Sarah Solon

The Alito Files: Is Title VII Up?

It's hard to peg a consistent "labor line" to Samuel Alito: he's not simply pro-business or anti-labor. It's more complex - and if conservative cohorts get their way, it will be the new judicial precedent.

For conservatives, it's not so much the hope that he will rule in favor of business over employees. It's more the hope that Alito can be counted on the weed out those pesky Title VII cases - you know, that silly little civil rights clause that made it illegal to discriminate on the basis of race, color, religion, sex and national origin in employment practices.

Apparently, for some (including Jim Copland, the Director of the Center for Legal Policy at the Manhattan Institute) courts have, as of late, been bogged down by a flurry of frivolous affirmative action law suits, where a claimant need say nothing more than "Discrimination!" in order to merit trial. Outlining his hopes for an Alito-clad court, Copland shared the following with NPR in late November:

"You can't have every employment discrimination case go before a jury...You have to have some sort of standard."

Agreed, Jim. It's your next step that bothers me:

"I think what there has to be is some evidence produced of some discrimination in the workplace beyond the mere claim that, 'Oh, I'm a black, I'm a woman; that's why I didn't get the job.'"

Taking away workers' ability to build a case solely on discrimination ignores the fact that discrimination often happens in isolation - without any other evidence to support unfair and illegal practices.

A hefty study released by the Institute for Women's Policy research two years back found a pay gap of 44%, meaning that in any year between 1983 and 2000, women made 44% less than their male counterparts for comparable work. Dr. Heidi Hartman, the Institute's president, explained that only half of this gap can be explained by factors like education, employment history, occupation, or family situation - leaving 20% of the pay gap unexplained. And here is comes: "Discrimination is the most likely explanation for this remaining difference," says Hartman. That's right, half of the pay gap grows out of discrimination alone.

If discrimination is the only explanation for inequitable working conditions, then we still need to be able to take discrimination to court - and have discrimination by itself constitute enough evidence to call for a trial.

Biding our time before the Alito decision, let's not forget that this nominee poses a threat to workers - and to many oft-discriminated-against groups' ability to combat wage gaps. This new conservative precedent won't work. And if we want women and minorities in our middle class, then we're surely going to need Title VII.

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Posted at 6:27 PM, Jan 26, 2006 in Civil Rights | Employment | judges
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