Up-to-date information for employers on topics and issues that may affect workplace operations. The posts are current as of the date of the posting.


by Jennifer Brown Shaw and D. Gregory Valenza | The Daily Recorder | July 1, 2020

The United States Supreme Court issued several decisions during the October 2019 Term, which may affect California employers.  We review those decisions below.

Babb v. Wilkie

The Age Discrimination in Employment Act of 1967 prohibits employment discrimination against employees of certain public and private sector entities based on age. The section of the act applicable to public sector employees, 29 U.S.C. §  633a(a), provides that employment actions ““shall be made free from any discrimination based on age.” This language differs from the provision applicable to private sector workers, because “free from any discrimination” is more protective of employees.

The Court decided that this provision means a federal employee over 40 years old may establish age discrimination, unless a given personnel action is “untainted by any consideration of age.”  In contrast, the plaintiff in a private sector setting must prove age discrimination was a “but-for” cause of an action; i.e., that “but-for” age, the action would not have occurred. The Court also held that remedies available to public sector workers may be affected by the degree to which age discrimination played a part in a decision.

Bostock v. Clayton County, GA

Title VII of the federal Civil Rights Act of 1964 prohibits employment discrimination based on race, sex, religious creed, and national origin.

The lower federal courts divided on whether Title VII’s “sex discrimination” provision applied to sexual orientation or gender identity discrimination. Congress unsuccessfully has attempted to amend the law several times to cover sexual orientation and gender identify. About one-half of the states prohibit employment discrimination based on gender or sexual orientation, or both.

The Supreme Court ruled 6-3 that “discrimination based on sex” included both sexual orientation and gender-based discrimination. The majority’s rationale was that discrimination based on sexual orientation or gender is based on the discrimnator’s view that the plaintiff’s sexual orientation or gender expression or identity is objectionable  given the plaintiff’s biological sex. Sexual harassment, too, although not prohibited in the text of Title VII, is a form of discrimination “based on sex.”

The decision will have little impact in California, which already prohibits employment discrimination based on sexual orientation, gender expression, and gender identity.  Even California employers, however, will have to revise training materials and programs, to update this federal law development.

Comcast Corp. v. National Association of African American-Owned Media

The Court in Comcast addressed the plaintiff’s burden of proof in cases brought under 42 U.S.C. § 1981. That federal statute, part of the Civil Rights Act of 1866, guarantees “[a]ll persons . . . the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.”  Although Comcast is not an employment case, the statute applies to employment contracts.

The National Association’s and Comcast’s dispute arose over whether Comcast would carry certain channels on its cable network. The National Association claimed Comcast’s decisions were motivated by race discrimination. Comcast responded that the decisions were based on only business considerations.

The Court held that the traditional “but-for” causation standard applies to § 1981. That is, the plaintiff must establish that the negative action would not have occurred were it not for race discrimination.

Dept. of Homeland Security v. Regents of the Univ. of Cal.

The Obama administration’s Department of Homeland Security issued a memorandum creating the Deferred Action for Childhood Arrivals program better known as “DACA.”  In essence, DACA conferred upon certain undocumented immigrants protection from deportation, as well as other benefits normally unavailable to them. The DHS later expanded the program to parents via another memorandum known as DAPA.

Court challenges ensued.  In addition, the Trump administration rescinded both DACA and DAPA via memoranda.  Neither administration followed the Administrative Procedure Act, which generally dictates the regulatory processes the Executive Branch must follow.

The Supreme Court decided that, although DACA and DAPA were not implemented under the APA, the Trump administration was required to follow that law to rescind these programs.  The Court noted that the administration remained free to cancel the programs by following the proper procedures, and sent the cases back to the DHS so it could do so.

For now, DACA and DAPA remain in effect unless or until they are rescinded, or Congress takes action on immigration law.

Cases on the Docket

As of now, there are only a few employment law-related cases for the Court to decide. The Court has yet to rule in Our Lady of Guadalupe School v. Morrissey-Berru.  That case presents the issue: “Whether the First Amendment’s religion clauses prevent civil courts from adjudicating employment-discrimination claims brought by an employee against her religious employer, when the employee carried out important religious functions.”  The Court in Trump v. Pennsylvania will decide whether the administration properly expanded the “conscience exemption” to the ACA’s contraceptive-coverage mandate. The Court may decide these cases later this summer, or next Term.

In California v. Texas, the Court is asked to decide whether the ACA is unconstitutional given the government eliminated the “individual mandate” requiring people to purchase minimum insurance coverage. That decision likely will issue next Term, which begins in October 2020.

Shaw Law is Hiring!