The Lack of Equal Justice for All

There was an article in the New York Times recently about the elusiveness of justice for African-Americans in the criminal justice system.

This obviously reflects ingrained racism but it is also a symptom of a wider problem – the lack of equal justice for the poor and the middle class in America.

The leadership of our nation’s civil and criminal justice system, the U.S. Supreme Court, does not serve as a role model for equal justice for all. And the U.S. Congress, which holds the power of the purse-strings over the judicial branch, provides no discernible oversight as to how the court system spends taxpayer money.

An egregious example of the wider problem is  the U.S. Supreme Court‘s refusal to allow its proceedings to be broadcast. This is really an issue about transparency and accountability.  The leadership of the third branch of government in the world’s leading democracy has chosen not to be transparent and or accountable. And if you don’t like it, tough!

The Court’s disdainful attitude toward the American public was not acceptable after television attained broad popularity fifty years ago and it is completely unacceptable in the Internet age. The Court exists to serve the public, not the Court.  This doesn’t mean the Court is subject to the whims of the majority but that the Court must be guided by founding American principles of equality and justice for all.

In my new book, Betrayed: The Legalization of Age Discrimination in the Workplace, I focus on the civil justice system, which  has utterly failed to protect older workers from irrational and harmful age discrimination. This is particularly true for vulnerable older workers (i.e. minorities and women).

The Age Discrimination in Employment Act of 1967 was weak to begin with and has been eviscerated by the U.S. Supreme Court, which has made it almost impossible to win a federal age discrimination lawsuit. Age discrimination has become normalized in American society and is trickling down to ever younger workers (i.e., the youth apartheid state of Silicon Valley).  But younger workers have years to rebound, while older workers often are plunged into a penurious old age of deprivation.

I suggest the judiciary create a special federal court to hear appeals in  discrimination cases. This court could be staffed with federal judges who are both educated in and dedicated to the concept of equal justice. This court would not be limited to age discrimination but would decide appeals in all cases alleging discrimination on the basis of race, sex, religion, sexual orientation and disability, etc.

Age discrimination represents a kind of government subsidy for employers, by allowing them to replace more expensive older workers with cheap young labor. Taxpayers  pick up the tab in the form of higher social welfare costs, including health care and Social Security benefits.  I doubt that most taxpayers would want to pay this subsidy if they knew they were paying it.

High Court OKs Sex Discrimination

“Ain’t I a Woman?”

An all-male majority on the U.S. Supreme Court has sanctioned insidious sex discrimination in the Hobby Lobby case.

In its decision, the majority states that a privately-held for-profit corporation does not have to follow federal regulations requiring employers to provide workers with an  insurance plan that includes, among other things,  no-cost contraceptives. The majority upheld Hobby Lobby‘s religious objection to paying for contraceptives. lodged under the Religious Freedom Restoration Act.  So Hobby Lobby does not have to provide no-cost contraceptives under its insurance plan.

Only women use the contraceptives at issue in the Hobby Lobby case.

Justice Samuel Alito, who wrote the majority opinion,  refers to the issue of discrimination in the context of  fears that an employer might lodge a religious objections involving race discrimination.  For example, suppose a restaurant owner doesn’t want to serve blacks for religious reasons. Justice Alito writes:

“The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. Our decision today provides no such shield. The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.”

Okay, so the Court makes it clear it will not countenance religious objections that are based on race discrimination.  But why then has the Court approved religious objections that are  based on sex discrimination?

Continue reading “High Court OKs Sex Discrimination”

National Chamber Lobbies Federal Cts

When people think  of lobbyists, they usually think of groups that work behind the scenes to  influence legislators in the U.S. Congress.

The U.S. Chamber of Commerce, however,  has had tremendous success “lobbying” federal courts  through  “friend of the court” briefs filed in  lawsuits  on behalf of its conservative  corporate clients. For example, the Chamber routinely opposes any perceived expansion of  worker rights and it usually prevails.

The Chamber, and its President Thomas Donahue, who earns a salary of $4.95 million a year, spend far more money to influence decision-makers than any other lobbying group.

The Center for Responsive Politics at  Open Secrets.org  estimated last year that the Chamber spent $1 billion from 1998 to 2013, which is three times the amount spent by the nearest runner up,  General Electric, which spent about  $294 million over the same period.   No union, labor, consumer or environmental group was listed in the top 20 U.S.  lobbying groups.

National Labor Relations Board

At present, the Chamber  is a critical player in a lawsuit opposing President Barack Obama’s 2012 recess appointments to the National Labor Relations Board (NLRB) and the Consumer Finance Protection Bureau (CFPB).   Obama was forced to resort to recess appointments during Congress’s Christmas vacation in 2012 after encountering a wall of Republican resistance to his proposed appointments.

To challenge the recess appointments, the Chamber joined in a  lawsuit filed by Noel Canning  Corp., a small bottling company in Yakima, Washington. Noel Canning was the subject of  an adverse decision issued by the  NLRB in an unfair labor practices dispute. The Chamber argued that  the NLRB lacked the authority to issue the ruling because it was not comprised of constitutionally appointed board members.

The Court of Appeals for the D.C. Circuit ruled in the Chamber’s favor last year, holding that  Obama’s  appointments violated the Recess Appointments Clause of the U.S. Constitution.  The appeals court said recess  appointments may be made only during the recess that occurs  between each session of Congress and not during  breaks that occur  while Congress is still in session. The Court also said recess appointments can  only be made to fill  positions that become vacant during the recess.

The NLRB filed an appeal with the U.S. Supreme Court, which has a strong pro-business majority. The Court  heard the case in January and could, in its ruling, throw the NLRB into chaos and upset more than a thousand NLRB decisions issued during the past two years.

The Chamber also wants to “save” the CFPB by replacing its director with a bipartisan five-member commission and bring the CFPB under Congressional control. This  would castrate the new agency, which was created after massive fraud on Wall Street led to a world-wide economic meltdown from which the world (including the U.S.) has yet to recover.

Other Cases

On another front, the Chamber is opposing a proposed rule by the Occupational Safety and Health Administration to publicize companies’ health and safety records.

Last year, the Chamber  successfully opposed the so-called “poster rule” proposed by the NLRB to require employers to pose notices in the workplace informing workers of their right to work together to improve their working conditions.

The Chamber  does not limit itself to “lobbying”  the courts and the legislature. A Google search shows the Chamber in February inserted itself into a special election in Florida. According to Politico, the Chamber  funded a TV commercial attacking Democratic Congressional candidate Alex Sink for supporting the Affordable Care Act which, the commercial states, will mean that  300,000 Floridians will “lose their current coverage because of Obamacare.”

The  Chamber describes itself  as “the world’s largest business federation representing the interests of more than 3 million businesses of all sizes, sectors, and regions, as well as state and local chambers and industry associations.”

Ready or Not, U.S. Supreme Court’s Close-Up

The U.S. Supreme Court was dragged into the internet age this week, when a covert two-minute video was posted online showing a protester being hauled away by police.

In what must surely be an embarrassment to the leading “democracy” of the world, it is thought to be the first video of the proceedings of America’s highest court

Unlike the other branches of government, the Court unilaterally refuses to allow electronic devises, including cameras, into the courtroom.

Televising coverage of the Court is important in the context of employment law because a pro-business majority of the Court has issued a series of rulings in recent years scaling back the ability of workers to assert their right to be free from discrimination and abuse in the workplace. It is unclear whether most Americans are even aware of this because they get their news from television. A Gallup poll in 2013 found that television is the main place Americans say they turn to for news about current events (55%), leading the Internet, at 21%. Nine percent say newspapers or other print publications are their main news source, followed by radio, at 6%.

The two-minute video was posted Thursday on the website of 99rise.org, a group that describes itself  a network of activists and organizers dedicated to building a mass movement to reclaim our democracy from the domination of big money.

The video features a protester rising during oral arguments on a patent case to denounce the Court’s 2010 ruling in Citizens United v. Federal Elections Commission, which held  it is unconstitutional to ban free speech through the limitation of independent communications by corporations, associations, and unions.

“I rise on behalf of the vast majority of the American people who believe money is not speech, corporations are not people, and government should not be for sale to the highest bidder,” stated the protester, Noah “Kai” Newkirk, a co-founder of 99 Rise.

The protest occurred on Feb. 26 toward the end of arguments on a case involving patent attorneys’ fees, not campaign finance.  An unidentified person seated near Newkirk in the courtroom took the video, which is shaky and of poor quality. Reportedly, several audience members had “cameras” – probably cell phones.

Newkirk said he has pleaded not guilty to a charge of violating a federal law that prohibits “loud threatening or abusive language” in the Supreme Court building.

Roberts Tells Congress to Set Aside Politics?

Chief Justice John G. Roberts Jr. has called on Congress to set aside politics when it comes to funding the federal courts.

Oh, the irony.

In his year end report, he wrote, “The United States courts owe their preeminence in no small measure to statesmen who have supported a strong, independent, and impartial judiciary as an essential element of just government and the rule of law.”

This from a Supreme Court justice who is considered to be the most pro-business, anti-worker justice since World War II.

One cannot help but wonder how the Court hopes to rally public support when it has consistently refused to allow its proceedings to be televised and has provided virtually no leadership to encourage the use social media and internet technology to  better serve the public.  The Roberts’  court has done little, if anything,  to help the public understand the importance of the judiciary is a democratic society.

The U.S. Supreme Court who?

A suggestion for Congress  – this might be a good time to encourage the Court to open its doors to television cameras.

Moreover, the Roberts’ court appears to be terribly, woefully and sadly out of touch with the masses, tuning out the little folk who pay federal judges’ hefty salaries while providing a megaphone to the U.S. Chamber of Commerce.

Roberts is seeking $7 billion appropriation in 2014, which compares to $6.97 billion allocated last year (reduced by about  $300 million  by sequestration, after Congress gave the courts an additional $51 million in October). The Court has passed along budget cuts to federal public defender offices, clerks,  parole and probation officers.

The business of federal courts appears to be down overall.  Filings in  civil and criminal cases grew by 1 percent in 2013 but  filings in appeals courts dropped by 2 percent; filings in the Supreme Court dropped by 2.6 percent; and, filings in bankruptcy courts dropped by 12 percent.

One reason for the decline may be that  victims  of employment discrimination are foregoing the use of federal courts because of the hostility of federal judges to job discrimination claims.

A 2013 article in The Minnesota Law Review reviews some 2,000 U.S. Supreme Court decisions and ranked the 36 justices who served on the court from 1946 to 2011 by the proportion of their pro-business votes.

Roberts  and Associate Justice Samuel A. Alito, Jr., both appointed by GOP President George W. Bush, are the most likely to vote in favor of business interests of any of the 36 justices who has served since 1946.  And three other current conservative justices are in the top ten of most pro-business justices since 1946.  They are Justices Clarence M. Thomas, Antonin Scalia and Anthony M. Kennedy.

Also on the Court are Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia M. Sotomayor and Elena Kagan, all appointed by Democratic presidents.

The study was prepared by Lee Epstein, a law professor at the University of Southern California; William M. Landes, an economist at the University of Chicago; and Judge Richard A. Posner, of the federal appeals court in Chicago, who teaches law at the University of Chicago.

 

America’s Third World Court

US Supreme Ct Insists on Obscurity

United States: The leader of the federal court system of the world’s greatest democracy, the U.S. Supreme Court, refuses to allow its proceedings to be televised.  Television is an archaic technology that dates back to the 1920s. . Refusing to be televised is akin to insisting in 1440 that the bible be pen8037-25ned by monks in ink, longhand, rather than  using the newfangled Gutenberg printing press. Our high court’s annual rulings are initially handed out on paper by the court’s public relations staff and then posted on its web site.

Meanwhile …

Victoria, Australia: The Supreme Court of Victoria this month  announced a plan to launch several new technology initiatives.  Here are some of its goals:

  • The Court will become fully paperless by 2016.
  • It is recruiting retired judges to blog for the court.
  • The court is  developing an interactive website. Viewers can watch Video on Demand, download judgment summaries and judgments, leave comments on the Supreme Court News website, and participate in an Internet Forum.
  • The Court just launched a Facebook page last week and already has a Twitter feed with nearly 2500 followers.
  • The Court plans to look at other social media opportunities such as LinkedIn.

According to the Hon. Marilyn Warren, Chief Justice of the Supreme Court of Victoria:

“It’s about openness so the community can see and know what we do in the courts, it’s also a way for the courts to make sure that the community are appropriately informed of what happens in court, the reality about the cases, not the story in the media that the editors want to put out, the community can read that, but they should know the actual facts.”

Moreover, Judge Warren notes that at one time the print media assigned skilled legal affairs reporters to cover the courts but in this era of cutbacks there are fewer and fewer court reporters to inform the public about the court’s proceedings. “The opportunity for the public to see what the courts do unmediated by journalists and editors may go a long way towards educating the public about the role of the judiciary. It is also a way of reaching younger generations,” she added.

Fortunately, some state courts in the United States are slightly more progressive than the U.S. Supreme Court.  According to a survey by the Conference of Court  Public Information Officers, almost 12 percent of state courts at least use Facebook.

 

Whatever Happened to Precedent?

Partisan Court Quick to Reject Past Decisions

The U.S. Supreme Court and Tea Party Republicans have something in common.

Tea Party legislators in Congress have forced a shut down of the U.S. government because they oppose “Obamacare.”  This  tactic upsets longstanding practice and rejects the reality that the Patient Protection and Affordable Care Act is the law of the land and was effectively ratified when voters returned President Barack Obama to office.

The conservative majority on the U.S. Supreme Court doesn’t have to shut down the government to change a law. It merely uses it’s majority status to vote to overturn a precedent that it disfavors.

The New York Times reports the five-justice conservative majority on the U.S. Supreme Court is now poised to use the case of McCullen v. Coakley, No. 12-1168, to overturn a 2000 precedent that placed restrictions on anti-choice protests at reproductive health care facilities.

Adherence to precedent – or the collective judgments of prior courts – dates back to English Common law. It is part of the concept of “stare decisis” that posits upholding precedent strengthens the legal system by placing decision-making in the realm of neutral legal principles and the accumulated wisdom of many judges and courts rather than at the whim of self-interested individuals and partisan courts.

Just as the GOP in the House appear to have little regard for the political process that led to the adoption of Obamacare, the current conservative majority on the U.S. Supreme Court appears to have little respect for decisions of prior U.S. Supreme Courts.

The Precedent

In Hill v. Colorado,  the Supreme Court in 2000 upheld a Colorado law that made it unlawful for any person within 100 feet of a health care facility’s entrance to “knowingly approach” within 8 feet of another person, without that person’s consent, in order to pass “a leaflet or handbill to, displa[y] a sign to, or engag[e] in oral protest, education, or counseling with [that] person … .”.

The Massachusetts law at issue in the McCullen case makes it a crime for speakers other than clinic “employees or agents . . . acting within the scope of their employment” to “enter or remain on a public way or sidewalk” within thirty-five feet of an entrance, exit, or driveway of “a reproductive health care facility.”  If the Court  determines that Hill  permits enforcement of the Massachusetts law, it will decide whether Hill should be limited or overruled.

The growing partisanship of the Court can be seen by examining the Hill majority.

Hill was was decided by a vote of 6-3. Three Republican appointees on the Court voted with three Democratic appointees to uphold the Colorado law.  They were the late Chief Justice William Rehnquist and retired justices Sandra J. O’Connor and David Souter. The Hill Court ruled:

The State’s police powers allow it to protect its citizens’ health and safety, and may justify a special focus on access to health care facilities and the avoidance of potential trauma to patients associated with confrontational protests.”

 The Court said that rules providing specific guidance to enforcement authorities serve the public’s interest in evenhanded application of the law. The majority also ruled the statute dealt not with restricting a speaker’s right to address a willing audience, but with protecting listeners from unwanted communication.

Prior to Hill, anti-choice protesters gathered daily in unruly mobs at reproductive health care facilities. They held graphic signs and shouted through bullhorns in an effort to intimidate women and deter them from entering the health care facility. This was part of a wider climate of fear in America that included anti-choice protesters targeting and, on several occasions, murdering health care providers and personnel who worked at reproductive health care facilities.

More Partisan

So, what’s different today? Primarily it’s the Court.

The Court was less partisan in 2000 when Hill was decided.

The three conservative justices who dissented in Hill  are Antonin Scalia, Clarence Thomas, and Anthony M. Kennedy, all appointed by Republican presidents. The Hill dissenters are joined on the Court today by Republican appointees Chief Justice John G. Roberts, Jr. and Justice Samuel A. Alito, Jr.,  who  are among the most conservative justices since World War II.  The five-justice conservative majority on today’s Court outnumbers the four-justice Democratic-appointed, more liberal minority, Ruth Bader Ginsberg, Stephen J. Breyer, Sonia Sotomayor and Elena Kagan.

Justice Kennedy is sometimes considered a swing vote  but the dissent that he registered in Hill  signals a  vote in favor of overturning restrictions on anti-choice demonstrators.

There were several cases in the last term of the Court that were marked by bitter partisanship, as the majority overturned established and long-held precedent.

There is something rather surreal about it all. To quote from Lewis Carroll:

Alice: [as a giant] And as for you… Your Majesty! Your Majesty indeed! Why, you’re not a queen,

[shrinking]

Alice: But just a – a fat, pompous, bad tempered old ty…!

[normal size]

Alice: Tyrant.

Queen of Hearts: [giggles] And uh, just what were you saying, my dear?

Cheshire Cat: Why, she simply said that you’re a fat, pompous, bad tempered old tyrant!

 [chuckles]

Courts Scrutinize Employer “Look” Policies

Dreadlocks and Hijabs

An employer’s vision of a company’s “culture” can be risky business when it involves the appearance of workers.

Abercrombie & Fitch recently settled two lawsuits involving a provision of its dress code or “Look Policy” that prohibited Muslim employees from wearing a hijab (religious scarf) on the job.

Meanwhile, the U.S. Equal Employment Opportunity Commission (EEOC) has filed a lawsuit against Catastrophe  Management Solutions, a Mobile, Alabama catastrophic  insurance claims company, for alleged discrimination against a  black applicant for employment because she wore dreadlocks.

In both cases, the employers allegedly interpreted their culture in such a way as to exclude workers who demonstrated physical or cultural characteristics  of race or religious identity.  Other employers run afoul of  Title VII of the Civil Rights Act of 1964 law when they interpret their culture in ageist or sexist ways.

Eliminating barriers in recruitment and hiring, especially class-based recruitment and  hiring practices that discriminate against racial, ethnic and religious groups,  older workers, women, and people with disabilities, is one of six national  priorities identified by the EEOC’s Strategic Enforcement Plan.

Dreadlocks

Chastity Jones was among a group of  applicants who were selected for a group interview by Catastrophe Management Solutions on May 12, 2010.  Jones, who is black, had blond hair that was dreaded in neat curls, or “curllocks.”  Jones was offered a position as a customer service  representative.

According to the EEOC, Jones’s offer of employment was rescinded later that day when  human resources staff met with Jones to discuss her training schedule and realized that Jones’s curled hair was in  dreadlocks.  The manager in charge told  Jones  the company did not allow dreadlocks and that she would have to cut  them off to obtain employment.  Jones  refused to cut her hair.

The EEOC argues that Catastrophe’s ban on dreadlocks discriminates against African-Americans is based  on physical and/or cultural characteristics in violation of Title VII. The EEOC filed suit in U.S.  District Court for the Southern District of Alabama (Equal Employment Opportunity Commission v. Catastrophe Management  Solutions, Inc., Civil Action No. ­­­­­­­­­­­1:13-cv-00476-CB-M).

“This litigation is not about policies  that require employees to maintain their hair in a professional, neat,  clean or conservative manner,” said C. Emanuel Smith, regional attorney for the EEOC’s Birmingham District Office.  “It focuses  on the racial bias that may occur when specific hair constructs and styles are  singled out for different treatment because they do not conform to normative standards  for other races.”

Third time’s the Charm?

The EEOC reports that three federal judges have issued rulings in different cases in recent years rejecting Abercrombie’s claim that it would create an undue hardship and/or violate Abercrombie’s free speech rights to require the company to permit employees to wear hijabs. Title VII requires employers to accommodate the sincere religious beliefs or practices of employees unless doing so would impose an undue hardship on the business.

Abercrombie & Fitch last month settled two EEOC lawsuits involving its “Look Policy” –  an internal dress code that included a prohibition against head coverings.

The settlement follows a ruling by U.S. District Judge Yvonne Gonzalez Rogers ruled that Abercrombie was liable for religious discrimination in the firing of Muslim employee Umme-Hani Khan for wearing her hijab.

Khan, 19, started working in  2009 at the firm’s Hollister store (an Abercrombie & Fitch brand targeting teenagers aged 14 through 18) at the Hillsdale Shopping Center in San Mateo, Calif.  As an “impact associate,” she worked primarily in the stockroom.  At first she was allowed to wear headscarves in Hollister colors. Several months later, she was informed that her hijab violated Abercrombie’s “Look Policy” and that she would be taken off schedule unless she removed the hijab while at work.  Khan refused and was fired on Feb. 23, 2010.

Judge Rogers rejected Abercrombie’s argument that its Look Policy goes to the “very heart of [its] business model” and any deviation from the policy threatened the company’s success. She said Abercrombie offered only “unsubstantiated opinion testimony of its own employees to support its claim of undue hardship.”  That testimony, she added, demonstrated “their personal beliefs, but are not linked to any credible evidence.”

Abercrombie settled Hahn’s case along with a lawsuit by Halla Banafa, who was not hired as an “impact associate” in Abercrombie’s Great Mall outlet in Milpitas, Calif., because of her headscarf. In April, U.S. Judge Edward J. Davila dismissed Abercrombie’s undue-hardship claims on summary judgment, citing the “dearth of proof” linking store performance or the Abercrombie brand image to “Look Policy” compliance.

The settlement requires Abercrombie to create an appeals process for denials of religious accommodation requests, inform applicants during interviews that accommodations to the “Look Policy” may be available, and incorporate headscarf scenarios into all manager training.  The company must make regular reviews of religious accommodation decisions to ensure consistency and provide biannual reports to the EEOC and Khan.  Khan and Banafa will also receive $71,000 under the terms of the settlement.

In a third lawsuit not part of this settlement, a district court in Tulsa, Okla., ruled on July 2011  that it was religious discrimination for Abercrombie not to hire a Muslim applicant for a sales position due to her hijab. The case is pending on appeal.

Federal Judges Slash Funds to Poor

Judicial Salaries Sacrosanct?

The sequester is wreaking havoc on the federal judiciary’s budget but, not surprisingly, “judicial compensation” remains unaffected.

 The judiciary is passing the budget cuts along to clerks, probation officers and, of course, the poor.

The federal judiciary depends on the “kindness of strangers” in the U.S. Congress for its funding. Earlier this month, the Judicial Conference of the United States appealed to President Barack Obama to make its case for funding in budget talks for 2014.

In the letter to Obama, Conference Secretary John  D. Bates states the judiciary incurred an almost $350 million budget cut in 2013 as a result of the sequester.

“In order to fund increases to must-pay expenses such as judges’ compensation and (General Services Administration)  rent,” Page writes, “funding allocations to court units had to be cut 10 percent below the FY 2012 level.” 

 Page writes that the “most significant impact” of the sequester and budgets cuts is being felt in the provision of federal public defender services to indigent criminal defendants.

The federal judiciary is required to provide legal counsel to indigent criminal defendants under the Sixth Amendment of the U.S. Constitution and the U.S. Criminal Justice Act.  These services are provided through Federal Defender Offices and private panel attorneys.

 Page said the judiciary has cut federal defender funding by $51 million by “reducing (Federal Defender Organization) staffing levels through layoffs and furloughs, or deferring or reducing payments to private (Criminal Justice Acct) panel attorneys.”

 He states that federal defender offices downsized by more than six percent between Oct. 2012 and June 2013. Since March, he writes, “their remaining employees have been furloughed for over 12,500 days.”

Even further reductions in the defender Ssrvices budget are expected in FY 2014.  At its August 15-16, 2013 meeting the Executive Committee of the Judicial Conference authorized an unprecedented $15 cut in the hourly rate for panel attorneys from September 1, 2013 through September 30, 2014.

 Page said funding reductions also put public safety at risk.  He writes that staffing in probation and pretrial services offices is down seven percent since 2011 and a “20 percent cut had to be made to the funding for drug, mental health, and sex offender treatment, as well as to drug testing services for offenders, searches, and electronic and GPS monitoring.

Lots of Work for New Labor Secretary

Perez Faces Daunting Obstacles

Labor Secretary Tom Perez pledged this week to aggressively defend workers rights in a speech to the AFL-CIO but it may be a bit early to break out the balloons and confetti.

For one thing, Perez, who was appointed by President Barack Obama in July, has little power to overcome some of the daunting obstacles facing both the labor movement and American workers generally.

Research earlier this year documented what many casual observers already knew – the U.S. Supreme Court is, in fact,  the most anti-employee rights court in modern U.S. history.

In the past two years, the Court has issued decisions that make it far more difficult for plaintiffs to prevail in employment discrimination lawsuits, retaliation lawsuits and class action lawsuits. See One-Two Punch by Anti-Worker Court and Wal-Mart Doges Bullet.

Congress has done little or nothing to repair these devastating blows to worker rights.

Congress has not even addressed the Court’s absurd 2009 decision in Gross v. FBL Financial Services  to treat plaintiffs in age discrimination lawsuits less favorably than plaintiffs in race or sex discrimination lawsuits.

Finally, Congress’ so-called budget compromise – the sequester  – threatens to devastate the U.S. Department of Labor, which faces a potential budget cut of up to 26 percent in 2014.

Still …  Let the wind be at his back as Perez defends collective-bargaining rights, aggressively enforces wage laws and takes steps to improve workplace safety.

He also plans to crack down on employers who unlawfully misclassify workers as contractors instead of as employees and extend wage protections—such as overtime pay—to groups like home health-care workers who now have limited protections. Mr. Perez also said the DOL also will focus on job-training skills, calling he agency the “Department of Opportunity.”

And there’s no time like the present!

Union membership is down from a high of 20 percent in 1983 to 11.3 percent in 2012 (of which only 6.6 percent are private sector workers).