Supreme Court Watch: Employment Cases in 2013

The 2013 U.S. Supreme Court term features several employment law cases important to employers and human resource professionals, including the following significant pending cases:

Vance v. Ball State University: This case involves the definition of a “supervisor” for purposes of harassment claims under Title VII of the Civil Rights Act. Under current law, employers may be held strictly liable for the acts of supervisors but harassment by a co-worker will not create liability unless the employer “knew or should have known” about the harassment. This decision will clarify a current split among federal Courts of Appeal concerning the legal definition of a supervisor.

University of Texas Southern Medical Center v. Nassar: This case involves what standard of proof a plaintiff claiming retaliation in a Title VII case must meet in order to prevail. Some courts have required more stringent standards than others when analyzing whether prohibited retaliation was a motivating factor for an employer’s adverse employment action. Employers would be less vulnerable to such claims if a more stringent standard of proof is required. 

Sandifer v. U.S. Steel Corp.: The question presented in this case is whether the Fair Labor Standards Act requires employers to pay wages to employees when they are changing in and out of protective clothing at the beginning and ending of a workday.

What should employers expect from the current Supreme Court?  The Roberts court has been viewed by many commentators as extremely friendly to corporations and big business interests. For example, in 2011 the court issued a blockbuster decision, Wal-Mart v.Dukes, preventing what would have been the largest-ever employment sex discrimination class action case from proceeding in the federal court system. Since the Dukes decision, the court has continued to issue decisions that limit and restrict the ability of plaintiffs to sue on a class-wide basis. 

Most of the “pro-business” commentary, however,  is supported only by anecdotes and individual opinions. A new study published by The Minnesota Law Review and recently featured in a New York Times article takes a more careful and empirical approach to analyze the court’s pro-business decisions. The study reviewed over 2,000 decisions and ranked the 36 justices who have served on the court over a 65 year period. The authors ranked the justices by the proportion of their pro-business votes. Five of the current court’s more conservative members were in the top 10 of pro-business judges. The most notable finding, however, was that the two justices most likely to vote in favor of business interests since 1946 are the most recent conservative additions to the court, Chief Justice Roberts and Justice Samuel A. Alito Jr.  The study finds that the Roberts court is, indeed, a friend to corporations,  and that today’s legal landscape has shifted to a definitively  pro-business environment. This means that employers should anticipate more favorable rulings in the 2013 term, right?  

Wrong. The Roberts court’s decisions have not all favored corporations, nor have the decisions been consistently split along  “conservative” and “liberal” lines. In fact, the court’s most recent decision - not employment related - resulted in an unusual split. Just this week, in  Maryland v. King, the Court ruled in a 5-4 split decision that police may take DNA samples from people arrested in connection with serious crimes. The decision featured an alignment of justices that scrambled the usual ideological alliances. Chief Justice John G. Roberts Jr. and Justices Stephen G. Breyer, Samuel A. Alito Jr. and Clarence Thomas joined the majority opinion, while Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined Justice Scalia’s dissent.

The Supreme Court decides one case at a time, and its decisions may sometimes strike observers as inconsistent. Individual cases tend to be driven by unique facts and the Court's obligation to consider legal precedent. Historically, the court has displayed constantly shifting judicial alliances. Predicting the court’s future rulings is more art than science. Employers should pay careful attention to employment law cases as the 2013 term continues to unfold. The results are likely to be significant, informative, and anything but predictable.