Justice Breyer’s Employment Law Legacy

By: Eva Zelson
On: March 30, 2022

Supreme Court Building in Washington DC

Justice Breyer announced his intention to retire from the Supreme Court bench this summer. Though every Justice who serves on the Supreme Court leaves some sort of legacy on our legal system and the interpretation of the laws of our nation, there is no denying that Justice Breyer’s contributions dramatically changed employment law. In this article, we take a look at the impact Justice Breyer had on employment law.

How did the Definition of “Retaliation” Change Under Title VII?

In 2006, Justice Breyer issued the opinion in the case Burlington N. & Santa Fe Ry. Co. v. White. In that case, a woman reported the harassment to her employer, and shortly thereafter, was demoted to a less desirable position and suspended without pay. The woman sued her employer claiming retaliatory discrimination under Title VII. In his opinion, Justice Breyer created the standard by which we analyze retaliation in employment law by writing that in order to prevail on a claim of retaliatory discrimination, a plaintiff must show the employer’s actions “might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” In other words, this opinion expanded the scope of retaliation under Title VII to include employer actions that are likely to deter discrimination victims from complaining or reporting harassment.

How did the Definition of “Complaint” Change Regarding FLSA Law?

Four years later, Justice Breyer issued another opinion changing the state of employment law in Kasten v. Saint-Gobain Performance Plastics Corp. This case dealt with retaliatory termination under the Fair Labor Standards Act, or FLSA. An employee was fired after raising numerous verbal complaints about the location of the time clocks in the facility he worked in. His employer argued that FLSA’s anti-retaliation provision did not include verbal complaints. Justice Breyer and five other Justices disagreed. Consequently, Justice Breyer’s opinion expanded the scope of FLSA’s anti-retaliation law by expanding the definition of a complaint to include even informal, verbal complaints.

Supreme Court

What was the Decision on Retaliation Based on Race in 1981?

In CBOCS W., Inc. v. Humphries, the Supreme Court faced the question of whether an employee can sue an employer for retaliation under the Civil Rights Act. In this case, Humphries was terminated from his job, and filed suit under the Civil Rights Act, claiming that his employer had wrongfully retaliated against him due to his race. Before this case was heard by the Supreme Court, the Civil Rights Act was understood to prevent discrimination on the basis of race – it was not necessarily interpreted to prevent employment retaliation on the basis of race. Analyzing the history of the Civil Rights Act and the historical interpretation of the statute, Justice Breyer concluded that retaliation on the basis of race was prohibited by the Civil Rights Act, and once again changed the landscape of employment law in the US.

What did the Court Rule About Perceived, Rather than Actual Engagement in Protected Political Activity in 2016?

In the case Heffernan v. City of Paterson, a police officer sued the City after he was demoted. The basis of his demotion was that he was seen by another officer picking up a mayoral campaign sign, which the employer argued was overt involvement in political activities. The officer denied that he was involved in such activities and he merely picked up a sign for his mother. Thus, the Court was faced with the question of whether the First Amendment provides a right of action for employees for retaliation when the government takes a negative employment action against that employee based on perceived political activity. Justice Breyer held that it does – even if the employee had not engaged in a constitutionally protected activity. According to employment law, an employee is still entitled to file his or her claim with the court under the First Amendment.

What other Important Employment Law Cases has Justice Breyer Heard?

While these are some of the more monumental cases that Justice Breyer wrote opinions for, yet there are several more employment law cases that he has heard during the course of his 30 years on the Supreme Court Bench. For example:

  • In Doe v. Mills, Justice Breyer denied an application for injunctive relief that sought to prevent Maine from enforcing a COVID-19 vaccine mandate for healthcare workers without a religious exemption.
  • In E. Associated Coal Corp. v. Mine Workers, Justice Breyer upheld the arbitrator’s ability to determine an appropriate award in an employment dispute.
  • In US Airways, Inc. v. Barnett, Justice Breyer held in a close 5-4 decision that any request for an accommodation under the Americans with Disabilities Act that conflicts with an employer’s seniority system is, by definition, unreasonable.

What does the employment law community expect from Ketanji Brown Jackson, if confirmed to the Supreme Court?

Throughout his time on the Supreme Court Bench, Justice Breyer worked hard to continue to expand the employment law rights of employees to protect them from unjust retaliation. As a judge with a professional background with significant public service, we are hopeful that if Ketanji Brown Jackson is confirmed, she will continue the positive trajectory for employees that Justice Breyer has set into motion.

Take Action & Contact Us Today

All Consultations are Free and Confidential

Get a Free Consultation