Injustice on the Job: Supreme Court Not Interested, Says Justice Scalia

Those seeking justice for what they perceive as workplace discrimination due to the fact that they're either female or gay often file lawsuits -- whether as an individual or in the form of a class action. The most famous of them, "Ledbetter v Goodyear Tire," reached the U.S. Supreme Court. Now, the court is reviewing "Dukes v Wal-Mart." If Justice Antonin Scalia has things his way, the court will not be taking too many more of these employment discrimination cases.

Never reluctant to voice his view of the law, Scalia spelled out in an interview with California Lawyer that the U.S. Constitution does not protect women and gays from discrimination. It's no surprise that his comments are getting plenty of media attention, ranging from the Washington Post to Gawker.

Scalia, a constitutional originalist, interprets the document narrowly. Unlike constitutional evolutionists, he does not "read in" what the authors might have been thinking then or what they might be think today. Therefore, he gives a strict or limited interpretation to the 14th Amendment equal protection clause:

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny any person within its jurisdiction the equal protection of the laws."

In Scalia's way of thinking, the authors of that time [1868] had no way of envisioning the rights of women and gays. To ensure that those rights are protected, Scalia notes in the California Lawyer:

"If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don't need a constitution to keep things up-to-date."

Therefore, in the future, you might consider lobbying your state and federal representatives as well as your senators to address discrimination you face in the workplace.

So while things currently look a little grim for plaintiffs (and their attorneys) who wish to have their discrimination case heard by the highest court in the land, if Scalia's position incurs enough public outrage, you just might find yourself traveling to our nation's capitol to bear witness and have your grievances presented to The Nine.