Former Supreme Court Justice, Lewis Powell described the federal judiciary and the United States Supreme Court as perhaps "the most important instrument for social, economic, and political change" (Lazarus, 2008). The Constitutional origin of the Court is in Article III, [section]1, of the U.S. Constitution and provides that "the judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish" (A Brief Overview of the Supreme Court, 2008). The jurisdiction of the Court, Article III [section]2 of the U.S. Constitution, extends "to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority" (A Brief Overview of the Supreme Court, 2008). The term of the Court begins on the first Monday in October and runs until the first Monday in October of the following year. In recent years, the caseload of the Court has increased dramatically. While there were only 1,460 cases on the docket in the 1945 term, and 2,313 in 1960, recently there has been more than 10,000 cases on the docket per term (A Brief Overview of the Supreme Court, 2008). The court will only grant plenary review with oral arguments in approximately 100 cases per term with formal written opinions being delivered in 80 to 90 cases (A Brief Overview of the Supreme Court, 2008). In the 2007/2008 term, the court heard oral arguments for 70 cases and returned opinions in 69 of those cases (Ross, 2008).
In the 2007/2008 term, the Court issued important decisions involving age discrimination and retaliation. These decisions have been characterized as expanding employers' burden of proof in responding to allegations and potentially increasing the cost to defend themselves in responding to allegations of discrimination (Smith, 2008-B & AHI's Employment Law Today, 2008). The purpose of this paper is to examine the Court's decisions in these two areas and to present policy and practice suggestions for organizations to reduce their exposure to litigation and cost in the future.
In recent years, with respect to human resource decision making, the Court has been called on to rule on a number of important issues. Some of those rulings have been viewed as pro-employer and others as pro-employee. From the 2007/2008 term, eleven cases with human resource decision making issues were identified (see Exhibit 1). In those cases, the Court ruled in favor of employees seven times and employers/business four times (Ross, 2008).
Exhibit 1 2007/2008 U.S. Supreme Court Decisions with Human
Resource Decision Making Implications
(Source: Ross, 2008) (NLRA--National Labor Relations Act; ADEA--Age
Discrimination in Employment Act; ERISA--Employee Retirement Income
Security Act; Constitution--Equal Protection Clause of the U.S.
Constitution; False Claims--False Claims Act; 1866--1866 Civil
Rights Act; Title VII--Title VII of the 1964 Civil Rights Act;
Technical--Technical ruling by the court on Federal Rules of
Evidence 401 & 403)
With respect to the purpose of this study, four cases will be examined. Three cases deal with age discrimination under the Age Discrimination in Employment Act (ADEA), Meacham v. Knolls Atomic Power Lab, and Federal Express v. Holowecki et al., are most relevant. The Gomez-Perez v. Potter case also involved the ADEA, but the key issue in the case was whether discrimination based on age includes retaliation under the ADEA. The CBOCS West, Inc. v. Humphries decision addressed the application of the 1866 Civil Rights Act in retaliation cases.
THE RETALIATION ISSUE
The Supreme Court first broadened the retaliation issue in 2006 in its Burlington Northern & Santa Fe Railway Co. v. White decision. In that case the Court ruled that employees could have a valid retaliation claim even if they did not experience an economic loss or suffer an ultimate employment decision, such as termination or demotion (Burlington Northern & Santa Fe Railway v. …