Review of Labor and Employment Decisions from the United States Supreme Court’s 2008–2009 Term

In this paper we provide a detailed analysis of all eight of the Supreme Court's labor and employment law decisions from the 2008-2009 term. We find that the Supreme Court continued its starboard tack in the 2008-2009 Term, and the labor and employment law decisions proved no exception to this trend. In sixty-nine percent of the “close cases” in which the Justices divided 5-4 along ideological lines, including all three such cases in labor and employment law, the conservative wing of the Court, made up of Chief Justice Roberts and Justices Scalia, Thomas, and Alito, prevailed. Indeed, the conservative wing of the Court voted in the majority in all of the labor and employment law cases this Term. Justice Kennedy continued to be the “man in the middle” with his vote deciding seventy-eight percent of the 5-4 decisions and all of the 5-4 labor and employment law decisions in the Term. Justice Kennedy voted with the conservative wing in the sixty-nine percent of the “close cases” it won this year, including all of the labor and employment law cases. Justice Kennedy voted in the majority in ninety-two percent of the Term’s cases, far more than any other Justice. The replacement of Justice Souter by Justice Sotomayor will not change the underlying politics of the Court and may even increase the balkanization.Three closely decided labor and employment law cases stand out from among the decisions of the Term. In 14 Penn Plaza LLC v. Pyett, the Court announced that it would enforce a collective bargaining agreement that clearly and unmistakably requires individual employees to arbitrate claimed violations of the ADEA. This decision used an expansive definition of what constitutes a “mandatory subject of bargaining” and limited the Court’s prior precedent in Alexander v. Gardner-Denver Co. It is not clear that the parties will embrace this decision or that Congress will leave it undisturbed. In Gross v. FBL Financial Services, Inc., the Court held that the burden of proof never shifts from plaintiff to employer in a mixed-motive discrimination case under the ADEA and, furthermore, that in order for a plaintiff to prove discrimination under the ADEA it must show that age was a “but for” factor in the employer’s decision to take adverse action. This decision rejects the Court’s contrary prior interpretation of Title VII and invites legislative intervention. Finally in Ricci v. DeStefano, the Court held that under Title VII, an employer is required to have a “strong basis in evidence” of potential disparate-impact liability before the employer can engage in intentional, race-conscious discrimination for the purpose of avoiding or remedying a disparate impact. This decision makes it clear that employers should address potential disparate-treatment issues in the design of employment tests before the tests are administered, not based on differential results. The decision may have a modest impact on the use of employment tests and promote a move to more subjective methods of evaluation that are less subject to legal scrutiny. All three of these cases followed the pattern of a 5-4 decision in which Justice Kennedy voted with the conservative wing of the Court to give them a victory. This pattern of voting was well established in the labor and employment law cases of the 2008-2009 Term with Justice Kennedy voting with the conservative wing of the Court in all cases. Any attorney who represents unions or employees should think twice about whether he or she can gain Justice Kennedy’s vote before appealing any decision to the Supreme Court.