Beltway Buzz, September 25, 2020

RBG. Supreme Court Justice Ruth Bader Ginsburg passed away on Friday, September 18, 2020, at the age of 87. In this humble publication it is impossible to capture Justice Ginsburg’s outsized influence on the law, women’s rights, public policy, and even pop culture. Washington, D.C., like the rest of the country, mourns her loss. Indeed, President Donald Trump has ordered that United States flags be flown at half-staff until sunset on the day of her interment. Justice Ginsburg lay in repose at the Supreme Court of the United States on September 23 and 24, 2020, and the following day she became the first ever woman to lay in state in the U.S. Capitol building.

Justice Ginsburg served over 27 years on the Supreme Court and 13 years as a judge of the United States Court of Appeals for the District of Columbia Circuit. The Buzz particularly remembers Justice Ginsburg’s dissent in a famous 2007 case dealing with equal pay, which she read aloud from the bench. She argued that the majority took the wrong view with respect to what constitutes an unlawful employment practice in compensation discrimination cases. According to Justice Ginsburg, “each payment of a wage or salary infected by sex-based discrimination constitutes an unlawful employment practice.” She concluded, “Once again, the ball is in Congress’ court. As in 1991, the Legislature may act to correct this Court’s parsimonious reading of Title VII [of the Civil Rights Act of 1964].” Of course, Congress responded to her call by passing the Lilly Ledbetter Fair Pay Act two years later, the first bill President Barack Obama signed into law, on January 29, 2009.

Battle for SCOTUS. With Justice Ginsburg’s passing comes another fight over control of the Supreme Court. While there was initially much speculation about the Republicans’ ability and willingness to fill Justice Ginsburg’s seat, that speculation quickly ceased. The question now is not “if” Republicans will fill the seat, but rather “when.” President Trump is expected to name a nominee on September 26, 2020, and Republican leaders in the U.S. Senate have indicated that they would like a confirmation vote prior to the November 3, 2020, elections. As a result, at least some Democratic Senators are already threatening to end the filibuster if they gain a majority in the Senate after the elections. Whatever happens, the impact of Justice Ginsburg’s death on jurisprudence, policy, and the law will be felt for years to come.

Executive Order on Contractor Diversity and Inclusion Efforts. On September 22, 2020, President Trump issued an executive order (EO), titled “Executive Order on Combating Race and Sex Stereotyping.” The EO, which follows on the heels of a similar memorandum from the Office of Management and Budget that applies to federal agencies, prohibits federal contractors from engaging in “any workplace training that inculcates in its employees any form of race or sex stereotyping or any form of race or sex scapegoating.” Other requirements in the EO, such as a posting requirement and prescribed contract language, as well as what this all means for contractors, will be covered in depth by Ogletree Deakins’ Diversity and Inclusion and Affirmative Action/OFCCP practice groups. The requirements of the EO go into effect for contracts entered into on or after November 21, 2020.

Independent Contractor Proposal Drops. On September 25, 2020, the U.S. Department of Labor’s Wage and Hour Division issued a notice of proposed rulemaking regarding independent contractor status under the Fair Labor Standards Act. The proposal focuses on “economic dependence” as the “ultimate inquiry” when determining whether a worker “is in business for him- or herself” (independent contractor), or is dependent on another entity for work (employee). The proposal also identifies two core factors that are the most probative in determining independent contractor status: (1) “the nature and degree of the individual’s control over the work”; and (2) the individual’s “opportunity for profit or loss.” Comments are due on or before October 26, 2020, as the administration will likely hurry to finalize the regulation before the end of the year.

EEOC Nominees Confirmed. This week, the Senate confirmed Republicans Keith E. Sonderling and Andrea R. Lucas, as well as Democrat Jocelyn Samuels, to the U.S. Equal Employment Opportunity Commission (EEOC). They join current Republican chair Janet Dhillon and Democrat Commissioner Charlotte A. Burrows to give the EEOC a full complement of commissioners. Because of the commissioners’ staggered terms, Republicans will maintain their majority on the EEOC through June 2022.

Commissioner Victoria A. Lipnic will now step down after serving 10 years on the Commission. Among Lipnic’s accomplishments was her work, along with former commissioner Chai R. Feldblum, on the “EEOC Select Task Force on the Study of Harassment in the Workplace,” which warned of the continuing pervasiveness of sexual harassment in the workplace well before high-profile stories were published in the media.

We’re Not Gonna Take It. Thirty-five years ago this week, on September 19, 1985, First Amendment to the U.S. Constitution battle lines were drawn over the content of rock lyrics at an infamous hearing of the Senate Committee on Commerce, Science, and Transportation. The Parents Music Resource Center (PMRC) had been formed earlier that year to advocate for a rating system for musical content, much like they have for movies, and they literally made a federal case out of it. Of course it helped that PMRC’s cofounder, Tipper Gore, happened to be married to Senator Al Gore (D-TN) who served on the committee at the time. In what would now be a rare demonstration of bipartisanship, Gore and his colleagues, including Paula Hawkins (R-FL), squared off against the unlikely musical trio of John Denver, Frank Zappa, and Dee Snider (growing up in the early 1980s, the Baby Buzz was a big fan of Snider’s band, and fellow Long Island rockers, Twisted Sister) over the appropriateness of placing warning labels on record albums. In the end, the Recording Industry Association of America agreed to voluntarily adopt record labeling, a distinction which made the albums that brandished such warnings all that more attractive to the Baby Buzz.