On March 29, the Court will conduct a limited review of the Ninth Circuit’s order upholding class certification in this case, which alleges sex discrimination in Wal-Mart’s pay, promotions, and other employment practices. At issue in Dukes is whether hundreds of thousands of female Wal-Mart employees can collectively seek an injunction and lost pay against the store. Four lower courts, including the Ninth Circuit sitting en banc, have upheld plaintiffs’ class certification, finding that they presented sufficient evidence of gender discrimination, and that Wal-Mart has failed to address this discrimination, despite being well aware of its presence. Now, the Supreme Court will decide whether plaintiffs can finally have their day in court.

The brief takes issue with Wal-Mart’s asserted legal standard, which would require the Court to establish a new and highly restrictive standard for certifying claims involving subjective or discretionary employment practices, such as those at issue in this case. Applying a heightened legal standard to cases that involve subjective decision-making is at odds with core Title VII enforcement principles, and would restrict employees’ ability to seek redress for valid claims involving discriminatory employment policies. Moreover, such a standard would reduce employer incentives to adopt practices that counteract or minimize bias in pay, promotion and other employment decisions. The brief underscores the reality that to deny plaintiffs their day in court would have far-reaching, negative consequences for future victims of systemic and structural race- or gender-based discrimination. Read the PDF of the brief.

In August, Judge Vaughn Walker, of the U.S. District Court in San Francisco, ruled that Proposition 8 ‘s ban on same-sex marriage violated the Fourteenth Amendment’s Equal Protection Clause as not rationally related to any legitimate governmental interest.

Supporters of Proposition 8 appealed the decision to the Ninth Circuit, which is set to hear arguments regarding the measure’s constitutionality on December 6. The State of California decided against appealing.

The amicus brief argues that Proposition 8 excludes an entire class of people – gay men and lesbians – from the long-standing institution of marriage, pushing them instead to the inherently unequal category of domestic partnership.

As the Supreme Court announced in Brown v. Board of Education, “separate but equal is inherently unequal.” Because gay men and lesbians are denied the opportunity to marry, they suffer extreme societal harm. Indeed, their families are stigmatized, deprived of benefits married couples enjoy and are vulnerable to increased discrimination.

“The Equal Justice Society lauds Judge Vaughn’s thoughtful and carefully reasoned opinion,” said Reggie Shuford, EJS’s Director of Law and Policy. “We sincerely hope that the Ninth Circuit will follow suit.”

Download the brief (PDF)

The lawsuit, a class action filed in the U.S. District Court for the District of Arizona, challenges the constitutionality of this recently passed law on the grounds that it invites the racial profiling of people of color, violates the First Amendment and interferes with federal law.

The amicus brief argues that an injunction is justified on three principal grounds.

First, SB 1070 will result in discrimination against communities of color. Although the statute was written seemingly to exclude the possibility of racial profiling, in practice, there is no question but that this law will lead to heightened and disproportionate police scrutiny of minorities. Because Mexico is the nearest border, Latinos especially will be targeted under SB 1070.

Second, this bill threatens public safety in Arizona. If enforced, it will breed resentment and distrust of the police in communities of color. Fearing immigration inquiries, communities of color are very likely to report crime less, making their neighborhoods increasingly unsafe. Moreover, the under-reporting of crime in minority communities will render them even more vulnerable to hate crimes.

Finally, the bill, ostensibly designed to reduce crime, simply does not justify the means. American history is sadly littered with numerous statutes aimed at excluding certain minority groups from the benefits, rights, and liberties granted to the majority. The courts have struck down those laws for over 150 years. SB 1070 is in keeping with this sordid past and must also be struck down.

Earlier this year, a three-judge panel of the Ninth Circuit held that Washington State’s law denying the vote to people with felony convictions is racially discriminatory and violates Section 2 of the Voting Rights Act. The case is now scheduled for rehearing en banc by an eleven-judge panel in September.

EJS agrees with the three-judge panel’s conclusion that Washington’s law is racially discriminatory and violates the VRA by disproportionately disenfranchising both individuals and communities of color. As a result of Washington’s law, 24 percent of Black men and 15 percent of Washington’s Black population have lost their voting rights because of felony convictions.

Our brief, in particular, focuses on the importance of voting rights to successful reintegration and rehabilitation for formerly incarcerated persons. Not only do felon disenfranchisement policies impede political participation and successful re-entry of formerly incarcerated individuals, they also impact entire communities by diluting their collective voting strength.

Section 2 of the VRA was enacted to protect against racial discrimination in voting, and prohibits states from using any voter qualification system that results in a denial of the right to vote on account of race or color. EJS encourages the en banc panel to uphold the panel’s decision and strike down Washington’s racially discriminatory law.

The law firm Cooley LLP provided assistance on the brief.

Because the U.S. has admitted that the 1893 overthrow was illegal, “the ceded lands hold unique cultural, spiritual and political significance for the Native Hawaiian people — they are not fungible or replaceable,” said the brief filed on behalf of the Equal Justice Society and Japanese American Citizens League.

Read the announcement of our brief here.