Guest Contributor: Lindsey N. Overton [Lindsey Overton is a student at Albany Law School, currently completing her 1st year. She is also my research assistant--a superb one in fact. She also happens to be the daughter of my Union College fraternity brother, Jack Overton, one of the most decent guys I know.
This post is entirely the product of Ms. Overton's research.]
At the time of this writing, the Supreme Court under Chief Justice John Roberts had issued 11 divided decisions in worker discrimination cases. Of these 11 decisions, five sided with the worker.
Two of those five involved claims of racial discrimination. The remaining three involved claims of discrimination based on age. In gender discrimination cases, as well as in other age discrimination cases, workers were not as successful.
Chief Justice Roberts voted with the majority to side with the worker in four cases: Ricci v. DeStefano (2009), CBOCS West, Inc. v. Humphries (2008), Meacham v. Knolls Atomic Power Laboratory (2008) and Fed. Express Corp. v. Holowecki (2008). He voted against the worker in the seven other cases, including Gomez-Perez v. Potter (2008), the other case in which the Court's majority favored the worker.
Here is a quick look at the four cases in which Roberts was in the majority on the side of the worker.
Ricci v. DeStefano (2009). A group of mostly white workers sued the City of New Haven when it refused to certify the results of a promotion exam because African-American males did not perform well. The 5-4 majority, including Roberts, held that the city’s action violated constitutional equal protection.
As the majority saw it, the city had engaged in intentional racial discrimination in trying to avoid the unintentional racially-disparate results of the exam.
Note that the majority of the Court, the five more conservative Justices including Roberts, sided with the white workers against the city’s efforts to remedy past discrimination against Black workers. All four of the more liberal Justices dissented.
Majority: Roberts, Scalia, Kennedy, Thomas and Alito
Dissent: Stevens, Souter, Ginsburg and Breyer
CBOCS West, Inc v. Humphries (2008). An African-American worker sued his employer for retaliatory discharge. He claimed that he was fired because he had complained about the dismissal of another Black employee.
The 7-2 Court, including Roberts, held that retaliation against an employee for making a racial discrimination claim was prohibited under federal law, 42 U.S.C. § 1981, that prohibits racial discrimination itself.
The majority in this case included all four of the Court’s liberals, as well as Roberts, Kennedy and Alito. Scalia and Thomas, the Court two staunchest conservatives, dissented.
Majority: Roberts, Stevens, Kennedy, Souter, Ginsburg, Breyer and Alito
Dissent: Scalia and Thomas.
Meacham v. Knolls Atomic Power Laboratory (2008). Workers alleged that the employer discharged them because of their age in violation of the federal Age Discrimination in Employment Act (ADEA). The 6-2 majority sided with the workers, holding that an employer must be able to prove that its decision to terminate an employee was based on “reasonable factors other than age.”
The majority included the Court’s liberals (with the exception of Breyer who did not participate in the case) and, as in CBOCS, Roberts, Kennedy and Alito. Again, the Court’s staunchest conservatives, Scalia and Thomas dissented.
Majority: Roberts, Stevens, Kennedy, Souter, Ginsburg and Alito
Dissent: Scalia and Thomas
Fed. Express Corp. v. Holowecki (2008). A worker had completed an Equal Employment Opportunity Commission (EEOC) questionnaire and affidavit claiming unlawful age discrimination. The EEOC took the position that this was sufficient to constitute filing a “charge,” which is required under the ADEA sixty days before the EEOC may bring a discrimination lawsuit on behalf of an employee.
The 6-2 majority of the Court upheld the EEOC’s relaxed, worker-favoring interpretation. As in the two previously discussed cases, all the Justices, liberal and conservative, joined the Court’s decision, except Scalia and Thomas.
Majority: Roberts, Stevens, Kennedy, Souter, Ginsburg, Breyer and Alito
Dissent: Scalia and Thomas
Now for the cases in which Roberts voted against the worker.
Gomez-Perez v. Potter (2008). This case, similar to CBOCS, involved an employer retaliating against a worker who had complained about discrimination. That case involved racial discrimination. This one, discrimination on the basis of age.
The worker claimed that her employer, the Postal Service, was retaliating against her at work after she complained that it was engaged in age discrimination.
The 6-3 worker-favoring majority held that the ADEA’s prohibition of age discrimination also prohibits retaliation for making an age discrimination complaint. The majority included the Court’s four liberals, as well as Kennedy and Alito. This time, Roberts was with the Court’s staunch conservatives, Scalia and Thomas.
Majority: Kennedy, Stevens, Souter, Ginsburg, Breyer and Alito
Dissent: Roberts, Scalia and Thomas
Gross v. FBL Financial Services, Inc. (2009). This case involved an age discrimination claim where the employer may have had “mixed motives” for its actions.
The 5-4 majority of the Court held that the ADEA only prohibits actions taken by an employer where age discrimination is the only reason. According to the majority, an employer is not required to show that it would have taken the same action anyway.
The Court was divided along straight ideological lines. The five conservatives, including Roberts, took the pro-employer position; the four liberals sided with the worker.
Majority: Roberts, Scalia, Kennedy, Thomas and Alito
Dissent: Stevens, Souter, Ginsburg and Breyer
AT&T Corp. v. Hulteen (2009). Several former employees claimed that the federal Pregnancy Discrimination Act (PDA) required that their pregnancy leaves be treated no less favorably than other medical leaves.
The 7-2 majority of the Court, however, held that the PDA does not prohibit employers from giving less retirement credit to employees who took pregnancy leave before that law was enacted. All the Court’s conservatives, as well as Stevens and Souter, were in the employer-favoring majority. Two of the Court’s liberals, Ginsburg and Breyer, dissented.
Majority: Roberts, Stevens, Scalia, Kennedy, Souter, Thomas and Alito
Dissent: Ginsburg and Breyer
14 Penn Plaza LLC v. Pyett (2009). Several employees claimed that the ADEA entitled them to have their age discrimination complaints heard in a lawsuit in court rather than in arbitration. But the 5-4 majority held that nothing in the law prohibits an employees’ union from waiving that right in collective bargaining with the employer as a “condition of employment.”
The Court was divided along straight ideological lines. The five conservatives, including Roberts, siding with the employer; the four liberals with the employees.
Majority: Roberts, Scalia, Kennedy, Thomas and Alito
Dissent: Stevens, Souter, Ginsburg and Breyer
Kentucky Retirement Systems v. E.E.O.C. (2008). The EEOC brought a claim on behalf of an employee who retired at the age of 61 due to a disability. Under the state’s pension plan, his benefits would actually have been higher had he been disability-retired prior to the age of 55, even if he had worked the same number of years.
The 5-4 majority rejected the claim on the ground that the plan was not “actually motivated” by any discrimination against older persons but, instead, was based on a distinct analysis of pension status which took several factors into account.
The split among the Justices in this case was quite unusual; it did not follow along typical ideological lines. The employer-favoring majority consisted of two of the Court’s conservatives, including Roberts, and three liberals. Dissenting on the side of the employee were three conservatives, Scalia, Kennedy, and Alito, as well as one liberal, Ginsburg.
Majority: Roberts, Stevens, Souter, Thomas, Breyer
Dissent: Scalia, Kennedy, Ginsburg and Alito
Engquist v. Oregon Dept. of Agr. (2008). A worker claimed that she was denied equal protection under the law when she was fired by her state employer, while other similarly situated employees were not, without any justification for the different treatment.
The 6-3 majority of the Court held that treating one employee—i.e., a “class-of-one”—differently does not amount to creating a discriminatory classification in violation of constitutional equal protection.The employer-favoring majority consisted of all five conservative Justices, including Roberts, and one liberal, Breyer. The other three liberals dissented.
Majority: Roberts, Kennedy, Scalia, Thomas, Breyer and Alito
Dissent: Stevens, Souter and Ginsburg
Ledbetter v. Goodyear Tire & Rubber Co. (2007). An employee brought a lawsuit alleging sex-discrimination in pay. For 19 years she had been receiving lower salary and lower raises than her male counterparts.
Title VII of the Civil Rights Act of 1964 requires that a complaint be filed within 180 days of the claimed act of discrimination. According to the 5-4 majority of the Court, that means that the employee in this case had to file a complaint within 180 days of her first discriminatory paycheck. Each subsequent discriminatory paycheck cannot be treated as a separate act of discrimination for this purpose. Moreover, according to the majority, this rule applies even if the employee didn’t know until much later that her paycheck was discriminatory.
The 5-4 split in this case was along the typical ideological divide. The five conservative Justices, including Roberts, sided with the employer; the four liberals, with the worker.
Majority: Roberts, Scalia, Kennedy, Thomas and Alito
Dissent: Stevens, Souter, Ginsburg and Breyer
[N.B. The Lilly Ledbetter Fair Pay Act, enacted into law in January 2009, overruled this decision.]
Chief Justice Roberts voted for the worker in just four of the eleven worker discrimination cases decided since his appointment. But his voting actually placed him in the center of the other conservatives on the Court.
Justice Thomas sided with the worker just once, and Justice Scalia only twice. In fact, Thomas and Scalia dissented in three of the four cases in which Roberts voted with the majority in favor of the worker. The other two conservative Justices, Alito and Kennedy, each voted for the worker in six of the eleven cases.
While in the center of the conservative Justices, Robert’s voting sharply contrasts with that of the liberals. Justice Ginsburg voted for the worker in ten of the eleven cases. Justices Stevens and now-retired Justice Souter both voted for the worker in eight of them. Justice Breyer in seven.
Justice | Votes for Worker | Cases |
Ginsburg | 10 | CBOCS, AT&T, Ledbetter, Gomez-Perez, Gross, 14 Penn Plaza, Kentucky Retirement, Meacham, Engquist, Fed. Ex. Corp. |
Stevens | 8 | CBOCS, Ledbetter, Gomez-Perez, 14 Penn Plaza, Gross, Meacham, Engquist, Fed. Ex. Corp. |
Souter | 8 | CBOCS, Ledbetter, Gomez-Perez, Gross, 14 Penn Plaza, Meacham, Engquist, Fed. Ex. Corp. |
Breyer | 7 | CBOCS, AT&T, Ledbetter, Gomez-Perez, Gross, 14 Penn Plaza, Fed. Ex. Corp. |
Kennedy | 6 | Ricci, CBOCS, Gomez-Perez, Meacham, Kentucky Retirement, Fed. Ex. Corp. |
Alito | 6 | Ricci, CBOCS, Gomez-Perez, Kentucky Retirement, Meacham, Fed. Ex. Corp. |
Roberts | 4 | Ricci, CBOCS, Meacham, Fed. Ex. Corp. |
Scalia | 2 | Ricci, Kentucky Retirement |
Thomas | 1 | Ricci |
There is a distinct divide among the Supreme Court Justices in worker discrimination cases. Combining all the votes cast in all eleven cases, the liberal Justices’ record was 75% pro-worker. The record of the conservative Justices was less than half that: 35% of the votes. Chief Justice Roberts’s record, 36%, was virtually the same.
