No, It’s Not a “Pro-Business” Supreme Court

The Supreme Court decided two discrimination cases this week that confirm that the Supreme Court is not “pro-business “in discrimination cases, as liberal journalists claim. I discuss them at PointofLaw. Examples include one ruling (Federal Express v. Holowecki) that’s anti-business, and another ruling that’s neutral towards business.

Today, I also discussed how courts can be downright hostile to employers in sexual harassment cases, engaging in a game of bait-and-switch to first hold them liable and then maximize the damages that plaintiffs can collect. Earlier, I discussed judicial double standards in harassment cases and judges’ indulgence towards trial lawyers who seek to inflame juries with prejudicial appeals.

The Supreme Court has generally been less sympathetic to employers than the average federal appeals court. Business groups should think twice before seeking Supreme Court review of decisions that trouble them — they might get an even worse opinion from the Supreme Court than they got from the lower court, as happened in Burlington Northern v. White (2006), a case I described here (which defined prohibited “retaliation” so broadly as to raise possible First Amendment issues for employers).