2026-2027 Supreme Court Preview: 5 Cases HR Should Track

The U.S. Supreme Court will decide if employees of federally funded educational institutions may pursue sex-discrimination claims under Title IX of the Education Amendments Act of 1972 in addition to Title VII of the Civil Rights Act of 1964 in the court’s upcoming term, which starts Oct. 5. 

Other cases already on the Supreme Court’s docket will address what plaintiffs must plead, damages available to them, what defenses employers can raise, and how the government can pursue monetary remedies, said Dove Burns, an attorney with Kaufman Dolowich in Los Angeles, San Francisco, Torrance, Calif., and New Haven, Conn.

“Don’t focus only on whether the court creates a new workplace rule,” she added. “Decisions about pleading standards, available defenses, and enforcement procedures can have just as much practical impact on an employer’s exposure as changes in substantive employment law.” 

The court also has before it a fiduciary breach lawsuit and asylum status case.

Title IX Case

Of the cases currently before the Supreme Court, a Title IX case (Crowther v. Board of Regents of the University System of Georgia) is particularly important for HR, according to Burns.

Crowther “directly addresses the scope of federal employment-discrimination litigation,” she said. If employees of federally funded educational institutions can sue for sex discrimination under Title IX in addition to Title VII, employees will not have to exhaust administrative remedies and generally will be afforded more time to directly access the courthouses, she said.

Title VII requires the filing of an administrative charge with the U.S. Equal Employment Opportunity Commission within a specific time period, while Title IX has no administrative remedy exhaustion requirement, said Fiona Ong, an attorney with Ogletree Deakins in Baltimore.

Moreover, Title VII caps compensatory damages, while Title IX does not, Burns observed.

The upcoming ruling “will determine whether employees of educational institutions that receive federal funding have an additional, and potentially more favorable, path to imposing liability on their employer for sex discrimination,” Ong said.

Currently, there is a split among federal appeals courts over whether such workers may sue for employment discrimination under Title IX in addition to Title VII, noted Ana Shields, an attorney with Jackson Lewis in Melville, N.Y.

Toolkit: Managing Equal Employment Opportunity

Pleading Standards

Another upcoming decision (Younge v. Fulton Judicial Circuit District Attorney’s Office) before the Supreme Court will consider whether an employer that failed to plead an affirmative defense may raise it at summary judgment without amending its answer.

If the Supreme Court rules that an employer can, organizations may be able to raise dispositive affirmative defenses as late as summary judgment if new legal arguments arise, Shields said. If the court instead decides that a defendant must assert affirmative defenses in an answer, or by seeking to amend an answer, this could impact employer litigation strategy, she added.

Enforcement Procedures

A separate case will raise the question of whether the U.S. Department of Labor (DOL) has the statutory or constitutional authority to impose financial penalties on agricultural employers for violations of the H-2A temporary visa program (DOL v. Sun Valley Orchards).

“The Sun Valley Orchards case arises in the aftermath of the Supreme Court’s 2024 decision, Securities and Exchange Commission v. Jarkesy,” Ong noted. In Jarkesy, the court held that when the Securities and Exchange Commission (SEC) seeks civil penalties against a defendant for alleged securities fraud, the Seventh Amendment of the U.S. Constitution guarantees the right to a jury trial.

Since Jarkesy, employers have begun challenging other federal agency administrative enforcement schemes involving administrative law judges, such as in this case, Ong explained. “The Supreme Court’s decision in this case should confirm whether the scope of the Jarkesy decision extends beyond the SEC to other workforce agencies.”

Fiduciary Breach Lawsuit

An additional case before the court this term (Anderson v. Intel Corp. Investment Policy Committee) concerns whether an Employee Retirement Income Security Act plaintiff alleging imprudent investment based on underperformance must identify a meaningful benchmark in the complaint, Burns noted.

“The case has significant implications for employers that sponsor defined contribution plans,” said Stacey Cerrone, an attorney with Jackson Lewis in New Orleans.

If the court rejects the “meaningful benchmark” requirement, it could become much easier for plan participants to survive a motion to dismiss when alleging a deficient fiduciary process, increasing litigation exposure for plan sponsors and investment committees, she said.

 “A nontraditional investment strategy may face heightened scrutiny,” Cerrone added. “The outcome could affect how plan fiduciaries select, monitor, and document investment options.”

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Asylum Status Case

In another upcoming ruling (Wassily v. Blanche), the Supreme Court will examine if someone who received asylum status, but lost that status after criminal conviction, remains eligible to apply for, and be granted, adjustment of status to lawful permanent resident — that is, a green card holder.

“What was a rare form of employment authorization is now going to be increasingly important, and familiarity with the area for employment verification and compliance is critical,” said Michael Freestone, an attorney with Offit Kurman in Bethesda, Md.

In addition to these cases, employers should watch for other employment cases the Supreme Court may decide in its upcoming term, Ong recommended.