Two New Supreme Court Decisions Likely to Create Additional Employment Litigation

The first significant Supreme Court pronouncements on employment law are here and both seem tailored to create further litigation.  The first, decided late last week, is NASA v. Nelson, unanimously reversing a 9th Circuit decision that government employment background check questionnaires violated the constitutional right to “information privacy.”  The Court held as follows: 

In two cases decided over 30 years ago, this Court referred broadly to a constitutional privacy “interest in avoiding disclosure of personal matters.” Whalen v. Roe, 429 U.S. 589, 599-600, Nixon v. Administrator of General Services, 433 U.S. 425, 457. In Whalen, the Court upheld a New York law permitting the collection of names and addresses of persons prescribed dangerous drugs, finding that the statute's “security provisions,” which protected against “public disclosure” of patient information, 462 U.S. at 600-601, were sufficient to protect a privacy interest “arguably ... root[ed] in the Constitution,” id. at 605. In Nixon, the Court upheld a law requiring the former President to turn over his presidential papers and tape recordings for archival review and screening, concluding that the federal Act at issue, like the statute in Whalen, had protections against “undue dissemination of private materials.” 433 U.S. at 458. Since Nixon, the Court has said little else on the subject of a constitutional right to informational privacy.

Assuming, without deciding, that the Government's challenged inquiries implicate a privacy interest of constitutional significance, that interest, whatever its scope, does not prevent the Government from asking reasonable questions of the sort included on SF-85 and Form 42 in an employment background investigation that is subject to the Privacy Act's safeguards against public disclosure.

Not surprisingly, the concurring opinion by Justice Scalia took issue with the “assumption” that a constitutional right to informational privacy exists.  He and Justice Thomas would have simply held that it does not.  Moreover, he suggested that the majority opinion “will dramatically increase the number of lawsuits claiming violations of the right to informational privacy” and amounts to “a generous gift to the plaintiffs’ bar.”  The take away from this is that the government may request broad background information from employees and applicants, as long as the inquiry is related to its interest in employing a competent, reliable workforce.  Whether and to what extent Justice Scalia’s concerns come to pass remains to be seen but he makes a valid point.

This week, the Supreme Court decided Thompson v. North American Stainless, LP, which considered the viability of a retaliation by association claim.  The Court held that it is an unlawful employment practice under Title VII to terminate an employee’s “close family member” in retaliation for her filing an EEOC charge.  It further held that a terminated “close family member,” in this case a fiancé, would have standing to sue on his own behalf for his termination.  This decision is hardly surprising in light of the last Supreme Court holding on retaliation, Burlington Northern & Sante Fe Railway Co. v. White.  In Burlington, the court articulated the standard for retaliation under Title VII as any employer action that “might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”  Applying this standard, the Court concluded that it was “obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé might be fired.”  The Court explained that “firing a close family member will almost always meet the Burlington Standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so.”  Of course, that leaves a lot of uncharted territory to consider, e.g. is firing a “mere acquaintance” sufficient; would a “milder reprisal” to a “close family member” be sufficient.  For now, these questions are unanswered.  Like the NASA decision, leaving the door open to just about any claim rather than crafting a clear test seems designed to encourage further litigation.



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