Quirky Question # 165, Employment Cases Before the U.S. Supreme Court


This question is not especially “quirky.” I know that last year, you described the important employment cases that the U.S. Supreme Court was going to consider in the following year. I’ve seen a lot of press recently about the Walmart-Dukes case. What other employment cases will the Supreme Court be considering next term?


The U.S. Supreme Court already has accepted review of a number of critical labor and employment cases for resolution in 2011. As you noted in your question, approximately one week ago, the Supreme Court accepted review of the largest class action gender discrimination case (pay and promotion) in the nation, Walmart v. Dukes, No. 10-277, a case coming up to the high court from the Ninth Circuit. The Ninth Circuit’s opinion is 136 pages, and touches on numerous components of class action certification in a gender discrimination case. Precisely what the Supreme Court will focus upon remains to be seen, but this is a critical decision for corporate America to monitor carefully. But, the Dukes case is by no means the only employment important case before the U.S. Supreme Court.

Another issue the Court will be considering next term that potentially has widespread ramifications is Thompson v. North American Stainless, LP, No. 09-291, (argued December 7, 2010), an “associational discrimination” case that I wrote about previously. (See Quirky Question # 99.) The Thompson case involves the question of whether an employer violated the anti-retaliation provision of Title VII by firing the fiancée of an employee who had complained of discrimination. Curiously, there does not seem to be a circuit split on this issue so it surprised some that the high court agreed to review this decision. As I described in my prior Blog analysis, each appellate court that has considered this issue has found for the employer, limiting the scope of Title VII’s anti-retaliation provision.

Another case the Supreme Court will resolve next term involves the now heavily litigated statute, the Fair Labor Standards Act (FLSA). This case, Kasten v. Saint-Gobain Performance Plastics Corp., No. 09-834 (argued October 15, 2010), also implicates a retaliation issue – whether the FLSA protects employees from retaliation for complaining orally about violations of the statute or whether the complaints must be in writing.

As I have shared in many of my Blog analyses, one aspect of employment law that makes it so intriguing is its interplay with other important legal principles and issues. One of the cases that will be decided in the Supreme Court’s next term illustrates that dynamic. In Chamber of Commerce of the United States v. Whiting, No. 09-115, (argued December 8, 2010), the Court will be considering the intersection of employment law and immigration law. The specific issue under review is whether an Arizona law imposing certain requirements upon employers to check the immigration status of job applicants and which revokes the business license of employers that hire undocumented workers is preempted by federal immigration law.  It will be interesting to see how this relatively conservative Supreme Court addresses this political hot potato.

Another interesting case on which the U.S. Supreme Court accepted review is a case involving the Cat’s Paw theory – Staub v. Proctor Hospital, No. 09-400 (argued November 2, 2010). In essence, this case should provide some insight into whether an employer can be held liable for the discriminatory actions of supervisors, when those supervisors do not actually make the adverse job decision affecting the employee, but who arguably influenced those who did make the decision. This is not the first time a Cat’s Paw case has reached the high court, though this is the first time the Court will have the opportunity to rule on this issue. The somewhat unusual factual and statutory context may limit the precedential impact of this decision but that observation, of course, will depend on how the Court writes the opinion. In any event, this is a case to monitor carefully.

The last two cases on my watch list are two disputes that arise in arguably limiting factual circumstances but which may have broad implications for employers, depending on the Court’s analysis. Like last term’s decision of City of Ontario v. Quon, even cases that arise in a governmental context may have implications for all employers, regardless of whether they are a governmental entity. (For my analysis of the Quon decision, see the Blog entry on June 22, 2010.)

In NASA v. Nelson, No. 09-530 (argued October 5, 2010), the Court will be evaluating whether the government violated a federal contract employee’s constitutional right to privacy by inquiring whether the employee has received counseling or treatment for illegal drug use or by asking her references whether she was unsuited to work in a federal facility. Whether the resolution of these questions will provide guidance to employers generally regarding an applicant’s privacy rights remains to be seen.

Similarly, the case of Connick v. Thompson, No. 09-571 (argued October 6, 2010), may have broad implications for the tort of negligent supervision, depending again on how the Supreme Court approaches the decision. The narrow issue presented is whether a prosecutor’s office can be found liable for the conduct of a prosecutor on the theory that he was inadequately trained by the prosecutor’s office.  Time will tell whether the Court’s analysis will be confined narrowly to the facts of that case or whether the Court will provide broader guidance on the issue of an employer’s responsibilities to ensure that its employees are competently trained.

These seven cases bear watching. As the Supreme Court decides these cases, my colleagues and I will report on them on this Blog.

Dorsey & Whitney

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