According to the October 1, 2007 issue of The National Law Journal, an already busy U.S. Supreme Court has agreed to hear several significant employment cases this year. The NLJ calls it a "banner" year. Among the employment cases that the U.S. Supreme Court is expected to decide are:

*Kentucky Retirement Systems vs. EEOC (No. 06-1037): The Court will review a Sixth Circuit ruling and decide whether a retirement plan that on its face appears to discriminate against older workers is discriminatory on the basis of age, even though the plan is not based on a hostile attitude or animosity toward older workers. The Sixth Circuit Court of Appeals found discrimination because the Kentucky plan disqualifies employees who are still working from receiving disability retirement benefits if they are of normal retirement-benefit age at the time they become disabled.

*Gomez-Perez v. Potter (No. 06-1321): The Court will decide whether the federal-sector provision of the Age Discrimination in Employment Act prohibits retaliation, as the private sector version does. Currently, the federal sector version is silent on retaliation claims.

*CBOCS West v. Humphries (No. 06-1431): The Court will decide whether Section 1981 (a Reconstruction Era statute prohibiting discrimination) includes a claim for retaliation. The lower federal courts have issued conflicting rulings on this issue. For more information about this or any other employment law topic, please contact Nancy Sasamoto, Chair of the Employment & Labor Group, at 312.245.7500 or via email at

Steve Proctor notes that HR Managers may see little in this crop of cases that affects their day-to-day decisions. But it would be a mistake to ignore these cases. First, lower courts review these decisions for guidance on related and similar cases. In addition, it will be interesting to watch the trends in the U.S. Supreme Court with its two newest members, Chief Justice Roberts and Justice Alito. Already, the U.S. Supreme Court created a firestorm in Congress after its Ledbetter decision (about which we reported on our June 4, 2007 update). Ledbetter rejected the “paycheck accrual rule" under which each paycheck triggers a new EEOC charging period during which the employee may challenge any prior discriminatory conduct that impacted the amount of the paycheck, no matter how long ago the discrimination occurred. Now many Democrats (and even some Republicans) have made strong efforts to overturn the Ledbetter decision by statute. The coming year may provide guidance as to whether the criticism of the Court's Ledbetter decision will impact the decisions in other employment cases.