The Law @ Work

Supreme Court’s Employment Law Docket

The Supreme Court’s 2012-2013 term is well underway, and you may be wondering: will the court hear any important employment law cases that could have ramifications for me or my business?  The following is a summary of the Court’s employment-law-related activity in the current term:

No Review in Bias Case Regarding Scope of Continuing Violation Doctrine

In Eng v. Port Authority of NY and NJ, a federal appeals court held that officers’ failure-to-promote claims occurring outside of the statute of limitations period could not be saved by the continuing violation doctrine, which is an exception to the statute of limitations that allows a plaintiff to recover for discriminatory acts that occur outside of the statute of limitations period, on the theory that the discriminatory acts, taken together, make up one ongoing violation.  In the Eng case, eleven Asian-American officers sued the Port Authority alleging that it failed to promote Asian-American officers. The trial court ruled the plaintiffs could recover for failures to promote outside the limitations period under the continuing violation doctrine because the failures to promote constituted an ongoing discriminatory practice.  The Second Circuit reversed, however, holding that the continuing violation doctrine does not apply to “discrete acts” of discrimination, which includes the failure to promote.  In other words, the first time the officers were not promoted was a discrete act of discrimination, and, thus, the officers could not later string failures to promote outside of the limitations period together with those incidents within the limitations period to obtain damages. The plaintiffs sought review from the Supreme Court, but the Court declined to hear the case.  It is important to note that three circuit courts agree with the Second Circuit’s decision, while three other circuit courts and the Equal Employment Opportunity Commission take the opposite position and apply the continuing violation doctrine to claims challenging an employer’s alleged discriminatory practice, even where the alleged practice consists of discrete acts of discrimination.

No Review for Individual With Multiple Lawsuits 

On April 1, 2013, the Supreme Court declined to hear a case involving Richard Arizpe, an individual who had filed multiple lawsuits pro se related to his employment with the Department of Transportation and the Federal Aviation Administration.  In that case, due to the volume of lawsuits filed by Arizpe, and the frivolous nature of many of his claims, the District Court enjoined Arizpe from filing any further employment-related lawsuits without first obtaining leave of court.  The Circuit Court affirmed, finding that Arizpe could not show that his claims were not barred by res judicata or any other legal doctrine.  The case is Arizpe v. U.S. District Court for the Western District of Texas.

No Review for Rogue Teacher

Not surprisingly, the Supreme Court declined to review a case in which an appeals court upheld a school board’s decision to terminate a teacher.  In Angelloz v. Iberville Parish School Board, the appeals court in Louisiana found that the school board terminated the teacher due to an outburst in which she said she would shoot first and ask questions later, discussed going home to load her guns, and cursed at students.

No Adverse Employment Action and Still No Review

The Supreme Court also declined to hear arguments regarding the Sixth Circuit’s decision in Talawanda School District v. Litton.  In order to establish a case for employment discrimination, an employee must show that he or she is a member of a protected class, was performing his or her job at an acceptable level, suffered an adverse employment action, and that the adverse employment action was directly related to his or her protected characteristic. In this case, however, the Sixth Circuit held that the trial court did not err when it allowed the jury to find that the employer’s actions constituted discrimination against the plaintiff, even though the jury also found that the plaintiff was not subjected to any adverse employment action.

Who Is and Who Is Not a Supervisor Under Title VII?

As discussed in a previous blog post, the Supreme Court heard oral arguments in Vance v. Ball State University on November 26, 2012.  In that case, the Court must decide who qualifies as a “supervisor” for purposes of harassment claims brought under Title VII.  The definition of supervisor has become so important, because the Supreme Court has previously held that if a supervisor harasses another employee, the employer is automatically liable for that supervisor’s harassing conduct.  An employer, however, is not liable for the harassing conduct of a mere coworker unless the employer was negligent in allowing the conduct to occur.  The Supreme Court’s decision will have a significant impact on employers.  If the Supreme Court finds that supervisors are only those who have the authority to hire, fire, demote, promote, transfer, or discipline an employee, then employers will easily be able to identify employees as supervisors and offer them training to avoid automatic liability for harassment under Title VII.  If, however, the Supreme Court finds that an employee who merely directs and oversees another employee’s work is a supervisor, the class of employees that will subject employers to automatic liability for harassment will broaden significantly.  Moreover, the issue of whether a particular individual is or isn’t a supervisor will become harder to resolve and will increasingly become a major focus of harassment-related lawsuits.

What Is the Standard of Proof in Retaliation Cases?

On January 18, 2013, the Supreme Court agreed to hear University of Texas Southern Medical Center v. Nassar.  The issue in Nassar revolves around the standard of proof required when a plaintiff alleges retaliation under Title VII.  In that case, the Supreme Court will determine whether plaintiffs who bring retaliation claims will have to prove that the discriminatory reason is the sole reason for the retaliatory action or merely a motivating factor out of many factors.  If the court determines that a plaintiff must demonstrate that the discriminatory reason must be the sole reason for the adverse employment action, it will be more difficult for plaintiffs to succeed on such claims.  However, should the court decide otherwise, it will be more difficult for an employer to demonstrate that the alleged discriminatory reason was not a motivating factor of the adverse employment action.

What Qualifies as Changing Clothes under the Fair Labor Standards Act (FLSA)?

The Supreme Court granted review to Sandifer v. U.S. Steel Corp. on February 19, 2013.  In this case, the court will decide whether employees who are required to wear certain types of safety clothing must be paid for the time spent changing into and out of that clothing at the beginning and end of the day.  The U.S. Department of Labor has flip-flopped on this issue in the past, and there is currently disagreement between the DOL and some circuit courts with respect to whether employees must be compensated for changing into and out of protective clothing and what constitutes protective clothing in the first place.  The Supreme Court’s decision will settle this disagreement and hopefully provide more clarity to employers facing this issue.

What Impact Does a Settlement Offer Have on Actions Under the Fair Labor Standards Act (FLSA)? 

On December 3, 2012, the Supreme Court heard arguments in Genesis Health Care Corp v. Symczyk.  In this case, Symczyk, the representative plaintiff, brought a claim under the FLSA.  In response, the Defendant made an offer of judgment to satisfy all of Symczyk’s claims.  Symczyk rejected that offer.  Genesis asked the Supreme Court to resolve whether an offer of judgment to the lone representative plaintiff renders the case moot on behalf of the entire class and thus beyond the judicial power of the court.  On April 16, 2013, the Supreme Court decided it did.  Since no other employees had opted in to the lawsuit at the time the offer was made, and an FLSA collective action has no independent legal status (unlike a class action certified under Rule 23 of the Federal Rules of Civil Procedure), if the claim of the only individual who brought the claim is moot, then the entire lawsuit must be dismissed.  The Court’s ruling in this case likely will encourage employers to make early offers to plaintiffs in similar cases in the hopes of avoiding a potential collective action.

Can State and Local Government Employees Circumvent the Age Discrimination in Employment Act?

On December 3, 2012 the Supreme Court heard arguments in Madigan v. Levin.  In that case, the Court must address whether a state and local government employee can circumvent the remedial regime of the federal Age Discrimination in Employment Act by bringing age discrimination claims directly under the Equal Protection Clause and 42 U.S.C. § 1983 which “authorizes suits to enforce individual rights under federal statutes as well as the Constitution” against state and local government officials.  In doing so, the court must determine whether Congress intended to limit other remedies when including state and federal employees under the protection of the Age Discrimination in Employment Act.  If the court finds that the Age Discrimination in Employment Act is not the exclusive remedy, plaintiffs will be permitted to bring claims under §1983 and avoid the requirements of the Age Discrimination statute.

Can An Arbitrator Order Class Arbitration?

On March 25, 2013 the Supreme Court heard oral arguments in Oxford Health Plans LLC v. Sutter in which it must address another procedural issue. The dispute is over an employment agreement clause that states: “No civil action concerning any dispute arising under this Agreement shall be instituted before any court, and all such disputes shall be submitted to final and binding arbitration in New Jersey, pursuant to the Rules of the American Arbitration Association with one arbitrator.”  The court will determine whether this clause authorizes an arbitrator to require class arbitration or only arbitration of individual disputes.  This will impact other employers with similar clauses because all employment contracts with arbitration agreements are governed by the same Federal Arbitration Act.

As the Supreme Court nears the end of its term, we will keep you updated with decisions on these cases as they are issued.

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