Ranking the high court

December 01, 2014 - by: Matt Gilley 0 COMMENTS

When football season kicked off earlier this year, I took the chance to glean some insights for HR professionals from the difficult job facing the new college football playoff selection committee. Now that we’re coming up on the end of the football season, I’m turning to the committee once more for inspiration.shutterstock_105026918

As I write, the selection committee is chewing over this weekend’s results and will let us know its judgment on the four best teams (so far) in college football. Soon, they will choose the “final four” who will play a two-week tournament to decide the national champion. Right now, Alabama and Oregon are pretty much the consensus #1 and #2. Despite Florida State’s best efforts to play their way out of this thing, they keep finding ways to win and are generally #3 by default. Mississippi State (last week’s #4) took it on the chin from their archrival, Ole Miss, so the committee will apply its eye test and pick a new #4 (and leave an angry #5 and #6). My money is on TCU at #4.

I’m going to borrow the format and select my top four Supreme Court employment law decisions from the last five years. I’ve ranked them below, along with a capsule summary that explains why I’ve ranked it #1, and so on. Then, I’ll pair them up, play them off of each other, and pick the champion. Feel free to disagree in the comments!

The Final Four

Number 1: Wal-Mart Stores, Inc. v. Dukes (2011). This case is a true heavyweight, combining employment law and federal class action procedure. Wal-Mart won at the Supreme Court, which held that a nationwide class action of present and former female employees was inappropriate under the Federal Rules. Wal-Mart’s win in this case was a powerful blow against attempts to aggregate individual employment decisions under one lawsuit.

Number 2: New Process Steel, L.P. v. NLRB (2010). This one gets in on flash. The case garnered a ton of controversy, newsprint, and political attention at the time. The ultimate question, however, may have been a bit pedestrian: Eventually, New Process Steel prevailed when the Supreme Court held that two members of the National Labor Relations Board did not constitute a quorum of the board for exercising authority.

Number 3: Stolt-Nielsen S.A. v. AnimalFeeds International Corp. (2010). Wait a minute – this one isn’t even an employment case! No matter. AnimalFeeds is a key component of a recent line of Supreme Court authority that supports the use of arbitration to resolve disputes. More and more employers are presenting arbitration programs to employees, and they will particularly like the holding in this case that class action arbitration is not available unless the parties specifically authorize it.

Number 4: Gross v. FBL (2009). This case sneaks in and will probably seem a bit esoteric to non-lawyers. Gross held that “but for” jury instructions are the rule for Age Discrimination in Employment Act claims, unlike status discrimination Title VII claims in which a lower “mixed motive” instruction is appropriate. Gross has already had one follow-up: University of Texas Southwestern Medical Center v. Nasser (2011), which applied the higher “but for” standard to Title VII retaliation claims.

The Predictions

In the Rose Bowl, top-ranked Wal-Mart v. Dukes will win a surprisingly close victory over Gross v. FBL. Gross is already punching above its weight, but just can’t overcome the sheer significance of the Wal-Mart opinion. Next, in the Sugar Bowl, AnimalFeeds and its arbitration impact will score a minor upset over New Process Steel. Finally, Wal-Mart claims the title of most significant Supreme Court decision in a championship game that is never all that close.

So … who thinks my crystal ball is broken?

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