Preventive Law for Employers
Federal Employment Law

Supreme Court Roundup

Here’s a recap of the US Supreme Court’s 2008-2009 major labor and emplpyment law decisions:

Ricci v DeStefano,
By throwing out the results of an firefighters’ promotional exam, New Haven, CT violated Title VII’s prohibition against race discrimination. A 5-4 majority applied a new standard of statutory construction, holding that before an employer can engage in what otherwise would be prohibited discriminatory treatment in order to avoid or remedy an unintentional, disparate impact, the employer must have “a strong basis in evidence” to believe it will be subject to disparate impact liability if it fails to take the race-conscious, discriminatory action. Mere fear of litigation, as alleged by New Haven, was not enough. (June 29, 2009).

Locke v Karass.
A union may charge fee-paying nonmembers for the national, or “extra-local” litigation expenses incurred by its parent union, a unanimous Supreme Court ruled, holding that the First Amendment permits such charges (January 21, 2009).

Crawford v Metro Gov’t of Nashville.
The Supreme Court unanimously ruled that the Act’s retaliation protections extend to employees who speak out about discrimination and harassment not on their own initiative, but when answering questions during an employer-ordered internal investigation. (January 26, 2009).

14 Penn Plaza LLC v Pyett.
Reinforcing its decidedly pro-arbitration policy, the Supreme Court held that courts must enforce collective bargaining agreements that “clearly and unmistakably” require union members to arbitrate ADEA claims. (April 1, 2009).

AT&T Corp v Hulteen.
The Pregnancy Discrimination Act does not require employers to set current pension benefits at a level that will restore service credits to female employees for pregnancy leaves taken prior to the passage of the PDA. (May 18, 2009).

Gross v FBL Fin Servs Group.
Much to my surprise (and that of many other observers), the Supremes refused to use the mixed-motives burden-shifting rules of Title VII, and held that an age discrimination plaintiff under the ADEA must establish by a preponderance of evidence that age was the “but-for” cause of the adverse employment action challenged. Even when the employee has produced some evidence that age was a motivating factor in the employer’s decision, the burden of persuasion does not shift to the employer to show that it would have taken the same action regardless of age. (June 18, 2009).

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