Two Employment Cases Decided by Supreme Court

Last week, the Supreme Court decided two employment discrimination cases.

One was a surprise — less as to the result than as to the fact it was decided at all and the procedure by which it was decided.

The other employment discrimination case was an unsurprising result to me, involving a technical issue not likely to recur with much frequency.

Supreme Court cases are always worth reading, even if the issues seem narrow. More so now with the new composition and leadership of the Court.

The cases are:

In Ash v. Tyson Foods, Inc., the Supreme Court surprised us by ruling on a case that had not been fully briefed and argued at the Supreme Court level. Instead of granting certiorari and proceeding with briefs and argument, or denying certiorari, as the Supreme court does with the vast majority of appeals brought before it, the Court here simultaneously granted certiorari and ruled. Specifically, this was the Court’s description of its action:

[C]ertiorari is granted, the judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.

The court took this action based on two narrow issues:

Whether use of the word “boy” in addressing an employee can be evidence of race discrimination, if not modified by a racial classification like “black” or “white.”
The Court ruled it could be, depending on “various factors including context, inflection, tone of voice, local custom, and historical usage.”
Whether if the employer explains its employment decision on the basis of another employee’s superior qualifications, pretext — and thus discrimination — can be established only when the disparity in qualifications favoring the plaintiff rather than the other employee “is so apparent as virtually to jump off the page and slap you in the face.”
The Court found this standard “unhelpful and imprecise,” but declined to articulate a better one, though it cited several cases that articulated what it considered somewhat more helpful standards.

Speculation: is this an indication of a technique the Roberts Court may use to beef up the volume of the Supreme Court’s decisionmaking — ruling on the basis of cert. petitions alone? Stay tuned.

In Moonlight Cafe, the technical issue concerned the requirement that to be covered by the federal employment discrimination law prohibiting race, sex, national origin, and religious discrimination (Title VII) an employer must have 15 or more employees.

The question before the Supreme Court was whether this requirement “affects federal-court subject-matter jurisdiction or, instead, delineates a substantive ingredient of a Title VII claim for relief.”

Why is this important? Because the objection that a federal court lacks subject-matter jurisdiction “may be raised by a party, or by a court on its own initiative, at any stage in the litigation, even after trial and the entry of judgment,” but “the objection that a complaint ‘fail[s] to state a claim upon which relief can be granted,’ . . . may not be asserted post trial.”

On the facts of the Moonlight Cafe case, this distiction was critical.

After a two-day trial, a jury found that the plaintiff had been sexually harassed and constructively discharged, and awarded her $5,000 in backpay, $5,000 in compensatory damages, and $30,000 in punitive damages.

Two weeks after the court entered this judgment, the employer filed a motion to dismiss for lack of subject-matter jurisdiction, claiming for the first time that it did not employ fifteen or more employees.

The Supreme Court held that the numerical requirement does not limit federal court jurisdiction, but only sets a limit on who may qualify for relief. Therefore, it was too late to raise the issue. If the requirement had been held jurisdictional, the post-judgment motion would have been valid.