The first Monday in October heralds the start of the U.S. Supreme Court’s (SCOTUS) new term each year. Last year saw Roe v. Wade and the right to abortion overturned. This resulted in the states and their voters now having to decide on that right. To date, this year the conservative U.S. Supreme Court has announced several new “blockbuster” cases it will hear that may impact employers.
The biggest case are actually two lawsuits. One against Harvard University and the other against the University of North Carolina. Both address those Universities’ student admissions process and their application of affirmative action in acceptance of minority students. Though this case is not an employment case per se, it may challenge the legality of affirmative action as a whole. Employers that are government contractors and subcontractors and of a certain size must have affirmative action plans to promote the hiring and advancement of minorities in their workplace. A decision to overturn the use of preference systems to set admission goals for minority students could presage overturning the same affirmative action programs in employment.
In another important case involving discrimination issues, SCOTUS will hear a case challenging a state’s anti-discrimination law. This case arose from a website designer’s policy stating they would do no same sex wedding website work. This policy was based upon the web designer’s Christian belief that marriage is between one man and one woman. This case harks back to a 2018 case where the Court upheld “on narrow, factual grounds” in favor of a cake baker that refused to make and sell a wedding cake to a same sex couple based upon religious grounds. That SCOTUS decision left the First Amendment questions unanswered until another day. This case brings that day.
The conservative SCOTUS majority may embrace the website designer’s argument that the state’s anti-discrimination law impinges on the website designer’s right to free speech and artistic endeavor. The website designer argues that their work involved creating their website work and is protected by the First Amendment and thereby protected free speech.
Another major case of note in this SCOTUS term is a challenge to whether the judiciary should have oversite of partisan gerrymandering of political electoral maps. This case involves the North Carolina Supreme Court’s previous decision forcing that State’s general assembly to redraw its electoral maps because the Court believed them to be too partisan in favor of one political party. This challenge may take judicial review powers away from the judiciary based upon the argument that Article I, Section 4 of the U.S. Constitution puts the power solely in the hands of “the legislature” with sole authority to set the “times, places, and manner” of elections.
In another major case pertaining to elections, SCOTUS will again look at whether the federal government can maintain a ban prohibiting changes to voting laws if the change would allow for discriminatory voting practices. This case is again looking at the 1965 Voting Rights Act. The action by a State to establish a new political district creating a second majority-Black district is challenged as discriminatory. A lower Court in the State of Alabama found the redistricting plan was discriminatory because it put a large black majority of voters in a single district and then spread the rest among other districts thereby diluting their voting power. How SCOTUS decides this case may further gut the Voting Rights Act following a 2013 decision in which the Court struck down Section 5 of the Act that had required states with a history of voter discrimination get a waiver from the federal government before changing their voting laws.
And just Monday of this week, SCOTUS also agreed to take a case that looks at whether the National Labor Relations Act may preempt lawsuits against unions that are being sued for property damage occurring during a labor strike. This case involves an employer’s attempt to get reimbursed for concrete that spoiled (hardened) during a 2017 strike. The union is arguing that “because the concrete damage occurred incidental to a work stoppage [it] was therefore protected under the NLRA.”
The above are a few of the important cases lining up in the new Supreme Court term that may impact employers. ASE will be watching and reporting on those decisions that will impact employers as the year progresses.
Source: Law 360 Employment Authority. The 5 Biggest Cases This Supreme Court Term (9/30/2022). BREAKING: Justices To Examine Property Damage Claims Tied to Strikes. 10/3/2022.