With the Supreme Court kicking off its 2013 argument schedule this week, the year promises to provide a few blockbusters that could come close to approaching the level of interest given to last year’s health care ruling.
Highlighting the list is the Court’s first-ever foray into gay marriage as well as another case that could go a long way toward deciding the future of affirmative action in the US. While these cases do not arise from workplace disputes, they will have employment-related implications.
Gay Marriage Goes Under the Microscope
The Supreme Court will hear a pair of gay marriage cases on March 26-27, including one directly involving the federal Defense of Marriage Act (DOMA) which defines marriage as a legal union between one man and one woman as husband and wife.
If the Court strikes down DOMA as unconstitutional in United States v. Windsor, 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 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.
In Hollingsworth v. Perry, the Court will weigh in on whether the Constitution prohibits the State of California from defining marriage as the union of a man and a woman. Both cases 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.
In a sign of a possible shift in popular attitudes, voters in three states — Maine, Maryland and Washington — approved ballot measures in the November 2012 election to legalize same-sex marriage. All such previous measures before voters across the country had failed. Meanwhile, Minnesota voters vetoed a proposal to ban gay marriage in the state constitution.
Don’t expect rulings from the Supreme Court in these cases until the last week of its term in June.
Is Affirmative Action in Peril?
Before the end of its term, 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 impact 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 in October. The question seemed less one of whether the Texas plan would be struck down than how broadly the opinion will sweep. That said, predictions are just that with the nation’s highest court.
Meanwhile, the Supreme Court also is being asked to take up another closely-watched affirmative action dispute. In November, a closely-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.
With the justices having yet to fill the last few slots of their argument calendar for the term, review of this Michigan case is not impossible.
What Makes Someone a Supervisor Under US Law?
There a few pending cases before the Court that arise directly out of the employment realm. The one that is most significant from an HR perspective is Vance v. Ball State University. 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.
With many employers, this question of who counts as a supervisor is far from obvious, especially where day-to-day roles are not clearly defined. If the Supreme Court adopts a broad definition, it could increase employer liability to all sorts of Title VII claims. On the other hand, a narrow definition that limits supervisors to those with the power to hire and fire could have the effect of limiting the employer’s exposure.
The Equal Employment Opportunity Commission’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.
The Supreme Court has shown many times in the past that deference to a government agency’s position (like that of the EEOC) is far from automatic. A decision is likely within the next couple of months.