Supreme Court to Consider Numerous Significant Labor and Employment Issues
 
September 1, 2001
 

During its term beginning in October, the United States Supreme Court will hear arguments and issue decisions in several important cases in the labor and employment arena. These cases span the gamut from Title VII, to the Americans with Disabilities Act, to the first case before the Supreme Court under the Family and Medical Leave Act and concern important issues of both substance and procedure.

Continuing Violation Theory

One of the most important appeals, National Railroad Passenger Corp. v. Morgan (Docket No. 00-1614), should help clarify the "continuing violation" theory. Under this theory, a court may allow a discrimination plaintiff to introduce evidence of allegedly discriminatory acts occurring prior to the applicable statute of limitations, if such acts are part of the same "pattern or practice" of discrimination that occurs within the limitations period. The plaintiff contended that he had been subjected to acts of racial discrimination and retaliation and a racially discriminatory environment for five years. The trial court permitted the jury to consider acts that occurred more than 300 days before he filed his charge of discrimination (180 days in non-deferral states such as Georgia) as background, but not as a basis for liability. The court of appeals reversed, holding the earlier conduct could be considered to establish liability. The Supreme Court will have the final word.

EEOC Charges

Timeliness.For quite some time, the EEOC has been permitting charging parties to verify their charges after the 180- or 300-day limitations period has expired. The basis for such a practice is an EEOC regulation providing that charges may be amended "to cure technical defects or omissions," and that such amendments relate back to the original date on which the charge was filed. One federal court of appeals refused to apply this regulation and ruled that a charge verified after the limitations period was untimely, thus dismissing the case. The Supreme Court’s decision could affect a number of pending charges and cases. Edelman v. Lynchburg College (Docket No. 00-1072),

Arbitration. The EEOC is before the Supreme Court again in a case that tests the effect of an arbitration agreement on the EEOC’s power to bring suit. EEOC v. Waffle House Inc (Docket No. 99-1823). When the EEOC sued the employer, the trial court denied the employer’s motion to compel arbitration, even though the job applicant had completed an application including an arbitration clause. The court of appeals held that the employer could not compel the EEOC to arbitrate, but that the arbitration agreement would restrict the judicial remedies available to the EEOC to injunctive relief only. The EEOC was prohibited from obtaining monetary relief in court. If the Supreme Court affirms the decision of the court of appeals, the EEOC will undoubtedly encourage individual charging parties to intervene when it files a lawsuit, in order to protect the individual’s rights to relief.

Americans with Disabilities Act

In another ADA case, US Airways v. Barnett (Docket No. 00-1250), the Supreme Court will decide whether union seniority trumps the right of an employee with a disability to reassignment to another job. In this case, the employee used his own seniority to get a transfer to a different job after he suffered a disabling injury. He then learned that other employees with greater seniority wanted to bump him from the new job. He requested that, as reasonable accommodation, he be allowed to remain there. The court of appeals ruled that the "seniority system is not a per se bar to reassignment," but that it could be a factor in determining undue hardship. If the Supreme Court agrees, this case, like so many under the ADA, would be determined factually on a case-by-case basis.

The ADA is at issue in another case, Toyota Motor Mfg. v. Williams (Docket No. 00-1089), in which an employee with carpal tunnel syndrome claimed that her employer failed to accommodate her disability. The court of appeals held that she was disabled because she was "substantially limited in performing manual tasks," without reaching the issue of whether she was limited in a major life activity. If the Supreme Court affirms the lower court, the definition of disability will expand substantially.

Affirmative Action

The famous Adarand case is back before the Supreme Court again this year, on the issue of whether, as the court of appeals held, there was a compelling governmental interest in remedying the effects of past racial discrimination. This case, a few years ago, provided the basis for the Supreme Court to impose a strict scrutiny standard on affirmative action cases. The court of appeals applied that strict standard, and the Supreme Court must decide if the race-conscious presumptions of the governmental agency meet the constitutional requirements.

Family and Medical Leave Act

The Court agreed to decide whether the Department of Labor (DOL) went too far in its regulations that were published in connection with the FMLA. According to the regulations, if an employer wants a leave of absence to count toward the employee’s 12-week FMLA entitlement, the employer must so designate the leave and provide advance notice to the employee taking the leave. If the employer does not so notify the employee, the leave of absence will not count toward the employee’s 12-week entitlement. In Ragsdale v. Wolverine Worldwide (Docket No. 00-6029), the Eighth Circuit struck down these regulations as going beyond the DOL’s regulatory authority. The Eleventh Circuit also has invalidated these regulations.

For more information, contact Mary Ann B. Oakley at 1-888-688-8500 or via e-mail at maoakley@hklaw.com.

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