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Supreme Court to Weigh In on Workplace, Civil Rights Disputes

Oct. 4, 2019, 9:52 AM

The U.S. Supreme Court will confront key questions for employers as it begins its new term. Cases on tap involve LGBT rights in the workplace, the contours of age discrimination and other civil rights laws, and immigration disputes involving as many as 800,000 undocumented workers.

The Justice Department will play a role in many of these cases, testing the majority conservative court on several social issues, as well as stances that pit workers’ rights versus business interests.

LGBT rights in the workplace will take center stage in oral arguments scheduled for the opening week of the Supreme Court’s term, which begins Oct. 7. Another early case could help to determine the fate of the Deferred Action for Childhood Arrivals, or DACA, program. Still other cases on the docket will deal with employee benefits disputes as well as the legal bar that workers must meet to bring age and race discrimination claims.

“We haven’t had this many active, straight employment cases in years. It will be active and interesting,” said Paul Mollica, attorney with Outten & Golden in Chicago. “The Title VII cases will be the ones to watch, both because they will affect the real lives of employees and will affect the human resources functions of employees.” Many of the other cases will be important to litigators, affecting “in small and potentially big ways” what kinds of cases can be brought, Mollica said.

LGBT Rights Debated

The justices Oct 8 will consider a trio of cases that weigh whether sexual orientation and gender identity should be protected under Title VII of the 1964 Civil Rights Act, a federal statute that protects workers from discrimination based on sex, race, color, religion, and national origin.

The cases are Altitude Express v. Zarda and Bostock v. Clayton County, Georgia, which deal with sexual orientation protections, and R.G. & G.R. Harris Funeral Home v. EEOC, which revolves around gender identity. The Justice Department will argue both issues on behalf of the employers.

A solid conservative majority will be the audience this term. Former Justice Anthony Kennedy, who often sided with liberal justices and penned progressive opinions that advanced gay rights, retired in 2018. He was replaced by Justice Brett Kavanaugh who has signaled he could join the court’s new judicial center.

The question of LGBT bias protections has divided federal agencies, led business groups to push for protections, and inspired warring coalitions of states. Experts say the scope of LGBT bias protections will come down to judicial philosophy and whether “because of sex” in Title VII includes sexual orientation and gender identity.

How the court rules could shift the understanding of sex and gender stereotypes in the workplace and how far federal protections extend for all workers, said Sunu Chandy, legal director of the National Women’s Law Center. LGBT and female workers who don’t “conform to the narrow expectations of what a man or woman should be” could be excluded from Title VII’s anti-discrimination protections, she said.

Mollica of Outten & Golden said the LGBT cases and others will signal how the justices will interpret statutory language, particularly Trump-appointed Justices Neil Gorsuch and Kavanaugh.

“The new justices have come on the bench with a reputation of strict statutory interpretation and plain language,” Mollica said. “That could impact the analysis of all these questions.”

Civil Rights and Age Discrimination

Two other cases before the court this term grapple with interpretation of civil rights statutes and plaintiffs’ ability to bring discrimination claims.

Both the Justice Department and the NAACP have weighed in on the first case, Comcast Corp. v. National Association of African American-Owned Media. It revolves around the legal standard needed to show racial bias under a Reconstruction-era law, Section 1981 of the 1866 Civil Rights Act.

The NAACP takes no position on the underlying dispute, but said that the case is an attack on “a bedrock civil rights statute.” The DOJ, meanwhile, weighed in on the side of Comcast.

Comcast hopes to overturn a U.S. Court of Appeals for the Ninth Circuit decision that cleared the association’s lawsuit to move forward on the grounds that race discrimination was one of several motivating factors at play in the dispute. Comcast said the association must instead show what’s known as “but for causation,” meaning it must prove that unlawful bias was a main reason behind Comcast’s decision not to carry certain television programming.

This ruling will have implications in the employment law sphere, employment attorneys said. Title VII and Section 1981 are often both filed and analyzed similarly, but Section 1981 doesn’t include a cap on damages or require an employee to first file a charge with the Equal Employment Opportunity Commission, as is mandated under Title VII.

“This will resolve the confusion over what standard of proof applies,” said Rae Vann, general counsel for the Center for Workplace Compliance, which filed a brief in the case, and a partner at NT Lakis.

Age discrimination standards will be similarly analyzed in a second case, Babb v. Wilkie. The main question for the court surrounds the standard federal workers must meet to show there was age discrimination underlying a termination, demotion, or some other negative job action.

The justices can resolve an appeals court split on the causation standard for age discrimination complaints under the Age Discrimination in Employment Act filed by federal workers. The high court’s analysis may make it easier or tougher for federal workers to prove they were discriminated against based on age or other protected categories, like race or sex. Federal laws against discrimination in employment have different provisions for workers in the private sector compared to those in public employment.

Immigration

Immigration cases affecting employers are also on the high court’s calendar.

Three cases involving the DACA program will affect 700,000 to 800,000 undocumented workers who are legally employed under the program. Many of them are highly skilled workers, including doctors, lawyers and engineers, said Nicole Saharsky, an attorney with Mayer Brown. Businesses have been able to continue employing DACA recipients through the end of 2019.

The question in the cases surrounds the Trump administration’s decision to end the DACA program, which provides work permits and deportation protection for young immigrants. A final ruling would settle uncertainty for employers, but could mean a loss of hundreds of thousands of jobs if the program is eliminated. Businesses have been able to continue employing DACA recipients through the end of 2019.

Large companies, including IBM Corp., Microsoft Corp., Mozilla, and Marriott International Inc., and associations such as the U.S. Chamber of Commerce, Business Roundtable, and the American Hotel & Lodging Association have come out in favor of the program.

The cases are Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., Nielsen v. Batalla Vidal, and Trump v. Nat’l Ass’n for the Advancement of Colored People.

Another immigration case, Kansas v. Garcia, will examine a state supreme court finding that federal law expressly prevents state law enforcement from using information contained in the I-9 employment verification form. The case specifically deals with identity-theft laws, but it could create problems for companies doing business in more than one state, or even in different municipalities within the same state.

The 1986 Immigration Reform and Control Act created the I-9 form to prevent unauthorized immigrants from obtaining jobs. The forms, which must be completed for all employees regardless of their citizenship or immigration status, require proof of identity and work authorization.

Employers are required only to make sure employees’ documents appear genuine, not to ascertain whether they’re the real deal. That allows undocumented immigrants to obtain sophisticated fake documents that can contain someone else’s Social Security number or other personal information.

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

To contact the editors responsible for this story: Karl Hardy at khardy@bloomberglaw.com; Terence Hyland at thyland@bloomberglaw.com