Author: David B. Weisenfeld, XpertHR Legal Editor

With the Supreme Court's first oral arguments of 2013 underway this week, there are several employment-related cases of note still awaiting decisions.

Vance v. Ball State University

While it may not attract nationwide headlines on the level of gay marriage or health care, the case of Vance v. Ball State has significant HR implications. At issue is what makes someone a "supervisor" under Title VII of the Civil Rights Act. This case asks how much authority an alleged harasser must have to qualify as a supervisor.

If the Supreme Court adopts a broad definition, it could increase employer liability to all sorts of Title VII claims. This is especially true for employers that lack clearly defined supervisory roles. Conversely, a narrow definition that limits supervisors to those with the power to hire and fire could have the effect of limiting an employer's exposure.

The EEOC's position in this racial harassment case is that anyone who oversees or directs an employee's daily activities should be considered a supervisor. But Ball State countered during the November oral arguments that this definition is far too broad.

Gay Marriage Goes Under the Microscope

The Supreme Court will hear a pair of gay marriage cases in late March for the first time, including one directly involving the federal Defense of Marriage Act (DOMA) which defines marriage as a legal union between one man and one woman.

If the Court strikes down DOMA as unconstitutional, then employees in same-sex or domestic partnerships - in states that recognize such partnerships - may receive equal access to rights under the Family and Medical Leave Act. And that's not the only employment law issue at stake. For instance, DOMA does not provide same-sex spouses with:

  • The opportunity for continued COBRA coverage;
  • Insurance benefits for government employees; and
  • Social Security survivors' benefits.

DOMA also affects how the beneficiaries of same-sex spouses are treated when it comes to retirement plan distributions. The cases of Hollingsworth v. Perry and United States v. Windsor give the justices the opportunity to decide if the Constitution guarantees same-sex marriage nationwide or if the issue should be left to the states.

Is Affirmative Action in Peril?

Before the end of its term in June, the Supreme Court also will have a good deal to say about another political hot potato, namely affirmative action. While the case of Fisher v. University of Texas involves the use of race as a "factor" in admissions at the university, it also could have ramifications for employers' use of affirmative action plans.

A number of employer groups have sided with Texas in defending the legality of its admissions program. They fear that a ruling for Fisher could mean trouble for employer-initiated affirmative action programs, and also would negatively impact workplace diversity. However, a majority of justices seemed skeptical of the Texas program during the arguments in the case.

Meanwhile, the Court is being asked to take up another closely-watched affirmative action dispute. In November, a divided Sixth Circuit Court of Appeals rejected the state of Michigan's affirmative action ban as unconstitutional in Coalition to Defend Affirmative Action v. University of Michigan, +2012 U.S. App. LEXIS 23443.

Arbitration Comes Before the Court

The Supreme Court also will address arbitration in 2013 as it will soon hear the case of Oxford Health Plans v. Sutter. Thousands of New Jersey physicians claim that Oxford refused to make prompt and accurate reimbursement payments for their work. Oxford counters that the physicians' arbitration agreements did not allow for class arbitrations because the agreements never mentioned class actions.

The case is relevant to HR because a ruling against the physicians likely would make it more difficult for individual employees to join together to bring class action claims against employers in arbitration.

Employers often insert mandatory arbitration clauses into employment contracts to compel arbitration of individual disputes, but have opposed allowing class arbitrations unless the parties have explicitly agreed via contract.

Symczyk v. Genesis Healthcare Corp.

The Supreme Court heard arguments in November 2012 in the Fair Labor Standards Act (FLSA) case of Symczyk v. Genesis Healthcare Corp. At issue is whether an offer of judgment made to a single individual in an FLSA lawsuit should prevent others from joining the lawsuit in a collective action. A decision is expected soon.

The Court also still could add at least one more employment case to its spring schedule as a few more open slots still remain on its 2013 docket.

Additional Resources

Supreme Court Ruling May Change the Definition of Spouse Under the FMLA

Affirmative Action Blockbuster Has Employment Implications