The confirmation hearings for Supreme Court nominee Sonia Sotomayor serve as a backdrop for noting an overall change in the stability of employment law. For many years, the U.S. Supreme Court and Congress played complementary roles without much conflict. Outside of highly scrutinizing Presidential nominations to fill occasional vacancies in the Supreme Court, Congress rarely disagreed with or took action in response to Supreme Court decisions. Congress periodically passed major employment legislation and then left it to the Supreme Court to fill in gaps and resolve differences between the lower courts on how to apply and interpret the laws. Congress did not often take issue with these Supreme Court decisions. However, in the past year, the two bodies have disagreed more often, with Congress increasingly taking action to undo Supreme Court decisions on employment law subjects.
The Lilly Ledbetter Fair Pay Act of 2009 was probably the most publicized. Congress passed legislation to overturn a Supreme Court ruling against a female employee, for whom the law is named, on the subject of when the statute of limitations runs on a claim of pay discrimination. Congress separately took action to overturn several Supreme Court decisions on the subject of disability discrimination law through the “The Americans with Disabilities Act Amendment Act of 2008.” This law has received less publicity, perhaps because of its less engaging title and greater complexity; but it will have a far greater impact. Effective this year, it significantly expanded both the persons protected and the claims that can be brought under employment disability discrimination law. Given the difference in the political composition between the Court and Congress, it is likely that the next several years will see continued tension between them.
Employers need to be alert as a result of these rapid changes in the legal rules and standards. Just as soon as we assimilate a Supreme Court decision into our practices and actions, we may have to make additional adjustments to account for Congressional changes. Attending to business as usual, when it comes to Human Resources actions, will be problematic.
We summarized the new disability discrimination law in a past Ounce of Prevention e-mail, emphasizing, amongst other things, the expanded protections for those whose impairments are not substantial. Click here to view the prior article. This is all in addition to increased Congressional employment law activity overall, such as with the recent increases in the coverage and benefits of the Family & Medical Leave Act and group health insurance continuation. The point is to not assume that what worked before will work now. Changes are frequent.
We remain available and interested in advising you on how to effectively and practically handle particular employee situations as well as to train your managers to avoid problems in these and other areas.