Many federal laws protect the rights of working men and women, but recent Supreme Court decisions have made some of these laws a dead letter, and employers know they can violate them with virtual impunity. As a result, today’s workers are defenseless against certain blatant violations of their rights.

The most recent of these decisions, Ledbetter v. Goodyear Tire & Rubber Co. (2007), concerns Lilly Ledbetter, who tried to enforce the prohibition against gender wage discrimination in the 1964 Civil Rights Act. Ledbetter worked for the Goodyear Tire and Rubber Company from 1979 to 1998, during which period Goodyear paid her less than her male counterparts. Like most employers, Goodyear keeps salaries secret. Ledbetter learned of the discrimination only when she retired; by then the pay discrepancy had become very large. When she sued for back pay to make up for the accumulated shortfall, a 5-to-4 majority ruled that because she hadn’t complained to the Equal Employment Opportunity Commission within 180 days after the discriminatory act first occurred–when she hadn’t even known she was being discriminated against–she was entitled to absolutely nothing. At a time when women on average still earn significantly less than only a fraction of similarly qualified men, the decision creates an often insurmountable barrier to the right to equal pay.

A worker’s right to receive medical benefits through an employer’s health plan is supposed to be guaranteed by the federal Employee Retirement Income Security Act (ERISA). Supreme Court opinions have, however, interpreted ERISA as effectively pre-empting lawsuits predicated on a failure to provide those benefits. At the same time, the Court has interpreted ERISA to provide an inadequate set of federal remedies, opening, as one distinguished lower court judge put it five years ago, a “gaping wound” in the statute. Thus, if an HMO improperly denies coverage of a particular medical procedure or a hospital stay under ERISA, the patient must either pay for the procedure personally and then sue for reimbursement–a financial impossibility for most workers–or seek an emergency court order forcing the HMO to provide the needed benefits. HMO officials understand very well that both remedies are wholly impracticable for most workers.

The 4.7 million employees of state governments have lost even the possibility of enforcing their rights under such important federal laws as the Fair Labor Standards Act, which governs minimum wages and overtime; the Age Discrimination in Employment Act; and the Americans With Disabilities Act. These statutes expressly authorize state workers to sue to enforce their rights; yet in Alden v. Maine (1999), a 5-to-4 majority of the Court held that if states violate these laws, state sovereignty blocks victims from suing.

One final example: undocumented workers in the United States are legally entitled to many of the same rights as American citizens. In 2002, however, the usual 5-to-4 majority ruled that an employer who illegally fired an undocumented union organizer did not have to release back pay. Although it is technically illegal to fire any worker for joining a union, resisting sexual harassment, complaining about discrimination or receiving less than the minimum wage, after that decision no prudent undocumented worker would dare to complain because she would have no remedy if she were fired for having done so. The decision–Hoffman Plastic Compounds v. NLRB (2002)–thus encourages employers to hire undocumented workers, since they can violate the workers’ rights with impunity.

Many of these injustices could be corrected with legislation, but without a progressive Congress and president, HMOs and business groups will be able to block any significant changes. Which is another reason why the upcoming elections are so crucial.

Cross-posted in The Nation‘s November 3, 2008, edition.

About the Author: Eric Schnapper is a professor of law at the University of Washington School of Law, teaching Civil Rights, Civil Procedure and Employment Discrimination.  He served for twenty-five years as an assistant counsel to the NAACP Legal Defense and Educational Fund, Inc., specializing in appellate litigation and legislative activities.