RECENT SUPREME COURT CASES THAT IMPACT THE WORKPLACE

1. RECENT SUPREME COURT CASES THAT IMPACT THE WORKPLACE Presented by: Cathy M. Stutin Fisher & Phillips LLP

2. City of San Diego v. John Roe Can a city fire one of its police officers for selling sexually explicit police-themed videotapes of himself on e-Bay?

3. City of San Diego v. John Roe • Identified himself as a police officer on his e-Bay auction site • Sold official police equipment, including San Diego Police Department uniforms • Sold videotapes of himself in uniform stripping and engaging in explicit sex acts while purportedly performing police duties • Terminated when refused to stop after being ordered to do so

4. City of San Diego v. John Roe • Sued City for violation of his First Amendment right to free speech • Non-governmental employers who are not acting under color of law are not subject to First Amendment restrictions • Governmental employees have the right to speak on matters of public concern, subject to a balancing of the interests of the governmental employer in promoting the efficiency of the public services it performs through its employees

5. City of San Diego v. John Roe • Ninth Circuit found that selling official police uniforms and producing and selling sexually explicit videos fell within the protected category of citizen commentary on matters of public concern

6. City of San Diego v. John Roe • The Supreme Court unanimously reversed • Public concern is “a subject of general interest and of value and concern to the public at the time of the publication”

7. City of San Diego v. John Roe • The Supreme Court held that Roe’s conduct did not relate to matters of community concern for purposes of First Amendment protection and that it was detrimental to the mission and function of the police department

8. Pennsylvania State Police v. Suders Is an employer strictly liable for constructive discharge resulting from a supervisor’s harassment?

9. Pennsylvania State Police v. Suders • Faragher/Ellerth standard for employer liability for supervisory harassment

10. Pennsylvania State Police v. Suders • Employer is strictly liable for a supervisor’s harassment if it is accompanied by a tangible employment action

11. Pennsylvania State Police v. Suders • Where there is no tangible employment action accompanying a supervisor’s harassment, an employer may avoid liability for the supervisor’s conduct if • the employer can show that it had an accessible and effective policy for reporting and resolving complaints of harassment • and that the plaintiff unreasonably failed to use it or to avoid harm otherwise

12. Pennsylvania State Police v. Suders • The Supreme Court held that constructive discharge constitutes a “tangible employment action” for which an employer would be strictly liable only if the employee quits in reasonable response to an employer-sanctioned adverse action officially changing the material terms or conditions of her employment

13. Pennsylvania State Police v. Suders • Otherwise, an employer will not be liable for a constructive discharge caused by supervisory harassment if it can prove that it had an effective harassment policy and that the plaintiff failed to take advantage of it

14. Pennsylvania State Police v. Suders • First time Supreme Court recognized constructive discharge in Title VII context • To prove constructive discharge, a plaintiff must show not only that the harassment was sufficiently severe or pervasive to alter the conditions of her employment, but that the abusive working environment was so intolerable that a reasonable person would have felt compelled to resign under the same circumstances

15. Pennsylvania State Police v. Suders • Subject to a continuous barrage of sexual harassment, including sexual comments and gestures five to ten times a night • Complained to EEO Officer • Exams sabotaged • Accused of theft, handcuffed and interrogated • Resigned

16. Pennsylvania State Police v. Suders • Supreme Court did not decide • Whether Suders was constructively discharged • If so, whether it involved tangible employment action • If not, whether Police Department had effective harassment policy and whether Suders failed to use it or otherwise avoid harm

17. Smith v. Jackson, Mississippi Can a disparate impact theory of discrimination be applied in cases alleging age discrimination?

18. Smith v. Jackson, Mississippi • Disparate treatment • Must prove intent to discriminate on basis of protected characteristic

19. Smith v. Jackson, Mississippi • Disparate impact • Practice or policy that is facially neutral, but has an adverse impact on a protected class as applied • Do not need to show discriminatory intent, just discriminatory effect

20. Smith v. Jackson, Mississippi • New pay plan to try to bring officer starting salaries up to regional average • Increases based on seniority and rank • Police officers with less than five years of service received proportionately higher raises than those with more seniority • Most older officers had more than five years of service

21. Smith v. Jackson, Mississippi • Sued for age discrimination under disparate impact theory • Fifth Circuit held disparate impact theory was unavailable under ADEA

22. Smith v. Jackson, Mississippi • The Supreme Court held that the disparate impact theory applies to age cases • But failed on merits • Standard for proving a disparate impact for age claims is different than for Title VII claims

23. Smith v. Jackson, Mississippi • Title VII • Job-related and consistent with business necessity • Are there are other ways for the employer to achieve its goals that would not have a disparate impact

24. Smith v. Jackson, Mississippi • ADEA • Reasonable Factors Other than Age • No inquiry into possible alternatives • City’s reliance on seniority and rank was “unquestionably reasonable”

25. Raytheon Co. v. Hernandez Does a blanket “no-rehire” policy violate the ADA by screening out persons with a record of addiction who have been successfully rehabilitated?

26. Raytheon Co. v. Hernandez • Terminated for drug use • Refused to rehire based on unwritten rule prohibiting rehire of employees who were terminated for violation of the company’s rules • Sued for disparate treatment under the ADA claiming was not rehired based on record of drug addiction or because regarded as an addict

27. Raytheon Co. v. Hernandez • Disparate Treatment • Prima facie showing of discrimination • Legitimate, non-discriminatory reason • no-rehire policy

28. Raytheon Co. v. Hernandez • The Ninth Circuit rejected the no-hire policy as a “legitimate, non-discriminatory” reason because, it said, the no-rehire policy “screens out persons with a record of addiction who have been successfully rehabilitated”

29. Raytheon Co. v. Hernandez • The Supreme Court held that whether the policy screens out disabled applicants may be relevant to a disparate impact claim, but not a claim for disparate treatment • Raytheon’s no-rehire policy, which was neutral on its face, was a “quintessential” legitimate, non-discriminatory reason for refusing to rehire Hernandez • Remanded for Ninth Circuit to apply correct analysis

30. Raytheon Co. v. Hernandez • On remand • Pretext • Inconsistent statements

31. General Dynamics Land Systems, Inc. v. Cline Does the Age Discrimination in Employment Act prohibit an employer from treating older employees more favorably than younger employees?

32. General Dynamics Land Systems, Inc. v. Cline • Collective bargaining agreement provided that only employees who were at least 50 years old by July 1, 1997 were eligible for retiree health benefits • Employees between the ages of 40 and 49 sued for “reverse” age discrimination

33. General Dynamics Land Systems, Inc. v. Cline • Sixth Circuit held that the plain language of the ADEA protected individuals aged 40 and over from discrimination based on age—whether in favor of someone relatively older or someone younger

34. General Dynamics Land Systems, Inc. v. Cline • The Supreme Court held that the ADEA was only intended to protect older workers from discrimination in favor of relatively younger employees • ADEA does not prohibit more favorable treatment of older workers

35. General Dynamics Land Systems, Inc. v. Cline • Florida as well as several other states prohibit age discrimination against individuals of any age

36. Jones v. R.R. Donnelly & Sons What is the statute of limitations for Section 1981 claims?

37. Jones v. R.R. Donnelly & Sons • Section 1981 • Reconstruction Era statute • Guaranteed all persons the same right to make and enforce contracts “as is enjoyed by white citizens” • Prohibited race discrimination in hiring/promotion • Did not cover racial harassment or discharge

38. Jones v. R.R. Donnelly & Sons • No administrative prerequisites • Broader damages

39. Jones v. R.R. Donnelly & Sons • Section 1981 does not contain its own statute of limitations • Courts applied most analogous state statute of limitations • Generated massive litigation

40. Jones v. R.R. Donnelly & Sons • 28 U.S.C. Section 1658 • Created four-year federal statute of limitations • Applies only to civil actions “arising under Acts of Congress that were enacted after December 1, 1990”

41. Jones v. R.R. Donnelly & Sons • Section 1981 amended by Civil Rights Act of 1991 • added new subsection defining “make and enforce contracts” to include the “termination of contracts and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship”

42. Jones v. R.R. Donnelly & Sons • Class action by employees suing for hostile environment racial harassment and wrongful discharge under the amended Section 1981 • Most analogous state statute of limitations was two years • Claims would be untimely under this standard • Federal statute of limitations was four years

43. Jones v. R.R. Donnelly & Sons • The Supreme Court held that the federal four-year statute of limitations should be applied whenever a post-1990 enactment creates a new right to maintain a cause of action, whether that enactment is a new law or an amendment to an existing law

44. Jones v. R.R. Donnelly & Sons • Federal four-year limitations period applied to hostile environment and wrongful discharge claims brought under Section 1981 • Failure to hire and other contract formation claims would continue to be governed by most analogous statute of limitations under state law

45. Jones v. R.R. Donnelly & Sons • Case settled for $15 million to the 600 person class

46. Jackson v. Birmingham Board of Education Does Title IX of the Education Amendments of 1972 prohibit retaliation for complaining about sex discrimination?

47. Jackson v. Birmingham Board of Education • Title IX prohibits sex discrimination by recipients of federal education funding

48. Jackson v. Birmingham Board of Education • Jackson was coach of girls’ basketball team • Complained girls’ team was not receiving equal funding and equal access to athletic equipment and facilities • Released from coaching duties • Sued under Title IX, claiming that he was retaliated against based on his complaints

49. Jackson v. Birmingham Board of Education • Eleventh Circuit held that Title IX does not apply to retaliation claims because, by its terms, Title IX prohibits only “discrimination” “on the basis of sex”

50. Jackson v. Birmingham Board of Education • Supreme Court held that Title IX prohibits retaliation against persons who complain about sex discrimination • Retaliation is a form of intentional discrimination because the complainant is being subject to differential treatment • “On the basis of sex“ because the nature of the complaint that resulted in the retaliation was sex discrimination • Reporting would be discouraged if retaliation were permitted