In early October, the U.S. Supreme Court will begin hearing oral argument for the 2008-2009 term. There are currently four labor and employment related cases on the docket - the most notable involving the scope of the anti-retaliation provision contained in Title VII of the Civil Rights Act. The justices also have agreed to decide whether an arbitration provision in a union contract bars an employee from suing for age bias.

The issues scheduled to be addressed by the Court include:

  • Retaliation. On October 8, the justices will hear oral argument in Crawford v. Metropolitan Government of Nashville. The case raises the issue of whether Title VII protects an employee who was allegedly fired after she cooperated with her employer's internal investigation into sexual harassment. The Sixth Circuit Court of Appeals rejected the worker's retaliation claim, finding that she neither engaged in "active, consistent opposition" to the alleged harassment nor participated in a "proceeding" under the Act.
  • Discrimination. In AT&T Corp. v. Hulteen, the justices will consider whether an employer violated Title VII by not fully restoring service credit for pregnancy leaves taken before the 1978 passage of the Pregnancy Discrimination Act (PDA). A full panel of the Ninth Circuit Court of Appeals rejected AT&T's argument that the law cannot be applied retroactively and upheld summary judgment in favor of the workers.
  • Arbitration. In February of this year, the Supreme Court agreed to review a ruling in which the Second Circuit Court of Appeals refused to enforce a collective bargaining agreement's arbitration clause that waived an employee's right to file suit under the Age Discrimination in Employment Act. According to the appellate court, such clauses are unenforceable "to the extent they waive the rights of covered workers to a judicial forum for federal statutory causes of action." The case is 14 Penn Plaza LLC v. Pyett.
  • Free Speech. In Ysursa v. Pocatello Education Association, the justices will address an Idaho statute that bars cities, counties and school districts from making payroll deductions for political activities. Last October, the Ninth Circuit ruled that the law was unconstitutional.

According to Cheryl Stanton, a shareholder in the firm's Morristown, New Jersey office (who recently served as Special Assistant to the President and Associate White House Counsel): "We are seeing that in its 2008-2009 term, the Supreme Court will continue its efforts from the 2007-2008 term to address a wide variety of issues that are important to employers. We will monitor closely what happens in the District of Columbia related to these cases, both to advise clients how the Supreme Court's decisions affect their work practices, as well as to assess any legislative proposals put forth by Congress in response to these decisions."