating against older people. Sure, you can say that a few young people get paid handsomely but the percentage is smaller, right?
I have seen it and have been a victim of age discrimination but like you said it is hard to prove and the companies have the best $$$ lawyers at their disposal.

[Guest]

Did the SCOTUS decision pertain only to litigation in federal courts? Most age discrimination suits occur in state courts. And I'm not sure that SCOTUS recent decision makes much of a difference in state court proceedings.

In Illinois, as an example, the burden of proof was that of the plaintiff in Illinois for decades. Employers could take any action they wished with regard to employees, but it was up to the plaintiff who thought he had been harmed to prove that the employer's action was discriminatory based on age.

As an example, if an employer fired all the employees who were the highest paid, or who had the effect of increasing employer-paid health insurance premiums, that would be perfectly legal. The fact that almost all those employees would tend to be the oldest is immaterial unless the plaintiffs--the older workers--could prove that the management actually made their decision based on age. The plaintiff would have to find a memo or get someone to testify that the layoffs were based on age, not other factors. That's an almost impossible burden for the employee who feels he has been harmed to meet.

I guess I'm not certain how big a change this is in the federal courts.

When a person files suit based solely on a federal statute (as this case was), it must originate in the federal court system. States also have comparable laws. When a case could be filed either as violating either the state or federal statute, the plaintiff sees which has the least burden of proof (if any at all) on the plaintiff, and which provides the greater recovery. Then, the case is filed in the court charged with enforcing that particular statute.

There are a couple of major Human Resources associations which provide tons of guidance to employers on how to document everything from all kinds of discrimination, Americans with Disabilities Act , and other claims. The outcome of this case was really not a big surprise, based on the single question that was before SCOTUS to answer (Must a plaintiff present direct evidence of discrimination in order to obtain a mixed motive instruction in a non-Title VII discrimination case?) and the text of the ADEA.

[Guest]

At first, when I read the title, I thought this was about the liberals on the court. But after reading the link, provided by SteveZ, its really about the conservatives on the court. It seems consistent with another ruling, regarding a women who was paid less men doing the same job for years. When she found out she filed suit only to have the Supreme Court say she should have found out about this earlier and because she didn't she lost.

I think everyone knew what they were getting with Alito but Roberts is much more conservitive than was known.

[Guest]

At first, when I read the title, I thought this was about the liberals on the court. But after reading the link, provided by SteveZ, its really about the conservatives on the court. It seems consistent with another ruling, regarding a women who was paid less men doing the same job for years. When she found out she filed suit only to have the Supreme Court say she should have found out about this earlier and because she didn't she lost.

I think everyone knew what they were getting with Alito but Roberts is much more conservitive than was known.
Can you please provide a name or reference to the case you mention. I'd like to look it up.

[Guest]

Ledbetter vs. Goodyear Tire http://www.nytimes.com/2007/05/29/washington/30scotuscnd.html?_r=1&ex=1181102400&en=14a1b2804f2601c0&ei=5070&pagewanted=all&emc=eta-1

[Guest]

Ledbetter vs. Goodyear Tire http://www.nytimes.com/2007/05/29/washington/30scotuscnd.html?_r=1&ex=1181102400&en=14a1b2804f2601c0&ei=5070&pagewanted=all&emc=eta-1

Thanks for the link...that is the one I referenced.

[Guest]

Am I correct that this was not a Supreme Court ruling but simply a matter of President Obama signing legislation to change the law that the Supreme Court had previously ruled on ?

[Guest]

Thanks for the link...that is the one I referenced.
Thanks! Very interesting case. FYI:
1. The SCOTUS decision (with dissent) is at http://www.supremecourtus.gov/opinions/06pdf/05-1074.pdf
2 The petitioner's reply brief is at http://www.abanet.org/publiced/preview/briefs/pdfs/06-07/05-1074_PetitionerReply.pdf
3. The respondent's brief is at http://www.abanet.org/publiced/preview/briefs/pdfs/06-07/05-1074respondents.pdf
4. If you Google "05-1074 amicus briefs" they all appear.

The arguments were interesting, and trying to review them objectively is difficult, as there are obvious underlying self-interests in the amicus briefs beyond the case itself.

[Guest]

Is it fair to summarize this case and the new "Lilly Ledbetter Fair Pay Act" as follows?

Ledbetter filed an EEOC action against Goodyear following her retirement. She alleged unequal pay because of sex discrimination. Goodyear never really argued that discrimination didn't occur. Rather, they argued that Ledbetter had no standing to file a claim because the time limitations for filing had passed.

Initially, both the EEOC and a jury ruled in her favor. A federal appeals court later threw out her claim, limiting her lawsuit to discrimination that may have happened in the six months prior to her initial complaint with the EEOC. A three-judge panel also dismissed the pay discrimination allegations during that 180-day window. The case was then appealed to SCOTUS where in a narrowly divided 5-4 ruling, the high court sided with Goodyear, concluding that Ledbetter had only a federally mandated 180-day window following the initial incident of discriminatory pay in which to make her initial claim.

After the SCOTUS decision eliminated any further legal options, Ledbetter began to lobby Congress and the White House to change the time period which dictated when such claims could be filed. She argued that a plaintiff like herself should have the right to file a complaint to the government within 180 days of their most recent paycheck, as opposed to within 180 days of their first unfair paycheck. Proponents of the legislation argued that the fault in the original enabling legislation was that an employer merely needed to hide unfair pay practices for a few months before being able to continue them, without penalty, forever. They argued that the rule placed an unfair burden on employees, who may not discover discriminatory pay practices until after their right to make a claim had already passed.

Ledbetter and her supporters made little headway with the Bush White House. As the case gained notoriety, it became an issue in the 2008 Presidential campaign. During the 2008 campaign, the proposed Ledbetter Act proved to be a significant point of contention between then-Senator Barack Obama and Republican nominee Senator John McCain. Obama emphasized what he called the plan's benefits to working women, while McCain criticized it as a boon for trial lawyers.

When Obama won the Presidency, Congressional Democrats put a reversal of the high court's ruling near the top of their agenda. The law was the first one passed by the 111th Congress and the first signed by the new President. The law was retroactive and permitted Ledbetter, or other employees with similar circumstances, to re-file her claims with the EEOC, which had approved it initially, many years ago.
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In this case, it appears that the lower court judge and jury were "activist", ruling for Ledbetter in an obvious violation of the then-controlling legislation and federal rules. Both the federal Court of Appeals and SCOTUS ruled purely on the law, even though there were dissenters at the SCOTUS level who agreed with the unfairness of the controlling legislation.

Fair summary?

[Guest]

I was horrified when I read the original SCOTUS decision. Thankfully the Democrats are in and the new legislation has been passed - a victory for working women. I have no doubt that had a Republican won the White House, we would still be looking at this discriminatory practice.

[Guest]

I was horrified when I read the original SCOTUS decision. Thankfully the Democrats are in and the new legislation has been passed - a victory for working women. I have no doubt that had a Republican won the White House, we would still be looking at this discriminatory practice.

Are you saying that republicans are anti-working women?

[Guest]

I was horrified when I read the original SCOTUS decision. Thankfully the Democrats are in and the new legislation has been passed - a victory for working women. I have no doubt that had a Republican won the White House, we would still be looking at this discriminatory practice.

I guess it goes back to what we expect SCOTUS to do. Is SCOTUS supposed to insure that when Congress specifically places limits of any kind in place, that Congress' edict (as signed by the President) is followed to-the-letter? OR, is SCOTUS supposed to step in and say, "Well, the law specifically says XXXX, but any 'reasonable person' knows what Congress really meant to say was YYYY." ? In other words, do we want SCOTUS to follow the law as written, or edit it?

Sometimes, the best thing to do is to issue a decision which does not involve any "well intentioned editing" so that Congress can go back and do it right. That way, SCOTUS remains as a court of law, instead of as Congress' editor. The "editor-critiquer" is supposed to be the President who signs (or vetoes) what Congress places before him/her.

[Guest]

I concur with the way SCOTUS handled this case. While the opinions of the justices were closely split and the dissenting opinions well-written, the Court as a whole chose not to "make law from the bench".

I'm glad that the Congress took fairly quick action to correct a law which was faultily written from the outset. I'm sure SCOTUS was pleased with that result, as well. This case is a good example of how poorly written or confusing laws can lead to unsatisfying judicial decisions. It highlights the quandary faced by courts in attempting to rule using poorly crafted legislation.

What's more bothersome to me is the nagging suspicion that the law was initially written that way intentionally, maybe the product of wording provided by a big company lobby which intended it to be faulty, which then wasn't read before passage by the Congress that voted it in.

[Guest]

.....
What's more bothersome to me is the nagging suspicion that the law was initially written that way intentionally, maybe the product of wording provided by a big company lobby which wasn't read before passage by the Congress that voted it in.
Happens all the time. The legislators don't write the bills. Sometimes their aides do, and quite often they receive draft bills from a host of sources (which the legislator's staff edit and then submit as the legislator's "work product"). So, quite often bills never get fully researched as to see which existing laws are affected. Legislators want the publicity associated with bills, and take no pride in authorship when the conflicts occur downstream.

[Guest]

Happens all the time. The legislators don't write the bills. Sometimes their aides do, and quite often they receive draft bills from a host of sources (which the legislator's staff edit and then submit as the legislator's "work product"). So, quite often bills never get fully researched as to see which existing laws are affected. Legislators want the publicity associated with bills, and take no pride in authorship when the conflicts occur downstream.
I'm certainly not making a proposal here. But knowing that this is the way laws are made, why are the conservatives so deathly opposed to federal judges "making law from the bench"?

I know that the framers of the Constitution had specific intentions and expectations for the relationship between the Congress, the courts, and the President. But I doubt that they envisioned the significant influence of lobbyists, untrained Congressional aides, and members of Congress too busy to understand or even read the laws that they vote onto the books, or an executive unwilling to ruffle Congressional feathers by vetoing a faulted law. Maybe they also didn't envision a Congress so busy "doing other things" that they don't take the time to go back and correct faulty legislation after it's discovered.

That being the case, why shouldn't the federal courts serve as "editor" of faulty laws produced by the other branches of government?

Just kind of a discussion question.

[Guest]

I'm certainly not making a proposal here. But knowing that this is the way laws are made, why are the conservatives so deathly opposed to federal judges "making law from the bench"?

I know that the framers of the Constitution had specific intentions and expectations for the relationship between the Congress, the courts, and the President. But I doubt that they envisioned the significant influence of lobbyists, untrained Congressional aides, and members of Congress too busy to understand or even read the laws that they vote onto the books, or an executive unwilling to ruffle Congressional feathers by vetoing a faulted law. Maybe they also didn't envision a Congress so busy "doing other things" that they don't take the time to go back and correct faulty legislation after it's discovered.

That being the case, why shouldn't the federal courts serve as "editor" of faulty laws produced by the other branches of government?

Just kind of a discussion question.

Simply because then the "We, the People" are taken out of the law-making business when judges can autocratically amend-via-decision any statute. When Judges "rule from the bench," personal bias replaces the will of the people and eliminates the need for and purpose of a legislature duly elected by the citizenry. "We, the People" are replaced by "We, the Few and Almighty." The last time that situation existed here, tea ended up floating in Boston Harbor.

[Guest]

Simply because then the "We, the People" are taken out of the law-making business when judges can autocratically amend-via-decision any statute. When Judges "rule from the bench," personal bias replaces the will of the people and eliminates the need for and purpose of a legislature duly elected by the citizenry. "We, the People" are replaced by "We, the Few and Almighty." The last time that situation existed here, tea ended up floating in Boston Harbor.
Good answer, Steve. I should have thought of that before I posed the question for discussion.

As faulty as the system is--and it apparently is pretty faulty--it would be wrong to replace the will of the people with the decisions of federal judges.

[Guest]

Here in Taxachusetts, everything proposition that is put on the ballots and voted on..gets overturned by the elitists. They just raised our sales tax, again, in the dead of the night.

[Guest]

Are you saying that republicans are anti-working women?

I'm saying McCain voiced strong opposition to the legislation during the elections.

[Guest]

I'm saying McCain voiced strong opposition to the legislation during the elections.

Well, I guess we'll never know...but we know with McCain in there we wouldn't have this sea of red ink...or at least not nearly as much:

http://www.washingtonexaminer.com/opinion/columns/IrwinStelzer/Shame-doesnt-appear-to-be-part-of-the-Era-of-Red-Ink.html

[Guest]

Here in Taxachusetts, everything proposition that is put on the ballots and voted on..gets overturned by the elitists. They just raised our sales tax, again, in the dead of the night.

We must be honest. I know that people on TOTV will never believe it but, when the people of Massachusetts were given the opportunity to get rid of the Massachusetts state income tax,They voted to keep it! It is no wonder that our state government thinks that we want more taxes.

Oh well, I will be in the Villages bubble and away from this madness soon enough.

Yoda

Not a Massachusetts liberal

[Guest]

We must be honest. I know that people on TOTV will never believe it but, when the people of Massachusetts were given the opportunity to get rid of the Massachusetts state income tax,They voted to keep it! It is no wonder that our state government thinks that we want more taxes.

Oh well, I will be in the Villages bubble and away from this madness soon enough.

Yoda

Not a Massachusetts liberal

Hopefully I won't be far behind you.:beer3: