Friday, June 27, 2014
This term at the Supreme Court has already seen some key labor and employment decisions, including a public employee speech case, Lane v. Franks; an ERISA decision involving the responsibilities of ESOP plan fiduciaries, Fifth Third v. Dudenhoeffer; and yesterday's Noel Canning decision, which invalidated the President's recess appointments to the NLRB made while the Senate was holding pro forma sessions.
Yet, Monday is shaping up to be a big day for labor and employment law at the Court. The Court has only two opinions remaining to be issued: the high-profile Hobby Lobby case involving a corporate employer's assertion of a religious freedom exemption from providing its employees with contraceptive health care coverage, and Harris v. Quinn, a public employee collective bargaining case that has potentially huge ramifications as detailed by Charlotte Garden here. Decisions in both of these cases are expected on Monday.
But, wait, there's more! Two employment discrimination cases await rulings on petitions for certiorari: Mach Mining v. EEOC and Family Dollar Stores v. Scott. The issue in Mach Mining is whether the EEOC's failure to adequately conciliate claims before filing suit can be raised as an affirmative defense. Both the employer and the EEOC have asked the Court to review the 7th Circuit's ruling that failure to conciliate cannot be raised as an affirmative defense, which created a circuit split. The Family Dollar case could, interestingly, involve the review of a Fourth Circuit ruling that denial of leave to amend a complaint was an abuse of discretion. The purported class action involved allegations of nationwide sex discrimination in pay, and the district court believed that Wal-Mart made an amendment futile. That case would raise questions about the reach of Wal-Mart; does it foreclose class certification in cases where discretion is exercised at higher management levels, or is it limited to the store manager level discretion that was at issue in Wal-Mart?
One potentially significant note on these two cases: both were relisted for yesterday's conference at the Court, after being scheduled for the June 19 conference. As SCOTUSBlog has detailed, the Court this term has a streak (or new practice?) of granting cert only for cases that have been relisted at least once. I will hold off on predictions for these cases, save this one: I think the petition in Mach Mining will be granted.
But wait, there's even more: thanks to Sam Bagenstos for noting that another pending cert petition had been relisted for yesterday's conference: Young v. United Parcel Service, a Pregnancy Discrimination Act case raising the issue whether an employer that provides accommodations to nonpregnant employees with work limitations must provide similar accommodations to pregnant employees who are "similar in their ability or inability to work."