Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law

By Mark Tushnet | Go to book overview

CHAPTER 6
The State Action Doctrine and Social and
Economic Rights

CONSIDER the following cases: (1) A man employed by a private college informs his employer (in response to an inquiry) that he is gay. The employer fires him. The former employee sues the college, claiming that the college's action violates the nation's constitutional requirement that everyone be treated equally. (2) A hearing-impaired person seeks medical care from a hospital, which indicates its willingness to provide the care on the condition that the patient provide, and pay for, a sign language interpreter to assist in the delivery of the medical care. The patient sues the hospital, claiming that its refusal to provide service violates the constitutional norm of equality. (3) A group of farmworkers organizes itself and approaches the workers' employer, seeking to bargain collectively over wages, hours, and conditions of labor. The employer refuses to bargain. The union sues the employer, claiming that the refusal to bargain violates the workers' constitutionally protected right of association.1

Now consider these cases. (1a) The college employee files a complaint with the local antidiscrimination commission. The commission rejects the claim, explaining that the statute creating it authorizes it to remedy discrimination based on race, gender, age, and other categories, but not sexual orientation. The employee files an action in court seeking to force the commission to consider his claim on the merits, arguing that the exclusion of sexual orientation from the statute violates the nation's constitutional requirements requiring equal treatment for all. (2a) The hearing-impaired person files a claim with the nation's health care system seeking reimbursement for the cost of a sign language interpreter. The system denies the claim, pointing out that the legislation creating the system does not allow it to cover those costs. The hearingimpaired patient files an action in court, arguing that the system's refusal to cover the costs of sign language interpreters violates the nation's constitutional norms of equality. (3a) The farm workers file a complaint with the nation's labor relations board, asking that it conduct a representation election and afterwards use the legal tools it has to require that the employers engage in collective bargaining with their union. The labor relations board dismisses

1 These examples are drawn from cases decided by the Canadian Supreme Court, and discussed
in detail in chapter 7.

-161-

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