The United States Supreme Court is the highest appellate court in the country and has the final word interpreting the United States Constitution and issues of federal law.  The Court is composed of nine justices who are nominated by the President and then confirmed by the Senate.  Once confirmed the justices serve for life.  Currently there are three women and six men on the Court.  The most recent appointee to the Court is Elena Kagan, appointed by President Barack Obama in 2010.


The Roberts Court, 2010
Back row (left to right): Associate Justices Sonia Sotomayor, Stephen G. Breyer, Samuel A. Alito, and Elena Kagan. Front row (left to right): Associate Justices Clarence Thomas, Antonin Scalia, Chief Justice John G. Roberts, Associate Justices Anthony Kennedy, and Ruth Bader Ginsburg

The Court has discretion over most of its docket, and chooses to hear approximately 100-150 cases of the over 7,000 petitions it receives each year.  A handful of its cases concern matters of employment law and discrimination. This blog discusses decisions of the Supreme Court and upcoming cases that affect our practice in the area of employment law, discrimination and civil rights.  The Court’s Term runs from the first Monday in October through the end of June of the following year.  During this time, each month, two weeks are devoted to oral arguments of cases.  The other two weeks are devoted to research and writing opinions.


The Court grants broad whistleblower protection to fired federal aviation security employee.

In a 7-2 ruling on January 21, 2015, Department of Homeland Security v. McLean, the Court sided with a former Transportation Security Administration air marshal who had been fired after he told a reporter about what he considered to be significant lapses in post 9/11 aviation security.  He was fired for disclosing sensitive security information.  He claimed he was a whistleblower entitled to protection under the Whistleblower Protection Act because he reasonably believed that the information he provided disclosed a “substantial and specific danger to public health or safety.”  The Court agreed, ruling that the information he disclosed was not “specifically prohibited by law” because the information was not prohibited by statute.  The critical issue in this case was what does “specifically prohibited by law” mean? The information disclosed was prohibited from disclosure by regulation, and therefore the government argued that the employee could be fired because he had disclosed information prohibited by law.  The Court rejected this narrow reading of the Whistleblower Protection Act, and held that regulations are not a source of “law” under that statute.  In plain terms this means that the Court has read the whistleblower statute broadly to provide protection to employees.  Federal employees cannot be fired for disclosing information prohibited by regulation, only it the information is prohibited by statute.

Religious liberty alive and well in prison.

Echoing its decision a year ago in the Burwell v. Hobby Lobby case, which allowed employers not to provide contraceptive coverage that would violate sincerely held religious beliefs, the Court once again found religious liberty to prevail, here over prison security concerns.  In Holt v. Hobbs, decided January 20, 2015, the Court unanimously ruled in favor of a Muslim prisoner whose religious beliefs require him to have a beard, rejecting the state’s security concerns that inmates could hide things such as razor blades, needles, drugs or cellphone SIM cards in their beards.  Among other things, the Court found that the state’s security concern was undercut by the fact that it allowed prisoners with skin problems to grow half-inch beards.  If so, it could not justify refusing to allow a Muslim prisoner to grow a half-inch beard for religious reasons.

Do employees have to be paid when they undergo security screenings?  The Court answered No.

On December 8, 2014, in a 9-0 ruling, in Integrity Staffing Solutions v. Busk, No. 13-433, the Court held that the time that employees spent waiting to undergo and undergoing security screenings is not compensable under the Fair Labor Standards Act because they are non-compensable postliminary activities.  The court explained, “To begin with, the screenings were not the ‘principal activity or activities which [the] employee is employed to perform’” since the company did not employ them to undergo security screenings, but rather to retrieve products from warehouse shelves and package them for shipment. The Court further found that the time spent in security screenings was not “integral and indispensable” to those activities.


Here are the employment cases on the Supreme Court’s docket that we are watching in the upcoming 2014-2015 Term.

Holt v. Hobbs, No. 13-6827 [Argument: 10.7.2014]

Issue: Whether the Arkansas Department of Corrections grooming policy prohibiting an inmate from growing a one-half-inch beard in accordance with his religious beliefs violates the Religious Land Use and Institutionalized Persons Act of 2000.

Integrity Staffing Solutions v. Busk, No. 13-433 [Argument: 10.8.2014]

Issue: Whether time spent in security screenings is compensable under the Fair Labor Standards Act, as amended by the Portal-to-Portal Act.

Department of Homeland Security v. MacLean, No. 13-894 [Argument: 11.4.2014]
Issue: Can a federal agency take an enforcement action against an employee who intentionally discloses sensitive security information or is the employee protected as a whistleblower where the information he disclosed was prohibited by regulation, but not by statute.  Does the Whistleblower Act’s exemption for a disclosure “specifically prohibited by law” apply to regulations or only statutes.

Young v. United Parcel Service, No. 12-1226 [Argument: 12.3.2014]

Peggy Young, a UPS air driver, asked for an accommodation when she was pregnant and her doctor certified that she should not lift more than 20 pounds.  Though her job description required her to lift 70 pounds, in fact, because she picked up packages from the airport, she rarely had to lift more than 10 pounds.  UPS refused her request to transfer to a light duty job or to agree she need not lift more than 20 pounds in her position on the grounds that it did not make accommodations for pregnant employees, only for disabled employees, employees on light duty under workers compensation law, and for certain reasons under its collective bargaining agreement.  The issue is whether the Pregnancy Discrimination Act requires an employer to provide a reasonable accommodation to a pregnant employee who is limited in her ability to work in the same manner that it provides work accommodations to non-pregnant employees suffering from medical conditions due to disability, work-related injury or for another reason pursuant to the collective bargaining agreement.  The key to the case is whether or not the Court believes that the policy is neutral towards pregnant employees or not, and treats them similarly to other non-pregnant employees who are “similar in their ability or inability to work,” as required by the statute.

Mach Mining v. Equal Employment Opportunity Commission, No. 13-1019 [Argument: 1.15.15]

Issue: Whether and to what extent a court may enforce the Equal Employment Opportunity Commission’s mandatory duty to conciliate discrimination claims before filing suit and whether the failure to do so is an affirmative defense to a discrimination suit.

EEOC v. Abercrombie & Fitch, No. 14-86 [Argument: 2.25.15]

A 17-year old Muslim woman applied for a job at Abercrombie & Fitch, wearing a black headscarf.  She was rejected on the grounds that the black headscarf violated the company’s Look Policy, which prohibits employees form wearing black clothes and “caps.”  In her interview, the employee did not say that she wore the headscarf for religious reasons.  The issue is whether an employer can be liable under Title VII of the Civil Rights Act of 1964 for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required, and further, does actual knowledge require explicit notice from the applicant or employee.



Here is a wrap up of the Supreme Court’s employment law decisions from the 2013-2014 Term:

A slippery slope to condoning discrimination?  If a closely-held corporation (Hobby Lobby) can prevent contraceptive coverage for its employees based on the religious beliefs of its owners, what is next?

The Court’s decision in Burwell v. Hobby Lobby Stores (June 30, 2014), coming on the last day of its Term, has potential far-reaching consequences for actions that private employers may be able to take based on their sincerely held religious beliefs.  In Hobby Lobby, the Court held that a closely held corporation could refuse to provide contraceptive coverage in the health insurance plans offered to its employees because doing so imposed a “substantial burden” on the company owners’ “exercise of religion.”  Justice Ginsberg, dissenting for four members of the Court, begins her dissent proclaiming,  “In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax law) they judge incompatible with their sincerely held religious beliefs.”

This case challenged the contraceptive mandate of the Affordable Care Act (ACA), which was enacted as part of the Women’s Health Amendment to the ACA.  The contraceptive mandate requires employers’ health insurance policies to cover a range of contraceptive services in part to protect the health of women for whom pregnancy could exacerbate or result in serious medical conditions (such as congenital heart disease, pulmonary hypertension, and Marfan syndrome), and for whom contraceptives could prevent disease such as endometrial cancer.

The plaintiffs in the case, David and Barbara Green and their three children are Christians who own and retain exclusive control over an arts and crafts business, Hobby Lobby, that has grown into 500 stores employing 13,000 employees.  They challenged the contraceptive mandate of the ACA under the Religious Freedom Restoration Act (RFRA), which provides that the “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.”  The Green family believes life begins at conception and they objected to four forms of contraceptive methods, and believed that including them in the health insurance offered by their company would violate their religion.

Over a stinging dissent by Justice Ginsberg, the Court, in a 5-4 decision, agreed with the Greens.  First the Court Ruth Bader Ginsberg photomade the surprising decision that Hobby Lobby is a “person” that can “exercise religion” for purposes of being protected by RFRA.  Justice Ginsberg in her dissent points out that the Court has never before held that a for-profit corporation could “exercise religion” and that the Court’s solicitude towards the rights of religious organizations has been towards those organizations that are organized and operate specifically for religious purposes, not for-profit companies.  She also notes that if Congress intended a statute to protect a religious organization, Congress usually says so, which it did not here, noting that “Congress does not ‘hide elephants in mouseholes.’”   The Court next concludes that providing contraceptive coverage is a “substantial” burden on Hobby Lobby’s exercise of religion.  Justice Ginsberg takes exception to that noting that Hobby Lobby’s owners are not required to claim contraceptive benefits under the plans, but are simply providing a benefit that their employees can decide to use to obtain contraceptive coverage.  Since that is no different from paying them a salary that they can use to purchase contraceptives, there is no “substantial” burden.

Justice Ginsberg warns that this decision opens up potentially far-reaching consequences.  Could employers refuse to provide insurance coverage for other medications such as vaccines, anti-depressants, or blood transfusions on religious grounds?  What is to prevent employers from seeking exemptions from other laws? She referred to some recent cases: a born-again Christian who opposed hiring an unmarried woman living with a man, and the for-profit photography company that refused to photograph a lesbian couple’s wedding.  She notes that in the past, companies justified refusing to hire or serve African-American individuals on religious grounds.  She believes the Court has opened up a slippery slope, that could result in condoning discriminatory behavior and noting that to approve some religious claims over others could appear to be favoring one religion over another, which the First Amendment Free Exercise Clause prohibits.

First Amendment rights for public sector, and quasi public sector employees.

In two decisions this Term, employees’ First Amendment rights were vindicated, in one case to protect a public employee’s truthful court testimony, and in the other to prevent what was viewed as coerced speech.

In Lane v. Franks (June 19, 2014), the Court in a 9-0 decision ruled that an employee of a community college could not be fired for testimony he gave in court even though the testimony concerned issues related to his employment.  Here, Edward Lane, who ran the college’s At-Risk Youth program, was called to testify in court in the pubic corruption trial of a state representative who was affiliated with his program and was accused of stealing federal funds.  The president of the college had warned Lane not to take action against the state representative, and fired Lane after he testified against her.  In holding that the speech was protected, the Court distinguished this case from Garcetti v. Ceballos, where the government employee, speaking in his official capacity, had no First Amendment protection.  Even though Lane was testifying about information that he learned in his official capacity, the Court held that he was not testifying in his official capacity, but instead as a private citizen in response to a subpoena.  The Court applied the familiar two-part balancing test of Pickering v. Board of Education to balance the interest of the employee, as a citizen, to comment on matters of public concern, against the interests of the government as an employer in promoting the efficiency of government services.  It found that Lane was speaking as a citizen on a matter of public concern – public corruption.  Then it found the State had no legitimate interest in barring his speech since he was not disclosing confidential information or state secrets, nor was he giving false testimony.  Note that Lane did not prevail in his case against the college president because the Court ruled that the president had qualified immunity because Lane’s First Amendment rights were not “clearly established” at the time he was fired.

In Harris v. Quinn (June 30, 2014), the Court in a 5-4 decision held that quasi public employees could not be forced to pay an agency fee to a union they had not joined.  Here, in-home personal care assistants (PAs) were deemed by the state of Illinois to be public employees for one purpose only – for collective bargaining.  They were not required to join the union, but were required to pay an agency fee to the union since the union nevertheless represented them and bargained on their behalf.  The Court held that because the PAs were only limited, quasi public employees they would not come under the rule of Abood v. Detroit Board of Education, applying to regular public-sector employees who were required to pay an agency fee even if not joining the union.  Here the majority saw the employment relationship as primarily between the PA and the customer, who was often a family member, and the union as playing only a small role.  As such, the PAs had First Amendment rights not to have to fund union activities through the agency fee.  The question left by this case is how long the Abood rule will last and whether this is a significant step towards throwing out agency fees in the public sector altogether.

Do you know what a “snood” is? What about a metatarsal boot?  Wristlets?  Are they “clothes”?  The Supreme Court weighs in.   

Who knew that an important issue of labor law – so important that it reached the U.S. Supreme Court – would involve an examination of “the meaning of the word ‘clothes.’”  What are “clothes” for purposes of the Fair Labor Standards Act, as amended by the Portal-to-Portal Act?  Why we need to know this burning question is to find out whether employees at U.S. Steel can be paid for time they spend “donning and doffing” (changing clothes) before and after their shift.  To answer the question, the Court consulted the second edition of Webster’s New International Dictionary of the English Language from 1950 around the time Congress enacted the Portal-to-Portal Act.  We learn that “clothes” are defined as “covering for the person; wearing apparel; vestments; vesture.”  But do “clothes” include “protective” gear such as the flame retardant jacket, the snood (a hood that covers the head and upper shoulders), and a hard hat among other things?  It is important because in this case the donning and doffing (putting on and taking off) of clothes was not compensable time.  Thus the steel workers argued that protective gear was not clothing, and U.S. Steel argued for a broad reading of “clothes.”  After deciding what “clothes are” (the Court agreed with U.S. Steel that clothes can be for both comfort and protection), it moved on to the thorny issue of what is the meaning of “changing clothes.”  When you put on an overcoat, are you changing clothes, the Court inquires. We learn that changing clothes is not merely “substituting” one piece of clothing for another, but can include “altering” one’s dress by putting something on over something else.  Who knew?  The bottom line is the Court concluded, 9-0, that the steel workers were “changing clothes” when they donned and doffed the various articles of dress including protective clothing and including a couple of items not held to be clothes (glasses, earplugs and a respirator, which were seen as de minimus).  Therefore, under the terms of the collective bargaining agreement, which allowed the parties to choose not to pay employees for “changing clothes” – they did not need to be paid.

If severance payments are “wages” for purposes of FICA, what about under the Massachusetts Wage Act?  

In United States v. Quality Stores , Inc. (March 25, 2014), the Supreme Court reaffirmed a not unsurprising conclusion that severance payments are wages for purposes of paying social security (FICA), because severance represents “remuneration for employment.”  This ruling does not answer the more interesting open question under our state wage statute, Mass. Gen. L. c. 149, § 148, whether severance payments constitute wages under the Wage Act.  The Wage Act defines wages to include salary and earned holiday and vacation pay as well as commissions that have been “definitely determined” and “due and payable.”  The case law that has developed over what can constitute a “commission” focuses on whether the compensation is earned after meeting specific goals and is not discretionary.  Under that reasoning, courts have held non-discretionary bonuses to be covered by the Wage Act once the goals have been met such that the bonus becomes earned, due and payable.  Following that reasoning, there is an argument that severance payments that are not discretionary, but are to be paid upon the happening on a particular event – and therefore earned – could be considered wages in the same way as some bonuses.  We shall have to wait for further direction from our own Supreme Judicial Court to answer this question.

In Lawson v. FMR LLC (Mar. 4, 2014), the Supreme Court expanded whistleblower protections for employees under the Sarbanes Oxley Act (SOX) by holding that employees of private companies that contract with public companies – not just employees of the public companies themselves – also enjoyed protection under SOX’s anti-retaliation provisions. The issue was the meaning of SOX’s provision stating that “No public company . . . or any . . . contractor . . . of such company may [retaliate] against an employee . . . because of [SOX-protected activity].”  This decision greatly expands protections for whistleblowers by clarifying that employees of private contractors that contract with public companies are also covered.  This decision reveals that the Court will broadly interpret the statute to remedy the harms that SOX was enacted to address and prevent.  One reason that the Court ruled in favor of employees of contractors was to prevent a public company from outsourcing retaliation to the contractor to shield itself from SOX’s anti-retaliation provisions.



Supreme Court Strikes Down the Defense of Marriage Act

In a landmark decision on the last day of the Term, June 26, 2013, the Court struck down the Defense of Marriage Act (DOMA) as unconstitutional.  Writing for the Court in United States v. Windsor, Justice Kennedy declared that Photo of Anthony Kennedy“DOMA writes inequality into the entire U.S. Code.”   The claim at issue involved payment of an estate tax.  Edith Windsor sued to recover the estate tax that she had to pay after her wife died and she inherited her property.  Though they lived in New York, Windsor and her wife Thea Spyer were married in Ontario, Canada prior to same-sex marriage being legal in New York state.  Because of DOMA, which defines “marriage” as the union of one man and one woman for purposes of over 1,100 federal laws, the federal government did not recognize her marriage and therefore required her to pay an estate tax that married couples did not have to pay.

During oral argument, Justice Ginsberg pointed out that because DOMA affected over 1,100 federal laws, it affected “every aspect of life,” creating two kinds of marriages, “full marriage” and “a sort of skim milk marriage.”  The Court found that Congress had “no legitimate purpose” in passing the law, but was motivated by an improper animus against gay and lesbian individuals and same-sex couples.  The Court found that DOMA is unconstitutional as a “deprivation of the essential part of the liberty protected by the Fifth Amendment.  What the state of New York treats as alike, the federal law deems unlike by a law designed to injure the same class the state seeks to protect.”  Although the opinion for the Court stops just short of declaring same-sex marriage a “fundamental right,” it acknowledge that same-sex marriage are entitled to the same dignity as other marriages: “this status is a far-reaching legal acknowledgement of the intimate relationship between two people, a relationship deemed by the state worthy of dignity in the community equal with all other marriages.”

This decision is important in the employment context as DOMA affects many laws governing employment including the Family & Medical Leave Act, health insurance laws including COBRA, laws governing social security and retirement benefits, employment laws governing military members and their spouses, to name a few.

While the decision explicity states that it does not address the question whether same-sex marriage is a constitutional right, and whether states can continue to ban same-sex marriage, in the year and a half since this decision was issued in June 2013, almost every court to address the issue has found laws prohibiting same-sex marriage to be unconstitutional.  As of February 2013, 37 states and the District of Columbia now allow same-sex marriage, and the Court has will hear oral argument in April 2015 to decide whether or not states can ban same-sex marriage.


Supreme Court Rulings Tilt in Favor of Employers As 2012-2013 Term Ends

In a pair of decisions on Monday, June 24, 2013 the Supreme Court tightened the standards by which employees can bring claims under Title VII of the Civil Rights Act of 1964.

In University of Texas Southwestern Medical Center v. Nassar, the Court required plaintiffs, when bringing retaliation claims under Title VII to prove “but for” causation, rejecting the more lenient “motivating factor” standard of proof.  What this means in lay person’s terms can be explained using a little math.  Let’s say the employee claims she was fired in retaliation for complaining about sex discrimination, and the employer defends on that ground that she was fired for violating its attendance policy, as she was frequently absent and late to work.  Under a “motivating factor” standard of proof, the employee can prevail if retaliation was “a motivating factor” meaning it could have been 40% responsible for the decision—it need not be the primary reason.  In contrast, applying the “but for” standard of proof, the employee can only prevail if she would not have been fired “but for” the retaliatory motive, which has to be at least 51% of the reason—the primary reason.

In Vance v. Ball State University, the Court clarified the definition of “supervisor” under Title VII, rejecting the broader definition urged by the plaintiff and the Equal Employment Opportunity Commission, and instead adopting a narrow definition.  The Court held that a “supervisor” is one who can take a “tangible employment action” towards an employee, such as hiring, firing, promoting, and disciplining.  It rejected the EEOC’s expansive view which of a supervisor as one who has the ability to direct another employee’s work.  Who is a supervisor is an important issue in proving sexual harassment under Title VII.  Employers are vicariously liable for harassment engaged in by supervisors (because they are their “agents) even if the employer has no knowledge of the harassment (i.e., even if the employee has not complained).  By contrast, employers are not liable for harassment engaged in by coworkers unless they are on notice (i.e., unless the employee made a complaint).

A decision in a class action case last week will also benefit employers.  In American Express Co. v. Italian Colors Restaurant, the Court ruled that a court cannot invalidate a class action waiver on the ground that the plaintiff’s cost of individually arbitrating the federal claim exceeds the potential recovery.  This is the latest in a series of Supreme Court decisions upholding waivers of class actions in arbitration agreements.


US Supreme Court building Here are the employment cases on the Supreme Court’s docket that we are watching in the upcoming 2012-2013 Term.

 The first Monday in October is just on the horizon when the Supreme Court opens its new Term.  Here is a snapshot of some of the important employment cases as well as other cases that will affect employment law on the docket.

  •  Affirmative Action:  Fisher v. University of Texas,  No. 11-345.  The Supreme Court will revisit affirmative action policies in this case brought by Abigail Fisher, a white student, who claims that the University of Texas denied her admission because of her race.  This case raises questions whether the Supreme Court’s 2003 decision in Grutter v. Bollinger will survive, which held that colleges and universities could not use a point system to increase minority enrollment, but they could take race into account in other ways in order to promote academic diversity.
  • Title VII Liability: Vance v. Ball State University, No. 11-556.  This Title VII case will determine who is a “supervisor” so as to make the employer strictly liable for the supervisor’s discriminatory conduct.  Some Circuit courts (including the First Circuit here) have defined the term narrowly, to include only those supervisors who have the authority to hire and fire and discipline an employee.  Other Circuit courts have defined the term more broadly, to include coworkers who have authority over an employee’s work – thus broadening the field of persons whose discriminatory conduct the employer is strictly liable for under Title VII, i.e., without notice or an opportunity to correct the conduct.
  • Class Actions: Two cases raise class action issues.  In Genesis Healthcare Corp v. Symczyk, No. 11-1059, the issue is whether the members of an FLSA class action “die on the vine” when the employer offers to satisfy all the claims of the lead plaintiff.  This raises issues of jurisdiction, whether the federal court maintains jurisdiction of the rest of the class when the lead plaintiff’s claims are satisfied through a settlement of individual claims. In Comcast Corp. v. Behrend, No. 11-864, the Court will consider whether a federal trial court can certify a class action without determining whether the plaintiff class has introduced sufficient evidence to demonstrate that the litigation may result in class-wide damages.
  • ERISA:  U.S. Airways v. McCutchen, No. 11-1285.  The issue is whether or not ERISA Section 502(a)(3) authorizes courts to use equitable “fairness” principles to rewrite language in employee benefit plans and refuse to compel plan participants to reimburse the plan for benefits even where the original terms require such reimbursement.

Petition for Cert filed in DOMA Cases: Though the Court has not yet acted, petitions for cert have been filed in two 2012 cases from the First Circuit finding the Defense Against Marriage Act unconstitutional, Gill et al. v. Office of Personnel Management, brought by GLAD (Gay and Lesbian Advocates and Defenders) and Massachusetts v. Department of Health and Human Services, brought by Attorney General Martha Coakley and argued by Assistant Attorney General Maura Healey.  Among other things, the cases raise issues of whether federal employment benefits can be denied under DOMA to same-sex couples.