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Totenberg: Supreme Court, Public Opinion at Crossroads 
 

3/14/2013  By Theresa Minton-Eversole 
 
 
Nina Totenberg, legal affairs correspondent for National Public Radio (NPR), offered a retrospective look at the U.S. Supreme Court’s evolution during her closing address March 12, 2013, at the Society for Human Resource Management’s (SHRM) 2013 Employment Law & Legislative Conference held in Washington, D.C.

Totenberg, who has won widespread recognition for her coverage of the court over the years, reports regularly for NPR’s “All Things Considered,” “Morning Edition” and “Weekend Edition” programs. She drew on that insider’s knowledge to remind the audience that the Supreme Court, as well as public opinion, has come a long way since the 1960s.


“For better or worse, today’s [Supreme Court] is far more predictable in its voting patterns than the court that I first covered,” said Totenberg, who began reporting on the court in 1968. “But the court always seems to be reflective of the era that we live in. It may be that it’s now more polarized than at any time in [recent] memory, but then, so is the country.”

She cited numerous issues before the court at the beginning of her tenure and contrasted them with issues before it now, noting that these reveal quite a lot about how the country and the court have changed over the years. Changes are perhaps most evident, she suggested, in the civil rights cases that have come before the court during her study of it.

“The country has faced unimagined progress in race relations in the decades since I started covering this court,” she said. For example, she reminded the audience, it was in 1967, with the Loving v. Virginia decision, that the court struck down laws that made interracial marriage illegal.

“Before that [decision], these marriages were a crime in 16 states.”

In 1968, other types of discrimination were virtually ignored by society and the law.

“Technically women were covered by the 1965 Civil Rights Act, but, in fact, sex discrimination was as American as apple pie,” she said. “Women were a tiny minority if they existed at all in law school and medical school. Young women were commonly asked in job interviews if they planned to have a family.”

Some issues were never discussed at all, she said, and “some people were all but invisible. Gays and lesbians were firmly closeted,” she said, noting that the idea of gay rights, much less gay marriage, simply didn’t exist.

Justices to Decide Two Same-Sex Marriage Cases

Fast-forward to 2003—the year the court struck down as unconstitutional a Texas law making private homosexual conduct illegal. In 2013, two same-sex marriage cases are before the court.

In United States v. Windsor, the court will consider whether the Defense of Marriage Act (DOMA) deprives same-sex couples who are lawfully married under state law equal protection as guaranteed by the Fifth Amendment to the Constitution. DOMA defines the term “marriage" for all purposes under federal law as “only a legal union between one man and one woman as husband and wife,” thus barring federal benefits to same-sex couples. The Obama administration has joined gay plaintiffs in arguing that DOMA is unconstitutional.

In Hollingsworth v. Perry, the high court will review the question of whether the Equal Protection Clause of the 14th Amendment prohibits the state of California from defining marriage as the union of a man and a woman. The case presents a direct challenge to California’s Proposition 8, which bans same-sex marriages in the state. Totenberg said the case will ultimately address whether it is a fundamental right for same-sex couples to be allowed to marry.

Affirmative Action Again Before Court

The court will once again address affirmative action in higher education “just 10 years after it seemed the court settled this issue,” Totenberg said. In Fisher v. University of Texas, the justices will weigh the constitutionality of the university’s consideration of race in its undergraduate admissions process. In 2003, the high court narrowly upheld the limited use of race in public university admissions policies. That 5-4 opinion was written by Justice Sandra Day O'Connor, who found diversity to be a compelling government interest. O’Connor has since retired from the high court, and has been replaced by Justice Samuel Alito, who has expressed skepticism toward race-conscious admissions preferences.

In addition, Justice Elena Kagan is not participating, because she served as solicitor general when the U.S. Department of Justice filed a friend-of-the-court brief in the Fisher case when it was pending in the appellate court. The remaining eight justices will hear the case. Totenberg noted that “there is every indication the justices will reverse or neuter the decision previously written by [then] Justice Sandra Day O’Connor.”

Defining ‘Supervisor’

“There are precious few cases before the court this term that are of direct interest to HR professionals,” Totenberg said. Perhaps the case most important to HR is Vance v. Ball State University, in which the court must clarify the definition of “supervisor” for purposes of Title VII, she noted.

The justices are asked to decide whether a supervisor includes an employee who oversees and directs other workers’ daily tasks but has no authority over their formal employment status.

 “Here, a federal appeals court in Chicago ruled that because the alleged harasser did not have power to hire, fire and discipline other workers, there could be no claim,” explained Totenberg. This pending decision is “important for employers because they are automatically liable for damages in most cases where supervisors are found to have harassed subordinates.”

Class and Collective Actions

Another case that should be of some interest to employers is Genesis HealthCare Corp. v. Symczyk, which tests “whether an employer can essentially kill off a class-action suit by offering to pay the person who brought the suit everything that she asks for.”

The case will address whether a Fair Labor Standards Act (FLSA) collective action is rendered moot if the defense makes an offer of judgment in the full amount of the representative plaintiff’s individual claim.

The defendant in the case offered the plaintiff $7,500 in alleged unpaid wages, plus attorneys’ fees, costs and expenses, to settle her claim. While she conceded that the offer would have fully satisfied her individual claim, she refused to accept it. In response, the defendant moved to dismiss the case.

The trial court sided with the defendant, dismissing the FLSA claim with prejudice. But the appeals court reversed, ruling that the offer of judgment did not moot the plaintiff’s claim. The appellate court expressed a concern that a contrary ruling would enable employers to avoid FLSA collective action claims by simply “picking off’ individual named plaintiffs.

The Supreme Court’s decision in this case thus may have a significant impact not only on FLSA collective actions, but also class actions under Rule 23, the rule that governs most federal class- action lawsuits.  

‘Mixed-Motive’ Analysis

The court will also consider whether the ban on retaliatory employment actions in Title VII of the Civil Rights Act and other nondiscrimination laws requires an employee to show “but-for” causation for an adverse employment action or requires only proof that an improper motive was one of several reasons for the employer’s retaliatory action.  In University of Texas Southwestern Medical Center v. Nassar, the justices will review a decision upholding a jury verdict in favor of a doctor of Middle Eastern ancestry who alleged that he was denied employment because he had complained about discriminatory treatment.

The medical center is arguing that the judgment should be overturned because there was another legitimate reason for the center’s withdrawal of the job offer, and the doctor should have to prove that—were it not for the retaliation—he would have gotten the job, Totenberg explained. The doctor, however, is arguing that the center’s “improper motive affected the decision-making process and his retaliation [claim] should succeed,” she added.

Totenberg steered clear of making predictions on how the court would decide these cases. In response to a question from an audience member, she did, however, predict that the high court would grant review of a federal appellate court’s decision that President Obama’s recent recess appointments to the National Labor Relations Board were unconstitutional: “This almost definitely will be sent to the Supreme Court next year and almost positively will receive the four votes needed to for the case to be heard.”

The high court will issue decisions in the pending cases by late June.

Theresa Minton-Eversole is an online editor/manager for SHRM. Joanne Deschenaux, J.D., senior legal editor for SHRM, contributed to this article.


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