EEO Tips: How the Supreme Court May Affect Employers in 2020

By Lehr Middlebrooks Vreeland & Thompson, P.C.

February 9, 2020

This article was prepared by JW Furman, EEO Consultant Investigator, Mediator and Arbitrator for the law firm of Lehr Middlebrooks Vreeland & Thompson, P.C. Prior to working with the firm, Ms. Furman was a Mediator and Investigator for 17 years with the Birmingham District Office of the U.S. Equal Employment Opportunity Commission (EEOC). Ms. Furman has also served as an Arbitrator and Hearing Officer in labor and employment matters. Ms. Furman can be reached at 205.323.9275.

What is the Supreme Court doing this year that will affect employers? They have a number of things in the works that are worth watching. Some could bring welcomed clarification and some have the potential of major impact for employers, especially on discrimination issues.

Of course, everyone is awaiting the Court’s decisions in the three LGBTQ employment termination cases. (Altitude Express v. Zarda, R.G & G.R. Harris Funeral Homes v. EEOC, Bostock v. Clayton County) They are asking the Court to decide whether the language in Title VII of the Civil Rights Act making discrimination “because of ... sex” covers sexual orientation and gender identity. The federal circuit courts are divided over these issues and, judging by the questions and comments during the October hearing, the Supreme Court is likewise divided. Their decision is expected in June 2020.

The Supreme Court heard oral arguments January 15 in Babb v. Wilkie over the standard of proof required for claims filed by federal employees under the Age Discrimination in Employment Act (ADEA). The parties argued whether employees must show that age was the determining factor in an adverse employment action or merely a motivating factor. Just two days later, the Court ordered briefs be filed by January 23 addressing what “prospective administrative or judicial relief” is available, besides the ADEA, where age was a factor but not the determining factor for the employer’s action. The Eleventh Circuit, relying on its own precedent, held the “but for” test here applied but went on to say that “if [it] were writing on a clean slate,” it might well favor the motivating factor argument.

The Supreme Court last week agreed to hear a case involving the Affordable Care Act (ACA) requirement that employer health plans cover birth control. (Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania et al., Trump et al. v. Pennsylvania et al.) The Trump administration created exemptions to the ACA allowing most employers to avoid compliance with the contraception mandate and the Third Circuit affirmed a nationwide injunction blocking those exemptions. This heated debate has failed to yield compromise by courts or stakeholders between improving women’s health with access to birth control through employer health insurance plans and allowing employers with objections to opt out of contraception coverage.

The Court is considering a petition for certiorari in a case (Peterson v. Linear Controls, Inc.) asking whether “terms, conditions or privileges of employment” covered by Section 703(a) of Title VII of the Civil Rights Act is limited to final employment decisions only. The federal circuit courts are divided as to the scope of that phrase. Section 703(a) makes employment discrimination based on race, color, religion, sex or national origin unlawful. The Supreme Court previously defined the scope of unlawful adverse employment actions for Section 704 retaliation purposes as “employer actions that would have been materially adverse to a reasonable employee or job applicant,” even those beyond employment related retaliatory acts. While we don’t yet know if the justices will even accept the case, they have asked for the U.S. solicitor general to weigh in, a clear sign of their interest in it. A ruling in this case, especially when added to the upcoming rulings in the three sexual orientation/gender identity cases, could upset at least parts of the accepted scope of Title VII in many areas of the country. To further complicate matters, courts historically use Title VII standards when interpreting parts of the ADA, ADEA and GINA, so the Title VII decisions this year could have far reaching effects.

And what is the Supreme Court not doing this year? Earlier this month, it decided not to accept three employment cases. It declined certiorari in a dispute over whether an airline is exempt from state and local laws regarding wages. (Brindle v. Delta Airlines). The Court declined to review a ruling that striking workers were illegally fired and requiring their rehire. (Michael Cetta Inc. v. NLRB). Another rejected case was brought by a group of public employees who believed they should be included in collective bargaining negotiations even though they were not members of a union. (Ben Branch et al. v. Massachusetts Dept. of Labor).

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