A New Term in the U.S. Supreme Court: Cases to Watch

Earlier this month, the U.S. Supreme Court began a new term that is anticipated to include decisions on hot-button issues such as affirmative action, same-sex marriage and national security. The Court will also hear several significant cases in the employment context, including:

Vance v. Ball State Univ., No. 11-5560 (Argument Date: November 26, 2012): In Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), the Court held that employers may be held vicariously liable for harassment by “supervisors” of the alleged victim. In Vance, the Court will resolve a split among the circuits as to who is a “supervisor” for purposes of Title VII harassment liability. The First, Seventh, and Eighth Circuits have held that the definition of “supervisor” is limited to employees who have the power to “hire, fire, demote, promote, transfer, or discipline” the alleged victim. The Second, Fourth, and Ninth Circuits have held that the definition of “supervisor” also includes employees who oversee and direct the alleged victim’s daily work.

Genesis HealthCare Corp. v. Symczyk, No. 11-1059 (Argument Date: December 3, 2012): In Genesis, the Court will decide whether a case brought under the Fair Labor Standards Act (“FLSA”) becomes moot, and thus beyond the court’s jurisdiction, when the lone plaintiff in the case receives an offer from the defendant to satisfy all of the plaintiff’s claims. The lower appellate court held that an offer of judgment to the lone plaintiff in an FLSA case should not render the action moot because it would “frustrate the objectives served by [the FLSA]” to allow a defendant’s tender of judgment to “pic[k] off” multiple plaintiffs.

Comcast Corp. v. Behrend, No. 11-864 (Argument Date: November 5, 2012): In this antitrust action, the Court will consider whether a district court may certify a class action without resolving whether plaintiff has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis. Employers should watch this case closely to see how the Court defines the scope of the Walmart v. Dukes case and how that may affect class actions brought under anti-discrimination and wage-and-hour statutes.

US Airways, Inc. v. McCutchen, No. 11-1285 (Argument Date: November 27, 2012): Many employee benefit plans cover an injured employee’s medical bills, subject to the requirement that the injured employee reimburse the plan for any amounts he or she recovers from a third party. Section 502(a)(3) of ERISA, which authorizes plan fiduciaries to seek “appropriate equitable relief” to “enforce…the terms of the plan,” permits plan fiduciaries to recover sums received from third parties by employees. In McCutchen, the Court will address whether an employee may assert certain equitable limitations, such as unjust enrichment, to a claim made pursuant to this section.