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2013 Supreme Court decisions may shift employers' legal strategies


NEW YORK — Several U.S. Supreme Court decisions issued last year will likely play a key role in shaping companies' strategies for both preventing and defending employment practices liability claims, experts say.

But while some of the Supreme Court's rulings have opened new avenues for establishing an affirmative defense against lawsuits alleging retaliation and discriminatory employment practices, others may require employers to revise certain internal policies and programs, a panel of employment attorneys said Monday at the American Conference Institute's 20th National Conference on Employment Practices Liability Insurance in New York.

“I think the key takeaway from what we've seen from these cases is that the Supreme Court gives as much as it takes away,” said Gerald Maatman, a partner at Chicago-based Seyfarth Shaw L.L.P. “It's too simplistic to say it's a pro-business or pro-employee court.”

Two decisions that panelists said represented a significant win for employers were the Supreme Court's rulings in favor of Ball State University and the University of Texas Southwestern Medical Center, both of which were issued on June 24, 2013.

In the Ball State case, the court upheld a previous ruling by the 7th U.S. Circuit Court of Appeals declaring that employers can be held vicariously liable for discrimination under Title VII of the Civil Rights Act of 1964 only in cases where biased acts — or retaliation for reporting them — against an employee are committed by a supervisor empowered to make tangible employment decisions against the victim.


Similarly, in its 5-4 decision in favor of the University of Texas Southwestern Medical Center, the Supreme Court ruled that employees claiming to be the victim of adverse employment actions or retaliation based on workplace bias must prove that their employers wouldn't have otherwise taken those same actions for reasons unrelated to any real or perceived discrimination.

Less clear are the employment practices implications of the Supreme Court's landmark ruling in United States v. Windsor, in which it struck down provisions of the 1996 Defense of Marriage Act that previously had prohibited federal recognition of legal same-sex marriages.

While the ruling's most immediately impacts are tied to eligibility under federal health and retirement benefits regulations, panelists said the decision could also lend considerable strength to future gender discrimination claims against employers under Title VII, regardless of whether their home state recognizes same-sex marriages.

“Whether they're local, regional or national, we've been advising our clients for some time now to make sure not only that their programs and policies are compliant and up-to-date, but also that their employees are treated equally within them,” said Ricki Roer, a New York-based partner at Wilson Elser Moskowitz Edelman & Dicker L.L.P.