Jewish groups are closely watching two cases argued before the Supreme Court this week: one involving civil rights and the other dealing with sexual harassment in the workplace.
Oral argument for the two cases was heard Wednesday in a Supreme Court building packed with members of the public and press, who were interested as much in how Justice Ruth Bader Ginsburg would perform during her second week on the bench as in the cases themselves.
The court began its new term last week with the addition of Ginsburg, who replaces retired Justice Byron White.
The civil rights case, Landgraf vs. USI Film, asks whether the Civil Rights Act of 1991 applies to cases pending when the law took effect.
Jewish groups, which have long supported civil rights legislation, are siding with the plaintiffs in such pending cases. They argue that the act should apply to them, since it amends previous law by giving them the right to a jury trial and providing a method by which they can collect damages.
Counter to this theory is the historical preference against retroactivity of such laws, which has decades of precedent in American law.
Eric Schnapper, counsel for Barbara Landgraf, who brought a case against her employer before the enactment of the 1991 law, told the court the law contains no specific provision prohibiting its application to pending cases.
Justice Antonin Scalia challenged his argument with the assertion that “a long tradition of common law” exists disfavoring retroactivity.
Glen Nager, counsel for Roadway Express Inc., Landgraf’s employer and the defendant in the case, argued that Congress could not have wanted the act to apply retroactively in the absence of any explicit intent to that effect in the statute’s language.
Nager said this case would be easy to decide if such specific language as to Congress’ intent existed.
“It skipped their mind,” quipped Scalia in response, drawing laughter from onlookers.
BID TO APPLY CIVIL RIGHTS LAW RETROACTIVELY
Both the Anti-Defamation League and the American Jewish Committee filed briefs supporting Landgraf’s position in the civil rights case.
The line of questioning from the justices Wednesday made the court’s final decision “very difficult to predict,” said Richard Foltin, legislative director and counsel for AJCommittee in Washington. “The only thing that is clear is that the justices are thinking seriously about the case,” he said.
ADL said in a statement that it believes the “statutory language of the act, and the interpretation given to earlier civil rights statutes, demonstrate that the act should be applied retroactively.”
Participating with as much vigor as any of the justices was Ginsburg, whose confirmation to the court in August was hailed by Jewish groups.
Ginsburg began her questioning immediately after arguments began in the sexual harassment case, Harris vs. Forklift Systems Inc.
That case, considered by some to be the most important First Amendment case in recent memory, asks if someone accusing her employer of sexual harassment must prove psychological injury.
AJCommittee and American Jewish Congress were among those filing briefs on behalf of the plaintiff. They argued that a lower standard of proof is adequate.
Ginsburg began by asking plaintiff Teresa Harris’ attorney to precisely define sexual harassment, suggesting that comments made to different people might offend some but not others.
The comment ” ‘You’re a woman — what do you know?’ means something different from ‘You’re a man — what do you know?’ ” said Ginsburg, using a denigrating comment made to Harris by a male co-worker as an example.
“You’ve never been told, ‘You’re a man — what do you know?’ ” asked Scalia, who jokingly suggested that he must have come from a different family background than the other justices.
Harris’ attorney, Irwin Venick, claimed that the only test plaintiffs should have to meet is one asking if an employer’s conduct would be considered offensive by a reasonable person.
Stanley Chernau, counsel for Harris’ employer, Forklift Systems Inc., argued that something more is required, depending on the facts of each case.
He shied away, however, from asserting that proof of psychological injury be a mandatory component of proving sexual harassment.
Venick was flanked by counsel from the Justice Department, arguing in favor of Harris.
The government took the position that a plaintiff must prove the employer’s conduct altered working conditions, thereby making the job more difficult to perform.
It would be a “shock” if the court decided to require proof of psychological injury for plaintiffs to recover, said Foltin of AJCommittee.
He said it is likely the justices will clarify what is required to prove sexual harassment.
The court is expected to hand down its decisions on the two cases early next year.
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