EMPLOYMENT LAW IN THE SUPREME COURT: 2001 TERM

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1 EMPLOYMENT LAW IN THE SUPREME COURT: 2001 TERM The United States Supreme Court addressed several critical issues of employment law during its 2001 term. 1 This Article reviews those decisions. I. PROCEEDINGS BEFORE THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION In a series of cases decided during the term, the Supreme Court focused upon proceedings involving the Equal Employment Opportunity Commission ( EEOC ). A. NO ARBITRATION CONSTRAINTS ON THE EEOC: E.E.O.C. V. WAFFLE HOUSE, INC. One of the most widely followed cases during the term was E.E.O.C. v. Waffle House, Inc., 2 which focused upon the interplay between Title VII s 3 command governing the EEOC s responsibility to investigate allegations of employment discrimination and the Federal Arbitration Act ( FAA ) s 4 command permitting arbitration of most employment disputes. The Court during the prior term decided the case of Circuit City, Inc. v. Adams, 5 in which it held that where an agreement to arbitrate exists, the FAA compels arbitration of employment disputes in interstate commerce (other than those of transportation workers), and including those involving claims of actionable discrimination under Title VII. In the Waffle House case, the Court confronted the question of whether the EEOC was restricted in its role in investigating and/or prosecuting claims of discrimination if an employee filing a charge of discrimination with the EEOC was bound to arbitrate such claims regardless of the EEOC s involvement in the claim. The EEOC s role and authority have evolved under Title VII. From an initial role of investigator and conciliator in 1964, the EEOC became authorized under the 1972 amendments to

2 Page 2 Title VII to bring its own enforcement actions, and to pursue injunctions against unlawful employment practices and appropriate affirmative action, which may include reinstatement with or without backpay. 6 In 1991, Congress again amended Title VII to allow the recovery of compensatory and punitive damages by a complaining party, including both private plaintiffs and the EEOC. 7 Thus, the EEOC is presently authorized to sue to enjoin an employer from engaging in unlawful employment practices, and to pursue reinstatement, backpay and compensatory or punitive damages. Nothing in any of these enactments suggests any impact of an arbitration agreement upon the EEOC s functions or remedies available to it. In the Waffle House case, after the charging party had filed a charge with the EEOC, the EEOC subsequently filed an enforcement suit (to which the charging party was not a party), seeking to obtain injunctive relief and also to make the charging party whole. The EEOC raised several allegations in the suit, including the fact that the discharge of the charging party violated the Americans with Disabilities Act ( ADA ). 8 The employer invoked the FAA to compel arbitration based upon an agreement between it and the aggrieved employee. The Court of Appeals held that since it was not a party to any agreement between the employer and the charging party, the EEOC could not be precluded from seeking injunctive relief under its independent statutory authority to sue in any federal court where venue was proper. Nevertheless, the court also held that the EEOC was limited to seeking injunctive relief, not victim-specific relief, because federal arbitration policy embodied in the FAA outweighed the EEOC s right to proceed in its effort to vindicate individual rather than public interests. The Supreme Court disagreed with this holding. 9 It ruled that regardless of any agreement between the employer and an employee to arbitrate employment-related disputes, the EEOC was 2

3 Page 3 not barred from pursuing victim-specific relief including backpay, reinstatement and damages. At thesametime,thewaffle House Court acknowledged that there were certain things the charging party could do which might have the effect of limiting the relief that the EEOC could obtain, such as failure to mitigate damages, or accepting a monetary settlement. 10 The Court emphasized it was not advocating a double recovery by endorsing essentially a two-track litigation system. 11 B. PROPER FILING OF AN EEOC CHARGE: EDELMAN V. LYNCHBURG COLLEGE In Edelman v. Lynchburg College, 12 the Court addressed the issue of the procedure for proper filing of an EEOC charge of discrimination. Title VII requires that a charge of discrimination be filed with the EEOC within a certain time after the alleged unlawful practice has occurred. 13 Also, the charge must be in writing under oath or affirmation. 14 EEOC regulations permit post hoc verification of a charge even after the time for filing has expired as long as the charge itself has been timely filed. The Court in Edelman was confronted with the question whether practical compliance with the statute and the regulations obviated the need for technical compliance. The charging party notified the EEOC of his intention to charge discrimination by faxing a letter to the EEOC. In the fax, he claimed he was the victim of unlawful employment discrimination. He did not, however, file his charge under oath. The faxed letter arrived within the time prescribed by the statute. 15 In response, the EEOC notified the charging party he would have to file a charge using the EEOC s form. The charging party did complete the form and had it verified, but did not return it to the EEOC until after expiration of the deadline for a timely filing. Since the filing of a timely charge is a prerequisite to prosecuting a Title VII claim, 16 the employer challenged the charging 3

4 party s subsequent lawsuit as untimely. Page 4 The lower courts agreed, essentially holding that the employee s faxed letter to the EEOC did not constitute a statutorily acceptable charge (given the EEOC s reply that the charging party had to file a charge on its form even after having submitted the faxed letter), and also holding that, according to the language of the statute, there could be no relation back of a late-filed verification with an otherwise timely filed charge. The Edelman Court rejected this analysis 17 and specifically held that the EEOC regulation permitting relation back of a tardy verification to a timely filed charge was an unassailable interpretation of the statute. 18 The Court found no special language in the statute defining a charge, nor any special statutory requirement prescribing when a charge must be verified. The Court noted that the time limit for filing discourages stale filings, while the verification requirement is intended to signify the seriousness with which a charging party is proceeding, at the risk of penalties for perjury. 19 The Court did indicate that an employer would not be obligated to undertake the time or expense of responding to a charge until it was actually verified. 20 C. SCOPE OF AN EEOC CHARGE: NATIONAL RAILROAD PASSENGER CORPORATION V. MORGAN Title VII states: A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred. 21 Interpreting this statement required the Supreme Court, in National Railroad Passenger Corp. v. Morgan, 22 to explore the interstices of EEOC requirements and consider whether an employee can file a charge of discrimination, and then pursue judicial relief, for claims where some allegedly discriminatory acts occur outside the prescribed time limits for filing. Evaluation 4

5 Page 5 of the case was complicated by the facts that there are at least two species of discriminatory conduct actionable under Title VII, one involving discrete actions (such as termination, demotion or denial of benefits) and one involving cumulative acts such as a hostile work environment, 23 and that the timely filing requirement is not jurisdictional but rather limitational, and subject to equitable doctrines such as tolling, waiver and estoppel. 24 Title VII prescribes 25 that a charge of discrimination must be filed within 180 days of the alleged discriminatory conduct, unless the locale in which the alleged discrimination occurred has established a state agency to investigate employment discrimination. In a state that has an entity authorized to grant or seek relief with respect to the alleged unlawful practice, an employee who initially files a grievance with that agency must file the charge with the EEOC within 300 days of the challenged employment practice. In Morgan, the charging party timely filed a charge with the EEOC. He alleged that he had been subjected to discrete discriminatory and retaliatory acts. He also alleged that he had unlawfully been subjected to a racially hostile work environment throughout his employment. The issue presented was whether the employee could litigate claims which had occurred outside the time for filing a charge but which allegedly were sufficiently related to incidents that fall within the statutory period or are part of a systematic policy or practice of discrimination that took place, at least in part, within the period. 26 Walking a fine line between the inherent interrelation of actions that occur throughout a long-lasting relationship the sort of phenomena inherent in the cumulative effects which could create a hostile environment -- and the statutory command that claims must usually be timely filed or are waived, the Morgan Court simultaneously endorsed permitting expanded review of an employee s claims of discriminatory actions and recognized the importance of curtailing the 5

6 Page 6 relation back doctrine to avoid obliterating altogether the time deadlines prescribed by the statute. It therefore affirmed in part and reversed in part the lower appellate court ruling in favor of the employer. 27 The Court s analysis focused upon discrete acts versus acts creating a hostile environment. As for the former, the Court clearly held that when a Title VII plaintiff raises such claims, he or she must file a charge of discrimination within the time prescribed by the statute. 28 With the latter type of claim, the Court held that it is not time-barred if at least one allegedly discriminatory act occurs within the filing period, even if all the other complained-of acts occur outside the prescribed time period -- provided, however, that all acts constituting the claim must be part of the same allegedly unlawful practice. 29 As a corollary to this rule, the Court also recognized that a trial court was empowered to apply equitable doctrines to toll or limit the time period for filing regardless of whether the claim on file involved hostile work environment or discrete acts. 30 The Morgan Court majority analyzed the statutory language of Title VII concerning the filing of a charge of discrimination quoted above and explained that the operative terms are shall, after occurred, and unlawful employment practice. Congress use of shall made the act of filing a charge within the specified time period mandatory, 31 and its use of occurred meant that the practice in issue took place or happened in the past. Thus, the Morgan Court held that the filing of a charge in conformity with the statutory command is timely if filed within 180 or 300 days after the practice has occurred. The majority opinion went on to state, however, that this statutory language, standing alone, did not answer the question of whether a particular charge was or was not timely filed, because the occurrence of an unlawful employment practice varies with the particular practice being charged, whether a discrete discriminatory act or a hostile work environment. 6

7 Page 7 Turning then to what constitutes a discrete act, the Morgan Court majority distinguished between the ongoing evolutionary nature of a hostile work environment claim and the doctrine (misused by the lower court, in the view of the Morgan Court) of continuing violation. The Morgan Court differentiated for purposes of limitations between a series of discrete discriminatory acts, each of which is identified in the statute as giving rise to a cause of action, and a hostile work environment claim. The Court specifically declined to treat potentially related discrete acts as a single unlawful practice for purposes of timely filing a charge of discrimination, regardless of whether such discrete acts have a connection to other acts. 32 Rather, each discrete act starts a new clock for filing charges. Even so, the Morgan Court majority acknowledged that the statute does not bar an employee from using prior acts as background evidence to support a timely claim. Also the issues of timeliness are subject to application of equitable doctrines such as waiver, estoppel, and tolling. 33 Therefore, on the issue of timely filing as to discrete acts, the Court held that an aggrieved employee who had been fired could only complain about those acts that occurred within the applicable filing period. All other discrete discriminatory acts were no longer actionable. The Morgan Court majority then distinguished between such acts and hostile work environment claims. These were characterized as different in kind from discrete acts, because the very nature of hostile work environment claims involve repeated conduct such that the alleged unlawful employment practice does not occur on any particular day. 34 Therefore, the Morgan Court majority concluded that courts are obligated to evaluate whether actionable hostile environment discrimination exists by examining the totality of the circumstances, including frequency of discriminatory conduct, its severity, the presence of physical threats or humiliation and whether there is unreasonable interference with work performance. 35 7

8 Page 8 Applying this framework of a hostile work environment claim to the issue of timeliness, the Court concluded that it was permissible for a court, in assessing liability for discrimination, to review conduct pertinent to the issue at hand, including acts occurring outside the filing period, so long as a charge was filed within the time provided such that at least one act contributing to the claim occurred within the filing period. 36 The Court also asserted that employers could be protected from tardy filings because they can also invoke equitable doctrines such as laches if a plaintiff unreasonably delays in filing and as a result harms the defendant. 37 II. THE ENFORCEABILITY OF AGENCY REGULATIONS During the 2001 term, the Supreme Court had three occasions to consider the propriety and enforceability of agency regulations or interpretations in the employment context. 38 A. LABOR DEPT. REGULATIONS INVALID UNDER FMLA: RAGSDALE V. WOLVERINE WORLDWIDE, INC. In a decision under the Family Medical Leave Act ( FMLA ), 39 the Court in Ragsdale v. Wolverine World Wide, Inc. 40 by a 5-4 vote, 41 struck a regulation of the United States Department of Labor. The FMLA was enacted to afford a qualified employee up to 12 weeks of unpaid leave each year for qualifying events. In Ragsdale, the employer granted the employee 30 weeks of medical leave under its privately instituted medical leave policy. However, when the employee requested additional leave, or permission to work part time, the employer refused her request and terminated her employment when she did not return to work. She sued under the FMLA, claiming that a regulation adopted by the Department of Labor, 29 CFR (a), required the employer to grant her 12 additional weeks of leave solely on the basis that the employer had allegedly failed to inform her that the 30-week absence would count against her FMLA entitlement. 42 8

9 Page 9 Both of the lower courts declined to apply the regulation in question on the basis that it contradicted the wording of the statute. The Supreme Court majority agreed. It ruled that the statute could not be read to entitle an employee to 12 additional weeks of leave for the alleged failure of an employer to give notice that the initial leave was an FMLA designated leave. The Court s principal complaint with the regulation was that it totally undercut the statutory scheme of affording remedies to employees premised upon their demonstrating impairment of their rights and prejudice to such rights. Holding that the statute requires employees to prove impairment of their statutory rights, the Court declined to sustain the Secretary of Labor s regulation. 43 B. COURT REJECTS NLRB INTERPRETATION OF ICRA: HOFFMAN PLASTIC COMPOUNDS, INC. V. NLRB In Hoffman Plastic Compounds, Inc. v. National Labor Relations Board, 44 the Court by a vote of rejected an interpretation of the National Labor Relations Act (NLRA) and, implicitly, of the Immigration Reform and Control Act of 1986 (IRCA) 46 in considering the propriety of upholding claims for relief of an employee who was admittedly an illegal and undocumented worker. The employer had hired the subject employee because he presented documents that appeared to verify his authorization to work in the United States. He was subsequently laid off for supporting a union-organizing campaign at the employer s plant. The National Labor Relations Board (NLRB) determined that such layoffs violated the NLRA. 47 Accordingly, it ordered that the employee (along with others who had been similarly treated) was entitled to backpay and other relief. The evidence demonstrated that the employee had been born in another country, had never legally been admitted into the United States, had never legally been authorized to work in the United States and had used the birth certificate of an American-born friend to gain 9

10 employment. USSC 2001 TERM EMPLOYMENT CASES (cont d) Page 10 The IRCA makes it unlawful for employers knowingly to hire undocumented workers or for employees to use fraudulent documents to establish employment eligibility. 48 Even so, the NLRB ordered backpay on the basis that undocumented workers should be entitled to the protections and remedies of the NLRA the same as other similarly situated employees. The Court of Appeals denied review and enforced the Board s order. The Hoffman Plastic Compounds Court reversed. It held that the federal immigration policy embodied in the IRCA precluded the NLRB from awarding any relief to an undocumented alien who had no legal authorization to work in the United States. 49 In essence, the Court held that because of the wording and policies of the IRCA, the employment relationship between the company and the employee not only could not form the basis of a claim for relief by the aggrieved employee, it legally never existed because from the outset, it was established in violation of the clear command of the IRCA. 50 III. PLEADING REQUIREMENTS FOR DISCRIMINATION CLAIMS: SWIERKIEWICZ V. SOREMA N. A. In Swierkiewicz v. Sorema, N.A., 51 the Supreme Court clarified an important point of federal procedure pertaining to the prosecution of Title VII claims, that is, the interplay between the Rule 8 well-pleaded complaint rule and the Rule 12 policy authorizing dismissal of complaints that on their face fail to state a claim upon which relief can be granted. In Swierkiewicz, the employee sued alleging national origin and age discrimination. 52 In the adjudication of the merits of such claims, an employee is obligated to commence proof of discrimination by demonstrating the existence of facts sufficient to constitute a prima facie case of discrimination under the framework set forth in McDonnell Douglas Corp. v. Green. 53 The 10

11 Page 11 lower appellate court had taken this one step further, holding that the employee was obligated also to plead a prima facie case of discrimination in his complaint. The Swierkiewicz Court unanimously disagreed with this holding. It emphasized that the principal purpose of Fed.R.Civ.P. 8 is to permit claimants to come to court with a complaint that contained a short and plain statement of the claim upon which relief is sought. 54 It held that in this context, the McDonnell Douglas framework is an evidentiary standard, not a pleading requirement. Because the complaint in the case at bar easily satisfie[d] Rule 8(a) s requirements (i.e., giving the employer fair notice of the basis for the claims and the grounds upon which they rest, and also stating claims upon which relief could be granted under Title VII and the ADEA), the complaint was held sufficient to survive a Rule 12 motion to dismiss. 55 IV. AMERICANS WITH DISABILITIES ACT The Supreme Court rendered several significant decisions concerning the Americans with Disabilities Act. 56 In general, these decisions continued the Court s confining view of the scope and application of the ADA in the employment context. 57 A. SUBSTANTIALLY LIMITED IN AMAJOR LIFE ACTIVITY: TOYOTA MOTOR MANUFACTURING OF KENTUCKY, INC. V. WILLIAMS The first decision of the ADA trilogy was Toyota Motor Mfg. Of Kentucky, Inc. v. Williams, 58 a unanimous decision rendered by Justice O Connor. As it had in its earlier ADA decisions, the Williams Court focused upon whether the plaintiff was a qualified individual with a disability, as required by the ADA 59 that is, whether the plaintiff had a physical or mental impairment that substantially limited any major life activity. The case arose because the employee suffered from the impairment known as carpal tunnel 11

12 Page 12 syndrome ( CTS ). The employee claimed that she was disabled from performing her automobile assembly line job by CTS. She sued over the employer s alleged failure to provide her with a reasonable accommodation as required by the ADA. 60 The lower appellate court ruled that summary judgment for the employer in this case was improper, and instead granted the employee partial summary judgment. The lower court ruled that the evidence demonstrated that the employee s complained-of impairments substantially limited her in the major life activity of performing manual tasks (such as gripping tools and repetitive hand work involving the extending of the arms). In reaching this conclusion, the lower court found that evidence that the employee could tend to her personal hygiene and carry out personal or household chores did not affect a determination that her impairments substantially limited her ability to perform the range of manual tasks associated with an assembly line job. 61 The Supreme Court unanimously disagreed and reversed. First, the Court established new boundaries for the definition of the term major life activity. activity. 62 It rejected the idea that performing certain manual tasks qualified as a major life Instead, it held that performing manual tasks could only constitute a major life activity if such tasks are central to most people s lives. 63 Second, the Court defined the substantiality of the impairment requirement of the ADA to mean that an impairment had to prevent totally or restrict severely the major life activity in question. This statutory term, to the Court, clearly did not include impairments that interfered in only a minor way with performing manual tasks. 64 Thus, the Court concluded, in order for performing manual tasks to be included in the category of major life activity, the tasks in question had to be central to daily life. 65 B. IMPACT OF SENIORITY UPON ADA ACCOMMODATION: 12

13 Page 13 US AIRWAYS, INC. V. BARNETT The second case in the ADA trilogy was U.S. Airways, Inc. v. Barnett. 66 Barnett focused upon the clash between applicability of the ADA and applicability of bona fide seniority systems 67 and was decided by a 5-4 vote. 68 Ultimately, the case examined a seminal requirement of the ADA reasonable accommodation and the propriety of granting summary judgment to an employer who defended against a claimed violation of the ADA for failure to make reasonable accommodation by relying upon the existence and application of a seniority system. The Barnett Court first noted that the ADA prohibits an employer from discriminating against an individual with a disability who, with reasonable accommodation, can perform the essential functions of the job. 69 The Court then identified the conflict between this statutory command on behalf of an ADA claimant and the legitimate interests of other workers claiming superior right to bid for a job under an existing seniority system. Stating a general rule, the Barnett Court opined that an ADA demand for accommodation does not, trump a seniority system therefore, in its view the seniority system would prevail in the run of cases. 70 Proceeding from that premise, the Court then held that in the ADA context, the demonstration by an employer that an accommodation is not reasonable would ordinarily entitle the employer to summary judgment as a matter of law unless there is more. 71 The something more under this rubric would be the presentation by the employee of evidence of special circumstances which would make an exception to the seniority rule reasonable in a particular case. In adopting this standard, the Barnett Court expressed the view that it was unwilling to adopt wholesale either the employer s position that no accommodation violating a seniority system s rules is reasonable nor the employee s position that reasonable accommodation 13

14 Page 14 authorizes a court to consider only the requested accommodation s ability to meet an individual s disability-related needs. On the one hand, the Barnett Court recognized that nothing in the ADA suggests that Congress intended to undermine the enforcement of seniority systems. On the other hand, the Court recognized that an employee should have the opportunity to demonstrate the existence of special circumstances such as that the seniority system in place is observed more by the exception than the rule. Nevertheless, the Court squarely imposed upon the plaintiff the burden of showing special circumstances and the burden of explaining in the particular case that an exception to the seniority system might constitute a reasonable accommodation even though in the ordinary case it cannot. 72 Acknowledging that neither party had had the opportunity to seek summary judgment or present countervailing summary judgment evidence under the principles enunciated in Barnett, the Court vacated and remanded the judgment for further proceedings. 73 C. ADA DEFENSE OF THREAT TO HEALTH OR SAFETY: CHEVRON U.S.A. INC. V. ECHAZABAL In the final case of the trilogy, Chevron U.S.A., Inc. v. Echazabal, 74 the Court evaluated the scope and applicability of the ADA defense pertaining to threats to health and safety of the aggrieved employee and co-workers and, by a unanimous decision written by Justice Souter, upheld an EEOC regulation authorizing employers to utilize this defense. The ADA proscribes discrimination because of disability against a qualified individual in hiring. 75 The statute also proscribes using qualification standards that tend to exclude an individual with a disability. 76 At the same time, the ADA creates an affirmative defense for action under a qualification standard shown to be job-related for the position in question and consistent with business necessity, 77 a standard which includes demonstrating that an individual 14

15 Page 15 who poses a direct threat to the health or safety of others in the workplace can be denied employment. In interpreting the ADA, the EEOC adopted a regulation, 29 CFR (b)(2), which allowed employers to screen out a potential worker with a disability -- not only for risks to others in the workplace but also for risks to his or her own health or safety, as well. 78 The Echazabal Court considered the legitimacy of that regulation. The employee in question worked for an independent contractor at one of Chevron s refineries. He had a liver condition which placed him at risk from continued exposure to certain toxins prevalent at the refinery. Chevron requested that the contractor either reassign him to a job with less dangerous chemical exposure or remove him from the refinery. The employee sued Chevron alleging a violation of the ADA. Chevron defended on the basis of the EEOC regulation that allowed it to invoke the defense that a worker s disability would pose a direct threat to his own health. The court of appeals reversed a summary judgment in favor of the employer, holding that the subject regulation exceeded the scope of permissible rulemaking under the ADA. The Supreme Court unanimously disagreed. It held that the broad defense concerning threats to health and safety proclaimed in the ADA afforded the EEOC sufficient leeway in adopting regulations to carry out the intent of Congress in adopting the ADA, and that the EEOC s regulation made sense of the statutory defense for qualification standards that are jobrelated and consistent with business necessity. 79 CONCLUSION In this unusually busy term for employment decisions, the Supreme Court showed once again the attention it is willing to devote to matters arising in the workplace

16 Page 16 1 The decisions, in alphabetical order, are: RAGSDALE et al. v. WOLVERINE WORLD WIDE, INC., U.S.,; 122 S.Ct EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. WAFFLE HOUSE, INC., 534 U.S. 279 (2002) CHRISTENSEN et al. v. HARRIS COUNTY et al. 529 U.S. 576 (2000) HOFFMAN PLASTIC COMPOUNDS, INC. v. NATIONAL LABOR RELATIONS BOARD, U.S. ; 122 S.Ct (2002) SWIERKIEWICZ v. SOREMA N. A., 534 U.S. 506 (2002) EDELMAN v. LYNCHBURG COLLEGE, U.S. ; 122 S.Ct (2002) US AIRWAYS, INC. v. BARNETT, U.S. ; 122 S.Ct (2002) TOYOTA MOTOR MANUFACTURING, KENTUCKY, INC. v. WILLIAMS, 534 U.S. 184 (2002) GREAT-WEST LIFE & ANNUITY INSURANCE CO. v. KNUDSON, 534 U.S. 204 (2002) NATL. RR PASSENGER CORP. v. MORGAN, U.S. ; 2002 WL , June 10, 2002 CHEVRON U.S.A., INC. v. ECHAZABAL, U.S. ; 2002 WL , June 10, U.S. 279 (2002) 3 Title VII of the 1964 Civil Rights Act, 42 U.S.C. 2000e et seq. 4 9 U.S.C. 1 et seq U.S. 105 (2001) U.S.C. 2000e 5(g)(1) U.S.C. 1981a(a)(1) and (d)(1)(a) U.S.C et seq. 9 The Court s decision was based upon a 6-3 vote, with Justice Stevens writing the majority opinion for Justices Ginsburg, Kennedy, O Connor, Breyer and Souter. Justice Thomas dissented, joined by Chief Justice Rehnquist and Justice Scalia U.S. 279, 122 S.Ct. 754, 766 citing Ford Motor Co. v. EEOC, 458 U.S. 219, (1982) (Title VII claimant forfeits right to backpay if he refuses a job substantially equivalent to the one he was denied); EEOC v. Goodyear Aerospace Corp., 813 F.2d 1539, 1542 (CA9 1987) (employee s settlement rendered her personal claims moot ); EEOC v. U.S. Steel Corp., 921 F.2d 489, 495 (CA3 16

17 Page ) (individuals who litigated their own claims were precluded by res judicata from obtaining individual relief in a subsequent EEOC action based on the same claims). 11 Id. citing General Telephone, 446 U.S., at 333 (courts can and should preclude double recovery by an individual) S.Ct (2002) U.S.C. 2000e-5(e)(1) U.S.C. 2000e-5(b) S.Ct (2002) 16 TheSupremeCourtheldinZipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982) that filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling. 17 Justice Souter delivered the opinion of the Court. Chief Justice Rehnquist and Justices Stevens, Kennedy, Thomas, Ginsburg, and Breyer joined. Justice Thomas filed a concurring opinion, and Justice O Connor, joined by Justice Scalia, filed an opinion concurring in the judgment S.Ct. 1145, S.Ct 1145, The Court specifically recognized that the process of charging discrimination before the EEOC is usually triggered by lay people, not attorneys, such that it was inappropriate to impose upon such individuals the obligation to understand all of the technical requirements of the charge filing process and the risk of forfeiting the benefits of the administrative process under Title VII for technical reasons. 20 In so holding, the Edelman Court noted that it was not intending to reach the District Court s conclusion that the employee s letter was not a charge under Title VII because neither he nor the EEOC treated it as one. The EEOC admittedly had failed to comply with the requirement to serve notice of filing of the charge. The significance of this delayed notice was left open for decision on remand U.S.C. 2000e(5)(1) WL U.S. S.Ct. Jun 10, The Supreme Court s jurisprudence on hostile work environment cases is described in Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1992). Essentially, an aggrieved employee can assert a violation of Title VII against an employer that creates or tolerates a work environment hostile to the employee on an impermissible basis such as race or gender, despite the absence of any specific overt act of discriminatory treatment. 24 See Zipes v. Trans World Airlines, 455 U.S U.S.C. 2000e-5(e)(1). 17

18 Page WL , *3. In ruling in favor of the employee, the United States Court of Appeals for the Ninth Circuit had held that none of the acts was time-barred because of the interrelationship among all of the challenged acts, old and new. 27 In what is easily one of the most unique alignments in any Title VII case recently decided by the Rehnquist Court, the opinion of the Court was delivered by Justice Thomas, joined by Justices Stevens, Souter, Ginsburg, and Breyer. Chief Justice Rehnquist and Justices O Connor, Scalia, and Kennedy joined the decision insofar as it upheld the absolute bar of the filing period for discrete discriminatory acts. Justice O Connor filed an opinion concurring in part as to the applicability, with limits, of the concept of equitable tolling in measuring the timeliness of the filing of charges concerning discrete discriminatory acts and dissenting in part as to the remainder of the decision. She concluded that hostile work environment claims should not enjoy a different status when assessing the timeliness of the filing of a charge. Justice Breyer joined the portion of Justice O Connor s opinion that concurred with the majority; Chief Justice Rehnquist and Justice Scalia and Kennedy joined the dissenting portion of Justice O Connor s opinion U.S.C. 2000e-5(e)(1) WL , * WL , *5 This invocation of equitable doctrines such as tolling drew the attention of Justice O Connor, who concurred in part and dissented in part. She concurred in the holding that an employee must timely file a charge within the statutory filing period for any claim involving a discrete discriminatory act. While she acknowledged the existing Zipes precedent about tolling, 455 U.S. 385, she specifically confronted the question of the breadth of the tolling doctrine, opining that it should be subject to some limits, such as a discovery rule: The Court acknowledges, however, that this limitation period may be adjusted by equitable doctrines. Like the Court, I see no need to resolve fully the application of the discovery rule to claims based on discrete discriminatory acts. I believe, however, that some version of the discovery rule applies to discrete-act claims. In my view, therefore, the chargefiling period precludes recovery based on discrete actions that occurred more than 180 or 300 days after the employee had, or should have had, notice of the discriminatory act WL , *3 (emphasis added; citations omitted) WL , *5 citing Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35 (1998) ( [T]he mandatory shall,... normally creates an obligation impervious to judicial discretion ). 32 Id. at *6 33 See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982) WL , *8 35 Id. at *9 36 Applying the theoretical construct of this timeliness analysis to the facts before him, Justice Thomas noted for the majority that Mr. Morgan in the case at bar had supported his hostile environment claim by presenting evidence that managers made racial jokes, performed racially derogatory acts, and used various 18

19 Page 19 racial epithets. Some of these acts occurred outside the 300-day filing period, but given that some of the complained of acts had occurred within the 300-day filing period, the Court concluded that the older acts could not be discarded because they were potentially part of the same actionable hostile environment claim WL , *11 37 Id. at *12, citing Albemarle Paper Co. v. Moody, 422 U.S. 405, 424, 425 (1975). 38 The first two of these decisions, Ragsdale v. Wolverine World Wide, Inc. and Hoffman Plastic Compounds, Inc. v. N.L.R.B., are discussed in this section. The third, Chevron U.S.A. v. Echazabal, an ADA case, is discussed in Part IV below reviewing ADA decisions USC S.Ct (2002) 41 Justice Kennedy delivered the opinion of the Court, joined by Chief Justice Rehnquist and Justices Stevens, Scalia, and Thomas. Justice O Connor filed a dissenting opinion, in which Justices Souter, Ginsburg, and Breyer joined. 42 Section was premised by the Labor Department upon preceding regulations such as , which required that an employer give employees written notice that an absence will be considered FMLA leave. 29 CFR From that regulation, the Secretary of Labor had adopted section , which penalized breach of the notice requirement by denying the employer any credit for leave granted before the notice. 43 The Supreme Court concluded by noting that its ruling in Wolverine was not to be construed to constitute a decision concerning whether the notice requirements and obligation to designate FMLA leave requirements adopted by the Department of Labor were invalid. It carefully stated that it was not deciding that question S.Ct (2002) 45 Chief Justice Rehnquist delivered the opinion of the Court, joined by Justices O Connor, Scalia, Kennedy, and Thomas. Justice Breyer filed a dissenting opinion, in which Justices Stevens, Souter, and Ginsburg joined U.S.C U.S.C. 301 et seq. 48 See 8 U.S.C The IRCA establishes an extensive employment verification system, 8 U.S.C. 1324a(a)(1), designed to deny employment to aliens who (a) are not lawfully present in the United States, or (b) are not lawfully authorized to work in the United States, 1324a(h)(3). It also makes it a crime for an unauthorized alien to subvert the employer verification system by tendering fraudulent documents, 1324c(a). The employee committed such a tender in this case. 49 In so holding, the Court stated that the case was controlled by the Southern Steamship line of cases. 122 S.Ct. at 1282 (where Board s chosen remedy trenches upon federal statute or policy outside Board s competence to administer, the Board s remedy may have to yield). 19

20 Page Justice Breyer s dissent challenged the majority s reading of the IRCA as being intended to have any impact upon the enforcement authority of the NLRB and decried the result as providing impunity to the conduct of employers who violate the labor laws S.Ct. 992 (2002) 52 Title VII of the Civil Rights Act of 1964, 42 U.S.C. 200e et seq.; Age Discrimination in Employment Act of 1967, 29 U.S.C. 206 et seq. (ADEA) U.S. 792, 802 (1973). The case holds that to demonstrate a prima facie case, a Title VII claimant must demonstrate (1) membership in a protected group, (2) qualification for the job in question, (3) an adverse employment action, and (4) circumstances supporting an inference of discrimination. Id S.Ct. at Id. at U.S.C et seq. See Toyota Motor Mfg. Of Kentucky, Inc. v. Williams, 534 U.S. 184, 122 S.Ct. 681(2002); U.S. Airways, Inc. v. Barnett, 122 S.Ct (2002); Chevron U.S.A. Inc. v. Echazabal, 2002 WL , no (U.S. Supreme Ct., June 10, 2002). 57 See Sutton v. United Airlines, Inc. 527 U.S. 471 (1999) U.S. 184 (2002) U.S.C U.S.C (b)(5)(A) S.Ct. at In so doing, the Court once again relied, as it had in Sutton v. United Airlines, Inc., 52 U.S. 471 (1999), on the preamble to the ADA, which includes a Congressional finding that approximately 43,000,000 Americans are disabled. 42 U.S.C It found that this was but a minority of all Americans and that in making this finding, the Congress did not intend to include within the coverage of the statute everyone with some form of physical impairment that might preclude the performance of some isolated, or insignificant manual task. 122 S.Ct. at Id. 64 Id. at citing Albertson s, Inc. v. Kirkingburg, 527 U.S. 555, 565 (2000). 65 The Court thus took issue with the lower appellate court s dismissive view of the importance of the plaintiff s being able to perform household chores, bathing, and brushing her teeth. These constituted, to the Court the types of manual tasks of central importance to people s daily lives. The Court held that these thus could not be disregarded when assessing whether a person is substantially limited in the major life activity of performing manual tasks S.Ct (2002). 20

21 Page The Court had ruled, 25 years earlier, that a company could maintain a legitimate seniority system that was neutrally adopted and was not utilized solely as a basis for camouflaging unlawful discrimination. See International Brotherhood of Teamsters v.u.s, 431 U.S. 324 (1977). 68 Justice Breyer delivered the majority opinion, joined by Chief Justice Rehnquist, and Justices Stevens, O Connor, and Kennedy. Justices Stevens and O Connor filed concurring opinions. Justice Scalia dissented, joined by Justice Thomas; and Justice Souter dissented, joined by Justice Ginsburg. Thus, it cannot be said that one particular ruling commanded a majority of support in this case S.Ct. 1520, citing 42 U.S.C (a) and (b). 70 Id. at Id. at Id. 73 Id WL , no (U.S. Supreme Court June 10, 2002) U.S.C (a) U.S.C (b)(6) U.S.C (b)(6) and 12113(a). 78 : The term qualification standard may include a requirement that an individual shall not pose a direct threat to the health or safety of the individual or others in the workplace. 29 C.F.R (b)(2) WL , *7 80 The Court decided one other employment case, one involving the scope of the Employee Retirement Income Security Act of 1974 ( ERISA ), 29 U.S.C et seq. In Great-West Life & Annuity Inc. Co. v. Knudson, 534 U.S. 204 (2002), the wife of an employee covered by an ERISA plan had obtained coverage for her medical expenses in excess of $400, She and her husband later sued for damages in state court against the manufacturer of their car and others. They settled the case, and approximately $14, was earmarked for past medical expenses. This allocation was upheld by the state court judge. When the $14,000 payment was tendered to the insurance carrier who had initially paid the medical expenses, it rejected the payment and, instead, sued in federal court under ERISA, claiming that ERISA precluded it from recovering less than the amount it had advanced. The Supreme Court upheld the lower courts rejection of the insurance company s claim, on the basis that the ERISA claim could only redress equitable claims, not legal ones. 21