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And Justice for All? - Page 2

© John McManamy

Make no mistake. This is a very dangerous case. In the latter part of the twentieth century, the Court has consistently shot down so-called "states' rights" challenges to civil rights legislation. That changed not long ago when the Court scuttled an age discrimination law and has crystallized with Garrett into a rule of a bare majority of conservative activists answerable to no one.

Not only is such a Court dangerous to our rights as individuals, it is dangerous to democracy.

WHAT GARRETT LEFT INTACT

Before we hit the panic button, we should note that the rule in Garrett is restricted to state employees suing their employers for monetary damages only. It does not affect local or county or private employees, nor does it affect a state employee suing for back pay or to be reinstated to one's original job.

Chief Justice Renquist in his majority decision ruled that it would be "entirely rational and therefore constitutional for a state employer to conserve scarce financial resources by hiring employees who are able to use existing facilities." This leaves wiggle room for an employee to argue that his or her state employer acted "irrationality" with regard to his or her own situation.

The decision also does not prevent the EEOC from bringing a suit on behalf of an individual against a state employer, but because of high case loads, those filing complaints may still be left out in the cold. Individuals are also free to sue under their states' own disabilities laws.

A footnote to the majority opinion also mentions "Ex Parte Young" as an alternative way to proceed. According to Mary Gilberti, an attorney for the Bazelon Center for Mental Health Law, "Ex Parte Young is a very complicated legal doctrine that allows you to sue a state official in their official capacity even when you cannot sue a state directly."

Finally, a number of states in the Garrett case filed briefs in support of the ADA. This may indicate that these states have waived their claim to sovereign immunity and may be open to ADA suits.

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