Friday, March 31, 2017

AAAED Opposes the Confirmation of Judge Neil Gorsuch to the United States Supreme Court

Washington, DC - March 29, 2017.  The American Association for Access, Equity and Diversity (AAAED), an organization of equal opportunity, diversity and affirmative action professionals, informed the Senate Judiciary Committee that it must respectfully oppose the confirmation of Judge Neil Gorsuch for the United States Supreme Court.  
In its "Statement in Opposition to the Confirmation of Neil Gorsuch to the United States Supreme Court, AAAED wrote: "Given its mission, AAAED recognizes the utmost importance of the Supreme Court of the United States in fairly interpreting the laws regarding civil rights and civil liberties in the workplace, education, private industry, public accommodations and other sectors." "From Brown v. Board of Education of Topeka (1954), to Grutter v. Bollinger (2003) and Obergefell v. Hodges (2015), the Supreme Court has been essential to the advancement of equal opportunity and social progress by extending Constitutional protections to all regardless of race, religion, ethnicity, sex, gender, disability, national origin or sexual orientation." 

AAAED expressed its support for the statement in opposition released by the Leadership Conference on Civil and Human Rights on March 20, 2017. AAAED is a member of the Leadership Conference, an association of more than 200 civil rights and social justice-oriented organizations. AAAED also noted its support for the positions expressed by the National Bar Association, an organization of predominately African-American lawyers founded in 1925, and the National Women's Law Center. "AAAED reiterates the concern expressed by these entities and others that Judge Gorsuch shows a lack of impartiality and independence, as evidenced by his rulings on the Tenth Circuit as well as his speeches and publications," wrote AAAED. "Moreover, as the National Bar Association wrote, Judge Gorsuch's speeches and writings 'evidence a strong tendency to be biased in favor of powerful corporate interests and unapologetically biased against workers and victims of civil and human rights violations.'" 

Among the cases that gave AAAED the greatest concern regarding Judge Gorsuch's views of the rights of minorities, women, the LGBTQ community, individuals with disabilities and workers are the following:

In Strickland v. UPS, 555 F.3d 1224 (10th Cir. 2009), the majority held that Carole Strickland, a UPS account executive who sued UPS for sex discrimination and retaliation against her for taking two weeks of leave under the Family and Medical Leave Act (FMLA) for reasons related to stress, could proceed with both the FMLA and Title VII discrimination claim based on evidence that she was treated worse than male colleagues despite her outperforming them in sales.  In his dissent Judge Gorsuch dismissed the evidentiary record and voted to dismiss the Title VII complaint, concluding that she had not proved that she was treated differently than similarly-situated men.  

In Hobby Lobby Stores, Inc. v. Sebelius, 723 F. 3d 1114 (10th Cir. 2013) Judge Gorsuch joined the full court in ruling against women's rights and workers' rights, resulting in the denial of basic health services to thousands of female employees.  According to Judge Gorsuch, Hobby Lobby, a closely-held, for-profit secular corporation did not have to comply with provisions of the 2010 Patient Protection and Affordable Care Act that require employers to provide contraceptive services. Citing the Religious Freedom Restoration Act of 1993 (RFRA), he ruled in favor of Hobby Lobby on the grounds that the provision of contraceptive services violated the company's sincerely held religious beliefs. Moreover, Judge Gorsuch indicated that not only the corporations but the individual owners could challenge the mandate to provide contraceptive services.

In Thompson R2-J School District v. Luke P., 540 F. 3d 1143 (10th Cir. 2008) he denied a student with autism the legal right to attend a private program that was deemed necessary for the child's education during a hearing of the Colorado Department of Education. According to Judge Gorsuch: "a school district is not required to provide every service that would benefit a student if it has found a formula that can reasonably be expected to generate some progress on that student's IEP goals."  The U.S. Supreme Court recently disagreed with this inordinately narrow determination of the appropriate standard.  Judge Gorsuch's standard was exceedingly low and "would barely provide an education at all to children with disabilities," to quote Justice Roberts. Schools must provide a program that is "appropriately ambitious in light of his circumstances. Endrew F. v. Douglas County School District, 580 U.S. ____ (2017).

Similarly, Judge Gorsuch demonstrated a callous disregard for the rights of a worker in the notorious TransAm Trucking, Inc. v. Administrative Review Board case involving a truck driver, Alphonse Maddin, who chose life versus remaining with his truck as ordered when his brakes failed to operate because of the cold and the heating was inoperative. This case also exemplified Judge Gorsuch's willingness to ignore agency interpretations in favor of his own.

"Given the increasingly polarized nature of our state and national legislatures, the federal courts and the Supreme Court in particular are becoming the only recourse for women, people of color, the LGBT community, individuals with disabilities, religious minorities, immigrants, employees and other groups seeking equal treatment under the law," wrote AAAED.  "It is therefore essential that the individual who fills the vacant seat on the Supreme Court be prepared to defend the rights of all in a balanced and impartial fashion."  
For a copy of the AAAED Statement, click here:  AAAED Statement on Gorsuch

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