On the Legal Front:
Alito and Roberts: Best of Times or Worst of Times?
Art Gutman
Florida Institute of Technology
I was working on something else when I noticed a rapid influx of e-mails regarding Judge (now Justice) Alito, both pro and con. Also, the nightly news and Internet sites were teeming with lots of political stuff. Alito supporters claim he is misunderstood and is business friendly, and his detractors claim he is to civil rights what the devil is to religion, calling him Justice Scalito. Of course, much of this breaks down along political party and/or ideological lines. My job is not to take sides; never has been. So I have a more objective way of assessing these fears and hopes. I will attempt to infer what Alitos appointment means for major EEO precedents using a three-pronged approach. First, I will review some history on key Supreme Court appointees relating to what the future was supposed to be at the time they were appointed. Second, because he is replacing OConnor, I will assess Alitos potential impact on past Supreme Court rulings by replacing OConnors vote with Alitos vote, with the assumption that Alitos views match Scalias views. Third, I will sample prior 3rd Circuit rulings by Alito and try to infer what, if anything, OConnor would have done differently, and how these rulings relate to existing EEO precedents at the time they were rendered. I cannot finish Task 3 here, but I will start it. Rather than speak in terms of political or ideological labels, I will use the terms plaintiff friendly (PF) and defendant friendly (DF).
Most of the topics discussed below have been discussed in this column in prior issues of
TIP. Therefore, rather than writing an endless series of footnotes, there is an endnote breaking down the EEO topics by the month and year of appearance in
TIP.
Prior Supreme Court Appointees
Historically, many appointees lived up to their advanced billing. For example, Burger, Rehnquist, Thomas, and Scalia were expected to be DFs and Brennan, Marshall, Ginsburg, and Breyer were expected to be PFs. For the most part, these justices met their expectations. However, there are enough exceptions to general expectations to question how Roberts and Alito will impact EEO law. Recognize that Republican presidents made more appointments than Democratic presidents during the era spanning the emergence of EEO law. Therefore, the examples below are tilted toward DFs moving in the direction of being PFs.
Justice Blackmun was appointed by President Nixon. For his first 50 or so rulings, he voted with his fellow native from Minnesota, Justice Burger, in virtually every case. A famous picture in the
Minneapolis-St. Paul Star depicts the two men with the caption Minnesota Twins. So Blackmun was a DF early on but, obviously, wound up a PF. Indeed, Blackmun forewarned of the dangers of OConnors plurality opinion in
Watson v. Fort Worth Bank (1988) in which OConnor suggested changing the adverse impact rules and Blackmun argued against it (citing a brief by Donald Bersoff on behalf of the American Psychological Association to support his
stance1). Ultimately, Blackmuns concurrences were primarily with Brennan, Marshall, and Stevens.
1 See Bersoff, D. N. (1988). Should subjective employment devices be scrutinized?
American Psychologist, 43(12), 10161018.
Justice Kennedy was nominated by President Reagan after Judge Bork was defeated in the Senate. Up until 1992, Kennedy voted with Scalia almost as frequently as Blackmun voted with Burger in his early days. He was the newcomer whose added vote turned OConnors plurality ruling in
Watson into case law in Wards Cove v. Atonio (1989). Kennedy and Scalia even ran together (literally). Then, in 1992, he was one of five justices on record to overturn Roe v. Wade (1973) but did not pull the trigger (see
Planned Parenthood v. Casey, 1992). He reasoned it was not his role to overturn settled precedent based on personal views. It would be a stretch to suggest this was an epiphany that reincarnated Kennedy into a major PF. However, he altered his views enough so that he was never again the easily predictable vote he was in his earlier days. For example, in his dissent in
Grutter v. Bollinger (2003), Kennedy wrote separately to say he agreed with Justice Powells original ruling in
Regents v. Bakke (1978), but believed the Michigan Law School plan at issue was not faithful to Powells Harvard Plan (where minority status is treated with a plus, as are many other factors).
Justice Stevens was appointed to the 7th Circuit by President Nixon and to the Supreme Court by President Ford. He had several early DF votes. For example, he was in the same plurality with Burger and Rehnquist in the 1978
Bakke ruling and dissented in Fullilove v. Klutznik (1980), a PF ruling supporting federal set asides. However, he was later in the dissent in
Adarand v. Pena (1995), a ruling written by OConnor that overturned both
Fullilove and Metro Broadcasting v. FCC. Indeed, he was taken to task on this issue by OConnor. Ultimately, he was solidly in the same camp as Brennan, Blackmun, and Marshall. Recently (January 27, 2006), Ann Coulter, a well-known constitutional lawyer and ideological DF, told an audience at Philander Smith College that we need somebody to put rat poisoning in Justice Stevens crme brule. (See
http://www.cnn.com/2006/LAW/01/27/coulter.stevens.ap/index.html.) Coulter was obviously joking, but rat poison jokes are now appearing in many Web sites.
Justice Souter had all the earmarks of a DF jurist. He was a prosecutor in New Hampshire who was tough on criminals. He helped prosecute 1,000 protesters who occupied the Seabrook nuclear power plant in 1977. A lifelong Republican, he was appointed to a succession of high posts (from attorney general through the state supreme court) by Republican governors. Indeed, Governor John Sununu, upon swearing him in to the New Hampshire Supreme Court, noted that when he (Sununu) was old and grey, people would say Souter is one of the greatest things you did as governor. He was strongly considered for federal Supreme Court by President Reagan (who appointed Kennedy instead) and was then appointed by President Bush only 3 months after Bush appointed him to the 1st Circuit Court (shades of John Roberts?). He is also a favorite target of Ann Coulter, who has called him a mistake. Souter has voted consistently with Breyer, Ginsburg, and Stevens in EEO cases.
My final example is Justice White. Functionally, he was President Kennedys lone
appointee2. Early on, he made several PF votes. For example, he was in the plurality of four (with Brennan, Blackmun, & Marshall) who voted to uphold the Davis Plan in
Bakke, and in the majority in United Steelworkers v. Weber (1979), where a quota plan for assignment to training was upheld. He later switched his view in
Johnson v. Transportation (1987), suggesting he would vote differently in a retrial of the
Weber case. Subsequently, he wrote the majority rulings in Wards Cove and
Patterson v. McLean (the latter a DF ruling overturned along with Wards Cove in the Civil Rights Act of 1991 [CRA-91]). Although never as firmly a DF as Rehnquist, Scalia, and Thomas, in his later years, he voted in their direction in most cases.
2 President Kennedy also appointed Arthur Goldberg in 1962, but Goldberg resigned his post in 1965 to become ambassador to the United Nations.
In summary, its not clear where the apple will fall for Supreme Court appointees. Often, it falls in the predicted direction. However, there are enough contrary examples so that its hardly a certainty. Another point to note is I did not include Justice OConnor on the above list. The case could be made that as Reagans first appointee, she was expected to fit the BurgerRehnquist mold. However, in the end, she turned out to be another of Ann Coulters mistakes.
Retrospective Retrials
For opponents of Alito, the worst case scenario is that in place of OConnor, he will reverse major EEO precedents. To illustrate, a Web site entitled Alitos America features an imaginary ruling in which Alito adds a 5th vote that viscerates the anti-discrimination protections of Title VII
(http://alitosamerica.org/workplace.php). This imaginary scenario requires five assumptions: (a) the original ruling was 5 to 4; (b) OConnor was in the majority; (c) Rehnquist and Scalia were in the minority; (d) Roberts would vote the same way as Rehnquist; and (e) Alitos would vote the same way as Scalia. If we reexamine rulings beginning in 1987 (the year Scalia joined the Supreme Court) up until 2005 assuming Roberts = Rehnquist and Alito = Scalia, it is clear that most, if not all prior EEO precedents would be unaltered.
Sexual Harassment
There are no endangered precedents relating to sexual harassment. In a 9 to 0 ruling predating Scalia
(Meritor v. Vinson, 1986), the Supreme Court defined hostile environment sexual harassment as severe and pervasive abuse that interferes with ones ability to perform work but with no resulting tangible employment consequences (e.g., no termination, no failure to promote, etc.). Subsequently, five rulings addressed issues that lingered from or developed after
Meritor. These rulings had majorities of 9 to 0 (Harris v. Forklift, 1993 and
Oncale v. Sundowner, 1998), 8 to 1 (Pennsylvania State Police v. Suders, 2004 with Thomas dissenting), and 7 to 2
(Burlington v. Ellerth, 1998 and Faragher v. Boca Raton, 1998 with Thomas and Scalia dissenting in both cases). The
Ellerth and Faragher rulings are particularly critical because they clarify that sexual harassment violations with tangible employment consequences are indefensible. However, employers may escape liability for hostile harassment by supervisors if they have a viable harassment policy for victims to use and victims fail to take advantage of it. Thus, employers are encouraged to craft policies to prevent and quickly correct harassment, and victims are encouraged to complain.
Americans With Disabilities Act (ADA)
For similar reasons, there are no endangered ADA precedents. Among eight Supreme Court ADA rulings between 1999 and 2002, four were 9 to 0 and four were 7 to 2. Two of the 7 to 2 rulings would shift to 6 to 3 (because OConnor was in the majority and Scalia was in the dissent), but no precedents would change. The three rulings with the greatest impact for plaintiffs were rendered in 1999
(Sutton v. UAL, Murphy v. UPS, and Albertsons v. Kirkingburg). These rulings clarify there is no such thing as a disability as a matter of law. Rather, plaintiffs must show how physical or mental impairments significantly restrict major life activities in their own lives. Though the plaintiffs in these three cases lost, these rulings provided clear instructions for plaintiffs to prove they are disabled, thereby teaching subsequent plaintiffs how to craft stronger ADA
claims.3
3 Relevant lower court ADA rulings include EEOC v. Routh (2001), Lawson v. CSX (2001), Taylor v. Phoenixville (1999), and McAlindin v. San Diego (1999).
Disparate Treatment and Adverse Impact
The Supreme Court rulings on disparate treatment and adverse impact share two characteristics. First, both arenas had strong early precedents that were altered by later rulings before reaching ultimate clarification. Second, the rulings altering the early precedents had 54 majorities in which OConnor, Rehnquist, and Scalia were in the majority. The disparate treatment precedent was established in
McDonnell Douglas v. Green (1973) and reiterated in Texas v. Burdine (1981; hence the name McDonnell-Burdine scenario). The adverse impact scenario was established in
Griggs v. Duke Power (1971), Albemarle v. Moody (1975), and other cases. The McDonnell-Burdine scenario was disturbed in
St. Marys v. Hicks (1993) and later clarified in Reeves v. Sanderson Plumbing (2000). Analogously, the Griggs-Albemarle precedent was disturbed in
Watson v. Fort Worth Bank (1988) and Wards Cove v. Atonio (1989) and later clarified in CRA-91. Under the present assumptions, history would repeat itself.
The key ingredient in the McDonnell-Burdine scenario is the defendants articulation (without proof) of a legitimate reason for a selection decision challenged by the plaintiff. The plaintiff must then prove with direct or indirect evidence that the defendants articulation is false (i.e., a pretext for illegal discrimination). In
Hicks, Melvin Hicks had strong indirect evidence of pretext, but the district court judge ruled for the defendant and the Supreme Court supported the district court 5 to 4 (with Rehnquist, OConnor, and Scalia in the majority). However, in a 9 to 0 ruling in
Reeves, an age discrimination case, OConnor explained that the Supreme Court would support any ruling by a district court based on the facts of a case. OConnor then overturned the 5th Circuit, which, for its part, previously overturned a district court ruling favoring a plaintiff who, like Melvin Hicks, provided strong indirect evidence of pretext.
The key ingredients in the Griggs-Albemarle tradition were (a) a plurality of four justices in Watson (OConnor, Scalia, Rehnquist, & White) who offered that the defense to adverse impact should be the same as in McDonnell-Burdine, followed by (b) a majority of five in
Wards Cove (with Kennedy added) turning this plurality opinion into case law.
Wards Cove was then clarified in CRA-91 so that now, the plaintiff must identify and statistically support a cause of adverse impact (unless the defendants data cannot be disaggregated) forcing the defendant to prove that the cited cause is job related and consistent with business necessity.
Mixed-Motive and After-Acquired Evidence
The mixed motive scenario involves disparate treatment. For example, in Price Waterhouse v. Hopkins (1989), Ann Hopkins provided indisputable evidence that she suffered illegal gender-based abuse and claimed gender discrimination in promotion. The defense conceded it was guilty of the illegal conduct, but offered evidence that Hopkins was not promoted for other (legal) reasons. I dont have enough space here to explain this ruling entirely. Suffice it to say that three justices (Kennedy, Scalia, & Rehnquist) favored applying standard McDonnell-Burdine rules in such cases. Under present assumptions, there would be four votes for this position; not enough to make this interpretation a precedent. The other six justices were all over the place. The bottom line is that CRA-91 provides separate remedies for the illegal and legal motives.
Ann Hopkins had direct evidence of sex discrimination. More recently, in Desert Palace v. Costa (2003), a unanimous Supreme Court ruled that plaintiffs may also initiate a mixed-motive case with indirect (or circumstantial) evidence. Taken together with the prior ruling in
Reeves, this means that direct and indirect evidence have the same footing in all disparate treatment claims.
The after-acquired evidence scenario is a variant of the mixed-motive scenario where the illegal motive is current and the illegal motive is past. This occurred in
McKennon v. Nashville Banner (1995) where a plaintiff proved wrongful discharge but the defendant proved there was resume fraud at the time the plaintiff was hired. The Supreme Court supported the plaintiff in this case in a 9 to 0 ruling (although there were some other complicating factors relating to remedies).
Bona Fide Occupational Qualification (BFOQ)
The BFOQ defense is sometimes confused with the adverse impact defense but should not be. The adverse impact defense requires proof of job relatedness. The BFOQ defense is much stiffer, requiring proof of legitimate reasons for excluding all or members of a class of people (usually based on gender or age, but never race or color). For example, in
Dothard v. Rawlinson (1977), the BFOQ defense was successfully used to exclude women from being prison guards in an all-male maximum security prison. In the only Supreme Court ruling since
Dothard (Automobile Workers v. Johnson Controls, 1991), the Supreme Court, in a 9 to 0 ruling, struck down a policy of excluding fertile women from jobs with exposure to lead. It also clarified the
Dothard ruling. Several lower courts misread Dothard to imply that the key issue in
Dothard was personal safety. In Johnson Controls, the Supreme Court clarified that the key ingredient in
Dothard was prison safety, not personal safety.
The Age Discrimination in Employment Act (ADEA)
The ADEA protects people who are 40 years of age or older. There are five substantive ADEA cases after 1987 (other than
Reeves v. Sanderson Plumbing, 2000), and no precedents would be altered under present assumptions. In
OConnor v. Consolidated (1996), a unanimous Supreme Court affirmed that age difference constitutes viable evidence of discrimination in ADEA cases even when the older person is replaced by a younger person and both are in the protected age range. In
General Dynamics v. Cline (2004), a 6 to 3 majority supported the companys right to limit retirement benefits to those who are 50 and older (so called reverse age discrimination). And in
Oubre v. Entergy (1998), a 6 to 3 majority supported Title II of the OWBPA (Older Workers Benefit Protection Act of 1990) containing special rules employers must follow to enforce voluntary waivers in settlement agreements. The latter two rulings would shift to 5 to 4 under present assumptions because OConnor was in the majority in both cases, but both precedents would remain the same.
This leaves the strange pairing of Hazen v. Biggens (1993) and Smith v. City of Jackson (2005).
Hazen was a unanimous opinion that an ERISA violation (Employee Retirement Income Security Act of 1974) is insufficient by itself to imply age discrimination. However, most observers focused on the plurality of Kennedy, Rehnquist, and Thomas, who implied that adverse impact was not a viable ADEA claim. In
Smith, a 63 majority ruled that the ADEA can tolerate adverse impact claims but not in the same way as Title VII. Instead, defendants may appeal to the statutory RFOA (Reasonable Factors Other Than Age) defense to defeat the adverse impact claim. Eight justices agreed that the city of Jackson had a legitimate RFOA defense, but three justices (OConnor, Kennedy & Thomas) wanted to preclude adverse impact from the ADEA altogether. Rehnquist took no part in this case. Therefore, since Scalia was in the majority, this ruling would be 62 instead of 53.
Idiosyncratic Rulings
There are 5 to 4 rulings (other than Wards Cove) that had OConnor, Rehnquist, and Scalia in the majority and were overturned by Congress in CRA-91. These include
Patterson v. McLean (1989; incorporating McDonnell-Burdine rules into 13th Amendment claims) and
Martin v. Wilks (1989; on the timeliness of challenging a consent decree in a so-called reverse discrimination claim). CRA-91 also overturned
Lorance v. AT&T (1989; relating to Bona Fide Seniority Systems), a 5 to 3 ruling that OConnor did not contribute to and Rehnquist and Scalia were in the majority.
There were two other important 5 to 4 rulings with OConnor, Rehnquist, and Scalia in the majority. The Supreme Court ruled that Congress abused its 14th Amendment authority in applying ADEA to state entities in
Kimel v. Florida Bd. of Regents (2000), and a year later, the Supreme Court applied the same exact ruling for the ADA in
Garrett v. Bd. of Trustees of Alabama (2001).
Lastly, there are two idiosyncratic rulings relating to binding arbitration. In
Gilmore v. Interstate (1991), the Supreme Court supported Interstates right to condition hiring upon agreement to binding arbitration of future labor disputes under the FAA (Federal Arbitration Act of 1925). Therefore, the plaintiff (Gilmer) lost his right to pursue an ADEA claim. The ruling here was 72 with Stevens and Marshall dissenting. As interesting, in a follow-up case
(EEOC v. Waffle House, 2002), the majority ruled it was legal for the EEOC, on its own authority, to sue for remedies on the behalf of plaintiffs who are otherwise precluded from suing on their own behalf. This was a 6 to 3 ruling in which OConnor was in the majority and Rehnquist and Scalia were in the minority. So, both precedents would likely stick, albeit with a slimmer 5 to 4 majority in
Waffle House.
Affirmative Action (AA)
Ive saved the AA rulings for last. There are seven rulings (other than Martin v.
Wilks, 1989) since 1987 on four major issues: (a) set asides (City of Richmond v.
Croson, 1989, Metro v. FCC, 1990, and Adarand v. Pena, 1995), (b) voluntary AA
(Johnson v. Transportation, 1987), (c) court-ordered quota remedies (US v.
Paradise, 1987), and (d) diversity as a compelling government interest (Grutter v.
Bollinger, 2003, and Gratz v. Bollinger, 2003). Under present assumptions, only one of these rulings would change
(Grutter). However, two rulings that would not change under present assumptions are suspect for other reasons.
The precedents for set asides are indisputable. Croson was a 6 to 3 ruling applying strict scrutiny to states and municipal set asides.
Metro briefly permitted a lesser standard (moderate scrutiny) for federal set asides (with OConnor, Rehnquist, and Scalia dissenting), but
Metro was overturned in Adarand (written by OConnor and including Rehnquist and Scalia). Although the set aside was struck down in
Croson and remanded for further consideration in Adarand, Croson taught other municipalities how to satisfy strict scrutiny (see
Cone v. Hillsborough County, 1991, and Coral v. King County, 1991), and
Adarand taught the DOT (Department of Transportation) the same lesson as the lower courts toiled to address the remand issues.
Johnson v. Transportation was 6 to 3 (with OConnor in the majority and Rehnquist and Scalia dissenting) and
US v. Paradise was 5 to 4 (with all three dissenting). Based on present assumptions, both would be 5 to 4 and unaltered. However, there are other reasons for suspecting these rulings.
Johnson supported a decision favoring a female plaintiff based on a manifest imbalance in the workforce but with no evidence of a discriminatory basis for the imbalance.
Paradise featured racial discrimination against blacks (an egregious pattern or practice violation) and a quota (5050) court-ordered remedy for 16 promotions. The key to both rulings was Powell, Kennedys predecessor, who was in the majority in both rulings. The issues in
Johnson and Paradise remain contentious in the lower courts, and Kennedy has never had a formal opportunity to weigh in on them. So it is unknown how such issues will be decided in future cases.
The last issue is diversity as a compelling interest in the strict scrutiny analysis. The key issues relate to Powells ruling in
Regents v. Bakke (1978), where a quota plan for admissions to medical school was struck down, but at the same time, Powell outlined a scenario (the Harvard Plan) in which diversity as basis for school admissions could pass strict scrutiny rules.
Gratz is an unassailable 7 to 2 ruling (with Ginsburg and Souter in the minority) that the University of Michigans undergraduate admissions plan failed under Powells criteria. However,
Grutter is a 5 to 4 ruling (with OConnor in the majority and Rehnquist and Scalia in the minority) in which the University of Michigans law school admissions plan does meet Powells criteria. Under present assumptions,
Grutter would be reversed. However, this is hardly a given. As noted earlier, Kennedy wrote separately in
Grutter stating he agreed with Powells ruling in Bakke but dissented in
Grutter because he believed the University of Michigans law school plan did not satisfy Powells criteria. At stake here are subsequent lower court rulings such as
Petit v. Chicago (2003), where the 7th Circuit supported a race-based promotion for police as satisfying strict scrutiny based on
Grutter.
In summary, under present assumptions, the vast majority of prior EEO Supreme Court precedents are safe. There are reasons to question some of the AA rulings, but this is hardly a new thought. AA rulings have always been contentious and in danger of reversal, even in prior Supreme Courts.
Prior 3rd Circuit Alito Rulings
In the prior section, it was assumed that Roberts = Rehnquist and Alito = Scalia. Both assumptions are, of course, open to debate. For example, Ann Coulter wrote she is worried Roberts will turn out to be a moderate, like Justice Souter or OConnor instead of the more conservative Scalia and Thomas. There is insufficient information to predict what Roberts will do because he was on the D.C. Circuit Court for a relatively short time. Alito, on the other hand, has written or contributed to many 3rd Circuit EEO rulings. However, it would take as many words as used thus far to finish this last section. Therefore, I will start it here and finish it at a later time.
The Alitos America Web site discussed earlier cites cases such as such as
Bray v. Marriott (1997), Grant v. Shalala (1993), Riley v. Taylor (2001), and
Sheridan v. E.I. Dupont (1995) as examples of how Alito will threaten antidiscrimination laws. However, in my own search, I found cases where Alito made or contributed to PF rulings, including
Fraternal Order v. Newark Police (1999), Deane v. Pocono Medical Center (1998),
Showalter v. University of Pittsburgh Medical Center (1999), and Shapiro v. Township of Lakewood (2002). There are other rulings, both DF and PF, but these cases will suffice for present
purposes.
I propose the following for readers interested in Alitos potential future contributions to EEO precedents. Read the above cases, and search for additional cases. Ignore whether a given ruling is PF or DF and instead ask two questions of each case. First, based on her body of work, would OConnor have voted differently than Alito in the specific case? Second, irrespective of OConnors likely vote, how does each ruling stack up with legal precedents in place at the time it was issued? I am withholding my full opinion at this time. I predict, however, the reader will find that the likely truth lies somewhere between the hopes and prayers of commentators like Anne Coulter and DarmandoTheElder (a major contributor to the Alitos America Web site).
Conclusions
My purpose above was to seek objective ways to assess the implications for EEO precedents of Alitos tenure on the Supreme Court. In general, I have two problems with one-sided ideological viewpoints, regardless of which extreme is represented. First, one-sided viewpoints are selective in the material cited and fail to test alternative hypotheses. Second, they focus too much on whether court rulings favor plaintiffs or defendants and not enough on more practical matters. My review of the SIOP Consultant Locater reveals there are many SIOP members who offer consulting services on EEO-related issues. As a practical matter, it is unimportant in a given consultation whether existing precedents are PF or DF. Rather, the consultant needs to know that the relevant precedents for the case in question are solid and trustworthy, regardless of whether the client is a plaintiff or a defendant. I believe the vast majority of current EEO precedents are solid and trustworthy. Therefore, in answer to the question of whether Justice Alito will usher in the best of times or worst of times for EEO precedents (from Charles Dickens A Tale of Two Cities), despite the Great Expectations (another Dickens title) of Alitos supporters and detractors, the best a priori prediction is probably business as usual.
Endnote
The ADA is discussed in Legal Front columns in January 2001, April 2001, April 2002, and July 2002. It is also discussed by
Don L. Zink in October 2002 and in a pre-Legal Front article by the author in January 2000. Sexual harassment is discussed in July and October 2004 and January and April 2005.
Reeves v. Sanderson Plumbing (disparate treatment) is discussed in October 2000 and
Desert Palace v. Costa (mixed-motive) is discussed in October 2003. Adverse impact is discussed in January 2003 and January 2004. Affirmative action is discussed in October 2002, April, July and October 2003, and April 2004. 11th Amendment immunity as relates to the ADEA and ADA is discussed in July 2001 and April 2002, and binding arbitration is also discussed in April 2002. Adverse impact in the ADEA is discussed in July 2005, Justice OConnors legacy in EEO law is discussed in October 2005, and reverse age discrimination is discussed (by Zink) in January 2006.
Supreme Court Cases Cited
Adarand v. Pena (1995) (515 US 200).
Albemarle Paper Co. v. Moody (1975) (422 US 405).
Albertsons, Inc. v. Kirkingburg (1999) (527 US 555).
Automobile Workers v. Johnson Controls (1991) (499 US 187).
Board of Trustees of University of Alabama v. Garrett. (2001) 531 U.S. 356 (2001)
Burlington Industries, Inc. v. Ellerth (1998) (524 US 742).
City of Richmond v. Croson (1989) (488 US 469).
Desert Palace v. Costa (2003) (539 US 90).
Dothard v. Rawlinson (1977) (433 US 321).
EEOC v. Waffle House (2002) (534 US 279).
Faragher v. City of Boca Raton (1998) (524 US 808).
Fullilove v. Klutznick (1980) (448 US 448).
General Dynamics v. Cline (2004) 540 U.S. 581.
Gilmore v. Interstate/Johnson Lane Corp. (1991) 500 US 20, 111.
Gratz v. Bollinger (2003) (539 US 244).
Griggs v. Duke Power (1971) (401 US 424).
Grutter v. Bollinger (2003) (539 US 306).
Harris v. Forklift Systems Inc. (1993) (510 US 17).
Hazen Paper Company v. Biggins (1993) (507 US 604).
Johnson v. Transportation Agency (1987) (480 US 616).
Kimel v. Florida Bd. of Regents (2000) 528 US 62.
Lorance v. AT&T Technologies (1989) (490 US 900).
Martin v. Wilks (1989) (490 US 755).
Meritor Savings Bank v. Vinson (1986) (477 US 57).
McDonnell Douglas v. Green (1973) (411 US 792).
McKennon v. Nashville Banner Publishing Company (1995) (513 US 352).
Metro Broadcasting v. FCC (1990) (497 US 547).
Murphy v. United Parcel Service (1999) (527 US 516).
OConnor v. Consolidated Coin Caterers (1996) (517 US 308).
Oncale v. Sundowner (1998) (523 US 75).
Oubre v. Entergy Operations (1998) (522 US 422).
Patterson v. McLean Credit Union (1989) (490 US 228).
Pennsylvania State Police v. Suders (2004) (477 US 57).
Planned Parenthood of Southeastern PA v. Casey (1992) (505 US 833).
Price Waterhouse v. Hopkins (1989) (490 US 228).
Reeves v. Sanderson Plumbing Products (2000) (530 US 133).
Regents v. Bakke (1978) (438 US 265).
Roe v. Wade (1973) (410 US 113).
Smith v. City of Jackson (March 30, 2005) (Case No. 03-1160; WL 711605).
St. Marys Honor CTR. v. Hicks (1993) (509 US 502).
Sutton v. United Airlines (1999) (527 US 471).
Texas Dept. of Community Affairs v. Burdine (1981) (450 US 248).
United States v. Paradise (1987) (480 US 149).
United Steelworkers v. Weber (1979) (443 US 193).
Wards Cove v. Atonio (1989) (490 US 642).
Watson v. Fort Worth Bank (1988) (487 US 977).
Relevant Circuit Court Rulings
Cone v. Hillsborough County (CA11 1991) 908 F.2d 908.
Coral v. King County (CA9 1991) 941 F.2d 910.
EEOC v. Routh (CA6 2001) 246 F.4d 850.
Lawson v. CSX (CA7 2001) 245 F.3d 916.
McAlindin v. County of San Diego (CA9 1999) 192 F.3d 1226.
Petit v. City of Chicago (CA7 2003) 352 F.3d 1111.
Taylor v. Phoenixville School District (CA3 1999) 184 F.3d 296.
Alito Rulings
Bray v. Marriott Hotels (CA3 1997) 110 F.3d 986.
Deane v. Pocono Medical Center (CA3 1998) 142 F.3d 138.
Fraternal Order of Police v. Newark (CA3 1999) 170 F.3d 359.
Grant v. Shalala (CA3 1993), 989 F.2d 1332.
Riley v. Taylor (CA3 2001) 277 F.3d 261.
Shapiro v. Township of Lakewood (CA3 2002) 292 F.3d 356.
Sheridan v. EI DuPont de Nemours and Co. (CA3 1995 ) 100 F.3d 1061.
Showalter v. University of Pittsburgh Med. Ctr. (CA3 1999) 190 F.3d 231.
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