Neil Gorsuch and Casualties of the Court

By Ai-jen Poo, Director of the National Domestic Workers Alliance and Almas Sayeed, General Counsel of the Domestic Worker Legacy Fund

As the hearings on President Trump’s Supreme Court nominee, Neil Gorsuch, take place this week, domestic and home care workers will be joining a growing chorus of voices in opposition to his nomination. What, you might ask, do domestic workers have to do with this? Why does it matter to domestic workers in particular, and why should you care? Our workforce has had a difficult history with the Supreme Court. And our story foreshadows the implications of a Gorsuch appointment for all workers in this moment.

Those who saw the movie or read the book The Help will remember the portrayal of African American women working as domestic workers — conditions reminiscent of slavery, long after its abolition. Their conditions were not fiction, and were in part due to New Deal labor laws that codified their exclusion from basic recognition and protection as workers based on racism, the result of a concession to southern Dixiecrats. For generations, the Supreme Court upheld those exclusions, even as our reliance upon the work and the workforce itself has rapidly increased.

The impact of those exclusions and the Supreme Court decisions upholding them have been devastating. They have created a shadow economy in our own homes — a lawless, underground economy and breeding ground for human traffickers and bottom feeders. This shadow economy was cultivated by discriminatory legal exclusions and reinforced by discriminatory Supreme Court decisions. The Fair Labor Standards Act, for example, explicitly excluded domestic workers and home care workers from wage laws. And the Supreme Court case involving Evelyn Coke’s claim to overtime pay decades later, after a lifetime of service as a home care worker, was denied just two years before her death.

We have once again entered a phase in law-making, where discriminatory policies codifying exclusions based on race, religion, ability and immigration status have taken hold, emboldened by this Administration. With the appointment of Gorsuch, we risk losing the highest court in the land to partisan, ideologically-driven cruelty — masked as “originalist” readings of both statute and law — repeating history again.

Gorsuch has a history of championing decisions that side with negligent and discriminatory employers at the expense of working people. In Compass Environmental, Inc. v. OSHRC, the 10th Circuit panel that included Gorsuch, determined that an employer whose employee was electrocuted and died had not violated industry safety norms, and in Hwang v. Kansas State University, the panel, led by Gorsuch, held that a university professor with leukemia had not experienced disability-based discrimination when her employer refused to extend her leave even though she could carry out her teaching responsibilities remotely, stating that disability and rehabilitation law cannot “turn employers into safety net providers for those who cannot work.”

One case, in particular, stands out. In TransAm Trucking v. Administrative Review Board, a driver employed by TransAm Trucking was driving in subfreezing temperatures when the brakes of the trailer hitched to his truck froze in the middle of his route, on a highway. The driver, Mr. Maddin, was stuck waiting for hours for help. To save his life (he could not feel his torso or limbs), Mr. Maddin, unhitched the trailer and drove in search of assistance. In response, Mr. Maddin’s employer, TransAm Trucking, fired him, and the violation in question precluded Mr. Maddin from gainful employment with another trucking company.

After years of litigation, an Administrative Law Judge with the Department of Labor and the 10th Circuit found in Mr. Maddin’s favor. Yet, in a strong dissent, Judge Gorsuch claimed that the statute protected only those workers who “refused to operate a vehicle” due to safety concerns and because Mr. Maddin operated the working portion of his vehicle to seek help, he was not entitled to statutory protection under the law. Judge Gorsuch further argued that while the employer may not have been “kind or wise,” Mr. Maddin’s decision to save his own life before saving the load he was transporting was sufficient reason for TransAm’s firing.

During this week’s hearing, Gorsuch held firm to his dissent in TransAm, and sidestepped answers to critical questions related to equality: from marriage equality to the future of voting rights. He’s clear about who he is. We should be clear as well. When dominant voices in our legislature and the Administration are determined to dehumanize and discriminate, we must protect and enhance the role of the Supreme Court as an arbiter of fairness. Especially in the context of this brutally unequal economy, working people cannot bear the extreme cruelty of rulings like the ones he has championed. Members of the Supreme Court have the responsibility to interpret the law in such a way that facilitates human progress, and the strengthening of our democratic, legal system. With Gorsuch, not only will progress be thwarted, we risk creating a new line of casualties that we cannot afford.

Originally published on Medium, March 2017. Access the original here.