SCOTUS Watch: Employment and Employment-Related Cases to Watch for This Term
By Aaron Tandy, Miami
During its current Term, the Supreme Court of the United States (SCOTUS) will tackle several employment and employment-related cases involving interpretations of ERISA, ADEA, and Title VII, among other statutes. Employment attorneys should closely monitor SCOTUS’s docket as the Court’s final opinions in these cases will have a significant impact on both employees and employers not only in Florida but nationwide.
Title VII: Is sexual orientation discrimination prohibited?
As soon as the third day of its Term, October 8, SCOTUS heard oral argument in three employment cases—Bostock v. Clayton County, Georgia,1 Altitude Express, Inc. v. Zarda,2 and R.G. & G.R. Harris Funeral Homes v. EEOC.3 Each of these cases asked the Court to decide whether Title VII of the Civil Rights Act of 1964 (Title VII) prohibits employment discrimination on the basis of sexual orientation and gender identity.
The lower courts in Bostock and Zarda reached opposite conclusions on this question. The former found that Title VII encompasses discrimination only on the basis of gender,4 while the latter found that coverage extends also to sexual orientation.5 SCOTUS had side-stepped this question in an earlier Term by denying certiorari in Evans v. Georgia Regional Hospital,6 a case arising out of the Eleventh Circuit. However, with the current split among several federal circuits,7 SCOTUS apparently decided the time was right to provide clear guidance on the reach of Title VII. Spirited argument was held on October 8 between those who want to leave expansion of Title VII protections to congressional action and those who want the Court to find that the word “sex” in Title VII encompasses protection from discrimination based also on sexual orientation and gender identity. As this article is being finalized for publication, SCOTUS has not yet issued its opinion.
42 U.S.C. § 1981: Is the lack of “but for” causation fatal to a section 1981 race discrimination claim?
Earlier in November, SCOTUS heard argument also in Comcast Corp. v. National Association of African American-Owned Media.8 Comcast is not an employment case; rather it involves a claim that Comcast refused to contract with a company because of racial bias. In Comcast, the Court was asked to expand the “but for” causation test to section 1981 race discrimination claims. Previously, in Gross v. FBL Financial Services, Inc.,9 SCOTUS ruled that in order to prevail on a claim brought under the Age Discrimination in Employment Act of 1967 (ADEA), the plaintiff was required to prove that age was the “but for” cause of an adverse employment decision.
In 2013, SCOTUS expanded this rationale to Title VII retaliation claims, finding in University of Texas S.W. Medical Center. v. Nassar10 that a Title VII plaintiff must prove that the retaliation was the “but for” cause of the employer’s adverse action. In Comcast, the petitioner asked SCOTUS to apply the same rationale and find that, where a party offers a race-neutral reason for a contractual action, a section 1981 claim must fail absent a determination that race was the sole motivating factor. The Court’s decision on this question could significantly impact employment claims filed under 42 U.S.C. § 1981.
ERISA: Are there limitations on actions for recovery under ERISA against fiduciaries?
SCOTUS also granted certiorari in three cases seeking clarification regarding the limitations on claims brought under the Employee Retirement Income Security Act (ERISA) for recovery of damages against fiduciaries. In Intel Corp. Investment Policy Committee v. Sulyma,11 the Court is being asked when the three-year statute of limitations under section 413(2) [29 U.S.C. § 1113(2)] bars a claim against plan fiduciaries. The district court found that the plaintiff’s claim was time-barred, but judgment in favor of the plan fiduciaries was reversed by the Ninth Circuit, which found that the period began to run when the plaintiff had actually located the information.12 At issue is when a plan participant has “actual knowledge” of the information sufficient to trigger the statute of limitations. Is it when the plan fiduciaries release the information, even if the participant fails to read the material, or is it only when the plan participant actually reads the information?
Similarly in Thole v. U.S. Bank, N.A.,13 SCOTUS is being asked whether a plan participant or beneficiary can bring an action against a plan fiduciary, either for injunctive relief for misconduct or for restoration of plan losses (both under 29 U.S.C. § 1132(a)), when there is no showing that either the plan or the individual suffered loss. Specifically at issue is whether, in the absence of personal loss, a plan participant has standing to sue the plan fiduciaries. Sulyma was argued on December 4, 2019. SCOTUS will hear argument on Thole in January 2020. 7
Additionally, on November 6, 2019, SCOTUS heard argument in Retirement Plan Committee of IBM v. Jander.14 In Jander, the Court is being asked to determine the standard for deciding whether retirement plan fiduciaries breached their obligations to 401K participants by failing to take action when company stock fell after the company sold its microelectronics business. As this article is being finalized for publication, SCOTUS has not yet issued its opinion.
ADEA: Does ADEA have separate standards for public and private employees?
SCOTUS granted certiorari in Babb v. Wilkie,15 apparently to resolve a circuit split as to the causation standard to be applied in ADEA cases brought against public-sector employers—in this case, a VA medical center in Florida. As noted above, SCOTUS in Gross determined that in private-sector cases a successful litigant must provide proof that age was the “but for” cause of the employer’s adverse employment action.16 Because the statutory language regarding federal employees differs from that for the private sector,17 the circuit courts are split, with certain courts—including the Eleventh Circuit—applying a “but for” causation standard and others applying a more expansive “motivating factor” standard. Given recent decisions seeking to harmonize public- and private-sector employment standards, SCOTUS will likely adopt the reasoning in Gross for public-sector employee claims as well. Oral argument is set for January 15, 2020.
IRCA: Does the IRCA implicitly preempt a state’s use of information on Form I-9 to prosecute identity theft?
Finally, SCOTUS accepted certiorari from the Supreme Court of Kansas on a preemption question involving use of information collected on Form I-9 pursuant to the Immigration Reform and Control Act (IRCA).18 In Kansas v. Garcia,19 the Supreme Court of Kansas found that the prosecution of an unauthorized alien for identity theft under a state statute had been preempted by passage of section 1324a(b)(5) of IRCA. Because prosecution of an alien for identity theft for purposes of establishing work eligibility is not among the purposes for which IRCA allows information on Form I-9 to be used, the Kansas high court found that Congress had implicitly preempted prosecution of employment-related identify theft by the states.20
Given the issues presented by these cases, it would be hard to overestimate the impact SCOTUS’s rulings will have on labor and employment law.
Aaron Tandy heads Pathman Lewis, LLP’s employment law practice, helping employers and employees navigate complex employment issues.
1 No. 17-1618 (U.S. filed May 25, 2018), docket accessible via https://www.supremecourt.gov/search.aspx? filename=/docket/docketfiles/html/public/17-1618.html.
2 No. 17-1623 (U.S. filed May 29, 2018), docket accessible via https://www.supremecourt.gov/search.aspx? filename=/docket/docketfiles/html/public/17-1623.html.
3 No. 18-107 (U.S. filed July 20, 2018), docket accessible via https://www.supremecourt.gov/search.aspx? filename=/docket/docketfiles/html/public/18-107.html.
4 Bostock v. Clayton Cnty. Bd. of Comm’rs, 723 F. App’x 964, 965 (11th Cir. 2018) (“[T]he district court did not err in dismissing Bostock’s complaint for sexual orientation discrimination under Title VII because our holding in Evans [v. Ga. Reg’l Hosp., 850 F.3d 1248, 1256 (11th Cir. 2017)] forecloses Bostock’s claim.”).
5 Zarda v. Altitude Express, Inc., 883 F.3d 100, 108 (2d Cir. 2018) (“[W]e now hold that Title VII prohibits discrimination on the basis of sexual orientation as discrimination ‘because of . . . sex.’”).
6 138 S. Ct. 557 (2017).
7 While the Second, Sixth, and Seventh Circuits have decided that Title VII extends to sexual orientation discrimination claims, the Fifth Circuit earlier this year joined the Eleventh in rejecting that proposition. See Wittmer v. Phillips 66 Co., 915 F.3d 328, 330 (5th Cir. 2019).
8 No. 18-1171 (U.S. filed Mar. 8, 2019), docket accessible via https://www.supremecourt.gov/search.aspx? filename=/docket/docketfiles/html/public/18-1171.html.
9 557 U.S. 167 (2009).
10 570 U.S. 338 (2013).
11 No. 18-1116 (U.S. filed Feb. 26, 2019), docket accessible via https://www.supremecourt.gov/search.aspx? filename=/docket/docketfiles/html/public/18-1116.html.
12 Sulyma v. Intel Corp. Inv. Policy Comm., 909 F.3d 1069 (9th Cir. 2018).
13 No. 17-1712 (U.S. filed June 22, 2018), docket accessible via https://www.supremecourt.gov/search.aspx? filename=/docket/docketfiles/html/public/17-1712.html.
14 No. 18-1165 (U.S. filed Mar. 4, 2019), docket accessible via https://www.supremecourt.gov/search.aspx? filename=/docket/docketfiles/html/public/18-1165.html.
15 No. 18-882 (U.S. filed Jan. 7, 2019), docket accessible via https://www.supremecourt.gov/search.aspx? filename=/docket/docketfiles/html/public/18-882.html.
16 Gross v. FBL Fin. Servs., Inc, 557 U.S. 176 (2009).
17 Compare 29 U.S.C. § 633(a) with 29 U.S.C. § 623(a).
18 Kansas v. Garcia, 139 S. Ct. 1317 (2019).
19 401 P.3d 588 (Kan. 2017).
20 Id. at 600.