The Court specifically held that “[i]f a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.”  Although the case arose under USERRA and not one of the other civil rights laws such as Title VII, some commentators hope that the courts will apply the “cats paw” theory in those cases as well.  Other blogs with commentary can be found here, here, here and here.

The immediate impact of the decision is probably limit to workforces with a union collective bargaining agreement.  As Jottings by an Employer’s Lawyer notes in a post here, the decision may end up having an impact on pending legislation in Congress, including the “Employee Free Choice Act” and the “Arbitration Fairness Act.”

The Pennsylvania Labor & Employment Blog also has a post here.

Here is the blogroll of commentary on the decision:

The Word on Employment Law

Pennsylvania Labor & Employment Blog

Ohio Employer’s Law Blog

Jottings By An Employer’s Lawyer

Connecticut Employment Law Blog

SCOTUS Blog

Workplace Prof Blog

In Fitzgerald v. Barnstable School Committee, the Court held that Title IX of the Education Amendments of 1972 does not preclude the filing of a separate action for alleged unconstitutional gender discrimination in schools.  Justice Alito wrote the opinion for a unanimous Court. The opinion is here.

In Locke v. Karass, the Court held that public sector unions may use non-member agency fees for litigation expenses outside the bargaining unit.  The opinion is here.

The majority relied on prior decisions under 42 U.S.C. section 1982 in reaching its decision, invoking the principle of stare decisis.  Justice Thomas, writing in dissent, referred to the majority’s invocation of stare decisis as “hiding behind the fig leaf.”  He concluded his dissent as follows:

“As in Jackson, “[t]he question before us is only whether [s 1981] prohibits retaliation, not whether prohibiting it is good policy.” . . . “By crafting its own additional enforcement mechanism, the majority returns this Court to the days in which it created remedies out of whole cloth to effectuate its vision of congressional purpose.”  That the Court does so under the guise of stare decisis does not make its decision any more justifiable.”

It is difficult to see how a law that prohibits race discrimination can be read to imply a prohibition against retaliation.  But in both the CBOCS case and the Gomez-Perez v. Potter case (a federal-sector employment case reaching the same conclusion under the Age Discrimination in Employment Act, also decided today), the Court reached the conclusion that a statute prohibiting discrimination necessarily implies a cause of action for retaliation.

Various employment law blogs are already commenting on the decision today:  Ohio Employer’s Law Blog; Connecticut Employment Law Blog; Jottings By An Employer’s Lawyer.

Justice Thomas wrote a dissent, which was joined by Justice Scalia.  The dissent opens with the following concise summary of the majority opinion:  “Today the Court decides that a ‘charge’ of age discrimination under the Age Discrimination in Employment Act of 1967 (ADEA) is whatever the Equal Employment Opportunity Commission (EEOC) says it is.”  This is actually a rather apt summary, given that the majority opinion rests on deference to the administrative agency’s (i.e. the EEOC) interpretation of the statute.  According to the dissent, “[t]he filing at issue in this case did not state that it was a charge and did not include a charge form; to the contrary, it included a form that expressly stated it was for the purpose of ‘pre-charge’ counseling.  What is more, the EEOC did not assign it a charge number, notify the employer of the complainant’s allegations, or commence enforcement proceedings.”

Given those facts, how did the majority conclude that a charge had been filed in this case?  The Court deferred to the EEOC’s internal policy of construing a document as a charge if it requests agency action and appropriate relief for the complainant.  The Court noted that, under this permissive standard, many documents might be construed as a charge.  Nevertheless, the Court found this consistent with the remedial purpose of the ADEA.  The majority opinion concludes with encouragement to the EEOC to revise its forms and procedures to reduce the risk of future misunderstandings in this regard.

The actual ruling in this case will have very little direct impact on employers.  The case presented a rather rare situation where a proper charge of discrimination was not completed by the complainant.  It is the possible indirect effects of this decision that are more interesting. 

First, seven Justices signed off on an opinion granting substantial deference to the EEOC’s regulations and the EEOC’s internal (in other words, nonpublic) interpretation of those regulations.  Does this suggest that the current Court will be less likely to strike down regulations if directly challenged?  Will agencies be able to defend their interpretation of regulations in the future based on nonpublic, internal “interpretations”? 

Second, the Court noted that the “permissive” standard it approved was justified in part by the remedial nature of the ADEA.  Many courts around the country rely on this “remedial” principle to avoid dismissing discrimination lawsuits based on procedural errors.  Will the Court’s reliance on this justify additional relaxation in the pre-suit filing requirements in other areas?  Only time, and more litigation, will tell.

Mendelsohn’s employment had been terminated as part of a reduction in force.  She sought to introduce the testimony of five former Sprint employees who claimed that their supervisors had discriminated against them because of their age.  None of the witnesses, however, worked for the individuals who conducted the reduction in force and none of the alleged discriminatory comments recounted by the witnesses related to the supervisors in Mendelsohn’s chain of command.  The district court excluded this testimony at trial on the ground that it was not relevant under Rule 401 of the Federal Rules of Evidence.

On appeal to the Supreme Court, the parties argued over whether the evidence in question was relevant under Rule 401 of the Federal Rules of Evidence and also not unduly prejudicial under Rule 403.  In a twist, however, the Court decided that the Court of Appeals had erred in conducting the relevance and prejudice inquiries on its own.  Rather, the Court of Appeals should have remanded the matter to the district court for further clarification on the basis for its decision on each separate ground. 

The Supreme Court concluded generally that “me too” evidence is neither per se admissible nor per se inadmissible.  This conclusion means that the admissibility of “me too” evidence will be determined on a case-by-case basis without any bright line rule to guide trial court judges.  The only guidance in the opinion on this issue appears to be a statement in the conclusion of the opinion:  “The question whether evidence of discrimination by other supervisors is relevant in an individual ADEA case is fact based and depends on many factors, including how closely related the evidence is to the plaintiff’s circumstances and theory of the case.  Applying Rule 403 to determine if evidence is prejudicial also requires a fact-intensive, context specific inquiry.”

In Preston v. Ferrer (copy on SCOTUS Blog here), the Court held that the Federal Arbitration Act (“FAA”) preempts a California statute requiring exhaustion of administrative remedies.  The case is getting some press because Judge Alex, a daytime television judge, was a party.

The Supreme Court held that when parties agree to arbitrate all questions arising under a contract, state laws lodging primary jurisdiction in another forum, whether judicial or administrative, are superseded by the FAA.  Judge Alex’s attorney filed a demand for arbitration seeking his fees from work performed as the Judge’s agent.  Judge Alex countered by filing a claim with the California Labor Commission under the California Talent Agencies Act claiming that his attorney lacked the proper license and that the contract was therefore void.  The matter went into litigation and the California courts refused to send the entire matter to arbitration.  The Supreme Court reversed, concluding that the parties had agreed to arbitrate all matters relating to the contract.

In LaRue v. DeWolff, Boberg & Associates, Inc. (copy on SCOTUS Blog here), the Court held that a private participant in an ERISA plan can bring an action for breach of fiduciary duty.  Workplace Prof Blog has some details here.  Keep an eye on the Boston ERISA Law Blog for more commentary on this decision.  Once the dust settles on this case, we may start seeing more of these claims.  If the stock market undergoes a significant “correction,” many 401(k) plan participants may seek relief against the plan administrator if it failed to follow their investment instructions, which is what happened in LaRue.