This Term of the Supreme Court Just Got A Lot More Interesting for Employment Lawyers

Up until this point, the Supreme Court's employment law docket was mainly ho-hum for employment law cases. That changed last Friday with granting of cert in three cases, all of which could have a significant impact. The three are:

1. Costa v. Desert Palace, Inc. The 9th Circuit en banc held that a plaintiff was entitled to a mixed motive instruction, which is a lower standard of proof, even without direct evidence of discrimination. If the Supreme Court affirms the 9th Circuit, it would make Title VII cases much easier to win for plaintiffs. For employers, the good news is that the 9th Circuit has a terrible record in employment cases before the Supreme Court.

2. Breuer v. Jim's Concrete. The 11th Circuit held that a case under the FLSA filed in Florida state court could be removed to the federal district court under federal question jurisdiction. Much to my surprise it noted that there was authority in the 8th Circuit that such cases could not be removed. The argument is that the FLSA says a case 'may be maintained' in any state or federal court of competent jurisdiction, and so the plaintiff argued once begun in state court, it should stay there. The 11th Circuit followed the 1st Circuit which also allows removal, but called on either the Congress or the Supreme Court to clarify the issue. The Supreme Court has taken them up on it. Since this Supreme Court seem to like states rights and all federal courts seem to like limiting their dockets, this is one definitely to watch.

3. Black & Decker Disability Plan v. Nord Another 9th Circuit case. The plan denied a disability claim, notwithstanding the testimony of three threating physicians that the individual could not do the job. The question was the appropriate standard of review and the deference that must be given to the treating physician. The employee argued for substantial deference, Black & Decker says not, and that numerous other circuits agree with it. The 9th Circuit agreed with the employee and the Supreme Court will now decide. Again, the 9th Circuit record is not good.