As I’ve had occasion to note in this space, pundits regularly complain that the current Supreme Court is somehow throttling job-bias lawsuits out of some concern for employers’ rights. However, the Court’s recent rulings on employment discrimination law in fact tend toward the cautious and centrist, and the caseload of discrimination claims filed with the Equal Employment Opportunity Commission (EEOC) remains near its all-time highs. (Thus the New York Times complained in 2013 that a Court decision four years previously had made it hopeless to file age-bias claims, omitting to mention that lawyers filed more such cases after the decision than before.)
Today’s decision in Young v. United Parcel Service, on the scope of pregnancy discrimination and accommodation law, will be hailed reflexively in some quarters on a which-side-are-you-on basis, since the pregnant employee won. Few non-lawyers are likely to stick around for its dry details, in which Justice Stephen Breyer laid out a balancing test mushy enough in its liberalism to win over Chief Justice Roberts and even Justice Alito. (Readers interested in such matters as McDonnell-Douglas burden-shifting and the selection of similarly situated co-worker “comparators” should follow up at the specialty employment-law blogs.) The practical impact of the case is also somewhat limited by Congress’s having further liberalized pregnancy accommodation law in plaintiffs’ favor after the events being sued over.
Young v. UPS does, however, offer at least two bits of entertainment value. One is a fun Scalia dissent joined by Justices Thomas and Kennedy, charging the majority with adopting a “deliciously incoherent” standard based on a statutory reading “splendidly unconnected with the text.” The dissent, however, sounds a more serious note of alarm when Scalia accuses Breyer’s opinion of blurring together the distinct legal handling given to “disparate-treatment” and “disparate impact” cases, with potentially damaging results.
My other favorite bit came when the majority opinion smacked down the EEOC and the U.S. Department of Justice over the EEOC’s maximally liberal guidelines on pregnancy discrimination, which the commission hurriedly came out with last summer and which DoJ, through the Solicitor General, insisted were entitled to special weight before the Court. Writing for his liberal colleagues, Breyer rejected the guidelines on grounds of “timing, ‘consistency,’ and ‘thoroughness’ of ‘consideration,’” pointing out that they ran “contrary to the litigation position the Government previously took,” that they offered no coherent reading of the statute, and, pointedly, that the EEOC had put them out “only after the Court had granted certiorari in this case” – almost as if it had been trying to influence the Court.
We’ve documented a pattern in recent years of how the intensely ideologized, left-tilting Obama EEOC gets little respect from either liberal or conservative federal judges. It looks as if that pattern continued today.
Recommended read: Schools for Misrule: Legal Academia and an Overlawyered America by Walter Olson.
Walter Olson is a senior fellow at the Cato Institute’s Center for Constitutional Studies. Prior to joining Cato, Olson was a senior fellow at the Manhattan Institute, and has been a columnist for Great Britain’s Times Online as well as Reason.