Analysis

5 Times Justice Ginsburg Left An Imprint On Employment Law

Law360 (September 21, 2020, 11:07 PM EDT) -- Justice Ruth Bader Ginsburg made waves by taking issue with majority rulings in cases involving fair pay for women and access to birth control, but those dissents represent just a fraction of her output during nearly three decades on the U.S. Supreme Court.

And while attorneys say there are plenty of other employment cases in which Justice Ginsburg left her mark, they acknowledge that those two dissents will be forever synonymous with her. In Ledbetter v. Goodyear , she accused the majority of ignoring the realities of the workplace and spurred Congress to pass the Lilly Ledbetter Fair Pay Act in 2009. In Burwell v. Hobby Lobby , she opposed a five-justice majority's conclusion that the Religious Freedom Restoration Act shields closely held companies from providing contraception coverage to their employees as required by a provision of the Affordable Care Act.

Here, Law360 digs deeper into the late jurist's employment writings.

Wal-Mart Stores Inc. v. Dukes et al.

In one of its seminal employment decisions over the past 20 years, the high court in 2010 struck down a class of about 1.5 million women in a gender bias class action against retail giant Walmart in what has been called the largest Title VII sex discrimination case in U.S. history. The 5-4 ruling in Wal-Mart Stores Inc. v. Dukes authored by Justice Antonin Scalia reverberated throughout the employment law world because it made it harder for plaintiffs to obtain class certification and bring claims as a group.

The suit saw lead plaintiff Betty Dukes and a handful of other women allege that Walmart fostered a discriminatory corporate culture, paid women less than their male colleagues and passed them over for promotions.

In a partial dissent, Justice Ginsburg wrote that the women had adequately alleged a question common to the proposed class, namely that Walmart's discretionary policies were discriminatory. She also criticized the majority for focusing on the dissimilarities between individual class members and for improperly "blending" the threshold issue of commonality with the more demanding requirements of the class action rule at issue. The dissenters, however, rejected certification under a separate section of the class action rule, Rule 23(b)(2) of the Federal Rules of Civil Procedure.

Theodore Boutrous of Gibson Dunn & Crutcher LLP, who successfully represented Walmart in the case, told Law360 on Monday that one of his "main goals" going into the argument was to "persuade" Justice Ginsburg, whom he called "a legendary expert on both gender equality and civil procedure issues."

"I spent a lot of time studying her opinions and views. I wanted to make clear that these were issues of class action procedure and due process. The company's policies prohibited discrimination and encouraged diversity, so there was no dispute about whether discrimination should ever be tolerated," he said.

But when it was time to argue Walmart's position before the high court, Boutrous said that Justice Ginsburg had a curveball in store for him.

"During the argument, she asked me about a lower court decision from the 1970s concerning subjective decision-making in employment that no one had even cited in the briefs, but she was kind enough to outline the facts of the case for me in her question to allow me to come up with a coherent response," Boutrous said. "While she dissented on the commonality issue, the fact that Justice Ginsburg joined the rest of Justice Scalia's majority opinion unanimously reversing the class certification order is one example among many of how she was always guided by principle and faithful adherence to the law."

Joseph Sellers of Cohen Milstein Sellers & Toll PLLC, who served as counsel for Dukes and her fellow class members, told Law360 on Monday that Justice Ginsburg's dissent "reflected two of [her] real strengths — her mastery of civil procedure and her appreciation of the modern workplace and the ways in which bias can infiltrate modern personnel decisions."

"Justice Ginsburg's dissent was so characteristic of her," Sellers said, noting that it was "an erudite treatment" of Rule 23 that critiqued the majority's legal rationale "mixed with an empirical assessment of the ways in which bias can infiltrate personnel decisions that was informed by both common sense and an awareness of the modern workplace, which I think was missing from the majority opinion."

Sellers also recalled that the oral argument session, in which he was peppered with dozens of questions by justices often speaking over one another, calmed when Justice Ginsburg spoke, which he attributes to the respect she was afforded by her colleagues on the bench.

"I think — reflecting the respect she got from the other justices — when she spoke, they tended to pause and let her finish her question," Sellers said. "She didn't speak a lot, but what she asked was really very, very much on the point and very insightful."

"Many have spoken about how she was a role-model for women. I don't know how many of us men can say that but I found her to be an incredible role-model as well," he added.

Epic Systems Corp. v. Lewis

In one of the Supreme Court's more recent high-profile employment decisions, a five-justice majority led by  then-newly minted Justice Neil Gorsuch held in 2018 that employers aren't violating the National Labor Relations Act by including class-action waiver provisions in arbitration agreements workers must sign as a condition of their employment.

The ruling in Epic Systems  cleared businesses that hadn't already been doing so to use class waivers to limit their exposure to workers' class action claims. But in a lengthy and pointed dissent, Justice Ginsburg called the majority's decision "egregiously wrong." She also expressed concern that the majority's holding would cause many small claims, particularly for minimum-wage and overtime violations, to essentially fall through the cracks and that many employers could be emboldened to flout their legal obligations.

"The inevitable result of today's decision will be the underenforcement of federal and state statutes designed to advance the well-being of vulnerable workers," Justice Ginsburg wrote.

"Given her background, unsurprisingly she was an advocate for the rights of employees, especially so in her dissent in Epic Systems, which is an indictment of employment arbitration," said Steven Suflas, senior counsel at Ballard Spahr LLP, who noted that Justice Ginsburg took the rare step of reading that dissent from the bench.

"As a management advocate, I'd say the dissent was contrary to two decades of Supreme Court jurisprudence," Suflas told Law360 on Monday. "But I think that when you look at that dissent and the dissent in Ledbetter, she also knew that she was writing for a broader constituency. In Ledbetter, obviously, her views were ultimately adopted in legislation, and I think in Epic Systems that's what she was also trying to do."

U.S. v. Virginia

In one of her early cases, Justice Ginsburg issued a landmark ruling in U.S. v. Virginia  striking down a categorical ban on women enrolling in the Virginia Military Institute, which received funds from the Commonwealth of Virginia. By a 7-1 vote, the high court led by Justice Ginsburg found that the ban violated the Fourteenth Amendment's Equal Protection Clause and said the state's proposed solution that it would fund a separate program only for women didn't fly.

VMI issued a statement shortly after Justice Ginsburg's death on Friday noting that she spoke at the campus in 2017 and said during that event that she "knew that her landmark decision to allow women among the ranks of the Corps of Cadets would make VMI a better school."

"Nearly 25 years later, VMI's female alumni are among our nation's leaders in corporate boardrooms, within our military, and within our communities," the school said in its statement, which called the late jurist a "courageous legal scholar whose impact on our institute and our nation is an inspiration for all."

Even though the case didn't arise in the employment context, Seyfarth Shaw LLP partner Camille Olson said the VMI case laid the foundation for decades of Justice Ginsburg's jurisprudence.

"If you want to know what she's going to write for the next 24 years on the court, all you have to do is read that case, and every decision — whether it's the dissent in Ledbetter, the dissent in Vance v. Ball State — it could be written by you if you read her decision here," Olson said.

Olson, who echoed many other women in the legal profession in calling Justice Ginsburg a role model, likened the VMI opinion to the high court's famous 1954 Brown v. Board of Education decision that outlawed segregation in public schools.

"It's sort of the Brown v. Board of Education for women's rights in terms of [their] place in schools, academies and even the workplace," Olson said.

"She never wrote for lawyers really. She wrote for people to understand the nuanced practical impact of decisions on people in America," Olson added. "Here, she described that even if you had the same amount of money expended to the proposed solution, which was an all-female military school in Virginia, it would never have and it did not have the prestige of the all-men academy. That in and of itself … would never be equal. If you think of Brown v. Board of Education and how difficult it was to implement that decision, she wrote this decision and it was implemented and accepted."

Holly Farms Corp. v. National Labor Relations Board

In another of her early opinions, Justice Ginsburg in 1996 waded into the world of labor law in a case asking the court to grapple with an obscure issue: Could "live haul" crews who transport chickens to a Holly Farms Corp. poultry processing plant in North Carolina qualify as employees under the National Labor Relations Act and avail themselves of the law's protections, or were they agricultural laborers exempted from the statute?

Her opinion in Holly Farms, written on behalf of a five-justice majority, said the NLRB "reasonably" determined that the live-haul crews' work was tied to Holly Farms' operations and that they were employees covered by the NLRA. That interpretation was in line with board precedent and was further supported by language in the Fair Labor Standards Act. As such, the Fourth Circuit was right to defer to the board's interpretation, Justice Ginsburg said.

Despite subject matter such as "chicken catchers" and an analysis of the meaning of the phrase "on the farm" that may have seemed somewhat foreign to Justice Ginsburg, a native of Brooklyn, New York, Suflas said the justice nonetheless produced "a very learned, professorial opinion taking the issue very seriously" as she did throughout her career as a jurist.

"That's certainly what you saw in her opinions," Suflas said.

Vance v. Ball State University

In 2013, Justice Ginsburg again took the role of dissenter as she opposed a five-justice majority's holding that a worker can only hold an employer vicariously liable under Title VII of the Civil Rights Act for alleged harassment by a purported "supervisor" if the latter is "empowered by the employer to take tangible employment actions against the victim."

The issue of who counts as a supervisor reached the Supreme Court in an appeal by Maetta Vance, a Black woman who claimed that a fellow Ball State employee, Saundra Davis, who is white, created a racially hostile work environment in violation of Title VII. Vance asked the Supreme Court to overturn a Seventh Circuit decision affirming that Ball State wasn't vicariously liable for the alleged harassment and that Davis was not a supervisor because she had no power to directly affect the terms and conditions of Vance's employment.

Justice Ginsburg accused her colleagues in the majority in Vance of essentially latching onto the plaintiff's "thin case" to use it as a vehicle to "narrow the definition of supervisor, and thereby manifestly limit Title VII's protections against workplace harassment."

"Not even Ball State, the defendant-employer in this case, has advanced the restrictive definition the court adopts," Justice Ginsburg said. "Yet the court, insistent on constructing artificial categories where context should be key, proceeds on an immoderate and unrestrained course to corral Title VII."

In that dissent, she cited Congress' passage of the Lilly Ledbetter Fair Pay Act as an example of lawmakers having "intervened to correct this court's wayward interpretations of Title VII," and called on the legislative body to do so once again as she had in the Ledbetter case.

"The ball is once again in Congress' court to correct the error into which this court has fallen, and to restore the robust protections against workplace harassment the court weakens today," Justice Ginsburg wrote.

--Editing by Jill Coffey and Michael Watanabe.

For a reprint of this article, please contact reprints@law360.com.

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