Friday, October 3, 2008

Exciting Term Ahead at Supreme Court for Labor and Employment Law

4united_states_supreme_court_112904 Not quite as many case as last year, but 2008-2009 could be a blockbuster year for Supreme Court labor and employment law cases.

BNA Daily Labor Report provides some context:

The U.S. Supreme Court is scheduled to open its 2008-2009 term Oct. 6 with six labor and employment law cases awaiting oral argument.

The two First Amendment cases raise questions about whether public employee unions can require nonmembers to pay for extra-unit litigation costs as part of their agency fees and whether a state can prohibit local government employers from allowing payroll deductions for political activities. The justices also will consider whether Title VII of the 1964 Civil Rights Act protects an employee who is fired after she cooperated with her employer's internal investigation by reporting sexual harassment.

A pension benefits case raises the question whether an employer is liable for not giving full service credit to women who took pregnancy leaves before the Pregnancy Discrimination Act required that all temporary disability leaves be treated equally. An Employee Retirement Income Security Act case involves a divorce decree's effect on a beneficiary designation made by a now-deceased employee. The sixth case involves whether an employee covered by a bargaining contract that requires arbitration of employment discrimination claims may sue for such claims.

Additionally, there is an extremely important retaliation case under Title VII concerning the ability to gain protection under the law for internal complaints. The ACS Blog has some background on the Crawford case:

Crawford v. Metropolitan Gov’t of Nashville may fall under the radar of many who watch the Supreme Court’s upcoming term.   It should not as it is one of the most important cases before the high court this fall.  The case impacts employees and employers nationwide and addresses an important issue under the anti-retaliation provision of Title VII.  Title VII’s anti-retaliation provision contains an opposition clause and a participation clause.  It protects those workers who oppose unlawful employment discrimination practices and those workers who “in any way” participate in an employment discrimination proceeding, such as a formal EEOC investigation.   

However, the federal courts of appeals have ruled in their lack of wisdom that employees who give testimony or participate in internal employer investigations receive no protection under Title’s anti-retaliation provision.    The Sixth U.S. Circuit Court of Appeals in a cursory per curiam opinion reached such a result in the case of Vicky Crawford – a 30-year employee of the Metro School District who was terminated after she said during an employer interviewer that her supervisor sexually harassed her and other employees.

I agree with David Hudson at ACS that, "Employee-witnesses will be chilled from speaking the truth about inappropriate sexual conduct by supervisors and co-workers for fear of meeting the same fate of Vicky Crawford.   The message such a perverse result sends is 'tell the truth about harassment and discrimination and face possible termination.'”

There is also some optimism because the Roberts Court has a surprisingly good record on employee retaliation claims in such cases as Burlington Northern, CBOCS, and Gomez-Perez.


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