The Supreme Court's decisions on marriage equality and the Voting Rights Act got a lot of media attention last week, but several of the Court's other decisions also have implications for public health -- and they came down on the side of employers, real-estate developers, and drug manufacturers.
In a Washington Post op-ed, Georgetown University law professor David Cole warns, "the underlying theme of the Supreme Court’s term was not the recognition of rights, but their dilution." He points to two cases involving employment discrimination:
In a pair of less-noticed decisions released the day before Shelby County, the court, once again by 5 to 4votes, issued employer-friendly, worker-hostile interpretations of Title VII, the section of the Civil Rights Act that prohibits discrimination in employment. In both cases, the court rejected long-standing interpretations of the law by the Equal Employment Opportunity Commission. In University of Texas Southwestern Medical Center v. Nassar, the court imposed a more demanding standard on “retaliation” claims, brought when an employer responds to a discrimination complaint by punishing the employee for raising the issue.
And in Vance v. Ball State University, the court narrowed the definition of “supervisors” under Title VII, thereby reducing employers’ responsibility for racial and sexual harassment in the workplace. Title VII says employers are more responsible for harassment from supervisors than from co-workers, and the EEOC had sensibly defined “supervisor” as a person with the authority to direct another’s daily work. But the court’s conservatives limited “supervisors” to those who have the formal authority to hire, fire, and grant or deny promotions, a much narrower group. The ruling means that victims of harassment by supervisors who lack such formal authority will be significantly less protected.
At the National COSH blog, Dorry notes, "In the wake of these decisions, it is even more critical that workers be afforded stronger whistleblower protections to shield them from employer retaliation for reporting hazards or workplace discrimination."
With another 5-4 ruling in Mutual Pharmaceutical v. Bartlett, the Court ruled that patients severely harmed by generic drugs cannot sue manufacturers over the drugs' safety, because federal law requires the manufacturers to make copies of previously released brand-name drugs. A New York Times editorial calls this a "damaging decision," stating:
The decision leaves little recourse for people harmed by generic drugs, which now account for more than 80 percent of all prescriptions. It is imperative that the Food and Drug Administration write protective regulations holding generic companies liable for any harm their products cause.
In Koontz v. St. Johns River Water Management District (yet another 5-4 decision), the Court came down on the side of property owners who want to develop their properties and are at odds with local land-use regulations. In this case, a landowner wanted to develop wetland property, and the local water management district wanted him to pay for improvements to government-owned wetlands elsewhere in the area in exchange for a permit. The Atlantic Cities' Emily Badger explains the decision and its implications:
[The majority opinion] thinking appears to expand the definition of what constitutes a government "taking," potentially subjecting a whole range of land-use tools that have nothing to do with the physical taking of property to that constitutional standard for the first time. As SCOTUSblog summarized, "The decision has the potential to significantly expand property-owners’ ability to challenge local land use regulations and fees."
So what kinds of common policy levers might now be at risk?
"A requirement that a developer pay into a mitigation bank if they’re destroying wetlands," [University of Vermont Law School scholar John] Echeverria suggests. "A requirement that a developer contribute funds to pay for a sewer expansion. A requirement that a developer pay to support expansion of a school system required by development – all those kinds of requirements."
Now, all of those sorts of exactions may be subject to a pair of legal tests established by earlier takings Supreme Court cases. Together, the "nexus limitation" and "proportionality test" require that a government can't demand some concession from a property owner that is either unrelated to the harm caused, or disproportionate to it. Previously, that test has applied to land-use agencies demanding property, or property easements, in exchange for a development permit. Now the definition includes asking for money, too.
In a separate Atlantic Cities piece, Anthony Flint of the Lincoln Institute of Land Policy gives one example of how Koontz could harm efforts to prepare for the impacts of climate disruption:
Coastal metropolitan regions have faced up to the fact that there will be increased flooding, volatile weather, and sea level rise. New York Mayor Michael Bloomberg has stepped up with a model $20 billion plan that is a mix of living with water and keeping it out. This is the great planning challenge of our time – and it’s expensive. So private developers should be expected to contribute to the cause. Build on a waterfront? Sure, but a condition of the permit is a contribution to a floodgate fund.
With Koontz, lawyers now have a perfect opportunity to say no way, that such a requirement is out of proportion with the modest scope of an individual development.
The more I read about this Supreme Court term, the more I agree with David Cole that the Court's marriage equality decisions were anomalous; overall, the latest decisions are worrisome for public health.