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Labor

Labor cases, of course, are also business matters, and the courts are often asked to resolve conflicts between employers and their employees over matters regulated by federal or in some cases state law.  A pro-business court ought to decide a large majority of the cases against worker interests, but this past Term saw very mixed results.

Employment discrimination cases constituted a good part of the labor caseload, and the justices ruled against age discrimination in both the federal and the private sectors. In two related cases, the Court by a 7-2 majority held that a 19th century law designed to protect the legal rights of newly freed slaves also protected Hedrick Humphries, an African-American associate manager at a Cracker Barrel restaurant who complained to his boss, a white man, about the discriminatory treatment of a black waitress. Soon afterwards his manager fired Mr. Humphries, who sued under the 1866 law, alleging retaliation. The law had been understood to protect African-Americans from employment discrimination, but it made no mention of retaliation. In prior discrimination cases the Court has inferred a prohibition against retaliation, concluding that if people were not protected, they would be less likely to report discrimination.

Humphries took his complaint to the Equal Employment Opportunity Commission under the 1964 Civil Rights Act, but the district court dismissed the claim because he had failed to pay filing fees on time. He then refilled his case under §1981 (the 1866 Civil Rights Act) which is more lenient on deadlines but does not specifically mention retaliation, and the Seventh Circuit Court of Appeals upheld his right to pursue action under that law. Cracker Barrel appealed, and the majority, speaking through Justice Breyer, essentially read a right to fight retaliation into §1981.

Justice Thomas dissented, joined by Justice Scalia, who said that while the majority reasoning made sense, the wording of the law did not encompass that meaning, and if Congress wanted to include retaliation then it, and not the courts, should make that decision. (CBOCS West v. Humphries)

In a second case, the Court found that the Age Discrimination in Employment Act (ADEA) gave federal employees the right to sue claiming retaliation. The Court ruled in favor of Myrna Gomez-Perez, a former full-time postal service clerk in Dorado, Puerto Rico. In October 2002, Ms. Gomez-Perez, then 45, requested a transfer to the post office in Moca, Puerto Rico, in order to be closer to her ailing mother. The transfer was approved, but the facility only had a part-time position open.  When circumstances changed, she requested a transfer back to Dorado, but in the meantime her old position had been converted to part-time, and her supervisor had filled it with another employee.  After filing an unsuccessful union grievance, she entered a Postal Service age discrimination complaint.  She claimed that this triggered a round of harassment, she was herself falsely accused of sexual harassment of other employees, and her work hours reduced. She then filed a retaliation suit under the ADEA, but lost in the lower courts

The key question in Gomez-Perez v. Potter, according to Justice Alito, was whether the phrase "discrimination based on age" in the federal sector provision of ADEA "includes retaliation based on the filing of an age discrimination complaint," and he concluded that, based on prior decisions, it did. The decision thus gave federal employees the same protection against retaliation that workers in the private sector enjoyed.

Justice Roberts, joined by Justices Scalia and Thomas, believed that protection against discrimination might include protection against retaliation, but if so it would be found in established civil service procedures and not in ADEA. In fact, in another case, Engquist v. Oregon Department of Agriculture, the justices rejected the notion of a "class of one" theory of equal protection. Anup Engquist claimed that her job had been eliminated after repeated problems with her supervisor.  No one else seemed to be having these problems, and a 6-3 Court, speaking through the Chief Justice, said that Ms. Engquist had to rely on civil service protections in place to guard against harassment.

Later in the Term older workers won another victory when a 7-1 Court overturned the Second Circuit Court of Appeals and put on employers the burden of proving that a layoff or other action that hurt older workers more than others was not based on age but on some other "reasonable factor." 

The case came up when 28 employees lost their jobs at a federal research laboratory in upstate New York. All but one of the people laid off were at least 40, the age at which protection begins under ADEA. The key issue, while highly technical, is very important for future age discrimination cases because it involves who bears the burden of proving that a job action was or was not motivated by the worker's age.  If a policy that otherwise appears facially neutral has an untoward impact on older workers, the decision in Meacham v. Knolls Atomic Power Laboratory means that it will be the employer and not the employee who bears the burden of proof, a major victory for older workers. Only Justice Thomas, who once headed the EEOC, and Justice Scalia dissented from Justice Alito's opinion, saying that the ADEA only barred deliberate discrimination, not policies that had a discriminatory impact.

The implications of another labor case are far from clear.  In Sprint/United Management Co. v. Mendelsohn, the Court dealt with so called "me, too" evidence. Ellen Mendelsohn sued Sprint under the ADEA after she was laid off at age 51 in a reduction-in-force initiative.  As part of her suit she intended to produce as witnesses five other workers, laid off by different supervisors, who were also 50 or over.  The district court granted Sprint's motion to exclude this testimony, and said that only testimony of employees "similarly situated," that is, laid off by the same supervisor, would be relevant. Mendelsohn then appealed to the Tenth Circuit Court of Appeals, which said that the evidence should have been admitted.  Since the circuits are divided over whether "me, too" evidence is admissible in discrimination cases, the high court took the case on appeal.

In a unanimous decision written by Justice Thomas, the Court did not actually answer the question of whether the witnesses should be allowed to testify in Mendelsohn's case.  It rejected the categorical "never" approach of the district court and the more permissive ruling by the court of appeals, and declared that each case had to be decided based on its facts.  A district court should make a "fact-intensive, context-specific inquiry" to determine the relevance of the evidence, and then appeals courts should generally be deferential to the fact findings of the trial judge.  In this case the reasons for the trial judge's determination were so "ambiguous" that the appeals court lacked an adequate basis on which to evaluate it.

The case was returned for a new trial under the Court's ruling of case-by-case evaluation, and it will be interesting to see how the district courts respond to what might also be called an "ambiguous" ruling by the justices.



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