In 2009, the United States Supreme Court is set to rule on a series of employment cases that are expected to clarify significant areas of employment law for both employees and employers.

14 Penn Plaza LLC v. Pyett

If the Employee Free Choice Act passes, more employers will pay attention to developments regarding collective bargaining agreements, such as those addressed in 14 Penn Plaza LLC, argued before the Supreme Court in December. The plaintiffs in this case claimed age discrimination when their duties were transferred to licensed security officers who replaced them. After the defendants moved to compel arbitration pursuant to a collective bargaining agreement, the Second Circuit Court of Appeals determined that unions and employers may not agree in a collective bargaining agreement to waive an individual employee’s right to litigate employee grievances.

The Second Circuit’s decision was based on the Supreme Court’s reasoning in Alexander v. Gardner-Denver, in which the Court ruled that union-negotiated collective bargaining agreements that purport to waive employees’ rights to pursue statutory claims in Court are unenforceable. The Court is now called upon to address whether Alexander is still good law following the Court’s decision in Gilmer v. Interstate/Johnson Lane Corp., which upheld an arbitration agreement executed by an individual employee and contained strong language supportive of arbitration as an alternative to litigation.

Gross v. FBL Financial Services Inc.

If the Supreme Court directly confronts the issues presented in Gross, it may be one of the most important discrimination cases in the last thirty years. Federal appellate courts have split in deciding whether a plaintiff, in a non- Title VII discrimination case, must present direct evidence of discrimination in order to receive a “mixed-motive” jury instruction, thereby shifting the burden of proof to the defendant. The United States Court of Appeals for the Eighth Circuit overturned a jury award for the plaintiff in this case because the trial court gave a mixedmotive instruction in the absence of direct evidence of age discrimination.

In Desert Palace Inc. v. Costa, 539 U.S. 90 (2003), the Supreme Court ruled that plaintiffs in Title VII cases do not need direct evidence to secure a mixed-motive instruction. But the Court explicitly limited its decision to Title VII cases. If the Supreme Court in Gross determines that direct evidence is not required to receive a mixedmotive instruction in non-Title VII cases, plaintiffs in those cases may expect an easier road to victory.

AT&T Corp. v. Hulteen

The Supreme Court heard oral argument in December 2008 regarding whether an employer violates Title VII when it fails to award service credit for maternity leave taken prior to 1979, the year that the Pregnancy Discrimination Act (“PDA”) took effect. The United States Court of Appeals for the Ninth Circuit decided that the defendants violated Title VII in taking this action. The plaintiffs argue that the defendants are now penalizing them for maternity leave taken decades ago and thereby violating the PDA. If the Court limits its ruling to the PDA, the case could have minimal applicability in the future, but if the Court applies its rule generally, it could have an impact on other statutes as well.

Dukes v. Wal-Mart Stores Inc.

While not yet on the Supreme Court’s docket, Dukes is an unprecedented class action suit, with the highest number of potential class members, 1.5 million, against the largest employer in the United States. Plaintiffs allege that female employees at Wal-Mart were paid less and waited longer for promotions than male employees. The Ninth Circuit Court of Appeals last year upheld the decision to grant certification of the class, finding that injunctive relief claims sufficiently predominated over monetary claims. The Ninth Circuit also limited the class to individuals employed at the time the lawsuit was filed in June 2001.

Both parties filed petitions with the Ninth Circuit, requesting a rehearing en banc, and various amicus briefs were filed in support of Wal-Mart. In late March, the Ninth Circuit conducted an en banc rehearing to review the decision. No matter what the panel concludes, the case is expected to eventually reach the Supreme Court. Practitioners and nationwide employers expect this case to set the standards for class certification in nationwide employment discrimination cases.