News of Justice Antonin Scalia’s death and the vacancy it has left on the Supreme Court has reverberated throughout the country over the last several weeks. That it happened during an election year has only heightened the attention given to the impact of his sudden absence and his potential replacement. Justice Scalia was known for using the doctrine of “originalism” to interpret the Constitution and for writing colorful, blunt opinions. His impact on areas of the law from the Voting Rights Act to the Second Amendment has been well-established over nearly three decades of service on the Supreme Court.

In this posting, we’ll talk about Justice Scalia’s legacy in the area of employment discrimination law and what the future may hold depending on his replacement. This isn’t intended to be a deep scholarly analysis for our fellow employment lawyers, but a general overview for anyone interested in Justice Scalia’s impact on employment discrimination cases and how his departure might affect similar cases in the future.

Justice Scalia’s Mixed Record on Employment Discrimination

Most people who follow the Supreme Court considered Justice Scalia to be one of the more conservative justices on the Court during his time. Scalia was appointed by Ronald Reagan and joined in many rulings lauded by conservatives over the last several decades. But his impact on employment discrimination law cannot be easily painted as conservative or pro-business. If you look at some of the employment discrimination cases decided by the Court over Justice Scalia’s tenure, he has been on both sides of opinions affecting employment discrimination law.

On one hand, Justice Scalia opposed expansion of sexual harassment liability and the ability of employees to raise large-scale class action discrimination lawsuits. In Burlington Industries, Inc. v. Ellerth, the majority of the Court found that an employer can be liable for a hostile work environment created by sexually harassing conduct of a supervisor, regardless of whether any adverse action was taken against the victim and whether the employer was directly responsible for the supervisor’s actions. Justice Scalia dissented from the majority opinion in Burlington, arguing that the majority created the rule for employer liability from nothing and that a supervisor’s harassing conduct should not be automatically attributed to their employer. Justice Scalia also wrote the majority opinion in Wal-Mart Stores v. Dukes, which denied a small group of female employees of the retailer the right to file a class action gender discrimination lawsuit on behalf of all female employees on the basis that the group lacked a common complaint. The burden fell, instead, on individual female employees to file their own lawsuits against one of the largest companies in the world in order to recover for any gender discrimination they experienced.

In other discrimination cases, however, Scalia sided with the employee, writing two opinions that supported broad views of anti-discrimination law. In 2011, Justice Scalia wrote an opinion in the case of Thompson v. North American Stainless that allowed family and friends of an alleged victim of discrimination to bring a retaliation lawsuit against their mutual employer. Most recently, Justice Scalia wrote the opinion in EEOC v. Abercrombie & Fitch Stores, a case in which the employer, Abercrombie, refused to hire a woman because she wore a head scarf. While the applicant claimed she’d been discriminated against based on her religion, Abercrombie claimed the head scarf violated its dress code and it had no reason to know that the applicant wore it for religious reasons. Scalia’s opinion supported the applicant by holding that she did not have to specifically request an accommodation to wear her head scarf in order to be protected from religious discrimination by a prospective employer.

Impact of Justice Scalia’s Absence on Employment Discrimination Cases

Justice Scalia’s absence from the Court has been the subject of a lot of media coverage. In the short term, how will it impact Supreme Court decisions? Will President Obama nominate a replacement, and if so, will the Republican-controlled Senate approve? What will the implications be if a Democrat or Republican appoints a replacement? We can only speak in general terms of the long-term impact of Justice Scalia’s absence from the Court. For the time being, while the Court is one justice down, its members are evenly split between four Republican appointees and four Democratic appointees. In those cases where the court is evenly divided and unable to come to a majority decision, the lower appellate court decision will stand. This could have implications on current employment law cases before the court, including Green v. Brennan, which concerns how long an employee has to raise a constructive discharge claim.

Many Republican Senators have already indicated they would block any nominee sent to them by President Obama, so it’s highly likely the Court will stay at eight members until the next president takes office. If a Democrat were to win the election, the expectation is that they would appoint a more liberal judge to the Court. According to the New York Times, a liberal appointee would likely shift the Court’s overall ideology to a position it hasn’t been in for 50 years. In terms of employment discrimination cases, this could mean the new justice and the majority of the court would read the law more broadly and in favor of aggrieved employees. If, on the other hand, a Republican wins the presidential election, they’ll be more likely to appoint a conservative judge that would maintain the status quo. However, given Justice Scalia’s mixed opinions in past employment discrimination cases, it’s difficult to say that a new Republican-appointed justice would keep the status quo.

With a stalemate between the Senate and President looking likely, we’ll simply need to wait and see who will take the empty seat at the Court and how the future of not only employment discrimination cases, but a broad range of issues could be affected.

If you’ve been discriminated against at work, please contact Eisenberg & Baum. We have an experienced group of employment discrimination attorneys who are ready to help you. We offer free initial consultations for gender discrimination claims and bill on a contingent fee basis, so you won’t have to pay us unless we win your case.