Supreme Court Preview—2010-2011 Term

Women continue to live with the fallout of a series of devastating decisions from prior terms, and the risk remains that this Court’s decisions this term will continue to erode women’s rights and civil rights.  In many of these cases the Court has taken the side of big corporations and powerful interests, reflecting a failure to adequately consider how its decisions disregard the law’s intended purpose and its real-world impact on ordinary people.

As the 2010-2011 Supreme Court term commences on October 4, 2010, advocates for women’s rights will be closely following several cases that involve issues of critical importance to women to see whether these trends continue. These include three employment discrimination cases, one arbitration case, and a case involving constitutional protections against sex discrimination.

Notably, with the confirmation of Justice Kagan, there will be three women Justices on the Court at the same time, for the first time in history, beginning this term. Although Justice Kagan has had to recuse herself from a number of cases, including almost all of the cases described below, because of her involvement in those cases in her former position as Solicitor General, her votes and possibly opinions in other cases may offer a window into her approach to the law.

Employment Rights

The Court will hear three employment discrimination cases concerning issues of significance to women. Unfortunately, recent decisions—such as Ledbetter v. Goodyear Tire and Rubber Co., which sharply limited women’s ability to bring pay discrimination claims and led Congress to pass the Lilly Ledbetter Act restoring pay discrimination law—illustrate that the Roberts Court neither understands the barriers women continue to face in the workplace nor acknowledges how its decisions adversely affect federal laws intended to eliminate discrimination. Advocates for women’s rights are urging the Court to recognize effective antidiscrimination protections and build on recent decisions such as last year’s Crawford v. Metropolitan Government of Nashville and Davidson County, which recognized strong anti-retaliation protections in Title VII, the statute that bars employment discrimination. In addition, the Court will hear a case dealing with the enforceability of arbitration clauses that may affect workers’ ability to enforce their rights. In recent terms, the Court’s decisions have sided with corporations and private interests over employees and consumers, and there is a strong risk the Court will continue this trend during the present Term.

• In Thompson v. North American Stainless, an employer retaliated against a woman who complained about sex discrimination by firing her fiancé, who worked for the same company. Miriam Regalado was one of only a few women engineers at North American Stainless. Only three weeks after the company learned that Regalado had filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) (the first step for an employee who wishes to file a discrimination lawsuit), it terminated her fiancé—now husband—Eric Thompson. Thompson then filed his own EEOC charge and lawsuit claiming that he had been fired because Regalado had complained about discrimination. But, the Sixth Circuit upheld the dismissal of his case, holding that only “persons who have personally engaged in protected activity” have the right to sue under Title VII. In other words, only Regalado had a claim under Title VII, even though Thompson was the one who lost his job.  

The National Women’s Law Center filed a friend-of-the-court brief urging reversal of the Sixth Circuit’s decision. Workers, especially women in male-dominated fields like Miriam Regalado, experience acute pressure to remain silent when they suffer discrimination. Not allowing Thompson to sue will embolden employers to retaliate against a worker’s family members and other close associates, further deter employees from reporting discrimination, and is contrary to Title VII’s purpose of ending workplace discrimination.

• Kasten v. Saint-Gobain Performance Plastics Corp. also involves employer retaliation, in this case based on employees’ complaints of violations of the Fair Labor Standards Act (FLSA).  The FLSA sets wage and hour standards and also includes the Equal Pay Act, which bars pay discrimination on the basis of sex. The Court of Appeals for the Seventh Circuit held that employees who complain of FLSA violations to their employers orally, rather than in writing, are not covered under the FLSA provision prohibiting employers from retaliating against an employee who has “filed any complaint.” 

The National Women’s Law Center and other friends of the court have urged that the Court reverse the Seventh Circuit and provide protection for employees who make oral complaints. If the FLSA’s protections are not triggered until a written complaint is made, employers would have an incentive to retaliate immediately after an oral complaint by an employee—undermining informal dispute mechanisms that benefit both employer and employees. Effective protection against retaliation under the FLSA, based on real-world considerations, is essential for proper enforcement of wage and hour standards—especially for women, for whom wage discrimination remains an all too prevalent reality. 

• Staub v. Proctor Hospital involves the question of whether an employer can be held liable when an employee who harbors discriminatory animus against a particular employee causes someone else to take an adverse employment action against that employee—such as firing him or her. This is often referred to as the “cat’s paw” theory of liability. In Staub, a jury found that the plaintiff had been dismissed because of his service in the Army Reserve, in violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA). The Seventh Circuit set aside the verdict on the ground that the plaintiff had not shown that the employee who had expressed her displeasure with Staub’s need to take time off for his reserve duties had exercised a “singular influence” over the person who decided to fire him.

The way in which the cat’s paw doctrine is applied is important under all employment discrimination statutes, including Title VII. Managers who make adverse employment decisions must often rely on information received from a subordinate employee—and therefore a subordinate’s discriminatory animus may significantly affect the employment decision. The Seventh Circuit’s strict formulation of liability is contrary to the purpose of USERRA and similar statutes—to provide a remedy for employees, including women, who experience unlawful discrimination in the workplace. 

• Finally, AT&T Mobility LLC v. Concepcion involves an arbitration clause in a cellular phone contract prohibiting class actions.  Although the case does not arise in the employment context, its outcome may significantly affect employees’ ability to enforce their rights in the workplace through class actions. The Court will consider whether the Federal Arbitration Act (FAA) prevents courts from invalidating contract clauses banning class-wide arbitration in any forum as unconscionable under state law. The FAA recognizes the enforceability of arbitration agreements. But in many states, a contract provision—including an arbitration agreement—may be deemed “unconscionable” (and therefore unenforceable) if it fails to meet basic standards of fairness, often when one of the parties had no input into the contract terms. The principles at issue in AT&T Mobility are highly relevant in the context of employment law, because many employment contracts today incorporate arbitration clauses limiting employees’ ability to participate in class actions. 

The National Women’s Law Center joined a friend-of-the-court brief emphasizing that the FAA specifies that it does not preempt state contract law—including California’s law on unconscionable contract clauses. Therefore, the California court’s determination that the AT&T’s class action waiver is unconscionable should stand. The brief also points out that recourse to class actions is essential for workers—especially women, low-income, and immigrant workers—who face violations of their rights under wage and hour laws and antidiscrimination laws but have few resources to bring individual claims. Individual lawsuits are expensive, in many cases employees are not even aware of rights violations, and employees may fear retaliation if they act alone. Class actions allow employees to act together, making the cost of litigation less onerous, and provide a notice mechanism to inform employees of possible rights violations. For workers who have no input into an employment contract, class action waivers are often highly unfair, and it is therefore important to preserve state courts’ ability to invalidate unconscionable waivers, consistent with the intent of the FAA.

Sex Discrimination and the Constitution

The Equal Protection Clause of the Fourteenth Amendment of the Constitution ensures to all citizens “equal rights under law.” This clause has been interpreted, in particular, to bar sex discrimination by the government. The Court will hear a case this Term that challenges such discrimination.

• Flores-Villar v.United States presents the question of whether a provision of the Immigration and Nationality Act (INA) that treats unmarried men and women differently in conferring citizenship on their children born abroad discriminates on the basis of sex in violation of the Equal Protection Clause. Petitioner Ruben Flores-Villar was born in Mexico and raised by his citizen father in the U.S.  His father was unable to confer U.S. citizenship on him because he was sixteen when Flores-Villar was born and federal law held that an unmarried father of a child born abroad could not convey citizenship to the child at birth unless he had lived in the U.S. for five years after the age of fourteen—a standard physically impossible for the teen father to meet. No parallel requirement applies to unmarried U.S. citizen mothers. Several years ago, in Nguyen v. INS, the Court—over a strong dissent by Justice O’Connor—upheld a related provision. The current case raises the question of whether the Constitution’s protection against sex discrimination will be further weakened.  

The National Women’s Law Center filed a friend-of-the-court brief urging that the Court  assess the law in question under the heightened scrutiny standard that applies to discrimination on the basis of gender under the Constitution. Under that standard, the government must demonstrate “an exceedingly persuasive justification” for sex discrimination.  It has the burden of showing that the challenged classification is “substantially related” to the achievement of “important governmental objectives.”  The brief sets out why the distinction made between mothers and fathers does not meet this standard, but instead perpetuates the stereotype that unmarried fathers are always less involved than unmarried mothers in their children’s lives.  

In addition to the cases described above, which the Supreme Court has already agreed to hear, the Court will be deciding whether to hear other significant cases over the next few months. Cases the Court has already been asked to review include Wal-Mart’s appeal of the decision of the Court of Appeals for the Ninth Circuit that allows a class action for more than a million women to proceed against the giant retailer. The case alleges that Wal-Mart discriminated against its women employees in pay and promotions.  

The decisions of the Court have a profound, and lasting, impact on the women of this nation for generations to come. Women are watching the decisions that the Court will make during the 2010-2011 term.