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Scalia’s Employment Law Legacy: More Complicated Than You Think

Posted in Discrimination & Harassment, Highlight

scaliaAbout a decade ago, I had the good fortune to sit at a table with Justice Antonin Scalia over a long lunch. He was a distinguished speaker for the Young Lawyers’ Section of the Connecticut Bar Association and, as a former Chair of the that group, I lucked out in my seating arrangements.

I remember my parents were a bit puzzled at my excitement over the prospect of lunch with Justice Scalia.  But I explained to them, that my excitement wasn’t because I agreed with all of his decisions or logic.  I was looking forward to it because whenever there was a new case released, I would typically read his decisions (and often dissents) first.

Because to read his decisions was to appreciate a craft of writing that I could never even hope to replicate.  Even on the many decisions of his that I disagreed with, I wanted to read his dissents to see what the weaknesses were in the majority’s arguments.

Justice Scalia’s legacy when it comes to employment law cases is far more confusing and complicated than you might think.

Take the Abercrombie/head scarf case from last year. Would it surprise you to learn that Justice Scalia penned the majority opinion that found in favor of an employment law plaintiff?

Indeed, he described the case as a “really easy” one. In doing so, he said that the applicant to a job, who was wearing a headscarf, only has to show that her need for the company to accommodate her religious beliefs was a “motivating factor” in its decision not to hire her.

Yet in the Young v. UPS case, he dissented from another decision that was in favor of the employee. In doing so, he was unrelenting in his criticism.  “Inventiveness posing as scholarship—which gives us an interpretation that is as dubious in principle as it is senseless in practice.”


Then look at another seeming “pro-employer” case.  He joined a majority opinion in Gross v. FBL Financial Services, Inc. which made it harder for plaintiff-employees to prove discrimination by saying that age must be the “but-for” cause of the challenged employment action.  That case was classic textualism — what did the text of the age discrimination law say?

But in Thompson v. North American Stainless, LP, he drafted the majority opinion expanding Title VII’s anti-retaliation provisions to cover people (such as another employee’s fiancee) within the “zone of interests” sought to be protected by the statute.

In short, Justice Scalia’s legacy on employment law cases is far more complex than some would give him credit for.

He left an indelible mark in how employment law cases are decided at the summary judgment stage through the St. Mary’s Honor Center v. Hicks case in 1993.  That case held that the trier of fact’s rejection of an employer’s asserted reasons for its actions does not entitle a plaintiff to judgment as a matter of law in a discrimination case.

Yet in the O’Connor v. Consolidated Coin Caterers case a few years later, he ruled in favor of a plaintiff-employee, opining that age discrimination need not be proven by replacement by someone outside the protected age class — only that the employee was replaced by someone “substantially younger”.

And to be sure, there are plenty of decisions that you could find fault in Scalia’s logic and, more than that, judgment.

His opinions against homosexuality were hurtful.  He once wrote that “Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home”, and suggested nothing wrong with that.   He should be remembered for those decisions as well.

But I look to other justices for a guide as to how we should judge the man too. Both Justice Kagan and Ginsburg loved him as a good friend — even when they disagreed with his decisions.  I think that’s an enlightened position in an age where political purity is seen as a badge of honor.

So when I look back on Justice Scalia’s legacy, I’ll remember more than his well-written decisions.  I’ll remember that lunch 10 years ago. I’ll remember talking with him about how he thought it completely logical that the court was deciding cases only by looking by the text of the U.S. Constitution.  I’ll also remember a man during that lunch who was charming, witty and willing to share a good story with others.

And I’ll remember how fortunate I was to have broken bread with him.