As more than a few Americans have likely noticed, the election of the first African American as President did not signal the end of racism in America, and they probably comprehend if anything, it incited once-closeted racists to come out of the woodwork. In fact, coupled with Republican and conservatives’ deliberate disenfranchisement of people of color, the Republican outrage that a Black man is in the White House made being blatantly racist quite a popular stance among conservatives; Donald Trump’s popularity bears out that assertion.
Additionally, when conservatives on the Supreme Court dismantled the Voting Rights Act, although they concluded that racism is non-existent in America, it simply gave racist Republicans vindication they wanted to hear that their race-driven vote-suppression and gerrymandering was warranted and constitutional.
On Monday, the eight-member Supreme Court did an about face and dealt some serious blows to racist Republicans in Virginia and employers who think discriminating on the basis of race is an exceptional American trait and constitutional. There was another ruling dealing a blow to racist prosecutors in Georgia, but that is the subject of another article on the patently racist American criminal justice system.
The case known as Green v. Brennan was a critical ruling that should send a strong message to victims of workplace discrimination that not only do they have rights, they can win restitution against racist employers after leaving “toxic workplaces.” The man who had put up with serious racial discrimination at work, Marvin Green, was a mail carrier who made the mistake of claiming to an Equal Employment Opportunity (EEO) counselor that his supervisor used racism to discriminate against him. Apparently, Green was supposed to tolerate the discrimination and keep his mouth shut or suffer retaliation from the supervisor.
But since Mr. Green did not suffer in silence, his Postal Service supervisor launched a retaliatory crusade that created such a hostile workplace environment that he could endure no more harassment and quit his job. After stepping away from his job, Mr. Green again met with an EEO counselor and complained he was the victim of a “constructive discharge;” a term that means the workplace had become so hostile that he was “essentially forced to resign.”
Unfortunately for Mr. Green, a judge summarily dismissed his case on grounds it was not filed in a timely manner and an appellate court affirmed the ruling. According to federal law, any constructive discharge plaintiffs are required to contact an EEO counselor within 45 days of the “matter alleged to be discriminatory.” In Mr. Green’s case, he contacted the EEOC the second time after he resigned, and after the 45 day cutoff since his employer first “actively discriminated against him.” The lower courts did not deny that “all the horrible facts in Green’s complaint were correct,” but they still dismissed his complaint and case because of the 45 day rule.
The Supreme Court reversed the lower court’s ruling with only one dissenting voice: Justice Clarence Thomas. Justice Sotomayor wrote for the majority and explained that “the ‘matter alleged to be discriminatory’ in a constructive discharge claim necessarily includes the employee’s resignation.” She also remarked that according to the “standard rule” governing statutes of limitations, the “limitations period commences when the plaintiff has a complete and present cause of action;” not after the initial instance of racial discrimination takes place.
As explained by Mark Joseph Stern at Slate, what Sotomayor means “is that the 45-day period begins when the plaintiff can file suit and obtain relief.” Green could not have filed suit while he was still employed, especially when doing so would have incited more intense harassment from his supervisor. Also, a worker may “only sue for constructive discharge when working conditions become so intolerable that a reasonable person in the employee’s position would have felt compelled to resign.” Green could not have sued for constructive discharge under any circumstances while he was still employed.
Accordingly, Green’s constructive discharge claim was valid because he initiated a “complete and present cause of action” within the 45 days after he had actually quit his job. Obviously, no employee would file a discrimination claim while still at a job, and as evidenced by the increased harassment Mr. Green suffered just for talking to an EEO counselor. Green filing an official claim or lawsuit while under the racist supervisor would have “invited further mistreatment and hostility.” The justices understood that the only reasonable way for a discriminated-against employee to pursue a legitimate claim was after they had left “a toxic, bigoted workplace.” It was the right and fair decision by the High Court and sends a message to employers, supervisors, and even co-workers that racial discrimination is not only not to be tolerated, there is a monetary cost for racism in the workplace.
The second case dealt with another kind of racial discrimination against people of color’s right to a voice in their government, and it put an end to Virginia Republicans complaining they cannot gerrymander themselves to electoral victory at disenfranchised African American voters’ expense.
The case, Wittman v. Personhuballah, concerned Republican state legislators redrawing “a majority-black” congressional district to put as many Black voters in as humanly possible. That 2012 gerrymandering reduced the “minorities voting power” and some of those minorities sued for redress and won in district court. The suit before the three-judge district court resulted in a decision that the nearly entirely minority “district constituted an unconstitutional racial gerrymander.” So the court intervened and appointed a “special master to redraw the districts on nonracial grounds.”
After that ruling, the newly-elected Democratic attorney general rejected Republican demands to defend the GOP’s racist districting maps so several of the Republican congressmen decided that they would uphold and defend the racist maps and attack the court-ordered new maps. Obviously, the old racist maps unfairly favored them electorally and the new maps were fair. In what is a surprising ruling, the High Court reached a unanimous decision that “none of the three congressmen had the legal authority to challenge the new (court ordered) maps;” their appeal to the Supreme Court was summarily dismissed “without a peep of dissent.”
Although the dismissal in Wittman does not put the brakes on racial gerrymandering, it does in fact give a fair amount of weight to any future lower court’s order to either redraw electoral maps fairly, or submit to a “court appointed special master” to redraw districts on non-racial grounds. It is a precedent that may have an impact on other Republican states willing to silence minority voices and “reduce their voting power.”
None of the SCOTUS rulings against America’s neo-racists are considered landmark decisions. But they are victories, albeit small, against the institutional racism that’s making a comeback after hard-won victories on Civil Rights have been systematically dismantled by Republicans and the once-conservative majority on the Supreme Court. If nothing else, at least employees plagued by discrimination, racial or otherwise, will not have to labor in a toxic environment to preserve their right to file a discrimination claim, and Republicans can no longer go to court to purge minorities from their district to maintain an unfair electoral advantage.
All Americans should rejoice that besides dealing a blow to racism in the workplace and elections, for the first time in several years the High Court actually ruled as if all Americans have to be treated equal. Now if Republicans would get on board, or a get a clue, maybe America will start becoming what the Founders intended; a country where everyone is entitled to the same equal rights.