A Review of the US Supreme Court Seen as Split when it comes to Employer/Employee Lawsuits


July 27, 2010

As the United States Supreme Court’s 2009-2010 term drew to a close, commentators remarked on the evolution of the Roberts Court. Justice Roberts continued to emerge as a key figure this term, as he was a member of the majority 92 percent of the time, more than any other justice.

While his majority percentage may suggest to some willingness to compromise with his more liberal colleagues on certain issues, he also clearly demonstrated firm convictions on important issues such as campaign finance and gun rights, which yielded some the most highly publicized decisions of the term. Indeed, the Court’s ruling in the Citizens United case, which invalidated legislation imposing limits on corporate spending in elections, has led some commentators to conclude that the Roberts Court is ushering in era where business interests will reign supreme.

This view, however, does not accurately characterize the Court’s labor and employment decisions, which demonstrate a far more even split between employer and employee interests. The nine employment-related decisions issued by the Court this term included:

  • Two ERISA cases (Conkright, Hardt);
  • Two attorneys’ fees cases (Perdue, Hardt);
  • Three arbitration cases (Stolt-Nielsen, Rent-a-Center West, Granite Rock); and
  • Important proclamations regarding: authority of the two member National Labor Relations Board (New Process Steel), timeliness of discrimination charges (Lewis), and privacy rights (Quon).

These decisions demonstrated that the Court’s conservative justices continue to play a dominant role, a trend that will likely continue at least through the next term with the pending retirement of Justice Stevens. Of these nine decisions, five were decided 5-4 or 5-3, with the conservative block constituting the majority in all but one.

The remaining four decisions were generally unanimous, with the exception of a partial dissent in Granite Rock. Of the nine decisions, five are viewed as generally favorable to employers; of the remaining four, viewed as favorable to employees, three were essentially unanimous, including the Granite Rock ruling against the viability of a new federal cause of action for tortious interference under § 301(a) of the Labor Management and Relations Act.

One landmark unanimous decision, Lewis v. City of Chicago, Case No. 08-976 (May 24, 2010), held that a plaintiff who does not file a timely charge challenging employment practice may nevertheless assert a disparate impact claim. The opinion marks a notable departure from Scalia’s concurrence in Ricci v. DeStefano, 129 S. Ct. 2658, 2682 (2009) during the Court’s 2008-2009 term.

At that time, Justice Scalia flirted with the notion that disparate impact claims were inherently in conflict with the “disparate treatment” prohibition of Title VII and the Equal Protection guarantees of the United States Constitution which prohibit intentional race-based decision making. He noted that Title VII’s disparate impact provisions often require “employers to evaluate the racial outcomes of their policies, and to make decisions (because of) those racial outcomes. That type of racial decision making is, as the Court explains, discriminatory.” Id. at 2682.

Scalia’s unanimous opinion in Lewis makes no mention of his prior comments in Ricci and expresses no misgivings about the viability of disparate impact claims generally, where there is no issue or claim pending that an employer’s attempt to remedy or protect against a disparate impact has resulted in potentially discriminatory race-based decision.

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