Supreme Court Watch

Tuesday, August 28, 2012

Cases to be Argued in 2012-2013 Term
By Nina Joan Kimball, Kimball Brousseau LLP

The first Monday in October is just on the horizon when the Supreme Court opens its Term.  Here is a snapshot of some of the important employment cases as well as other cases that will affect employment law.  

• Affirmative Action:  Fisher v. University of Texas, No. 11-345.  The Supreme Court will revisit affirmative action policies in this case brought by Abigail Fisher, a white student, who claims that the University of Texas denied her admission because of her race.  This case raises questions whether the Supreme Court’s 2003 decision in Grutter v. Bollinger will survive, which held that colleges and universities could not use a point system to increase minority enrollment, but they could take race into account in other ways in order to promote academic diversity.  

 Title VII Liability: Vance v. Ball State University, No. 11-556.  This Title VII case will determine who is a  “supervisor” so as to make the employer strictly liable for the supervisor’s discriminatory conduct.  Some Circuit courts (including the First Circuit here) have defined the term narrowly, to include only those supervisors who have the authority to hire and fire and discipline an employee.  Other Circuit courts have defined the term more broadly, to include coworkers who have authority over an employee’s work – thus broadening the field of persons whose discriminatory conduct the employer is strictly liable for under Title VII, i.e., without notice or an opportunity to correct the conduct.  

• Class Actions: Two cases raise class action issues.  In Genesis Healthcare Corp v. Symczyk, No. 11-1059, the issue is whether the members of an FLSA class action “die on the vine” when the employer offers to satisfy all the claims of the lead plaintiff.  This raises issues of jurisdiction, whether the federal court maintains jurisdiction of the rest of the class when the lead plaintiff’s claims are satisfied through a settlement of individual claims. In Comcast Corp. v. Behrend, No. 11-864, the Court will consider whether a federal trial court can certify a class action without determining whether the plaintiff class has introduced sufficient evidence to demonstrate that the litigation may result in class-wide damages. 

• ERISA:  U.S. Airways v. McCutchen, No. 11-1285.  The issue is whether or not ERISA Section 502(a)(3) authorizes courts to use equitable “fairness” principles to rewrite language in employee benefit plans and refuse to compel plan participants to reimburse the plan for benefits even where the original terms require such reimbursement.

• Petition for Cert filed in DOMA Cases: Though the Court has not yet acted, petitions for cert have been filed in two 2012 cases from the First Circuit finding the Defense Against Marriage Act unconstitutional, Gill et al. v. Office of Personnel Management, and Massachusetts v. Department of Health and Human Services.  Among other things, the cases raise issues of whether federal employment benefits can be denied under DOMA to same-sex couples.