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Will gender and national origin make a difference in the next Supreme Court justice’s jurisprudence? - Part 2
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by James M. Sconzo and James C. Goodfellow
Last week, we disussed the overall makeup of the U.S. Supreme Court and the personal background of the High Court's newest nominee, Sonia Sotomayor. We also looked at Judge Sotomayor's decision in the discrimination case filed by New Haven, Connecticut, firefighters which was recently overturned by the Supreme Court. This week, we will look at her decisions in other employment-related cases.
Learn more about how changes in the U.S Supreme Court may affect employers at the Advanced Employment Issues Symposium
Other labor and employment opinions
While some have questioned her biases, Judge Sotomayor’s record shows that she has a great deal of experience deciding labor and employment cases.
Prior to the New Haven firefighters' case, two of Sotomayor's most noteworthy cases involved high profile labor and employment law questions, both of which arose in the context of professional sports.
Baseball and football . In Silverman v. MLBPRC, the case that President Barack Obama said, "saved baseball," the Major League Baseball Players’ Association filed a complaint with the National Labor Relations Board (NLRB), accusing baseball owners of attempting to unilaterally change the collective bargaining agreement without negotiations. Judge Sotomayor -- then a district court judge -- sided with the NLRB and the players against the owners. Eventually, the players agreed to return to work under the terms of the previous collective bargaining agreement, ending the 1994 strike that cancelled the World Series. While it may be an open question whether or not Judge Sotomayor "saved baseball," it is clear that in this case she sided with labor.
In Clarett v. National Football League, Judge Sotomayor sat on a Second Circuit panel, which concluded that the National Football League’s rules regulating the age of players who are eligible to enter the draft did not violate antitrust laws, reversing a district court decision that would have allowed Maurice Clarett to enter the NFL draft after having played only one year of college football. In this case, Judge Sotomayor struck a more employer-friendly tone.
Workplace discrimination. Judge Sotomayor also has decided many cases involving race, sex, and disability discrimination. In these cases, she often -- but not always -- has sided with the employee and against employers.
In Cruz v. Coach Stores, she wrote an opinion concluding that allegations of racial slurs, sexist comments, leering, and invasion of personal space on the part of the employee’s supervisor could be sufficient to make a claim for a sexually and racially hostile work environment. Interestingly, Judge Sotomayor wrote that, "a jury could find that [the supervisor’s] racial harassment exacerbated the effect of his sexually threatening behavior and vice versa."
In Parker v. Columbia Pictures, Judge Sotomayor authored an opinion that applied Title VII of the Civil Right's Act’s "mixed motive" analysis to claims filed under the Americans with Disabilities Act (ADA), and concluded that the employee had satisfied the elements of a prima facie disability discrimination case even though she had previously told the Social Security Administration that she was unable to work.
In Raniola v. Bratton, Judge Sotomayor wrote a decision that reversed a district court’s conclusion that a female police officer’s claims of hostile work environment and retaliation were unactionable and simply the "camaraderie of a precinct house." Judge Sotomayor concluded that the employee "was subjected to offensive sex-based remarks, disproportionately burdensome work assignments, workplace sabotage, and one serious public threat of physical harm," and thus the employee had presented the court with enough evidence to take her claims to a jury.
On the other hand, Judge Sotomayor has sometimes rejected employees’ claims of racial, sex, and disability discrimination.
In Norville v. Staten Island University Hospital, Judge Sotomayor wrote the opinion that dismissed claims filed by a disabled black woman on the ground that the employee failed to prove that she was similarly situated to white employees.
In Williams v. R.H. Donnelly Co., Judge Sotomayor wrote an opinion concluding that an employee who alleged racial and sex discrimination couldn’t prove she was the victim of discrimination when her employer declined to create a position for her where the employer had never previously created a position for any employee.
In Washington v. County of Rockland, Judge Sotomayor wrote an opinion in which she concluded that even though African-American corrections officers were subjected to adverse employment consequences after filing discrimination complaints, those adverse consequences were not causally related to their discrimination claims and therefore were insufficient to establish retaliation.
HR Executive Special Report: Recognizing & Responding to Workplace Discrimination
Conclusion
While predicting how judges will decide cases when they become Supreme Court Justices is difficult -- President Ronald Regan thought that Justice Kennedy would vote to overturn Roe v. Wade -- Justice Sotomayor’s record indicates that she is sympathetic to employees, particularly women and minorities, who claim to be victims of discrimination or a hostile workplace. Her jurisprudence reminds us a great deal of Justice Souter.
Employers that are concerned with Judge Sotomayor’s record should and probably will follow the confirmation process with interest. Hearings are set to begin on July 13. Nevertheless, observers of the confirmation hearings should put little to no stock into any statements made during the confirmation hearings. Judicial nominees are well coached to give answers that will placate critics without revealing much about how the nominee would decide a case when on the Supreme Court.
Only time will tell if Judge Sotomayor will be able to sway her colleagues -- particularly Justice Kennedy, who usually is the swing vote in the 5-4 decisions -- in labor and employment cases.
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Copyright 2009 M. Lee Smith Publishers LLC. CONNECTICUT EMPLOYMENTLAW LETTER . CONNECTICUT EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but rather seeks to provide information about current developments in Connecticut law. It is provided as a means of conveying accurate, but general, information. It is not intended as legal advice, which must always be tailored to individual needs and particular circumstances. Questions about individual problems should be addressed to the attorney of your choice. The State Bar of Connecticut does not designate attorneys as board certified in employment, and we do not claim certification in any listed area.
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