Employment Law in the Roberts Court. Public Goals, Private Enforcement



Employment law and its related commentary have long focused on litigation.[1] In the employment discrimination context, courts have wrestled with the burdens of production and persuasion,[2] the standards for mixed motive evidence,[3] and the availability of damages and attorney’s fees.[4] The Civil Rights Act of 1991 focused almost entirely on litigation-related concerns, much of it in response to Supreme Court decisions.[5] Similarly, the recent amendments to the Americans with Disabilities Act are also litigation oriented.[6] In the context of the Employee Retirement and Income Security Act (ERISA), much of the case law concerns the standards of review[7] and the availability of certain causes of action.[8] And all of the fencing back and forth about employment arbitration is largely about litigation-related issues such as class actions[9] and the scope of arbitral review.[10] Legal academia has followed suit, focusing almost all of its scholarly attention on litigation matters. Scholars have dwelled on pleading standards, prima facie cases, damages questions, and the propriety of class-based relief.

For all this focus on litigation, most employment disputes are not tried in court.[11] Indeed, most disputes are handled in-house. A variety of professionals are tasked with handling employment policies, programs, and systems on a daily basis. Human resources departments handle personnel matters such as promotion and discharge. Plan administrators manage pension and health care benefits with a fair amount of discretion. Arbitrators are called in to resolve disputes internally. These institutional players have the final say for the wide swath of employment matters that never reach the litigation stage.

Looking at its small but important pool of labor and employment decisions, the Supreme Court under Chief Justice John Roberts has demonstrated a recognition that most of the employment law dramas play out in the private sector well short of litigation. Critics contend that the Roberts Court seeks to facilitate private-sector resolutions by stripping the workplace of important statutory and regulatory protections.[12] However, the results have been more nuanced than this theory would allow. The Court has expanded protections for employees in retaliation cases, given unions more power to handle workplace grievances, and provided employees with the right to sue for § 401(k) mismanagement. Although the Court’s decisions may be, on balance, “proemployer” or “probusiness,” this chapter suggests a more nuanced explanation of the Court’s employment law jurisprudence: a push for the private resolution of workplace disputes. To some extent, this means fencing off litigation as a means of pursuing workplace grievances. But it also means providing support for private institutional actors, such as human resources professionals, ERISA administrators, and arbitrators, to carry out their functions more effectively. In some extreme cases, it means an almost blind faith in the motives and competence of these private institutional actors. But the Court is not simply abandoning workers to their own private remedies; it is attempting to cultivate institutions and institutional actors that can resolve workplace disputes competently and at a much lower cost.

Before evaluating the merits of the Roberts Court approach, it is important to understand it. The aim of this chapter is descriptive, not normative, and as a descriptive matter the Court’s approach is in line with broader employment law trends: the “action” in workplace dispute resolution is in the field, rather than the courts. The Roberts Court’s employment law decisions focus on the private institutional actors who regularly resolve such disputes.

  • [1] Portions of this chapter are adapted from Matthew T. Bodie, The Roberts Court and the Law ofHuman Resources, 34 Berkeley J. Emp. & Lab. L. 159 (2013).
  • [2] McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
  • [3] Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009).
  • [4] Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 545 (1999) (setting forth the test for punitivedamages).
  • [5] Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071 (providing for jury trials, compensatory damages, and a different litigation standard for disparate impact cases).
  • [6] Alex B. Long, Introducing the New and Improved Americans with Disabilities Act: Assessing theADA Amendments Act of2008, 103 Nw. U. L. Rev. Colloquy 217, 217 (2008) (discussing how definitional changes will change the litigation landscape).
  • [7] Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989).
  • [8] LaRue v. DeWolff, Boberg & Associates, Inc., 552 U.S. 248 (2008).
  • [9] Stolt-Nielsen S.A. v. Animal Feeds International Corp., 559 U.S. 662 (2010); Granite Rock Co.v. International Broth. of Teamsters, 561 U.S. 287 (2010); AT&T Mobility LLC v. Concepcion, 563U.S. 333 (2011).
  • [10] Rent-A-Center, West, Inc., v. Jackson, 561 U.S. 63 (2010).
  • [11] MinnaJ. Kotkin, OutingOutcomes: An Empirical Study of Confidential Employment DiscriminationSettlements, 64 Wash. & Lee L. Rev. 111, 112-13 (2007) (noting the general assumption thatroughly 70 percent of employment discrimination cases end in settlement).
  • [12] See, e.g., Melissa Hart, Procedural Extremism: The Supreme Court's 2008-2009 Labor andEmployment Cases, 13 Eme. Rts. & Eme. Pol’y J. 253, 284 (2009) (“This Court believes that the substantive right provided in a federal employment discrimination statute is separable entirely from theplaintiffs’ right of access to the federal courts to protect that right.”); Gary Minda & Douglas Klein,The New Arbitral Paradigm in the World of Work: How the Proposed Employee Free Choice Act ReinforcesSupreme Court Arbitration Decisions in Denying Free Choice in the Workplace, 2010 Mich. St. L. Rev.51, 66 (arguing that the Roberts Court is “ripping down the civil rights legacy of the Supreme Courtby allowing private courts to decide employment discrimination claims”); Jess Bravin, Court underRoberts Limits Judicial Power, Wall St. J., July 2, 2007, at A1 (“[T]he biggest change under ChiefJustice John Roberts might not involve who wins on the merits. Rather, it may be who gets throughthe courthouse door in the first place.”).
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