Corbett on Following the UK's Lead in Reforming Employment Discrimination Law

Bill Corbett's (LSU) essay,  "Calling on Congress: Take a Page from Parliament's Playbook and Fix Employment Discrimination Law," was recently published in Vanderbilt En Banc.  From the introduction:

 The Supreme Court rendered two decisions addressing issues of federal employment discrimination law on June 24, 2013: University of Texas Southwestern Medical Center v. Nassar1 and Vance v. Ball State University. The opinions have many similarities: Both deal with analytical frameworks developed to prove and evaluate intentional discrimination claims; both were decided in a way that favors defendant employers over plaintiff employees; both were decided 5-4 with the same majorities and dissenters; both majority opinions stated that the decision was likely to result in fewer trials of discrimination claims; both majority opinions rejected the position of the Equal Employment Opportunity Commission (“EEOC”); and both dissents were authored by Justice Ginsburg and read from the bench. Furthermore, the two cases prompted Justice Ginsburg to conclude the dissenting opinions with a call to Congress to overturn the decisions, as she had done in 2007 in Ledbetter v. Goodyear Tire & Rubber Co. Apparently this strategy worked in Ledbetter, as President Obama signed the Ledbetter Fair Pay Act of 2009, overturning the legal principle articulated in that case. According to commentator Jeffrey Toobin, in Vance and Nassar Justice Ginsburg “ran her Ledbetter play again,” but he predicted it is less likely to succeed this time. 

I, too, urge Congress to amend the employment discrimination laws, but not by running “the Ledbetter play” again. Congress should stop patching the employment discrimination laws by enacting statutes to change the law announced in specific cases. Such a nickel-and-dime approach to reform of the law is precisely what led to the sharply divided decision in Nassar. Instead, Congress should take a page from the playbook of the United Kingdom’s Parliament and undertake a comprehensive reform of employment discrimination laws, as Parliament did in the Equality Act of 2010. 

An interesting and provocative piece--so check it out.

-JH