Here’s How the Supreme Court Is Shaping Employment Laws

Lisa Nagele-Piazza, J.D., SHRM-SCP By Lisa Nagele-Piazza, J.D., SHRM-SCP September 11, 2021

LAS VEGAS — The last U.S. Supreme Court term, which ended in July, was light on employment law cases, but there were still some significant rulings that HR professionals should review, according to Joe Beachboard, an attorney with Ogletree Deakins in Los Angeles. He spoke during a concurrent session on Sept. 11 at the SHRM Annual Conference & Expo 2021.

Here are some of the key cases the high court decided and some of the issues that may be on the horizon for the upcoming term, which starts on Oct. 4.

Access to Work Computers

Van Buren v. United States wasn't directly employment related. The case involved a police officer who used valid credentials to access information in a law-enforcement database that he was authorized to obtain, but he used the information for an unauthorized purpose. The question before the court was whether the officer violated the Computer Fraud and Abuse Act (CFAA), which generally targets computer hackers and makes it a crime to intentionally access a computer without authorization or to exceed authorized access.

In a 6-3 decision, the U.S. Supreme Court found that a person violates the CFAA when he or she accesses a computer with authorization but obtains information—such as files, folders or databases—located in areas of the computer that are off-limits to him or her. However, the court said, the act does not cover people, such as the officer in this case, who misuse information that is otherwise available to them.

Van Buren was a criminal case, but Beachboard said the court's analysis will apply to civil claims brought under the CFAA, too. So employers may want to evaluate their computer policies in light of the decision and pay particular attention to any provisions that restrict access to sensitive and confidential business information, he said.

Union Access to Employer Property

In Cedar Point Nursery v. Hassid, the Supreme Court ruled in a 6-3 decision that a California regulation granting union organizers access to agricultural employers' property to speak with workers about the benefits of collective bargaining is unconstitutional. Beachboard said the ruling was a win for property-rights advocates and a setback for unions.

Although the case is specific to agricultural businesses in California, he said, the ruling "sends a strong message" about how the court may rule in other cases about union access to worksites.

Although the National Labor Relations Act allows employers to deny property access to nonemployees, Congress is currently considering the Protecting the Right to Organize (PRO) Act, which would make significant changes to U.S. labor law. The PRO Act would expand union rights, and if passed, would likely face legal challenges from business groups.

Protected Speech

In Mahanoy Area School District v. B.L, the Supreme Court sided 8-1 with a high-school cheerleader who was unhappy about not making the varsity squad and posted a photo to her social media account of her and a friend raising their middle fingers. The photo included text stating: "f-ck school f-ck softball f-ck cheer f-ck everything." She was subsequently suspended from the junior varsity squad.

While the Supreme Court acknowledged that public schools may have an interest in regulating student speech, the decision to suspend the student's specific off-campus conduct violated the First Amendment. 

The ruling applies only to public schools, but Beachboard said the case is relevant for employers that have to decide whether to take disciplinary action against employees based on their social media posts. Even for private employers, he said, the ruling shows that the high court is very concerned about placing limits on expression.

LGBTQ Employment Protections

HR professionals should also be familiar with Bostock v. Clayton County, Ga., which was decided in June 2020. The Supreme Court ruled that employers can't terminate workers based on their lesbian, gay, bisexual, transgender or queer (LGBTQ) status. The decision clarified that "sex" discrimination under Title VII of the Civil Rights Act of 1964 includes sexual orientation and gender identity.

Many state and local anti-discrimination laws already protected LGBTQ workers prior to the ruling, but employers in locations without such laws need to update their handbooks and understand the new liability risks. "Even if you're in a state where you, in fact, had one of those statutes in place, you may want to review and update your policies," Beachboard suggested.

He said that employers should consider the ruling's impact on bathroom and locker-room access, dress codes and grooming standards, and pronoun use. 

What's Coming?

In the upcoming term, the Supreme Court will hear Badgerow v. Walters, which involves a whistleblower claim and whether a federal court has the authority to confirm or vacate an arbitration award in the case.

The court will also hear an employee benefits case, Hughes v. Northwestern University, regarding a claim that plan participants were charged excessive fees and plan fiduciaries breached their duty of prudence under the Employee Retirement Income Security Act.

Although there are no cases on the docket regarding the following issues, Beachboard said these hot topics are on the horizon:

  • Marijuana legalization and how drug-testing policies interact with laws that restrict employers from monitoring workers' off-duty conduct.
  • Religious discrimination and reasonable accommodations.
  • COVID-19-related litigation regarding vaccine mandates, disability-related and religious accommodations, remote-work rules, wage and hour laws, and more.

Beachboard noted that the Supreme Court will be holding oral arguments in person next term, but access will be limited. So the court will continue to allow the public to listen to live audio of the arguments. 



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