Over the past two years, the Supreme Court has undergone seismic philosophical changes dramatic enough to leave even scholars struggling to predict the aftershocks.
In his new book “After Affirmative Action: The Future of the Past in Employment Discrimination Law,” Professor George Rutherglen of the University of Virginia School of Law looks at three of the most high-profile recent precedents — on abortion, affirmative action and religious accommodations — and attempts to predict how they might play out in future employment litigation. The book was published by Foundation Press in April.
“The reason I wrote this book is I sensed the recent Supreme Court cases on affirmative action, abortion and religious freedom have changed the whole landscape of civil rights law, including employment discrimination law, and it would be a service and intellectually rewarding to try to figure out what those implications are,” Rutherglen said. “What I wanted to do is just explore what we are going to do in this brave new world where states can criminalize abortion, where affirmative action is prohibited, and where there are more and more claims for religious freedom and religious exceptions.”
Rutherglen teaches admiralty, civil procedure, employment discrimination and professional responsibility. A longtime observer of federal courts, he clerked for two Supreme Court justices, William O. Douglas and John Paul Stevens, and for Judge J. Clifford Wallace on the Ninth U.S. Circuit Court of Appeals.
His title draws from the work of Alexander Stille, a journalist and author whose 2002 book, “The Future of the Past,” explores efforts to preserve important pieces of history in a rapidly changing world.
“This is what I’m talking about,” Rutherglen said of Stille’s title. “In light of current Supreme Court cases, what happened to all of these precedents that were well established after 60 years of employment discrimination law?”
Rutherglen predicts multiple “waves” of coming litigation, not only over anything resembling affirmative action by public or private employers, but also for employment policies that may have disparate impacts on different groups of employees and for accommodations for a widening concept of religious belief.
Ironically, Rutherglen said, the Supreme Court’s abortion ruling in Dobbs v. Jackson Women’s Health Organization may engender the most employment-related litigation, in part because of the way it sets up a conflict between federal anti-discrimination law and state laws that prohibit or criminalize abortion.
The potential legal morass surprises even Rutherglen. The 1978 Pregnancy Discrimination Act may require employers to provide medical care that is necessary because of an abortion, he said, and the 2023 Pregnant Workers Fairness Act requires reasonable accommodation of all pregnant women — which may require employers to give leave to pregnant workers who want or need to go out of state for an abortion.
“It looks like the Pregnant Workers Fairness Act requires [employers] to do so, which is quite a surprising conclusion,” Rutherglen said. “I think it would surprise some of the Republicans who voted for the act.”
What happens, however, when the employer and employee are situated in a state that might prosecute women who seek out-of-state abortions? It may not be possible for employers in that situation to stay in compliance with both federal and state law, Rutherglen said.
“If an employer is located in a state that has a restrictive policy with respect to abortion, all kinds of practical questions arise and they’re not simple to resolve,” Rutherglen said. “The obvious safe harbor is for employers to relocate to a state that’s favorable to abortion, and there might be some pressure to do that. Or they could transfer the [pregnant] employee to New York, for instance, but even in liberal states the window for responding to the pregnancy closes pretty quickly.”
The affirmative action decisions have more immediate consequences for employment, applying directly to public employers covered by the Constitution, Rutherglen said. They also have profound implications for private employers because of statutory prohibitions that apply to all, like the anti-discrimination provisions in Title VII.
“In the current legal and political climate, [the decisions] ensure that consideration of race or national origin in almost any employment decision will be held to be illegal,” Rutherglen said.
In the past, employers have also been held liable under Title VII for neutral policies that have disparately adverse effects on members of minority groups. Such claims will most likely be more difficult to bring in the future, and any “racial balancing” to undo such disparate impact is now effectively prohibited in employment and college admissions by the recent affirmative action decisions.
The recent religious freedom decisions invite the faithful to seek exceptions to neutral and generally applicable prohibitions, such as COVID-19 rules, and to sue if their requests are denied.
The court also expanded the duty of employers to provide reasonable accommodations of their employees’ religious practices, such as observing the Sabbath.
In light of ongoing and future developments such as these, Rutherglen wrote the book to illustrate how tricky and technical the field of employment discrimination has become, and to help employers and practitioners create policies to be able to respond as these issues arise in real time.
However, he doesn’t attempt to prescribe what those policies should be.
“I can’t predict where this is certain to go — I think there are too many variables in play and we haven’t even seen many lower court decisions yet exploring these questions,” Rutherglen said. “But there will be decisions along these lines and they will have cascading effects.”
Rutherglen is a Distinguished Professor of Law at UVA, where he has taught since 1976. His recent books include “Employment Discrimination: Law and Theory,” “Transnational Civil Litigation: Principles and Prospects,” “Civil Rights Actions: Enforcing the Constitution,” and “Employment Discrimination Law: Visions of Equality in Theory and Doctrine.”
