Tuesday, October 9

Supremes October Term Blatantly Discriminates Against the Young

The 2007-2008 Term is officially in full swing, so we thought we'd better do our blogitory duty and sum up the Supreme Court's October Docket for you.

We were a little worried about this term. There's been all this talk about the Roberts Court being more interested in business cases, but before last Tuesday the Court had only granted cert to two employment cases, which is pretty low. On 9/25, however, the Supremes tripled their employment-law workload, bringing the total up to seven. That may still seem low, but it's actually a lot compared to past sessions.

We've pored over all the records [read: scanned BNA summaries* while drinking] to bring you as in-depth an analysis as possible, and one thing is very obvious about the new Supreme Court: they are really, really worried about growing old. (Maybe send a gift with that Petitioner's brief?)

An explanation and the case summaries is after the jump.
[*BNA Labor Report - subscription req'd.]

With three employment cases having something to do with the Age Discrimination in Employment Act, and an ERISA case about who can sue for botched 401(k) investments, the Silver Set is definitely taking center stage (for employment cases, which means "far-left stage past the bathrooms" to everybody else).

There's Kentucky Retirement Sys. v. EEOC, a 6th Circuit case that mashes the ADEA, pension benefits and state public employment into one giant mess. This one could be big - the question presented:

Whether any use of age as a factor in a retirement plan is “arbitrary” and thus renders the plan facially discriminatory in violation of the Age Discrimination in Employment Act?

Federal Express v. Holowecki involves whether an "intake questionnaire" and affidavit submitted to the EEOC can be considered a discrimination charge under the ADEA even when the aged discriminitee didn't mean it to. Administrative procedure is obviously the coolest area of the law, so we're sure this will get tons of press.

Gomez-Perez v. Potter asks whether the ADEA prohibits federal employers from retaliating against employees who complain of age discrimination. What? This is a question? Apparently - the 4th Circuit held the ADEA doesn't protect federal employees like it does private ones. Plus, it's not like the government feels the need to live up to its rules for the private sector in other areas... God, it never stops sucking to work for the government, does it?

The term's token ERISA case is a potential barn burner - LaRue v. DeWolff, Boberg & Associates will settle the question of whether the totalitarian regime that is ERISA allows an employee to sue for losses based on his employer's failure to carry out his 401(k) investment instructions. The case got interesting when LaRue moved to dismiss after the Court granted cert, noting that the plaintiff took all the funds out of his 401(k) while the case was pending at the circuit court. The amici came out of the woodwork, and the Court recently denied the motion. For real, keep an eye on this one.

There are two other cases - Sprint/United Management v. Mendelsohn and CBOCS West v. Humphries - that raise game-changing issues in evidence and retaliation, and a state/federal jurisdiction case that is hiding an eminent judicial figure. Since none of them have anything to do with old folks, and this post is getting so dang long, we'll save these three cases for their own post later today.

Finally, the Court denied cert. in Jennings v. Dorrance, the discrimination case against the UNC soccer coach filed by former players. That sends it back to the District Court for trial. It's title IX, which is outside our purview (or interest, honestly) but we knew we'd get emails if we didn't put it in here.