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Many thought the addition of President Bush's two appointments to the U.S. Supreme Court this past term--Chief Justice John Roberts and Associate Justice Samuel Alito--would tilt the balance toward a more conservative and business-friendly legal environment in federal courts. These expectations were defied on the employment liability practices playing field, as employers took it on the chin in workplace rights cases in the 2005-2006 U.S. Supreme Court term.
Workers won a trifecta of employment discrimination rulings involving standards for retaliation liability, defenses based on statutory coverage and proof-of-bias requirements. Given that the Supreme Court's makeup shifted with the addition of the two new justices, these employee-friendly rulings took many employers by surprise.
Scoring the trifecta
The biggest ruling for employers and workers was the Supreme Court's June 22 decision in Burlington Northern & Santa Fe Railway Co. vs. Sheila White. In resolving a split among the federal appellate courts, the Supreme Court established a new standard for what constitutes actionable conduct under the anti-retaliation provisions of Title VII of the Civil Rights Act of 1964. The Supreme Court held that acts far short of termination or demotion can establish a retaliation claim; all that is needed is that an employer take an action that would cause a reasonable worker to think twice about complaining of discrimination. Even being transferred to a less appealing job at the same pay can constitute retaliation.
As a result, the Supreme Court held that lower federal courts should examine all of the facts and circumstances surrounding a particular personnel decision in determining whether an adverse employment action has taken place. The ruling in this case extends the anti-retaliation provisions of Title VII to the widest scope previously adopted by any court. The bottom line of the decision is that it removes hurdles for employees to get their cases before a jury, and undoubtedly will increase the number of retaliation claims that employers face nationwide. Employers also face a more difficult burden of proof in litigating and defending against retaliation claims.
The Supreme Court passed on the statutory coverage defense on Feb. 22 in Jenifer Arbaugh vs. Y&H Corp. DBA The Moonlight Cafe. The Supreme Court determined that the 15-employee threshold for jurisdiction under Title VII does not determine federal court jurisdiction. What this means is that an employer must raise this defense no later than the end of trial or the defense is forever waived. While the ruling is narrow, it cuts off another line of defense for employers that must be asserted or lost if not made as an initial response to a lawsuit.
The Supreme Court ruled Feb. 21 on a proof-of-bias issue in Anthony Ash et al. vs. Tyson Foods Inc. It determined that in comparing qualifications between employees in a situation where a worker sues for a discriminatory denial of a promotion, lower court rulings that had established a "jump off the page and slap you in the face" standard were dead wrong. While the Supreme Court rejected this standard but did not suggest the proper standard that a federal court should utilize in determining the viability of discriminatory promotion claims, the result is a blow for employers. By discarding the "jump off the page and slap you in the face" standard, the Supreme Court undoubtedly lowered the standard for plaintiffs and gave the green light to the plaintiffs' bar to push for lower standards of proof in winning their cases.
Employers' narrow win
In the sole public worker case of the term, the Supreme Court narrowly sided 5-4 with employers in its May 30 decision in Gil Garcetti et al vs. Richard Ceballos. In this case, a deputy district attorney sued his employer claiming retaliation in violation of the First Amendment after he was demoted for allegedly writing a memorandum to his boss claiming that an affidavit police used to obtain a search warrant made serious misrepresentations. The Supreme Court rejected his claim. It held that the First Amendment gives no protection to statements made by workers pursuant to the employee's official duties. Because statements made pursuant to one's official duties are not statements made as a citizen, the Supreme Court deemed that such workplace statements have no constitutional protection.
The decisions in Burlington Northern vs. White, Ash vs. Tyson Foods and Arbaugh vs. Y&H Corp. expand protections for worker rights. Whether the employment discrimination rulings of the 2005-2006 term reflect a subtle shift in the Supreme Court's view of employment statutes remains to be seen in the coming 2006-2007 term.