New Jersey Employment Lawyer Blog

Senator Ted Kennedy has passed away at the age of 77. Senator Kennedy, a lawyer, was a huge proponent of anti-discrimination and employment laws. His achievements in passing employing laws have had a huge impact on employers and employees, as well as labor and employment lawyers advocating and defending employment lawsuits.

He was one of the chief sponsors of the Americans with Disabilities Act. Senator Kennedy was also the chief sponsor the largest reform of the nation's pension system since 1974, the Pension Reform Act of 2006. He was also the chief Senate sponsor for an act that would prohibit employers from discriminating against employees and applicants based on their sexual orientation and gender identity. The Federal law does not offer such protection. The New Jersey Law Against Discrimination does offer such protection. In addition, Senator Kennedy championed signing into law of the Lilly Ledbetter Fair Pay Act. This bill was sponsored last year and extends the time period in which employees can pursue disparate pay claims under anti-discrimination laws, such as Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act and the Age Discrimination in Employment Act.

Affirmative action cases are almost always controversial and certainly a hot topic for employment lawyers. The Supreme Court just heard arguments in Ricci v. DeStefano. In this case, the City of New Haven threw out the results of the fire department's promotional test because no blacks and only two Hispanics would have been eligible for advancement. White fire fighters filed the lawsuit when the City threw out the test. The white fire fighters claimed their constitutional rights were violated. Reverse discrimination? This is the case before the United States Supreme Court. The question is whether the white fire firefighters were the victims of discrimination as a result of the City's equal opportunity efforts. Title VII of the Civil Rights Act does not allow an employer to take race into account when making employment decisions. Many states have enacted similar employment laws. For example, New Jersey employment laws do not permit an employer to take race into account when making an employment decision. But what happens when a government employer, such as a city, decides to take race into account because not enough minorities scored high enough? These were the issues just argued by employment lawyers at the Supreme Court.

From the Court's questioning, it was clear that Chief Justice John Roberts and Justice Antonin Scalia believed City officials were primarily concerned with the fact that the test had not produced the outcomes they wanted. Roberts and Scalia grilled the City's lawyer, as well as the lawyer representing the federal government. The federal government has taken the position that the City was within its rights to throw out the test. At one point, Roberts asked Deputy Solicitor General Edwin Kneedler about what the government's position would be if the results of the test had been revered --- that is, if the black applicants had scored well and white applicants did not score high enough for advancement ---"can you assure me that the government's position would be the same?" Kneedler responded with a yes. Scalia commented, "I don't think you'd say that."

For now, stay tuned - we will have to wait and see what High Court does with this one.