The current term of the U.S. Supreme Court provides a reminder that the drafters of the U.S. Constitution deliberately created a tension between continuity of law and responsiveness to changes in the majority’s wishes. We are on the cusp of a complete change in administration, with the likelihood of substantial changes in both statutory regime and regulatory approaches to employment. At the same time, the Supreme Court, whose makeup was substantially affected by the previous administration, will be issuing decisions based in part on arguments made by the solicitor general appointed by the outgoing president.
At least some of the six labor and employment cases now before the Court can have far-reaching consequences for employees, employers, and unions.
Keep up with the latest changes in federal employment law, regulations, and U.S. Supreme Court decisions in the Federal Employment Law Insider
Title VII and arbitration clauses in collective bargaining agreements
In the early days of Title VII of the Civil Rights Act of 1964, the Supreme Court held that mandatory arbitration clauses in collective bargaining agreements (CBAs) could not compel an employee claiming discrimination under Title VII to first submit his claim to arbitration. Employers complained, to no avail, that making arbitration voluntary would give employees “two bites of the apple.” That is, having lost in one forum, they might pursue the same claim in another. The Court’s only response was that an employee couldn’t keep two awards.
In the intervening 30 years, arbitration has become increasingly accepted as a routine (and even desirable) means of adjudicating claims that historically have been heard by courts, and it is in this new era that a fresh challenge arises. At issue are claims filed by three watchmen over 50 who were transferred to less desirable positions as night porters and light-duty cleaners. The building owner later contracted with a company affiliated with their employer to provide watchman services. Those jobs went to younger workers with less seniority.
The watchmen were covered by a CBA that prohibited a wide range of employment discrimination, including age bias, and required that “such claims be subject to the grievance and arbitration procedure . . . as the sole and exclusive remedy.” The union first filed a grievance on the employees’ behalf but then withdrew the discrimination claims in favor of a lawsuit under state law and the Age Discrimination in Employment Act (ADEA).
The employer asked the court to dismiss the suit or compel arbitration under the CBA. The district court and the court of appeals refused. The Supreme Court’s decision to hear the case raises interesting questions.
First, does the union’s authority as the exclusive bargaining representative empower it to waive covered employees’ (even nonmembers’) statutory rights and remedies? Second, even if it is generally so empowered, would a waiver be appropriate when, as is typical with labor arbitrations, the union alone controls the arbitration, and employees whose statutory claims are being heard could be denied the opportunity to have their case tried by their choice of counsel?
HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including labor unions and discrimination
Employer liability for discrimination later deemed unlawful
A claim against AT&T by several long-term employees who took pregnancy leave in the 1960s and ’70s raises an issue with substantial financial impact. In 1976, the Supreme Court held that Title VII did not prohibit discrimination on the basis of pregnancy. That decision was immediately overturned by the Pregnancy Discrimination Act (PDA). Before the PDA, AT&T (like many employers) did not give service credit for pregnancy leave in the same manner it credited other temporary disabilities. In some cases, employers required employees to take a fixed period of maternity leave regardless of the employees’ own wishes. The PDA made such conduct unlawful.
Thirty years later, when the employees who filed this lawsuit retired, they challenged AT&T’s failure to include periods of maternity leave in their service credit calculations. The district court ruled in favor of the employees, finding that they indeed had been discriminated against. A three-judge panel held that the PDA was not retroactive and there was no new act of discrimination when the benefits were calculated. That ruling was reversed by an en banc (full court) decision.
The Supreme Court agreed to review the case and asked the solicitor general for the government’s position. The solicitor urged the Court to find in favor of the employer; otherwise, the PDA would be given retroactive effect, which wasn’t the intent of Congress and which would, in itself, raise significant legal issues.
Update (May 19,2009): U.S. Supreme Court reverses cecision on decades-old maternity leave
Retaliation for cooperating with internal investigation
Title VII protects employees from retaliation if they engage in “active, consistent opposition” to harassment or participate in an Equal Employment Opportunity Commission (EEOC) proceeding. This case before the Court involves allegations that the director of employee relations of the Metropolitan Government of Nashville and Davidson County Schools sexually harassed school district employees. The school system directed an internal investigation. Vickie Crawford and three other employees cooperated in the investigation and confirmed the allegations of harassment. The investigation found the director had engaged in inappropriate conduct, but he was not disciplined.
Six months later, Crawford and the other three cooperating employees were fired. They sued, claiming retaliation. The district court dismissed their claims in favor of the school district on the grounds that they failed to meet the statutory language. That is, they had not opposed the director’s unlawful activities, filed a charge, or participated in an EEOC proceeding (no charge was filed against the director).
The issue before the Court is whether “retaliation” under Title VII should be extended beyond the statutory language to cover participation in informal and internal investigations for which no EEOC charge was ever filed. In two recent cases, the Court has expanded the concept of retaliation by reading it into the Civil Rights Act of 1866 and the Americans with Disabilities Act (ADA) as applied to public employers. The solicitor general and the EEOC have urged the Court to hold that the Act’s “opposition” clause should be read to cover employees who assisted or participated in an “investigation, proceeding or hearing.”
Update (Jan. 26, 2009): Read the Supreme Court’s decision on this case
Other matters
Three other labor or employment cases are pending. One involves what type of formal documentation is necessary for a divorcing spouse to waive his right to the other spouse’s pension benefits. A second asks whether a state statute can lawfully prohibit employee deductions from state payrolls for political purposes. Finally, the third asks whether protesting nonunion members required to pay union dues as a condition of retaining employment can be charged for their local unions’ contribution to a “litigation pool.”