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Religious Rights, Arbitration and Pot Cases Await Supreme Court

Oct. 1, 2020, 9:31 AM

The 2020 U.S. Supreme Court term will feature high-profile political and policy battles, potentially including litigation over the presidential election, but several notable if less splashy cases with workplace implications are also waiting in the wings.

The justices have already agreed to hear arguments in disputes touching on the Religious Freedom Restoration Act, the Federal Arbitration Act, and a conflict over LGBT rights and religious exemptions.

Petitions for review are pending in cases concerning wage-and-hour class actions, long-running disputes about class-wide arbitration, and several cases about religious accommodations. Union fee disputes under consideration by the court could expand a previous high court ruling that weakened public-sector unions.

“There is a paucity of really meaty cases in the labor and employment space, but there are some pending cases that the court hasn’t decided on that could have implications,” said J. Randall Coffey, Fisher Phillips partner in Kansas City, Mo. “It seems like a period of consolidation for labor and employment, and we’re getting a breather. There are a lot of issues percolating through the system based on recent decisions that we’ll be addressing soon.”

Here’s a look at what’s coming this term.

Slated for Argument

On Oct. 6, the court will hear Tanzin v. Tanvir, a case that reckons with the scope of the Religious Freedom Restoration Act. In it, the justices will decide whether claims for money damages can be brought under that 1993 act, which allows individuals to sue if the government infringes on their religious freedom.

While not directly related to the workplace, on Nov. 4 the justices will take up a case that attempts to square religious rights with the rights of lesbian, gay, bi-sexual and transgender people in the wake of its landmark decision last term, which recognized their workplace protections under Title VII of the Civil Rights Act of 1964.

The case Fulton v. Philadelphia concerns a Catholic foster parent agency that won’t work with same-sex couples, and challenged a Philadelphia ordinance prohibiting city contractors from LGBT discrimination. The high court’s eventual decision here could address questions left unanswered about religious freedom stemming from its 6-3 ruling penned by Justice Neil Gorsuch last term.

“There were a lot of questions left open after the LGBT decision,” said Michelle Phillips, an employment attorney with Jackson Lewis in New York. “These will definitely be cases employers will be watching.”

In the past decade, the high court has bolstered the Federal Arbitration Act, which keeps contract disputes out of court and in a private dispute-resolution process. Schein v. Archer and White Sales—set to be heard Dec. 8—follows a 2018 unanimous ruling that ended an arbitration exception. Class arbitration could crop up in another long-running case with claims of sex bias by workers at Sterling Jewelers, although the justices are still weighing whether to take up that case.

“Generally, when an arbitration case goes up, there is an opportunity for the law to get worse for plaintiffs,” said Outten & Golden attorney Christopher McNerney in New York.

Cases in Conference

Justices are weighing whether to take up a spate of cases that would directly affect workers and employers, including several brought by the National Right to Work Legal Defense Foundation that would bolster a 2018 high court decision that weakened public-sector unions.

The court also will consider cases on the scope of employers’ requirements to provide religious accommodations.

  • Conservative justices have flagged these disputes, arguing that the Supreme Court should reconsider a 1977 standard set by a decision that defines undue hardship to an employer. The cases focus on employees requesting time off to avoid working on the Sabbath, but they would influence lawsuits on religious garb and meal accommodations. Religious groups want a stricter standard for employers.

“Either now or at a later time, the justices will revisit this idea of religious freedom,” said Michael Foreman, law professor at Penn State University.

  • Among the cases that have divided courts and are now before the high court is one in which a Black woman said she was discriminated against by her manager after she was denied a request for an internal transfer. The U.S. Solicitor General’s Office previously asked whether working conditions should be considered under Title VII. The solicitor’s office pointed the court to a divide in the appeals courts. A previous case settled earlier this year before the court could decide whether to grant the petition.
  • Wage-and-hour class actions also could be debated in a case involving minor league players who say they weren’t paid fairly under the Major League Baseball policies. The lawyers arguing against class certification say a previous high court ruling that made it harder for workers to join would be weakened.
  • Justices also might consider whether Colorado marijuana company, Helix TCS, must face a security guard’s overtime lawsuit. The company failed to convince the full Tenth Circuit to reconsider its ruling that federal wage-and-hour requirements protect marijuana industry workers despite clashes with federal drug laws.

Awaiting Conference

Several other cert petitions are pending and haven’t been scheduled for a conference.

  • One such case involves Vantage Drilling International, which wants the justices to consider whether a worker met the EEOC’s pre-suit administrative requirements by filing a verified charge with the agency eight months after filing an unverified intake questionnaire. The Equal Employment Opportunity Commission’s “charge-filing process has nationwide impact for employers and employees,” the Vantage attorneys say in their petition.
  • Attorneys for the workers in Paskert v. Kemna-ASA Auto Plaza—which represents a split in appeals courts—would set a standard for filing a retaliation lawsuit for claiming a hostile work environment.
  • Another case, Henry v. Johnson, raises questions about a government employee’s free speech weighed against the possible adverse effect on an employer.
  • And in Chipotle Mexican Grill v. Scott, the court could address what factors a trial judge may consider when determining whether employees are “similarly situated” for purposes of the collective-action provision of the Fair Labor Standards Act.

To contact the reporter on this story: Erin Mulvaney in Washington at emulvaney@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com; Karl Hardy at khardy@bloomberglaw.com

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