Critical Employment Issues Headline Supreme Court Agenda

October 23, 2012

The United States Supreme Court began its 2012-2013 term earlier this month.  There are several cases involving employment related issues before the Court:


In Vance v. Ball State University, No. 11-556, Vance sued her employer for violation of Title VII alleging hostile work environment and retaliation among other claims.  The trial court granted the employer’s motion for summary judgment, and the Seventh Circuit affirmed.  The Seventh Circuit concluded that the employer conducted investigations of Vance’s complaints, demonstrating that there was no basis for employer liability on her hostile work environment claim.  As for conduct allegedly committed by a “supervisor,” the Seventh Circuit held, “we have not joined other circuits in holding that the authority to direct an employee’s daily activities establishes supervisory status under Title VII.”

Thus, the Supreme Court will be reviewing a Seventh Circuit decision on an issue that divides various federal appellate courts.  The issue being whether an employer can be held vicariously liable for severe or pervasive workplace harassment by (a) supervisors who are generally authorized to oversee the victim’s daily work (Second, Fourth and Ninth Circuits support liability on this basis); or, (b) only those supervisors who have the specific power to hire, fire, demote, promote, transfer or discipline their victim (First, Seventh and Eighth Circuit limit such liability). The case is set for argument on November 26, 2012.


In Genesis Healthcare Corp. v. Symczyk, No. 11-1059, the Supreme Court will be reviewing a Third Circuit (Philadelphia) decision that considers whether members of a FLSA putative class action “die on the vine” when the employer offers to satisfy all of the claims of the lead plaintiff. The Third Circuit held that an offer of judgment did not moot the plaintiff’s claim.  The focus will likely be whether or not federal courts maintain their jurisdiction over the other members’ FLSA claims when the lead plaintiff’s claims are satisfied through settlement.  It should be noted that the Third Circuit’s holding in Symczyk, clarifying the “modest factual showing” standard on conditional certification, is not an issue in the appeal.  The case has been set for argument on December 3, 2012.


In Comcast Corp. v. Behrend, No.11-864, the Supreme Court will be reviewing another Third Circuit decision.  The issue before the Court is 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.  This case is of particular interest in light of the Court’s decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), striking down one of the largest potential class actions on the basis that the plaintiffs failed to meet the procedural requirements for class certification.  The case is set for argument on November 5, 2012.


In U.S. Airways v. McCutchen, No. 11-1285, the Supreme Court is reviewing a Third Circuit decision that conflicts with the Fifth, Seventh, Eighth, Eleventh and D.C. Circuit Courts.  The focus will be on 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.  The case has been set for argument on November 27, 2012.

Our firm is prepared to provide counsel on these important issues as they continue to develop.

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