Supreme Court Poised to Decide Cases on Bias, Employment, and Outlaw FishPaul M. Barrett
The U.S. Supreme Court returns to the bench this week, with major business cases on the docket. So far, discrimination alleged in a variety of contexts is shaping up as a big theme of the 2014-15 term.
The justices will continue to accept new cases, with arguments scheduled in coming months and decisions expected between early winter and late spring. Here are some disputes that businesses, employees, and consumers ought to monitor:
Women in the Workplace: Does United Parcel Service have to accommodate pregnant employees who can’t hoist heavy boxes? The federal Pregnancy Discrimination Act requires employers that permit special arrangements for nonpregnant employees with physical or other limitations to provide similar accommodations to pregnant workers. A lower court ruled that UPS lawfully maintained a “pregnancy-blind policy” by limiting accommodations to employees injured on the job, legally defined as “disabled,” or those stripped of their federal Department of Transportation certification. A UPS employee named Peggy Young appealed to the Supreme Court, contending that her needs while pregnant were not accommodated. Oral argument in Young v. United Parcel Service is scheduled for Dec. 3.
Religion on the Job: Did Abercrombie & Fitch discriminate against a Muslim job applicant when the retail clothing chain rejected her based on her head scarf, or hijab? More specifically, the case asks whether an employer has to have “actual knowledge” that a practice—such as wearing a hijab—has religious significance to be required to accommodate the practice. Abercrombie argues that because the job applicant in this case didn’t explicitly state that her scarf had religious meaning, the company wasn’t obliged to make an exception to its usual preppy dress code. Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc. hasn’t yet been scheduled for argument.
Bias in the Housing Market: Can consumers claiming they’ve suffered discrimination in seeking housing or mortgage loans rely on statistical patterns to show that they’ve been put at a disadvantage because of their race? Or do plaintiffs in such civil suits have to prove that alleged wrongdoers intentionally discriminated against them? Lenders and borrower advocates are following this issue closely. Under Chief Justice John Roberts, the five-justice conservative majority has indicated an inclination to curtail “disparate impact” theories that rely on statistical patterns in bias cases. Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc. hasn’t been scheduled for argument.
Truth or Consequences in Securities Law: When shareholders in a securities-fraud lawsuit allege that a corporate defendant has made a misleading statement, is it enough for the plaintiffs to show that the statement turned out to be objectively “untrue”? Or do plaintiffs have to allege that the speaker subjectively knew the statement in question was false? Lower courts have divided on this question. The U.S. Chamber of Commerce’s Litigation Center has urged the justices to require that plaintiffs show the speaker’s actual opinion was different from the one expressed. Allowing the objective approach “would put securities issuers in grave peril of strict liability” under federal law “if their genuinely held opinions and beliefs turned out to be wrong,” the Chamber Litigation Center said. The justices will hear arguments in Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund on Nov. 3.
Contraband Fish and the Danger of “Overcriminalization”: A strong nominee for Weirdest Facts of the 2014-15 term, Yates v. United States raises the question of whether a Gulf of Mexico commercial fisherman can be criminally prosecuted under a federal anti–document shredding law for tossing undersize grouper back into the drink. The law in question makes it a crime to alter, destroy, or mutilate “any record, document, or tangible object.” Does getting rid of fish that were too small to be legally caught qualify as destroying a “tangible object”? Is that what Congress had in mind? Business interests are rallying behind the fisherman, saying lawmakers intended the prohibition to apply only to documents and records, not fish. On water or land, according to this view, companies should be allowed to perform routine inventory maintenance and disposal without fear of criminal penalties. Argument is scheduled for Nov. 5.
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