Affirmative Action and Employment Cases Dot the Supreme Court's Docket

Author: David B. Weisenfeld, XpertHR Legal Editor

October 7, 2013

The Supreme Court's new term opens today, and several cases with possible implications for employers are already on the schedule. Most notable is a dispute involving a Michigan law prohibiting the use of racial preferences in public universities, government contracting and public employment.

The 6th Circuit Court of Appeals struck down the law in 2012 on the grounds that it violates the Constitution's Equal Protection Clause. But the Supreme Court accepted Michigan's appeal and will hear arguments in Schuette v. Coalition to Defend Affirmative Action on October 15.

At issue before the justices is the constitutionality of race-conscious admissions plans. The 6th Circuit's ruling did not comment directly on the portion of the Michigan law dealing with government hiring. Nonetheless, how the Supreme Court rules in this case potentially could affect employer diversity efforts. For instance, a ruling in Michigan's favor could bolster affirmative action hiring bans in other states.

The Supreme Court ruled in a related case, Fisher v. University of Texas, in June. Employer groups had sided with the university in defending its race-conscious admissions plan, and feared that a ruling for the white student challenging the plan would place employer-initiated affirmative action programs at risk. While the student prevailed in getting her case sent back to the lower court for another look, the justices avoided making any broad pronouncement about racial preferences.

Labor and Employment Cases to Watch

The Supreme Court also will hear arguments this term in the closely-watched case of Noel Canning v. NLRB, on which the validity of hundreds of National Labor Relations Board decisions hang in the balance. The Supreme Court is expected to hear the government's appeal of that ruling in early 2014. A date has not yet been scheduled.

Another notable dispute is a whistleblower case that raises the issue of whether Sarbanes-Oxley protections extend to employees of private companies that contract with public companies. The Court will hear arguments in Lawson v. FMR on November 12.

Meanwhile, the justices will hear a Fair Labor Standards Act case on November 4 involving whether an employer may avoid paying overtime to unionized employees for time spent donning and doffing certain protective gear in Sandifer v. United States Steel Corp.

Finally, in Madigan v. Levin, the Court is being asked to decide if the Age Discrimination in Employment Act (ADEA) provides the exclusive remedy for age bias claims filed by state or local government employees or if such claims can be brought instead under the Equal Protection Clause of the Constitution. Arguments are slated for today.