Justice Stevens and employment law

"The Justice in the bow tie."

Justice John Paul Stevens: April 20, 1920-July 16, 2019

Retired Supreme Court Justice John Paul Stevens died this week at the age of 99. He has received many tributes, and I will always remember him as the "Justice in the bow tie."

Justice Stevens was appointed to the Court by President Gerald R. Ford in 1975 to fill the seat vacated by Justice William O. Douglas's retirement. Justice Stevens retired in 2010 and was replaced by Justice Elena Kagan. According to Wikipedia, Justice Stevens and Justice Douglas are the only Supreme Court justices to have divorced while on the Court. (From their respective wives, not from each other.)

Justice Stevens participated in a some Supreme Court decisions that have had far-reaching effects on employment law. Here are a few:

Meritor Savings Bank v. Vinson (1986): In Meritor, the Supreme Court recognized for the first time a "hostile work environment" harassment claim under Title VII. Among other things, the employer had tried to defend the case by saying that the plaintiff had "voluntarily" participated in a relationship with her boss. But the Court said that the appropriate standard was "welcomeness," not "voluntariness." The Court also said that evidence of the plaintiff's behavior was admissible to show whether the alleged harasser's behavior was "unwelcome." Finally, the Court said that employers were not absolutely liable for hostile work environment harassment by supervisors, although in this case, the employer had not done enough to insulate itself from liability.

Justice Stevens joined in the majority opinion (written by Justice William Rehnquist), joined a concurrence written by Justice Thurgood Marshall that advocated nearly-absolute liability for employers whose supervisors harassed employees, and wrote a very short concurrence of his own, saying that the disagreements between the majority and Justice Marshall did not affect the outcome of the case.

Twelve years later, Justice Stevens joined the majorities in Faragher v. City of Boca Raton and Burlington Industries v. Ellerth, which established our current employer defense to liability for supervisor harassment that does not result in a "tangible job detriment": the employer is liable unless it (1) had measures in place that were designed to prevent and promptly address workplace harassment, and (2) the plaintiff unreasonably failed to use the employer's processes or otherwise protect herself from harm.

Sutton v. United Air Lines (1999): Remember the twin-sister-nearsighted airline pilots who were rejected for employment by United and who sued under the Americans with Disabilities Act? Who could forget? 

The Supreme Court majority said that nearsightedness was not a "disability" within the meaning of the ADA because it was so easily corrected. "Mitigating measures" had to be taken into account in determining whether an individual had a disability. As a result of the Sutton decision, almost nobody could proceed on an ADA claim for about 10 years because almost nobody was impaired after mitigating measures (corrective lenses, prescription medication, hearing aids, surgery, etc.) were taken into account. 

Justice Stevens dissented in Sutton, and his dissent became very interesting in light of the ADA Amendments Act, which took effect in 2009. Justice Stevens argued that, in assessing whether a medical condition was a "disability," the condition should be viewed in its "unmitigated" state. Nearsighted people were substantially limited in the major life activity of seeing, he said, even though corrective lenses or laser surgery allowed them to function normally. Therefore, Justice Stevens argued, nearsighted people do have a "disability" within the meaning of the ADA.

On the other hand, he thought United had a legitimate reason for requiring 20-20 uncorrected vision in airline pilots. 

The ADA Amendments Act greatly liberalized the definition of "disability" and adopted Justice Stevens' view that medical conditions must be assessed in their "unmitigated" state. However, the Amendments Act specifically says that garden-variety nearsightedness is not a "disability."

U.S. Airways v. Barnett (2002): One more ADA case. This time, a U.S. Airways baggage handler took a position as a mail clerk after he suffered a back injury. At some point, he was bumped by a more-senior co-worker under a non-collectively-bargained seniority policy that had been in place for many years. The plaintiff lost his job and sued under the ADA, but the Supreme Court (majority opinion by Justice Breyer) held that generally it was not a "reasonable" accommodation for an employer to deviate from a longstanding seniority policy. On the other hand, the majority left the door open for a plaintiff to present evidence that the employer made exceptions to the policy, or otherwise applied it in ways that did not give employees an expectation that it would be strictly followed.

Justice Stevens joined the majority and also wrote a concurrence, noting that "super-seniority" as a disability accommodation was not unreasonable per se. He also pointed out that the Supreme Court's decision did not disturb a ruling from the lower court (the U.S. Court of Appeals for the Ninth Circuit) that the airline should go to trial on whether it sufficiently engaged in the ADA "interactive process" with the plaintiff.

BONUS: Chevron v. Natural Resources Defense Council (1987). Not strictly an employment case, but this one that has a lot of significance for employers, among others. Justice Stevens wrote the majority opinion in this case, holding that courts must generally defer to administrative agencies' interpretations of ambiguous federal statutes. I can't improve on Steve Katz's recent discussion of the "deference" issue, so I'll link to Steve. 

Rest in peace, Justice Stevens.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
Continue Reading



Back to Page