[Readers: The Supreme Court decided two employment cases in the last two weeks. We already have analyzed the Thompson decision (see the discussion below QQ # 169). Set forth below is an analysis of the Supreme Court's decision in NASA v. Nelson that was prepared by my colleague, Jillian Kornblatt. If you have any questions about this decision, do not hesitate to reach out to Jillian at 612.492.6156 or email@example.com. Additional information regarding Jillian is available at http://www.dorsey.com/jillian-kornblatt/.]
Employees’ Informational Privacy Rights — Supreme Court Decides NASA v. Nelson
By: Jillian Kornblatt
On January 19, 2011, the United States Supreme Court decided the case of NASA v. Nelson, No. 09-530. The Court unanimously (a six justice majority, two concurring opinions, and Justice Kagan recusing herself), held that it did not violate the Constitution for employees of a government contractor to be required to submit to background checks in order to retain their jobs. The Court stated that the reasonableness of the government’s inquiries and the privacy protections in place meant that the background checks did not violate a “constitutional right to informational privacy.” The practical implications of this decision are discussed in the last section of this article. Read more
Quirky Question # 165:
This question is not especially “quirky.” I know that last year, you described the important employment cases that the U.S. Supreme Court was going to consider in the following year. I’ve seen a lot of press recently about the Walmart-Dukes case. What other employment cases will the Supreme Court be considering next term?
The U.S. Supreme Court already has accepted review of a number of critical labor and employment cases for resolution in 2011. As you noted in your question, approximately one week ago, the Supreme Court accepted review of the largest class action gender discrimination case (pay and promotion) in the nation, Walmart v. Dukes, No. 10-277, a case coming up to the high court from the Ninth Circuit. The Ninth Circuit’s opinion is 136 pages, and touches on numerous components of class action certification in a gender discrimination case. Precisely what the Supreme Court will focus upon remains to be seen, but this is a critical decision for corporate America to monitor carefully. But, the Dukes case is by no means the only employment important case before the U.S. Supreme Court.
Another issue the Court will be considering next term that potentially has widespread ramifications is Thompson v. North American Stainless, LP, No. 09-291, (argued December 7, 2010), an “associational discrimination” case that I wrote about previously. (See Quirky Question # 99.) The Thompson case involves the question of whether an employer violated the anti-retaliation provision of Title VII by firing the fiancée of an employee who had complained of discrimination. Curiously, there does not seem to be a circuit split on this issue so it surprised some that the high court agreed to review this decision. As I described in my prior Blog analysis, each appellate court that has considered this issue has found for the employer, limiting the scope of Title VII’s anti-retaliation provision. Read more