Looking Back at Justice Scalia’s Decision in Oncale: “because of… sex”

After the passing of Justice Antonin Scalia earlier this year, many rushed to evaluate his legacy (for good or for bad).  While Justice Scalia’s missing vote in Freidrichs v. California Teachers Association drew a great deal of immediate attention, few discussed the lasting impact of his decisions on employment law.  In this realm, one of the most frequent criticisms of Justice Scalia’s jurisprudence was that his decisions tended to restrict plaintiffs’ rights (such as Wal-Mart v. Dukes).  However, in Oncale v. Sundowner Offshore Services, Inc., Justice Scalia actually extended Title VII protections to cover same-sex sexual harassment claims.

When the Oncale decision was announced in 1998, it was widely praised for sending a message that ”male or female, gay or straight, nobody should have to face sexual harassment when they go to work in the morning.”  In reality, the decision only had a limited immediate impact, and became more notable for what it did not do.  Since Oncale, lower courts repeatedly interpreted the decision as a bar to Title VII claims on the basis of sexual orientation.  Now, years later, many, including the EEOC, believe Oncale actually opened the door to further expansions of Title VII protections.

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The Supreme Court Vacancy and Labor: Paul Watford

This post is part of an ongoing series on the labor decisions and positions of some of the likely potential picks to replace Justice Scalia on the Supreme Court.

Paul Watford has been a judge on the 9th Circuit since his nomination by President Obama in 2012.  He was confirmed by the Senate by a vote of sixty-one to thirty-four, with nine Republicans voting in favor of his nomination.  48 years old and African American, Judge Watford clerked for Judge Kozinski, a Ronald Reagan-appointee, and for Justice Ginsburg.  While serving as an Assistant United States Attorney, Judge Watford worked in the Criminal Division and in Major Frauds before heading to Munger, Tolles & Olson.  Watford notably co-authored an amicus brief on behalf of doctors, clinical ethicists, and other medical professionals in support of death row inmates challenging Kentucky’s lethal injection practices.  Additionally, he assisted with a brief for minority business owners as amici in a case about what actions Congress can take to remedy racial discrimination.

Arbitration Agreements

Although Judge Watford doesn’t have an extensive paper trail when it comes to labor and employment decisions, he did author the opinion for one of California’s hot button employment cases in 2014.  In two separate, but concurrent suits — one alleging Bloomingdale’s violated California wage law and another alleging Nordstrom violated federal and state employment laws — the Ninth Circuit, a frequently employee-friendly bench, sided with the retailers and compelled individual arbitration of claims brought by workers as putative class actions.

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The Supreme Court Vacancy and Labor: Sri Srinivasan

This post is part of an ongoing series on the labor decisions and positions of some of the likely potential picks to replace Justice Scalia on the Supreme Court.

Sri Srinivasan is currently a judge on the U.S. Court of Appeals for the D.C. Circuit.  The Senate approved Srinivasan for the prestigious circuit in a 97-0 vote in 2013.  Of all the potential Supreme Court nominees the media has identified as a candidate to replace Justice Scalia, Srinivasan is probably mentioned most frequently: he can be found on Politico’s, the New York Times’, Washington Post’s, and of course Wikipedia’s short lists.

Yet in comparison to other speculative nominees, the public knows less about Srinivasan’s political views.  Both left and right leaning groups have criticized Srinivasan.  Some progressives have criticized his representation of Enron president Jeffrey Skilling and ExxonMobil from his private sector days.  The National Review criticized the media’s depiction of Srinivasan as a “moderate” candidate for the Supreme Court vacancy, suggesting instead that he is more comparable to Ruth Bader Ginsburg.  Part of this disagreement may stem from Srinivasan’s long career as an attorney and from attributing political views to the judge based on the clients he’s represented.  Now that Srinivasan has been on the court three years, however, we have a bit more to work with.

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What Scalia’s Replacement Could Mean for Workers

If Justice Scalia’s replacement is progressive, the Supreme Court will have a five-Justice liberal majority for the first time in decades.  Given the significant number five-to-four decisions limiting the rights of and protections for workers, the importance of confirming a progressive is enormous.  Most of the attention has understandably focused on Friedrichs v. California Teachers Association, and for good reason.  Without Justice Scalia, the Court appears to lack the fifth vote necessary to eliminate fair share fees in public sector labor agreements.  And Scalia’s death should put the brakes on National Right to Work’s effort to speed a case to the Court asking it to eliminate exclusive representation for home care workers or, perhaps, even for all public sector workers.  Not only that, but a newly-constituted Court might decide that Harris v. Quinn was wrong to eliminate fair share fees for home care workers and that Knox v. SEIU Local 1000 was wrong to prohibit unions from charging nonmembers for mid-term assessments.

But an astonishingly large number of cases limiting rights and protections for workers were also decided five-to-four with Justice Scalia in the majority.  Here are some cases that warrant reconsideration by a Court with a liberal majority.

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The Supreme Court Vacancy and Labor: Patricia Ann Millett

This post is part of an ongoing series on the labor decisions and positions of some of the likely potential picks to replace Justice Scalia on the Supreme Court.

In the wake of Justice Antonin Scalia’s death, Judge Patricia Ann Millett of the United States Court of Appeals for the District of Columbia Circuit has appeared on numerous short lists to fill the vacancy on the Supreme Court.

Judge Millett was appointed to the D.C. Circuit in December 2013.  Her confirmation to the D.C. Circuit was the first pursuant to rules passed in November 2013 that require only a majority of the Senate to agree to proceed to final debate in order to avoid filibusters.  She was confirmed by a vote of 56 to 38.

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For Scalia’s Replacement, It’s Time for a Justice Who Has Represented Workers

When it comes to picking Supreme Court justices, President Obama has said that he wants justices who understand how law affects the lives of ordinary people.  Two potential nominees mentioned on various short lists, Judge Jane Kelly and Judge Robert Wilkins, would bring the valuable perspective of lawyers who spent large parts of their careers representing criminal defendants.  But, one type of experience that has been missing from the Court for many years has been advocacy on behalf of ordinary workers.

It’s not as though Supreme Court decisions don’t affect working people.  After Congress enacted the Americans with Disabilities Act (ADA) in 1990, the Supreme Court interpreted its coverage so narrowly that Congress eventually amended the law, with broad bipartisan support, to reject the Court’s interpretation.  Unfortunately, millions of workers suffered from the lost protections between the time of the Court’s decisions and the ultimate passage of the amendments.

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The Supreme Court Vacancy and Labor: Merrick Garland

This post is part of an ongoing series on the labor decisions and positions of some of the likely potential picks to replace Justice Scalia on the Supreme Court.

On February 13, 2016, Justice Scalia unexpectedly passed away.  In the aftermath of his passing, the legal and news worlds have been abuzz with talk of prospective replacements. Included on numerous shortlists of potential Supreme Court nominees is Merrick Garland, Chief Judge of the United States Court of Appeals for the District of Columbia Circuit.  Judge Garland has served on the D.C. Circuit since 1997, when he was appointed by then-President Bill Clinton and confirmed by the Senate in a 76-23 vote.

Judge Garland has an extensive record and while generalizations about his opinions are difficult to make, certain themes do emerge.  An analysis focusing on his opinions in cases involving the NLRB reveals one particular theme: agency deference.  This deference to the NLRB has had favorable consequences for labor and unions.

Majority Opinions

Between 1997 and 2016, Judge Garland wrote the majority opinion in 22 cases involving appeals of NLRB decisions.  In all but four, Judge Garland upheld the entirety of the NLRB’s decision finding that an employer had committed unfair labor practices.  His language in these cases reveals a strong preference for deference: an “agency’s interpretation of its own precedent is entitled to judicial deference,” Ceridian Corp v. N.L.R.B., 435 F.3d 352, 355 (D.C. Cir. 2006); the Court of Appeals does “not reverse the Board’s adoption of an ALJ’s credibility determinations unless…those determinations are ‘hopelessly incredible,’ ‘self-contradictory,’ or ‘patently unsupportable,’” Shamrock Foods Co. v. N.L.R.B., 346 F.3d 1130, 1134 (D.C. Cir. 2003) (internal citations omitted); in reviewing the determination of the NLRB, “we ask only ‘whether on this record it would have been possible for a reasonable jury to reach the Board’s conclusion,’ and in so doing we give ‘substantial deference to the inferences drawn by the NLRB from the facts,’” Antelope Valley Bus Co. v. N.L.R.B., 275 F.3d 1089, 1093 (D.C. Cir. 2002) (internal citations omitted).  Although Judge Garland’s decisions speak primarily of his deference to the NLRB, the effect of that deference is favorable to labor and unions.

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