by By J. Robert Brame, McGuireWoods, LLP

U.S. Supreme Court Justice John Paul Stevens has announced he will retire at the end of the current Court session in June or July. Stevens, who turns 90 on April 20 and is the longest-serving member of the current Court, had hinted that a decision on retirement might come soon.

Stevens timed his departure to give President Barack Obama and the U.S. Senate time to nominate and confirm a successor before the Court’s new term starts in October. But the appointment won’t significantly change the Court’s approach to labor and employment issues. Stevens, an antitrust lawyer before his appointment to the conservative Seventh U.S. Circuit Court of Appeals, was appointed to the Supreme Court in 1975 by President Gerald Ford, a Republican. But he has consistently voted with the liberal bloc on social and employment issues. His replacement is unlikely to change the existing balance on the Court, although there might be slight difference in tone, depending on who it is.

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After a 5-4 ruling delivered January 21 by the U.S. Supreme Court, corporations and labor unions will now be permitted to spend as much as they wish on independent activities in support or opposition of presidential and congressional candidates. The restrictions on campaign expenditures had been in place for decades.

In Citizens United v. Federal Election Commission, the Court’s majority held that these limits are an unconstitutional restraint of free speech and a form of censorship and that the government lacked a legitimate basis on which to restrict independent corporate campaign expenditures. Justice Anthony Kennedy wrote in the majority opinion that “[t]he government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether.” Justices Roberts, Scalia, Thomas, and Alito joined Kennedy in the majority.

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The U.S. Senate confirmed Judge Sonia Sotomayor to the U.S. Supreme Court today in a 68-31 vote. As expected, the Senators voted along party lines, with all Senate Democrats and only nine Republicans voting to confirm President Barack Obama’s nominee. The final step in Sotomayor’s road to the Supreme Court will be a White House swearing-in ceremony, which reportedly could take place as early as this week.

Sotomayor will become the 111th Supreme Court justice and will join Justice Ruth Bader Ginsburg as the second woman on the current Supreme Court. In the history of the Court, she will be the third female justice and the first Hispanic justice.

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On Monday (June 29, 2009), the U.S. Supreme Court ruled in favor of white firefighters in a 5-4 decision addressing workplace reverse discrimination. The Court held, in Ricci v. DeStefano, that the city of New Haven, Connecticut, violated Title VII of the Civil Rights Act of 1964 when it threw out the results of a written exam used in the promotion of firefighters because non enough minorities passed the test.

Although the case has been in the media since it reached the Supreme Court, it became very highly publicized once President Barack Obama chose Judge Sonia Sotomayor as his Supreme Court nominee. Sotomayor was part of the three-judge Second Circuit panel that upheld New Haven’s decision to throw out the exams. Since Sotomayor’s nomination, the case has been inextricably linked to her and has been used by her critics as an example of her tendency to favor minorities in her judicial rulings. Republicans on the Senate Judiciary Committee are likely to focus on the Supreme Court’s reversal in her confirmation hearings, which begin in two weeks.

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Today, the U.S. Supreme Court released its decision in Ricci v. DeStefano, the high-profile discrimination case involving firefighters employed by the city of New Haven, Connecticut. In a 5-4 decision, the Court reversed the Second U.S. Circuit Court of Appeals’ decision in favor of New Haven. Essentially, the Supreme Court said the city improperly threw out the results of promotional tests that officials said left too few minorities qualified.

The case has been under a microscope because the Second Circuit opinion was affirmed by Judge Sonya Sotomayor, President Barack Obama’s Supreme Court justice nominee.

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In a May 18, 2009, decision, the U.S. Supreme Court addressed the issue of whether women who took maternity leave decades ago (before discrimination based on pregnancy became illegal) can sue to have their pregnancy leave time count toward their pensions. The Court reversed the Ninth U.S. Circuit Court of Appeals’ ruling and held that they cannot.

Before the Pregnancy Discrimination Act (PDA) was enacted, the employer in this case (AT&T) based pension calculations on a seniority system that relied on its employees’ years of service. The system subtracted any uncredited leave time from years of service and gave less retirement credit for pregnancy leave than for general medical leave. In 1978, Congress added the PDA to Title VII of the Civil Rights Act of 1964 to prohibit employers from treating pregnancy leave differently than other medical leave.

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by Peter Panken

On June 22, the U.S. Supreme Court decided an employment retaliation case in which it held that any action by an employer against an employee, applicant, or even a former employee constitutes unlawful retaliation if the action would deter a reasonable employee from filing a discrimination charge against an employer.

Retaliation cases now make up 30 percent of the Equal Employment Opportunity Commission’s docket and will increase substantially as a result of this decision. Moreover, employees now will want to get their cases before juries because they hope jurors will be so mad at the employer that they’ll award compensatory and punitive damages.

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After several years of employees being required to meet a very high standard to have their cases heard by a jury, that may be changing in the long term. The U.S. Supreme Court recently cautioned federal judges to be careful in the rules of evidence and legal standards for employment discrimination. The Court’s opinion offers employers guidance on the amount of evidence needed to prove racial bias and pretextual reasons for decisions.

The case, Ash v. Tyson Foods, Inc., involved two African-American employees passed over for promotion in favor of two Caucasian employees. Part of their proof of racial bias was evidence that the manager who made the promotion decision had referred to them as “boy.” The Eleventh U.S. Circuit Court of Appeals rejected their argument, saying that use of the word “boy” by itself, with no racial adjectives modifying it, wasn’t evidence of discriminatory intent.

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