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Disabling Law — the Judicial Assault on Worker Rights

Seventeen years ago, James Sensenbrenner (R-WI) fought for the enactment of the Americans with Disabilities Act (ADA).  Now Sensenbrenner is trying to repeal the “judicial amendments” that have destroyed the ADA.

The ADA is not the only workplace law to suffer from judicial amendments.

In the Civil Rights Act of 1991, Congress legislatively overruled judicial decisions that had “weakened the scope and effectiveness of Federal civil rights protections.”

In fact, our most important workplace laws , including the Family and Medical Leave Act, the Occupational Safety and Health Act (OSHA), and the National Labor Relations Act (NLRA), have all suffered the same fate: Law is enacted.  Judges gut the law.

Some might see this cycle of birth, erosion, and possible restoration of rights as just part of a dynamic system of checks and balances.  Judges interpret laws.  This allows laws to evolve to meet new situations.  If a law is so vague that interpretation is difficult, the courts take their best shot.  If the courts get it wrong, Congress passes a law affirming that, yes, this is what it meant.  If Congress does not legislatively overturn the court decisions, then the courts must have gotten it right.

But this philosophical take on the issue assumes that judges are just interpreting what Congress wrote.  It also ignores the high cost and difficulty of re-legislating to overrule the courts.

First, it is expensive in time, labor, and money to enact any law.  Having to do so twice at least doubles the costs.  So even if the courts have gotten it wrong, Congress may not overrule them.  The result is a law on the books that otherwise has no life.

Second, in many cases, the courts have not misinterpreted ambiguous language; they have changed the law.  Take the Supreme Court’s decision in the 1991 Lechmere case.  An issue in the case turned on the NLRA’ definition of employee.  Not only did the Supreme Court’s decision never refer to the definition Congress wrote, the Court decided the definition was the opposite of what Congress said.

This is not an isolated case.

The NLRA says that it violates the law to fire or discriminate against an employee for union and concerted activities, such as a strike.  But the Supreme Court says that an employee who strikes can be “permanently replaced” and that this is not an illegal firing — a legalistic distinction that leaves a worker without a job or a paycheck and that allows a punitive action for doing what the NLRA says is legal.

The NLRA says that workers have the right to make common cause with one another and to join together to improve their working conditions.  It even says that it is the policy of the United States to promote these actions.  But courts are now saying that a worker who complains about pay or other working conditions is a disloyal employee whom the employer has the right to fire.

The FMLA promises workers they can return to their jobs if they take unpaid time off to care for a family member or because they themselves are ill.  But judges have created so many obstacles that the FMLA is close to a dead letter.

In the case of OSHA, judges created so many barriers to updating health and safety standards that most of those we have were created over 35 years ago and are now largely irrelevant.

What the courts are doing is dropping the judicial equivalent of the neutron bomb.  The law on the books is the same, but it is dead law.

The inability to bargain collectively has led to increasing poverty and gross wage inequality.  We have no way to ensure that workers will return from work in at least as good a shape as when they left home.  Disabled workers face the equivalent of “Keep Out” signs.  And workers who face family or medical crises know that their choice is their jobs or lives.

None of this is what Congress intended.

There are consequences to promises not kept.  As Congress said in 1935: “Experience has proved that neither obedience to law nor respect for law is encouraged by holding forth a right unaccompanied by fulfillment.  Such a course provokes constant strife, not peace.”  It is time for the courts to stop the assault on worker rights.


Ellen Dannin is Professor of Law at Pennsylvania State University’s Dickinson School of Law and the author of Taking Back the Workers’ Law — How to Fight the Assault on Labor Rights (Cornell University Press 2006) and a former National Labor Relations Board attorney.



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