July 2013
1 987658.1
A Review of the Supreme Court’s 2012-2013 Term
As the United States Supreme Court’s 2012-2013 term drew to a close at the end of June, commentators
observed a continuing gradual but perceptible shift to the right by the Court. The Roberts Court is
generally viewed as pro-business, and its employment-related decisions issued this term did nothing to
alter that perception. Indeed, nearly every major Court ruling addressing employment-related issues this
term was favorable to employers in at least some respect. The 11 employment-related decisions issued by
the Court this term included the following:
One Title VII harassment case (Vance)
One Title VII retaliation case (Nassar)
Two civil rights cases (Windsor and Fisher)
Two class action cases (Genesis and Comcast)
Three arbitration cases (American Express, Oxford, and Nitro-Lift)
One ERISA case (McCutchen)
One federal employee case (Kloeckner)
As in the past, many of the Court’s employment decisions reflected a split among the justices along
ideological lines. Notably, Justice Kennedy—the key swing vote on the Court—was in the majority in
every case. The importance of Justice Kennedy’s vote in employment decisions mirrors the importance of
his vote overall, as he has been either the justice most frequently in the majority of 5-4 decisions, or tied
for that title, in every term since 2003, according to SCOTUSblog. Certainly, the decisions of this term
suggest that the Roberts Court continues to be sympathetic to employer positions.
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987658.1
Executive Summary
The following table briefly summarizes the holding of each of the Court’s 11 labor and employment
decisions this term:
CASE
SUMMARY OF HOLDING
VOTE/OPINION AUTHORS
Vance v. Ball State
University
Case No. 11-556
Decided: June 24, 2013
For purposes of Title VII
harassment, the definition of a
“supervisor” encompasses only
those employees with the
authority to make significant
changes in the victim-employee’s
employment status (i.e., tangible
employment actions such as
decisions about hiring, firing,
promotion, demotion,
reassignment to a vastly different
position, or benefits changes).
Vote: 5-4
Opinion: Alito (joined by Roberts,
Scalia, Kennedy, and Thomas)
Concurrence: Thomas
Dissent: Ginsburg (joined by
Breyer, Sotomayor, and Kagan)
UTSMC v. Nassar
Case No: 12-484
Decided: June 24, 2013
Plaintiffs bringing retaliation
claims under Title VII must show
that their protected activity was
the “but for” cause of the adverse
employment decision, rather than
just one “motivating factor.”
Vote: 5-4
Opinion: Kennedy (joined by
Roberts, Scalia, Thomas, and Alito)
Dissent: Ginsburg (joined by
Breyer, Sotomayor, and Kagan)
U.S. v. Windsor
Case No: 12-307
Decided: June 26, 2013
The portion of the Defense of
Marriage Act which had
established a federal definition of
marriage as a legal union only
between one man and one woman
is unconstitutional.
Vote: 5-4
Opinion: Kennedy (joined by
Ginsburg, Breyer, Sotomayor, and
Kagan)
Dissent: Roberts, Scalia (joined by
Thomas and joined by Roberts as to
Part I), Alito (joined by Thomas as
to Parts II and III)
