No, the U.S. Supreme Court is Not a Pro-Business Court

In a unanimous decision Monday in Thompson v. North American Stainless (opinion), the U.S. Supreme Court ruled that an employee who was fired for cause — performance reasons — could sue his employer under the Title VII of Civil Rights Act, claiming the company discriminated against him for comments made by his fiance. In effect, the court invented a law allowing for third-party claims.

This is a bad decision for business. The National Association of Manufacturers had filed an amicus brief in support of the company, and our Manufacturing Law Center entry explains the consequences of the ruling for business:

A rule that permits third-party retaliation claims would increase even more dramatically retaliation charges, which are the fastest-growing category of charges filed under Title VII, and would put employers in the untenable position of having to speculate about possible relationships an employee may have that could give rise to potential liability each time they contemplate disciplinary or other action against that employee.

This decision should — but won’t — put to rest the much-repeated claim from left-leaning pundits and bloggers that the U.S. Court, led by Chief Justice John Roberts, is a reactively pro-business court.

Ed Whelan, President of the Ethics and Public Policy Center, made the case at the National Review Online’s Bench Memos blog, “Those Sneaky Corporatist Justices”:

As I explained in my testimony at Elena Kagan’s confirmation hearing, “allegations that the Roberts Court engages in conservative judicial activism frequently involve a highly selective skewing of the evidence—drastically inflating the supposed importance of cases that fit (or that are distorted to fit) the desired narrative while simply ignoring those that don’t.”

The Court’s ruling today in Thompson v. North American Stainless is one that critics of the Roberts Court will do their best to ignore. In that case, Justice Scalia, writing for the Court, ruled that third-party retaliation claims are permitted by Title VII—specifically, that someone who contends that he has been fired (or otherwise punished) by his employer as retaliation for another employee’s complaint about job discrimination may sue the employer under Title VII. (In the particular case, plaintiff Thompson alleged that North American Stainless fired him in order to retaliate against his fiancée for her filing an EEOC charge of sex discrimination.)

That’s certainly not a pro-employer result from our supposedly “corporatist” Court.

Hans Bader at the Competitive Enterprise Institute has been following the court’s rulings that can reasonably be considered unfriendly to business. Blogging at The Examiner, he writes of the North American Stainless decision:

This is part of a long line of rulings against employers by the Supreme Court, which is not pro-business at all, contrary to the false claims of many liberal reporters who cover the Supreme Court. Many of these rulings against employers, like Lewis v. Chicago (2010), have been unanimous reversals of lower court decisions.

The noxious claim that the Supreme Court is pro-business has been used in Congress to justify passage of legislation that really does harm to the ability of employers to manage their workplaces, most notably through the Lilly Ledbetter Fair Pay Pact, which eliminated statutes of limitations for filing employment discrimination claims.

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