Cases Left on Supreme Court Docket May Lead to Tie Votes


Allen Smith, J.D. By Allen Smith, J.D. February 19, 2016

The death of Justice Antonin Scalia has left a vacant seat on the Supreme Court, and many employment law cases remaining on the court’s docket this term are at risk of winding up deadlocked, or postponed until the next term. 

Before Scalia’s death, court observers were predicting 5-4 decisions in many of the cases on the current term’s docket. Now they could end up with the justices tied 4-4, leaving intact the lower court decisions, failing to resolve circuit splits and leaving uncertainty in employment law, noted Camille Olson, an attorney with Seyfarth Shaw in Chicago, Los Angeles and San Francisco.

Deadlocked Cases?

Olson said the cases that may wind up tied include:

  • Spokeo Inc. v. Robins, regarding whether individuals can bring class-action lawsuits for a technical violation of the Fair Credit Reporting Act without an actual injury.
  • Tyson Foods v. Bouaphakeo, a Fair Labor Standards Act class action that involves whether plaintiffs can rely on an “average class member” for purposes of calculating damages—also called “trial by formula.”
  • Friedrichs v. Calif. Teachers Association, involving whether public-sector employees can be compelled to contribute union dues.
  • CRST Van Expedited v. EEOC [Equal Employment Opportunity Commission], a decision that will decide whether the EEOC can be held liable for an employer’s legal fees when discrimination claims are dismissed because the agency failed to satisfy its pre-lawsuit investigation and conciliation obligations under the statute.
  • Zubik v. Burwell, which addresses whether the Affordable Care Act’s opt-out requirement for employers claiming a religious exemption from the contraception mandate is unduly burdensome.

Olson also noted that the Supreme Court’s case on affirmative action in higher education, Fisher v. University of Texas, could be deadlocked.

Linda Doyle, an attorney with McDermott, Will & Emery in Chicago, noted one additional employment law case that could be deadlocked:

  • Green v. Brennan, in which the court will examine whether the filing period for a discharge claim under Title VII of the Civil Rights Act of 1964 begins to run when the employee resigns or when the employer commits the last allegedly discriminatory act leading to the resignation.

Another possibility, according to Richard Meneghello, an attorney with Fisher & Phillips in Portland, Ore., is that the court will set aside important cases that are likely to result in a tie for next term when it has a full court again. The issue in the Friedrichs case, for example, has taken decades to reach the Supreme Court. And there is a patchwork of different standards in the contraception mandate case, Meneghello noted.

Other cases will likely be unaffected. “The court has accepted quite a few ERISA [Employee Retirement Income Security Act] cases lately, but I doubt Scalia’s passing will impact those cases,” said John Martin, an attorney with Ogletree Deakins in Washington, D.C. “Most of the court’s ERISA opinions are not 5-4 decisions.”

Large Shoes to Fill

Although a staunch conservative, Scalia’s “reputation as a legal scholar, especially in employment law cases, is legendary, and surprisingly unpredictable,” said Eric Gordon, Labor & Employment Practice Group chair with Akerman in West Palm Beach, Fla.

Scalia authored pro-employer opinions like Wal-Mart Stores v. Dukes, which made it more difficult for plaintiffs to prevail in their pursuit of class certification of claims. But he also wrote the pro-employee decision EEOC v. Abercrombie & Fitch Stores, which held that an employer can be liable for failing to accommodate a religious practice, even if the employer lacks knowledge of the need for an accommodation, Olson noted.

As a textualist, Scalia believed that “the ordinary meaning of the law, including the Constitution, should govern,” she said.

President Barack Obama “is expected to nominate the next justice in the coming weeks. However, the Republican-majority Senate may not confirm the appointment in an attempt to stall until after President Obama’s successor is elected and inaugurated, while hoping the Republican presidential candidate wins the election,” Olson said.

“Regardless of the outcome of Justice Scalia’s Supreme Court vacancy, the Supreme Court will continue to be a hot topic this election, given that three of the eight remaining justices are over the age of 70 and it’s expected that there will be additional court turnover in the coming years,” she added.

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.


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