Thursday, October 27, 2011

Supreme Court Preview

In its 2010 Term, the Supreme Court issued a number of interesting opinions on employment law topics such as class action lawsuits (invalidating a class action brought by 1.5 million current or former Wal-Mart employees), retaliation and Title VII (allowing a third-party to bring a retaliation claim because of association under Title VII) and immigration (allowing states to punish employers for hiring unauthorized workers).
The Court’s 2011 Term has fewer high-profile employment law cases, but a few cases are worth watching, including:
Hosanna-Tabor Church v. EEOC is of particular importance to religiously-affiliated organizations.  The Court will decide whether the “ministerial exception,” which generally prohibits most employment lawsuits brought by employees performing religious functions against religious organizations, prohibits a lawsuit brought  by an elementary school teacher at a religiously-affiliated school who taught both secular and religious subjects.  Other blog commentary here and here.
In Knox v. SEIU, the Court may define important boundaries for the the requirements that non-union members represented by a union must still pay at least a portion of normal union dues.  Particularly, the Court will decide whether a state may condition employment on the payment of a union fees or assessment intended solely for political and ideological expenditures.
One case is noteworthy enough to mention even though the Court hasn’t yet determined whether to hear it.  Fisher v. University of Texas is not an employment case.  However, the outcome of the case will be critical to college and university admissions, and it could have a significant impact on diversity and affirmative action efforts by private employers.  A student, denied admission to the University of Texas, challenges the university’s racial and ethnic preferences in admissions.  The lower court upheld UT’s program. 
If the Court accepts review, the present, more conservative Supreme Court majority may draw firmer lines than in two landmark 2003 opinions involving the University of Michigan.  In the first, Grutter v. Bollinger, Justice Sandra Day O’Connor’s opinion held that the Constitution does not prohibit the “narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.”  In Gratz v. Bollinger, however, the Court struck down a more rigid, point-based admissions policy.  Commentator’s believe (e.g., here and here) that the current Supreme Court is less likely to accept the nuanced distinctions of the Court’s 2003 opinions.

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