Category Archives: US Supreme Court

Ruth Bader Ginsburg, Sex Discrimination, US Supreme Court

Farewell, Ruth Bader Ginsburg

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Courage.

While still a prac­tic­ing lawyer, Ruth Bad­er Gins­burg in 1973 argued to 9 men on the Unit­ed States Supreme Court in a his­tor­i­cal­ly sig­nif­i­cant case, Fron­tiero v. Richard­son, 411 U.S. 677 (1973).

Gins­burg asked the Supreme Court to rec­og­nize for the first time that the guar­an­tee of “equal pro­tec­tion of the laws” con­tained in the Fifth Amend­ment (rat­i­fied in 1791) pro­tect­ed women and men from dis­crim­i­na­tion based on sex. 

In talk­ing to the 9 men on the Supreme Court, Gins­burg stat­ed: I “urge[] a posi­tion forcibly stat­ed in 1837 by Sara Grimke, not­ed abo­li­tion­ist and advo­cate of equal rights for men and women. She spoke not ele­gant­ly, but with unmis­tak­able clar­i­ty. She said, ‘I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.’ ” 

The Supreme Court ruled near­ly unan­i­mous­ly in her favor (8–1).

Farewell, Ruth Bad­er Ginsburg.

“And flights of angels sing thee to thy rest.”

(Shake­speare, Hamlet.)
Evidence issues, Medical Industry Litigation, Result for Employee, Title VII of the Civil Rights Act of 1964, US Supreme Court, USERRA

US Supreme Court Rules for Employee on “Cat’s Paw” Theory

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The Unit­ed States Supreme Court recent­ly unan­i­mous­ly issued a major vic­to­ry for employ­ees under “USERRA”, the Uni­formed Ser­vices Employ­ment and Reem­ploy­ment Rights Act of 1994, 38 U.S.C. § 4301 et seq., on the “cat’s paw” the­o­ry in employ­ment dis­crim­i­na­tion claims. The deci­sion was in Staub v. Proc­tor Hos­pi­tal, — U.S. — (March 1, 2011) (opin­ion at Google Schol­ar). Jus­tice Scalia wrote the opin­ion for the unan­i­mous court. Jus­tice Ali­to wrote an opin­ion con­cur­ring in the judg­ment, which Jus­tice Thomas joined. Jus­tice Kagan did not par­tic­i­pate in the decision.

What is the “Cat’s Paw” Scenario?

Drew's kitty-cat, HannaSo, what the heck is the “cat’s paw” the­o­ry? Does it explain why my cat, pic­tured at the left, is star­ing so intent­ly at you?

First, to define “cat’s paw” in a non-legal con­text, the Webster’s Online dic­tio­nary defines a “cat’s paw” as: “A per­son used by anoth­er to gain an end.” The term aris­es out of a fable in which a a shrewd mon­key tricks a cat into pulling roast­ing chest­nuts out of a fire—the cat gets its paw burned, and the mon­key gets the chest­nuts and scam­pers away unhurt.

Con­tin­ue read­ing US Supreme Court Rules for Employ­ee on “Cat’s Paw” The­o­ry →
Result for Employee, Retaliation claims, Title VII of the Civil Rights Act of 1964, US Supreme Court

Analysis: The “No Blood No Foul” Rule. When is an Employer’s Conduct Severe Enough to Constitute Retaliation?

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I pre­vi­ous­ly wrote about the Supreme Court’s retal­i­a­tion deci­sion in Burling­ton North­ern & Sante Fe Rail­way Co. v. White, 548 U.S. 53 (2006) (“Burling­ton North­ern v. White”), in which the US Supreme Court sub­stan­tial­ly broad­ened the abil­i­ty of employ­ees to file retal­i­a­tion claims under Title VII of the Civ­il Rights Act of 1964. It was a unan­i­mous (9–0) decision.

National Basketball Association I want­ed to set out some addi­tion­al thoughts about Burling­ton North­ern, because it address­es an issue that has trou­bled the courts in inter­pret­ing the fed­er­al anti-dis­crim­i­na­tion laws: When is an employ­er’s con­duct seri­ous enough in dis­ad­van­tag­ing an employ­ee so that the employ­ee has a claim under the employ­ment dis­crim­i­na­tion laws? The answer is easy when the employ­er’s deci­sion affects the employ­ee’s pock­et book, like with ter­mi­na­tion, fail­ure to hire, demo­tions, and the like. The answer has been much hard­er when the employ­er’s con­duct did­n’t direct­ly affect the employ­ee’s pock­et book.

NBA ref­er­ees strug­gle with a sim­i­lar issue: where is there enough phys­i­cal con­tact on the court to jus­ti­fy call­ing a foul on a play­er. So let’s explore some par­al­lels between these employ­ment dis­crim­i­na­tion issues and the NBA’s “no blood no foul” rule.

The NBA’s “No Blood No Foul” Rule

If you watch Nation­al Bas­ket­ball Asso­ci­a­tion games, you might be struck by how much phys­i­cal con­tact there is on the court and how rarely the ref­er­ees call per­son­al fouls over that phys­i­cal con­tact. Fans of the NBA have only a par­tial­ly kid­ding way to refer to the “stan­dard” by which the ref­er­ees decide how much con­tact will result in a per­son­al foul being called. It’s the “no blood no foul” rule. In oth­er words, the ref­er­ees will allow a lot of phys­i­cal con­tact, and will only call a foul when some­one gets blood­ied as a result of the con­tact.

Let’s assume, with our tongues in our cheeks, that there is such a rule (no blood no foul) that NBA ref­er­ees apply, regard­less of what is writ­ten in the Offi­cial Rules. The idea behind the “no blood no foul” rule is this: there is so much fast-paced hur­ley-burly con­tact on the bas­ket­ball court, much of which makes it more excit­ing for the fans, that call­ing a foul for any phys­i­cal con­tact (or a low­er defined lev­el of phys­i­cal con­tact) would slow down the game for fans and make the game less enjoy­able, unrea­son­ably impede the skill of the play­ers, and makes it impos­si­bly hard for offi­cials to iden­ti­fy “con­tact”. So the appear­ance of blood is a more “objec­tive” indi­ca­tion that the con­tact real­ly mat­tered and real­ly con­sti­tut­ed an unfair inter­fer­ence with the oth­er player.

The Supreme Court Struggles With “When is There a Foul”?

Courts for years have strug­gled with the employ­ment dis­crim­i­na­tion equiv­a­lent of the “no blood no foul” rule. For the courts, assum­ing unlaw­ful dis­crim­i­na­tion occurred: when is the con­se­quence of the dis­crim­i­na­tion seri­ous enough and objec­tive­ly dis­cernible so that courts will rec­og­nize a claim and inter­vene by acti­vat­ing the court’s process and poten­tial­ly award­ing damages.

Except for sit­u­a­tions involv­ing hos­tile work envi­ron­ment, the courts have trans­lat­ed the NBA’s blood require­ment into a tan­gi­ble eco­nom­ic con­se­quence. Thus, much in the spir­it of the NBA, the courts have said eco­nom­ic harm must be demon­stra­ble as a result of dis­crim­i­na­tion, or else the courts won’t enter­tain the claim no eco­nom­ic con­se­quence, no legal vio­la­tion, case dismissed.

Con­tin­ue read­ing Analy­sis: The “No Blood No Foul” Rule. When is an Employer’s Con­duct Severe Enough to Con­sti­tute Retal­i­a­tion? →
US Supreme Court, Vacancies

President Obama Nominates Sonia Sotomayor for Supreme Court

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Sonia Sotomayor Pres­i­dent Oba­ma today announced (CNN sto­ry and video) his nom­i­na­tion of Sonia Sotomay­or, cur­rent­ly a Judge on the Sec­ond Cir­cuit, to fill the posi­tion on the US Supreme Court to be vacat­ed by the res­ig­na­tion of Jus­tice David Souter.

With­in a few hours of Pres­i­dent Oba­ma’s announce­ment, the CATO Insti­tute and The Her­itage Foun­da­tion had sig­nif­i­cant arti­cles devot­ed to attack­ing the nom­i­na­tion. Rush Lim­baugh this after­noon called Judge Sotomay­or a “racist”. Sean Han­ni­ty called her a “rad­i­cal” who had made “out­ra­geous” and “amaz­ing” state­ments. The lib­er­al sites raced out arti­cles attack­ing the attack­ers and defend­ing Judge Sotomay­or (Talk­ing Points Memo and The Huff­in­g­ton Post).

The first item that has been cir­cu­lat­ing about Judge Sotomay­or is a state­ment she made about appel­late courts mak­ing “pol­i­cy” dur­ing a pan­el dis­cus­sion at Duke Uni­ver­si­ty in 2005 (note: this clip is length­i­er, and pro­vides much more con­text, than the clips played on most news sites):

Con­tin­ue read­ing Pres­i­dent Oba­ma Nom­i­nates Sonia Sotomay­or for Supreme Court →
Age Discrimination, Arbitration, Labor Unions, Pending legislation, Result for Employer, US Supreme Court

Arbitration Agreements in Union Contacts are Enforceable; US Supreme Court in Penn Plaza v. Pyett

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4/1/09: The US Supreme Court ruled that “pre-dis­pute arbi­tra­tion agree­ments” in col­lec­tive bar­gain­ing agree­ments (union con­tracts) are enforce­able, in Penn Plaza PLLC v. Pyett, 129 S. Ct. 1456 (2009) (5–4 decision).

This was an age dis­crim­i­na­tion case under the Age Dis­crim­i­na­tion in Employ­ment Act of 1967 (ADEA). The plain­tiff was a mem­ber of a union, and the col­lec­tive bar­gain­ing agree­ment (union con­tract) required sub­mit­ting age dis­crim­i­na­tion claims to bind­ing arbi­tra­tion.

The US Supreme Court had pre­vi­ous­ly ruled, but not in a labor union set­ting, that arbi­tra­tion agree­ments for ADEA claims were enforce­able under the Fed­er­al Arbi­tra­tion Act, 9 U.S.C. § 1 et seq. (Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26–33 (1991)). So the real issue in Penn Plaza was whether there would be a dif­fer­ent result because of the union con­tract set­ting and the Nation­al Labor Rela­tions Act.

Con­tin­ue read­ing Arbi­tra­tion Agree­ments in Union Con­tacts are Enforce­able; US Supreme Court in Penn Plaza v. Pyett →
Result for Employee, Retaliation claims, Sexual harassment, US Supreme Court

US Supreme Court Broadens Definition of “Opposition”; for Retaliation Claims; Crawford v Metropolitan Government of Nashville, 1–26-09

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1/26/09: In Craw­ford v. Met­ro­pol­i­tan Gov­ern­ment of Nashville and David­son Coun­ty, Ten­nessee, 129 S. Ct. 846 (2009), the US Supreme Court unan­i­mous­ly ruled that an employ­ee engaged in pro­tect­ed activ­i­ty under Title VII’s retal­i­a­tion pro­vi­sion by answer­ing an employ­er’s ques­tions in con­nec­tion with a sex­u­al harass­ment inves­ti­ga­tion start­ed by com­pa­ny rumors about a male super­vi­sor. Jus­tice Souter wrote the major­i­ty opin­ion, joined by Roberts, Stevens, Scalia, Kennedy, Gins­burg, and Brey­er. Jus­tice Ali­to wrote an opin­ion, con­cur­ring in the judg­ment, joined by Jus­tice Thomas.

Ms. Crawford Responds to an Investigation into Sexual Harassment

USSupremeCourt Here is what hap­pened: Rumors start­ed cir­cu­lat­ing about sex­u­al­ly inap­pro­pri­ate behav­ior by a male super­vi­sor, Gene Hugh­es, at “Met­ro­pol­i­tan Gov­ern­ment of Nashville and David­son Coun­ty” (“Metro”). A human resources employ­ee start­ed inves­ti­gat­ing, and asked Vicky Craw­ford whether she had seen any inap­pro­pri­ate behav­ior by Mr. Hugh­es. Craw­ford respond­ed yes, and described sev­er­al instances of sex­u­al­ly inap­pro­pri­ate behav­ior. For exam­ple, Ms. Craw­ford had asked Mr. Hugh­es “what’s up”, and he respond­ed by grab­bing his crotch and say­ing “you know what’s up”. On anoth­er occa­sion, Mr. Hugh­es grabbed Ms. Craw­ford’s head and pulled it toward his crotch. The human resources employ­ee talked to two oth­er employ­ees who sim­i­lar­ly report­ed sex­u­al­ly harass­ing behav­ior from Mr. Hughes.

Con­tin­ue read­ing US Supreme Court Broad­ens Def­i­n­i­tion of “Oppo­si­tion”; for Retal­i­a­tion Claims; Craw­ford v Met­ro­pol­i­tan Gov­ern­ment of Nashville, 1–26–09 →
Age Discrimination, Result for Employee, Retaliation claims, US Supreme Court

Supreme Court “fills in the blank” to recognize retaliation claims for federal employees under ADEA; Gomez-Perez v. Potter, 2008

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USPS Logo 5–27-08: The US Supreme Court in Gomez-Perez v. Pot­ter, 128 S. Ct. 1931 (2008) ruled that the Age Dis­crim­i­na­tion in Employ­ment Act of 1967, 29 U.S.C. § 621 et seq., pro­hib­it­ed retal­i­a­tion against fed­er­al employ­ees who had com­plained about age dis­crim­i­na­tion, even though the fed­er­al employ­ee sec­tion of the ADEA did not express­ly pro­hib­it retal­i­a­tion. This was a 6–3 deci­sion. The major­i­ty opin­ion was writ­ten by Jus­tice Ali­to, in which Jus­tices Stevens, Kennedy, Souter, Gins­burg, and Brey­er joined. Jus­tices Roberts, Scalia, and Thomas dis­sent­ed, with dis­sent­ing opin­ions being writ­ten by Jus­tices Roberts and Thomas.

The Gap in the Federal Employee Section of the ADEA

This was the prob­lem under the ADEA: The ADEA’s main sec­tion, in pro­hibit­ing dis­crim­i­na­tion against employ­ees 40 and old­er, only deals with pri­vate indus­try employ­ees and state gov­ern­ment employ­ees. I will call this sec­tion of the ADEA, the “pri­vate and state employ­ee sections”.

Con­tin­ue read­ing Supreme Court “fills in the blank” to rec­og­nize retal­i­a­tion claims for fed­er­al employ­ees under ADEA; Gomez-Perez v. Pot­ter, 2008 →
Age Discrimination, Evidence issues, Result for Employee, US Supreme Court

US Supreme Court broadens scope of permissible evidence for proving discrimination; Sprint/United Management v. Mendelsohn; 2/26/08

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US Supreme Court Feb­ru­ary 26, 2008: The Unit­ed States Supreme Court hand­ed down its opin­ion in Sprint/United Man­age­ment Co. v. Mendel­sohn, 128 S. Ct. 1140 (2008) (Find­Law site opin­ion). The issue in this fed­er­al age dis­crim­i­na­tion case (ADEA) was whether the plain­tiff could present evi­dence to the jury about oth­er alleged old­er dis­crim­i­na­tion vic­tims, where the deci­sion made to ter­mi­nate the oth­er indi­vid­u­als was not made by the same deci­sion-mak­er that ter­mi­nat­ed the plaintiff.

The employ­er (Sprint) con­tend­ed that evi­dence of oth­er alleged age dis­crim­i­na­tion vic­tims was not admis­si­ble where the deci­sion-mak­ers for those oth­er vic­tims were dif­fer­ent from the deci­sion-mak­ers who took action against the plaintiff.

The Supreme Court reject­ed the employ­er’s argu­ment and said that the evi­dence of oth­er vic­tims might be admis­si­ble, even if dif­fer­ent deci­sion-mak­ers were involved. The tri­al court should con­duct a “bal­anc­ing test” for admis­si­bil­i­ty of dis­crim­i­na­tion against oth­er employ­ees by dif­fer­ent super­vi­sors, where the rel­e­vance of the oth­er employ­ees’ sit­u­a­tion is bal­anced against unfair prej­u­dice to the employer.

Disparate Impact, Equal Pay, Limitations periods, Result for Employer, Sex Discrimination, Title VII of the Civil Rights Act of 1964, US Legislation, US Supreme Court

US Supreme Court rules pay claims must be filed shortly after discriminatory decision; Ledbetter v Goodyear, 5/29/07

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May 29, 2007: In Led­bet­ter v. Goodyear Tire & Rub­ber Com­pa­ny, 550 U.S. 618, 128 S. Ct. 2162 (2007) (Find­Law site opin­ion), the Unit­ed States Supreme Court, in a 5–4 deci­sion, issued an impor­tant deci­sion in a sex dis­crim­i­na­tion case under Title VII of the Civ­il Rights Act of 1964, which sub­stan­tial­ly lim­it­ed the time peri­od avail­able to assert a claim for pay dis­crim­i­na­tion. The Supreme Court affirmed the deci­sion of the Eleventh Cir­cuit in Led­bet­ter v. Goodyear Tire and Rub­ber Com­pa­ny, Inc., 421 F.3d 1169 (11th Cir. 2005).

Ledbetter’s Claims of Sex Discrimination and Lower Pay, and the Trial Result

LillyLedbetter Led­bet­ter filed a charge of sex dis­crim­i­na­tion with the EEOC in 1998 and then lat­er in the year retired. She claimed that, years ear­li­er in her career at Goodyear, male super­vi­sors gave her bad per­for­mance reviews com­pared to what men received. She claimed that Goodyear award­ed rais­es based on those per­for­mance reviews, so that her pay rais­es were reduced as a result of the dis­crim­i­na­to­ry per­for­mance reviews.

Led­bet­ter went to tri­al and per­suad­ed the jury that the per­for­mance reviews, years before she filed her EEOC charge, were dis­crim­i­na­to­ry based on her sex, and the jury found her rights had been vio­lat­ed and award­ed her dam­ages based on her low­er pay­checks through­out her career. The tri­al judge entered a “judg­ment” in Led­bet­ter’s favor based on the jury’s ver­dict. So Led­bet­ter won at tri­al on her sex dis­crim­i­na­tion claim under Title VII. The Eleventh Cir­cuit Court of Appeals threw out the jury ver­dict and tri­al court judg­ment for Led­bet­ter, and entered a judg­ment in favor of Goodyear, based on her fail­ure to file her EEOC charge with­in 180 days of when the per­for­mance reviews had been con­duct­ed. The Unit­ed States Supreme Court affirmed, mean­ing that Goodyear won.

Con­tin­ue read­ing US Supreme Court rules pay claims must be filed short­ly after dis­crim­i­na­to­ry deci­sion; Led­bet­ter v Goodyear, 5/29/07 →
Result for Employee, Retaliation claims, US Supreme Court

US Supreme Court Makes it Easier to Prove Retaliation Claims, in Burlington Northern v. White, 2006

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June 22, 2006: In Burling­ton North­ern & Sante Fe Rail­way Co. v. White, 548 U.S. 53 (2006) (“Burling­ton North­ern v. White”), the US Supreme Court sub­stan­tial­ly broad­ened the abil­i­ty of employ­ees to file retal­i­a­tion claims under Title VII of the Civ­il Rights Act of 1964. It was a unan­i­mous (9–0) decision.

US Supreme Court The Supreme Court broad­ened retal­i­a­tion claims in 2 ways:

First: Retal­ia­to­ry con­duct is not lim­it­ed to employ­er’s action at the work­place, and it is not lim­it­ed to action tak­en while the plain­tiff is still work­ing for the employer.

Sec­ond: Action by the employ­er may vio­late the anti-retal­i­a­tion pro­vi­sion even if it does not cause a tan­gi­ble loss, such as pay, for the plain­tiff. The con­duct may vio­late the law if it is “mate­ri­al­ly adverse” (as opposed to “triv­ial”) to the employ­ee, and might dis­suade a “rea­son­able work­er” from “mak­ing or sup­port­ing a charge of dis­crim­i­na­tion”. So, for exam­ple, trans­fers to dif­fer­ent posi­tions, even though they involve no loss in pay or ben­e­fits or pro­mo­tion­al oppor­tu­ni­ties, might con­sti­tute unlaw­ful action because, if the trans­fer is to what a rea­son­able work­er would view as a less attrac­tive job, that might dis­suade a rea­son­able work­er from com­plain­ing of discrimination.