Former Editor In Chiefs Offer Insight on Recent Supreme Court Decisions Involving Labor and Employment Law

By: Paul G. Atkinson IV

             Recently, the Supreme Court of the United States has seen a variety of substantial labor and employment disputes before it, and practicing attorneys Robert T. Szyba, Esq. and Alexander W. Leonard, Esq. spoke to the importance of such cases. In an event on Monday, October 3rd, 2011, the two former Editors In Chief of the Hofstra Labor & Employment Journal spoke at the Maurice A. Deane School of Law at Hofstra University about the practical effects of these recent decisions. The cases discussed included Thompson v. North American Stainless, LP,[1] Kasten v. Saint-Gobain Performance Plastics Corp.,[2] Staub v. Proctor Hospital,[3] and Wal-Mart Stores, Inc. v. Dukes.[4]

After brief introductions, the two attorneys began with a discussion of Thompson, which turned on the issue of whether Title VII[5] prohibits retaliation against third parties. J. Scalia, writing for the majority, reversed the 6th Circuit’s decision and held that Title VII does prohibit retaliation against third parties, explaining that it’s “obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.”[6]

Though the court did not identify with particularity how close the parties have to be connected to trigger Title VII protection, the attorneys asserted that a close family member would almost always be covered, while a mere acquaintance would almost never be covered. Such conclusions stem from Scalia’s determination that the person who is aggrieved is decided from a new zone of interests test.

To illustrate the test in use by the Court, a person could sue if they were “any person with an interest arguably sought to be protected by the statute,” such as a “co-worker’s spouse.”[7] However, those who cannot sue would be “anyone technically injured in an Article III sense[,] but whose interests are unrelated to the statutory prohibitions of Title VII,” such as a “[s]hareholder whose stock fell because of discriminatory determination.”[8]

The Thompson decision implies that the Supreme Court has taken a “pro-employee interpretation of Title VII’s anti-retaliation provision,” which is the same interpretation proposed by the EOCC, who was given deference in J. Ginsburg’s concurring opinion. Both attorneys worried that the vague definition of who exactly falls into the category of “close relationship” under Title VII could cause significant issues for employment attorneys moving forward.

The next case discussed was Kasten, which the Supreme Court used to resolve a Circuit split with regard to the meaning of “filed” under the FLSA. The Court concluded, in a somewhat noncommittal answer, that “[t]o fall within the scope of the anti-retaliation provision, a complaint must be sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by statutes and a call for their protection.”[9] The most confusing part of the decision is the ambiguity in the determination that the “standard can be met, however, by oral complaints, as well as by written ones.”[10] The pro-employee decision raises concerns with employers due to uncertainty as to the question: “at what point does an utterance of workplace displeasure become a filed complaint for FLSA anti-retaliation purposes?”[11]

The next point of discussion for the night was Staub.[12] The Court took a “Cat’s Paw”[13] approach and focused on the “motivating factor in the employer’s action.”[14] A proximate cause style analysis was taken and it was determined that discrimination can have “multiple proximate causes, discriminatory and non-discriminatory.”[15] The decision, however, left many questions unanswered.[16]

The last case discussed was the controversial Wal-Mart decision. In Wal-Mart, the Court reversed the 9th Circuit’s decision, ruled against class certification because of a lack of commonality, and held that the Plaintiff’s could not proceed under Fed. R. Civ. P. 23(b)(2).

Despite the fact that the Defendants had violated the same statute in each instance, the issue of commonality between the Plaintiffs was lacking uniformity. To succeed, the Plaintiffs would have had to “demonstrate that the class members suffered the same injury.”[17] The wide discretion of local mangers at each store location destroyed the fulfillment of that requirement. Further, the (b)(2) class, which is mandatory (i.e. no opt-in opt-out provisions), was the “wrong vehicle for seeking back wages.”[18]

The case has many implications in a wide variety of legal areas, but in relation to labor and employment law, the field is likely to see far less class action cases brought under (b)(2), with plaintiffs more likely to turn to (b)(3), which has a “higher standard for certification.”[19]

Though the visiting attorneys ran out of time to discuss at length a long list of other important Supreme Court cases, the insight into these recent decisions was invaluable.


2010-2011 Employment Law Supreme Court Review

[1] Thompson v. N. Am. Stainless, LP, 131 S. Ct. 863 (2011).

[2] Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325 (2011).

[3] Staub v. Proctor Hosp., 131 S. Ct. 1186 (2011).

[4] Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011).

[6] Thompson, 131 S. Ct. at 868.

[7] Robert T. Szyba, Esq. & Alexander W. Leonard, Esq., U.S. Supreme Court Year in Review 2010-2011 Labor & Employment Law Cases (Power Point Presentation) 3 (2011).

[8] See Szyba, supra note 7.

[9] Kastn, 131 S. Ct. at 1335.

[10] Kasten, 131 S. Ct. at 1328.

[11] See Szyba, supra note 7, at 6.

[12] Staub v. Proctor Hosp., 131 S. Ct. 1186 (2011).

[13] A J. Posner doctrine based on the Aesop’s Fable “The Monkey and the Cat” elaborated on in Shager v. Upjohn Co., 913 F.2d 398 (7th Cir. 1990), which discussed the Age Discrimination in Employment Act.

[14] See Szyba, supra note 7, at 9.

[15] See Szyba, supra note 7, at 9.

[16] See Szyba, supra note 7, at 10.

[17] Wal-Mart Stores, Inc., 131 S. Ct. at 2551.

[18] See Szyba, supra note 7, at 13.

[19] See Szyba, supra note 7, at 13.

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