Justice Scalia wrote the majority opinion that found in favor of the plaintiff in the Abercrombie (Equal Employment Opportunity Commission v Abercrombie) head scarf case, which he had described as an ‘easy one’. He wrote that an applicant for a job who was wearing a head scarf only has to show that her need for the company to accommodate her religious beliefs was a ‘motivating factor’ in its decision not to hire her but on the opposite side, in the Young v United Parcel Service case, Justice Scalia dissented from a decision that favored the employee being permitted to be given leave. His criticism was especially sharp, writing that the claim was ‘inventiveness posing as scholarship – which gives us an interpretation that is as dubious in principle as it is senseless in practice’….he was really in the minority for by the time this decision was rendered, the law of the land had been changed to accommodate pregnant women.
Most of the time, Scalia sided with employers but every once in a while he surprised many with his decisions in favor of the employees. In Thompson v. North American Stainless, LP, Justice Scalia wrote the majority opinion which expanded Title VII’s anti-retaliation provisions to cover people within the ‘zone of interests’ (such as another employee’s fiancée). This was a case where a woman and her fiancée worked for North American Stainless….she brought an EEOC action against her supervisor at North American Stainless and her fiancée, Eric Thompson, was then fired….and all the lower courts upheld the firing….because there was NO provision in the law for ‘third party claims’….go figure….the Supreme Court, in a UNANIMOUS decision, overturned the lower court rulings and the decision was written by Justice Scalia…
Well, this was overturned by the Supreme Court in another unanimous decision, authored by Justice Antonin Scalia. The Court ruled that although the Age Discrimination in Employment Act of 1967 limits its protection to those who are 40 or older, it prohibits discrimination against those protected employees on the bases of age, not class membership. ‘That one member of the protected class lost out to another member is irrelevant, so long as he lost out because of his age. The latter is more reliably indicated by the fact that his replacement was substantially younger’, wrote Justice Scalia.
A look at one last case of Scalia’s then I will let the topic rest….he joined the majority opinion in Gross v FBL Financial Services, Inc. which made it harder for plaintiff-employees to prove discrimination by saying that age must be the ‘but-for’ cause of the challenged employment action. This case was considered classic textualism – what did the text of the age discrimination law say?
In April 2004, Jack Gross sued FBL Financial Services, Inc. under the ADEA alleging he was demoted because of his age. A federal district court in Iowa found in his favor and awarded him $46,945. On appeal, the United States Court of Appeals for the Eighth Circuit reversed and ordered a new trial. The court held that the jury instruction in Mr. Gross’ case was improper. It reasoned that since Mr. Gross never submitted direct evidence that age was a motivating factor in his demotion, he was not entitled to a jury instruction that put the burden of persuasion upon FBL to show that it would have demoted him regardless of his age.
The Supreme Court held that in ADEA discrimination claim the burden of persuasion does not shift to the defendant employer to prove that it would have taken the action regardless of the plaintiff’s age, even when evidence is introduced showing that age was one motivating factor in its decision. Rather, the Court held that the plaintiff must prove by a ‘preponderance of the evidence’ that age was the ‘but-for’ cause of the defendant’s action. Justice Thomas (another controversial figure on the Supreme Court) wrote for the majority and reasoned from the ADEA’s plain text and Congressional intent that the Title VII burden shifting framework did not apply to the ADEA….
This was very controversial and there were two (2) dissents written….one by John Paul Stevens and another by Justice Breyer….the majority was criticized for adopting a standard that was inappropriate for determining mental processes like motive, a necessary element in an ADEA discrimination claim….it is common acceptance and knowledge in the Human Resources’ world that age discrimination claims do not carry nearly the weight that other types of discrimination claims carry….hence, why it is easier for a company to ‘hire’ a younger individual than an older one or many organizations let age discrimination claims go by the wayside….getting a ‘win’ for a terminated or discriminated individual takes a good amount of effort and work….
So, Justice Antonin Scalia wrote many opinions and dissents…I think in many instances he was true to his faith and his word, however, he did have a tendency to look at the bigger picture in other instances and was very much disappointed in the composition of the Supreme Court with Harvard/Yale Law School graduates and a concentration of California and east coast representation….he would have liked to have been on the bench with someone from the south or the mid-west that would possibly have attended a ‘less’ sanctimonious university but have more and better ties to the heart of the country at large.
Please contact Rosanne Bennett at email@example.com or 484-947-7063 if you are interested in learning more about Supreme Court employment decisions and how it affects you and your business.