Labor and Employment

• Jurisdiction: United States,Federal
• Citation: Vol. 74 No. 4
• Publication year: 2023

Labor and Employment

W. Jonathan Martin II

Patricia-Anne Brownback

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Labor and Employment W. Jonathan Martin II^* Patricia-Anne Brownback^**

I. Introduction

This Article focuses on recent cases concerning federal labor and employment laws.¹ The following is a discussion of those opinions.²

II. Supreme Court

The Supreme Court of the United States issued one decision directly affecting labor and employment laws in 2022.

The Supreme Court garnered the nation's attention with its decision in National Federation of Independent Business v. Department of Labor, Occupational Safety & Health Administration,³ in the aftermath of the Biden administration's implementation of a vaccination mandate.⁴ This vaccine mandate, set to apply to "roughly 84 million [American] workers" employed by private entities, was promulgated by the occupational Safety and Health Administration (OSHA) through an Emergency

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Temporary Standard (ETS) on November 5, 2021.⁵ Here, the Court was asked by the National Federation of Independent Businesses and many states to halt the implementation of the mandate that required any business with more than 100 employees to "develop, implement, and enforce a mandatory COVID-19 vaccination policy," wherein employees must either receive the vaccine or mask and test weekly.⁶

Typically, administrative rules and regulations are "developed using a rigorous process that includes notice, comment, and an opportunity for a public hearing[,]" but an ETS "may 'take immediate effect upon publication in the Federal Register.'"⁷ For an OSHA ETS, the Secretary must show (1) "that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards," and (2) that the "emergency standard is necessary to protect employees from such danger."⁸ After the announcement and publication of the vaccine ETS, "[s]cores of parties—including States, businesses, trade groups, and nonprofit organizations—filed petitions for review" in courts across the nation.⁹ It was originally stayed by the United States Court of Appeals for the Fifth Circuit, and then the group of cases was consolidated, after random selection under 28 U.S.C. § 2112(a),¹⁰ in the United States Court of Appeals for the Sixth Circuit.¹¹ The stay implemented by the Fifth Circuit was dissolved by the Sixth Circuit, "holding that OSHA's mandate was likely consistent with the agency's statutory and constitutional authority."¹² On review, the Supreme Court held, in a 6-3 decision, to stay the mandate because it found that the challengers "are likely to succeed on the merits of their claim that the Secretary [of Labor] lacked authority to impose the mandate."¹³

The Court determined that the Occupational Safety and Health Act of 1970¹⁴ does not "plainly authorize[]" the mandate because it only "empowers the Secretary to set workplace safety standards, not broad public health measures."¹⁵ It explained, "permitting OSHA to regulate

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the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA's regulatory authority without clear congressional authorization."¹⁶ Absent clear authorization for such, OSHA had no power to impose a rule of such "vast economic and political significance."¹⁷

The Supreme Court, therefore, stayed the mandate pending resolution of the challenges to the mandate in the Sixth Circuit, and any subsequent challenges in the Supreme Court.¹⁸ However, on January 25, 2022, OSHA announced that "[t]he U.S. Department of Labor's Occupational Safety and Health Administration is withdrawing the vaccination and testing emergency temporary standard issued on Nov[ember] 5, 2021, to protect unvaccinated employees of large employers with 100 or more employees from workplace exposure to coronavirus. The withdrawal is effective January 26, 2022."¹⁹

III. Title VII of Civil Rights Act

Title VII of the Civil Rights Act (Title VII)²⁰ does not allow employers to discriminate based on the protected classes of race, color, religion, sex, or national origin.²¹ This includes limiting, segregating, or classifying employees "in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin."²² For an employee to prove disparate impact under Title VII, they must demonstrate that the employer used a particular employment practice based on one of the above-protected classes and the employer cannot show that the alleged practice is job-related and related with business necessity.²³ "[T]he plaintiff in an employment discrimination lawsuit always has the burden of demonstrating that, more probably than not, the employer took an adverse employment action against him on the basis of a protected

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personal characteristic."²⁴ Generally, employees are unable to utilize the "traditional framework" of direct evidence to prove their case, so the Supreme Court of the United States developed a three-part, burden-shifting analysis to "make matters somewhat easier for plaintiffs in employment discrimination suits" using circumstantial evidence.²⁵

Under the McDonnell Douglas framework, one must first present a prima facie case of discrimination.²⁶ Once a plaintiff meets this initial burden, the burden of production shifts to the employer to "articulate some legitimate, nondiscriminatory reason for the employe[r]'s [action]."²⁷ After this, the plaintiff, who retains the burden of persuasion throughout, must then "show by [a] preponderance of the evidence that the defendant's legitimate reasons were not the reasons that actually motivated its conduct, that the reasons were merely a 'pretext for discrimination.'"²⁸

In Patterson v. Georgia Pacific, LLC,²⁹ the United States Court of Appeals for the Eleventh Circuit remanded a former human resources manager's claims to the United States District Court for the Southern District of Alabama for trial after determining that there were questions of fact as to whether she was terminated for engaging in protected activity by providing testimony in a pregnancy discrimination case against her former employer.³⁰ Marie Patterson had been working at Georgia Pacific for about eighteen months when she was subpoenaed for a deposition in a case against her former employer.³¹ When her boss later questioned her about this deposition, she informed him that she testified on behalf of the former employee—against the company. Within a week of informing him of this, she was terminated without explanation.³² In litigation, Georgia Pacific claimed that she was terminated for poor performance—failing to meet a deadline for a union avoidance assignment—and excessive absences.³³

The district court granted summary judgment because Patterson did not engage in protected activity under Title VII.³⁴ To reach this

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conclusion, the district court relied upon the "manager exception," and the fact that the opposition was not against the retaliating employer—Georgia Pacific.³⁵ On appeal, the Eleventh Circuit rejected both premises.³⁶

The Eleventh Circuit rejected that a manager exception exists under Title VII.³⁷ Title VII's statutory text does not create any carve-out for any class of employees for protected activity under the opposition clause.³⁸ It "extends its protection to 'any of [the employer's] employees.'"³⁹ Specifically, the court stated, "[o]pposition is opposition, whether the opposer is drawing a manager's salary or not."⁴⁰

Next, the court addressed whether or not the opposition needed to be against the employee's current employer to be considered protected activity under Title VII.⁴¹ It concluded that it does not.⁴² Again, the court turned to the statutory text of Title VII to support this position.⁴³ Title VII prohibits "retaliation by 'an employer' against 'any individual' for having 'opposed any practice made an unlawful employment practice by [Title VII].'"⁴⁴ Therefore, it makes no difference if the employer is past or current for the purposes of opposing unlawful conduct and being retaliated for the same.⁴⁵ The court held that Patterson presented credible evidence that she opposed pregnancy discrimination while she was an HR manager at her previous employer, and this was sufficient to show that she engaged in protected activity.⁴⁶

Further, the court held that Patterson sufficiently showed that there was a genuine issue of fact related to the causation of the termination.⁴⁷ Patterson presented evidence that her supervisor was aware that the deposition was related to pregnancy discrimination, and that she was terminated within one week of her supervisor learning about her

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deposition testimony.⁴⁸ This was a sufficient causal connection for the court.⁴⁹

Lastly, the court held that Patterson successfully rebutted Georgia Pacific's legitimate, nondiscriminatory reason for the termination, which was that she had poor performance related to the union avoidance materials and excessive absences.⁵⁰ Patterson showed that she was in contact with the plant manager and her supervisor about the union avoidance materials around the time that these materials were allegedly due and it was undisputed that she was working on them while she was on vacation. Her supervisor never mentioned that she did not meet expectations before her termination, despite multiple meetings. As to her absence issues, Patterson showed that Georgia Pacific failed to follow its outlined procedure for addressing absences, and deviation from standard procedures can be evidence of pretext.⁵¹ Therefore, the court remanded this case for trial by jury.⁵²

IV. Section 1981

Section 1981⁵³ is among the many statutes that seek to combat racial discrimination.⁵⁴ It seeks to serve a specific purpose, to "protect[] the equal right of 'all persons within the...