Employee Protections from Retaliation Have Grown During Breyer's Tenure

​Justice Stephen Breyer will retire from the U.S. Supreme Court after the Senate confirms his successor and after the end of the current session—most likely in late June or early July—bringing an end to his influence on employment law. He has written several opinions affecting employers and workers over the years, most notably opinions expanding employees' protections from retaliation and upholding the Affordable Care Act (ACA).

Breyer's Legacy

Writing for the court in Burlington Northern & Santa Fe Railway Co. v. White in 2006, Breyer "set forth a liberal reading of Title VII [of the Civil Rights Act of 1964]'s retaliation provision, holding that it goes further than just hiring and firing, but includes employer actions that would have been materially adverse to a reasonable employee or job applicant," said Jim Plunkett, an attorney with Ogletree Deakins in Washington, D.C.

In Kasten v. Saint-Gobain Performance Plastics Corp. in 2011, Breyer wrote a decision holding that the anti-retaliation provisions of the Fair Labor Standards Act (FLSA) protected oral as well as written complaints, said George Chuzi, an attorney with Kalijarvi, Chuzi, Newman & Fitch in Washington, D.C.

Breyer notably observed the following: "Why would Congress want to limit the enforcement scheme's effectiveness by inhibiting use of the act's complaint procedure by those who would find it difficult to reduce their complaints to writing—particularly illiterate, less educated or overworked workers?" He noted that former President Franklin Roosevelt, who signed the FLSA into law in 1938, pointed out that "these were the workers most in need of the act's help."

The most significant two cases upholding the ACA were National Federation of Independent Business (NFIB) v. Sebelius in 2012 and California v. Texas in 2021.

"Breyer did not write [the decision in] NFIB v. Sebelius, but he was instrumental in moving the liberal votes to forge an alliance with Chief Justice [John] Roberts," said Stuart Gerson, an attorney with Epstein Becker Green in Washington, D.C., and New York City. "Last term, Breyer assured the survival and continuation of the ACA by marshalling a unified seven-vote bloc of liberals and conservatives for his opinion in California v. Texas."

Gerson described Breyer as "a consummate insider, looking to harmonize competing views into consensus positions that were pragmatic solutions to what he perceived as national policy goals."

Breyer showed his preference for regulatory solutions with his dissent in this year's NFIB v. Occupational Safety and Health Administration, an opinion that blocked the vaccine-or-testing requirement for large employers, Gerson added.

That said, another blockbuster labor and employment opinion Breyer wrote was NLRB v. Noel Canning in 2014, involving former President Barack Obama's unconstitutional recess appointments to the board.

"The case was a then-significant—but by today's standards mild—political test for the court," said Zachary Busey, an attorney with Baker Donelson in Memphis, Tenn. "In the 9-0 decision, the court invalidated several of President Obama's appointees to the NLRB, nullifying decisions made by the board."

Other significant decisions written by Breyer, according to Plunkett, include:

• National Labor Relations Board v. Town & Country Electric Inc. in 1995. Breyer wrote for a unanimous court that paid union organizers are employees under the National Labor Relations Act.
• US Airways Inc. v. Barnett in 2002. Breyer wrote the 5-4 opinion that held that a requested accommodation under the Americans with Disabilities Act that conflicts with a seniority system is not reasonable. The case was one of several that led Congress to pass the Americans with Disabilities Act Amendments Act of 2008, Plunkett said.

Breyer has been "firmly in the camp of protecting rights granted by Congress or, in his view, the Constitution," according to Chuzi. He noted that in Heffernan v. City of Paterson, N.J., in 2016, Breyer wrote an opinion reversing a decision that had upheld a city's firing of a police officer who it mistakenly believed had engaged in political speech.

Breyer wrote, "When an employer demotes an employee out of a desire to prevent the employee from engaging in political activity that the First Amendment protects, the employee is entitled to challenge that unlawful action under the First Amendment and 42 U.S.C. §1983—even if, as here, the employer makes a factual mistake about the employee's behavior."

How Did Employment Law Change During Breyer's Tenure?

"Justice Breyer took his seat on the Supreme Court nearly 30 years ago, in 1994," Busey noted. "We've since seen employment laws expand to cover entirely new groups of individuals, namely LGBTQ+ employees. We've seen employment laws applied to then-unthinkable fact patterns, like employees disciplined for social media posts."

Busey added that since Breyer joined the Supreme Court, employment laws have been stretched to cover remote work, where many employees are expected to be "always on."

Who Might Be Breyer's Successor?

To replace Breyer, the Biden administration "has reiterated that it will nominate a Black female, which, among other things, fulfills one of President Biden's campaign promises," Busey said.

Busey noted that Kentanji Brown Jackson, who is on the D.C. Circuit Court of Appeals, might be nominated to fill Breyer's vacant seat.

Leondra Kruger, who is on the California Supreme Court, is another possibility. Other likely options include two federal trial court judges: Julianna Michelle Childs, a district court judge in South Carolina, and Leslie Abrams Gardner, a district court judge in Georgia, he said.

"By the end of this year, assuming President Biden is able to confirm his anticipated nominee, the court will seat two Black justices and four female justices at the same time," Busey said. "The coming makeup of the court will be historic."

He added, "Ideologically, however, we're likely to see little change."