Employment: DSDA's Eye On The Courts: Review of U.S. Supreme Court Decisions In 2008 Term


The U.S. Supreme Court’s 2008 term ended June 29, 2009. The labor and employment cases decided during the 2008 term, much like those decided in the 2007 term, was a mixed bag for employers. The following is a summary of the labor and employment cases decided by the Supreme Court in its 2008 term:

  1. A unanimous Supreme Court held the First Amendment permits a local union to charge non-members for national litigation expenses so long as (1) the litigation would be properly chargeable if local (such as litigation related to collective bargaining, as opposed to political activities), and (2) the charge is reciprocal, that is, the contributing local union reasonably expects other local unions to contribute to the national union’s resources if similar litigation is undertaken on behalf of the contributing local union. Locke v. Karass, 129 S.Ct. 798 (appeal from 1st Circuit) (decided January 21, 2009).
  2. The Supreme Court held the anti-retaliation provision of Title VII protects an employee from being terminated because the employee cooperated with the employer’s internal investigation of another employee’s claim of sexual harassment. Crawford v. Metropolitan Government of Nashville and Davidson County, 129 S.Ct. 846 (appeal from 6th Circuit) (decided January 26, 2009).
  3. A unanimous Supreme Court held that (1) a federal common-law waiver signed by an ERISA benefit plan participant’s ex-spouse did not invoke ERISA’s anti-alienation provision, and (2) under ERISA a plan administrator performs its ERISA duty when it pays benefits in conformity with the plan documents. Kennedy v. Plan Administrator for DuPont Savings & Investment Plan, 129 S.Ct. 865 (appeal from 5th Circuit) (decided January 26, 2009).
  4. The Supreme Court determined that Idaho’s right-to-work law, which permits public employees to authorize payroll deductions for general union dues, but prohibits such deductions for union political activities, does not infringe the union’s First Amendment rights. The majority found the state’s ban serves the state’s interest in separating public employment from political activities. Ysursa v. Pocatello Education Association, 129 S.Ct. 1093 (appeal from 9th Circuit) (decided February 24, 2009).
  5. In a 5-4 decision, the Supreme Court held a provision in a collective bargaining agreement which clearly and unmistakably required union members to arbitrate claims under the Age Discrimination in Employment Act is enforceable under federal law. 14 Penn Plaza LLC v. Pyett, 129 S.Ct. 1456 (appeal from 2nd Circuit) (decided April 1, 2009).
  6. Congress added the Pregnancy Discrimination Act (PDA) to Title VII in 1978. Prior to the PDA, the employer’s predecessor had a service credit policy which granted full service to temporary disability leave other than pregnancy leave. Upon passage of the PDA, the employer amended its plan to conform to the requirements of the PDA, but did not make any retroactive adjustment for pre-PDA personnel policies. In a 7-2 decision, the Supreme Court held the PDA did not apply retroactively, and the employer was not liable for calculating pre-PDA pension benefits that gave less retirement credit for pregnancy than for medical leave generally. AT&T Corporation v. Hulteen, 129 S.Ct. 1962 (appeal from 9th Circuit) (decided May 18, 2009).
  7. In a 5-4 decision, the Supreme Court held that a plaintiff bringing an ADEA disparate treatment claim must prove, by a preponderance of the evidence, that age was the “but for” cause of the challenged adverse employment action; a burden shifting “mixed motive” jury instruction is never proper in an ADEA case, even when a plaintiff has produced some evidence that age was one motivating factor in the employer’s decision. Gross v. FBL Financial Services, Inc., 129 S.Ct. 2343 (appeal from 8th Circuit) (decided June 18, 2009).
  8. A city used tests to identify firefighters best qualified for promotion. When the results of the tests showed that white candidates had outperformed minority candidates, the city discarded the tests based on its belief the use of the results could have a disparate impact on minority firefighters. The Supreme Court, in a 5-4 decision, held the city violated Title VII by discarding the tests. Ricci v. DeStefano, 129 S.Ct. 2658 (appeal from 2nd Circuit) (decided June 29, 2009).

By Jon E. Brightmire, jbrightmire@dsda.com

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