Supreme Court Cases Will Address Employment Discrimination and Whistleblower Protections

​The U.S. Supreme Court will begin its next term on Oct. 2 with several employment-related cases on the docket, including cases that deal with discriminatory employment decisions, whistleblower protections and federal agency power.

In the meantime, employers continue to reckon with the groundbreaking decisions the Supreme Court made in its last term, impacting religious accommodations and affirmative action.

The following summarizes three of the upcoming cases.

Mandatory Job Transfer

In Muldrow v. City of St. Louis, the court will decide whether a mandatory job transfer can be considered a discriminatory employment action under federal law.

The court will focus on whether Title VII of the Civil Rights Act of 1964 prohibits discrimination in all terms, conditions or privileges of employment, or whether the law's reach is limited to employer decisions that cause materially significant disadvantages for employees, such as firing and demotion.

In June 2017, a sergeant with the St. Louis Police Department was transferred from the department's intelligence division to a different role in the city's Fifth District. She alleged gender discrimination and retaliation under federal and state law because the city didn't approve her requests to transfer from the Fifth District.

The case could impact a multitude of employment decisions, including the assignment of clients and major projects, appointment to task groups or committees, and job responsibilities that don't directly impact pay or promotions, according to Susan Coler, an attorney with Halunen Law in Minneapolis.

"Those could fall under that category [of employment discrimination] if the court finds in favor of the plaintiff in this case," she said. "I think the court will find that [transfers are] covered by the statute because that is where the plain language is."

HR should look carefully at the reasons behind each employment decision and ensure that those are the true reasons and not a reflection of unconscious bias, Coler noted. "You do need to pay attention to the realities underlying any decision," she said.

Whistleblower Protections

In Murray v. UBS Securities, the court will examine whether a whistleblower must prove an employer acted with retaliatory intent or whether the employer has the burden to show it did not intend to retaliate under the federal Sarbanes-Oxley Act of 2002, which protects whistleblowers who report financial wrongdoing at publicly traded companies. Oral arguments are scheduled for Oct. 10.

Trevor Murray sued UBS Securities, a broker-dealer based in Weehawken, N.J., and its Swiss parent company, UBS AG, alleging that UBS terminated his employment because he reported alleged fraud. "A finding in favor of the plaintiff would maintain the current status of the law," Coler said, but if the court finds in favor of the defendant, it would weaken whistleblower protections.

Based on the plain language of the statute, "the employee does not have to prove intentional retaliation on the part of the employer," Coler said. "I think that's where it's going to end up."

It would put HR professionals on the defensive if they had to prove they did not have retaliatory intent in making their employment decisions, said Chris Robertson, an attorney with Seyfarth in Boston. That's especially true if HR is about to fire a worker for a separate breach of company policy, but that person also happens to be a whistleblower, he noted.

The laws protecting whistleblowers also protect the public "from corporations that are involved in matters that are particularly concerning or have potential for significant harm," Coler said. "Whistleblowers do protect honest businesses and deter [unlawful] competitors. Whistleblowers serve a very important function."

Federal Agency Power

In Loper Bright Enterprises v. Raimondo, the court will weigh whether to overturn the long-standing Chevron precedent, which holds that when Congress wrote a statute without a clear meaning, courts should defer to the federal agency applying the law, unless its directives were unreasonable.

The case questions whether the federal government can force fishing companies in New Jersey to pay for a program that provides federal monitors for their operations. The government is relying on Chevron deference to argue that it had the authority to require the fishing companies to pay for the monitors.

The case "could open the doors to successful challenges by employers to actions" taken by the U.S. Occupational Safety and Health Administration, the Equal Employment Opportunity Commission, the National Labor Relations Board, and the Federal Trade Commission, said Tom Doherty, an attorney with McCarter & English in Newark, N.J. "If Chevron is thrown out the window, that deference may not be accorded, and the employers might have a better shot" at challenging agency rules.

Chevron isn't a rubber stamp, but it does hinder some employer efforts to dispute agency authority, Doherty said.

After the case is decided at the Supreme Court, "the immediate effect won't be felt until there are subsequent challenges to agency actions that impact the workplace," Doherty noted. "It'll be more of a long-range impact of whether agency actions can be successfully challenged."