This past weekend the nation was shocked with the news of legal titan Justice Antonin Scalia’s passing. Love him or hate him, there is no denying that every lawyer heavily debated at least one Justice Scalia opinion in law school. He was often a lightning rod figure on the Court and his presence will be missed.
Unfortunately, we barely had a moment to reflect on Justice Scalia’s death when commentators turned the conversation to his replacement. For the moment, we will ignore the political overtones gripping this discussion over whether President Obama should or should not appoint a replacement justice and whether the Senate should or should not stand in his way. Rather, assuming the current Commander in Chief exercises his appointment authority or the Democratic nominee wins the 2016 Presidential election, we are likely to see another liberal-leaning justice on the high Court and a new majority bloc.
To be sure, the Supreme Court treats past opinions with high regard and it is rare to see an outright reversal of a previous justice’s opinion. But it is less rare to see new opinions chip away at the strength of past precedent. To that end, below are four close-vote employment law cases from the past decade that might have been different or might become something different in a Scalia-less future.
Vance v. Ball State University (2013). In this 5-4 opinion, the Court majority led by Justice Alito, and joined by Justice Scalia, held, “[A]n employee is a ‘supervisor’ for purposes of vicarious liability under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim[.]” A tangible employment action was defined by the court as someone who can “effect a ‘significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.’”
Without Scalia’s vote, the dissenting opinion may become the majority rule. In her dissent, Justice Ginsburg wrote that the majority relied on too narrow a definition of “supervisor” and that it should instead define supervisor by those with “the authority to direct an employee’s daily activities.” A future court with another appointee by President Obama might find cracks in the majority rule through a case with unique circumstances and broaden the protections under Title VII.
University of Texas Southwestern Medical Center v. Nassar (2013). Issued the same day as Vance, the Court in Nassar addressed the issue of what standard of proof applied to retaliation claims under Title VII. The choice before the Court was essentially whether retaliation was a motivating factor or a “but for” factor for the alleged adverse employment decision. In another 5-4 opinion written by Justice Kennedy, Justice Scalia joined the majority opinion that held a Title VII plaintiff must prove that unlawful retaliation was the “but-for” cause of the employer’s adverse action.
Again, Justice Ginsburg wrote a dissenting opinion that might better match a future court’s decision. As you may expect, the dissent would apply a lesser, motivating factor standard. Under this rule, it would be an almost certainty that more plaintiffs would be successful in retaliation claims. Given the widespread increase in retaliation claims in recent years, this could have substantial implications for employers.
Gross v. FBL Financial Services, Inc. (2009). Continuing with our 5-4 decisions with Scalia in the majority parade is Gross. In Gross, the Court addressed under what circumstances a plaintiff can prove a mixed-motive theory under an Age Discrimination in Employment Act claim. The Court’s majority opinion, written by Justice Thomas, simply answered, “never.” That is, under the ADEA, the plaintiff must prove that “age was the ‘but-for’ cause of the challenged adverse employment action.”
Once again, there is a different result without Justice Scalia. The dissenting opinion, written by Justice Stevens, would have held that a mixed-motive jury instruction could be used even in cases where the plaintiff relies on indirect evidence of age discrimination. Again, Justice Scalia’s vote played a significant role in employment law, this time curtailing an entire theory of liability for plaintiffs. A different majority might find a way to open the door to ADEA plaintiffs for mixed-motive claims.
Wal-Mart v. Dukes (2011). In Dukes, Justice Scalia authored the 5-4 majority opinion himself in a decision that had far-reaching implications on class-action claims. A class-action case is one where multiple, sometimes many, plaintiffs collectively pursue a claim against a defendant. It is often employed where an individual is unlikely to recover a significant amount of money acting alone, but where several people join together their claims gain significant value.
Justice Scalia’s opinion made it unlikely for plaintiffs to bring class action claims with millions of members. The Court demanded greater commonality between the plaintiffs than could be demonstrated, making the class of 1.5 million members unsustainable under the law. Justice Scalia explained that for class members,
“Their claims must depend upon a common contention – for example, the assertion of discriminatory bias on the part of the same supervisor. That common contention, moreover, must be of such a nature that it is capable of classwide resolution – which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of its claims in one stroke.”
Instead of common questions, the Scalia’s majority opinion required class actions to be capable of generating common answers for all plaintiffs.
A decision without Justice Scalia would obviously look quite different. In her dissent, Justice Ginsberg instead focused on common questions between plaintiffs. Justice Ginsberg’s opinion also expressed a much more positive outlook on proceeding via class action than the majority. Given the significance of this decision on a number of areas of law outside of employment law, this opinion offers perhaps the highest chance for significant change in the future.