The five employment law cases decided by the Supreme Court during the October 1999 Term bring to nineteen the total number of significant employment law cases decided by the Court during the last three terms. The October 1997 Term cases were marked by primary focus on employer liability, under Title VII of the Civil Rights Act of 1964, for sexual harassment by supervisors. Primary focus during the 1998 Term was on disability discrimination under the Americans with Disabilities Act of 1990 (ADA) and on the constitutionality of actions brought by private parties against states under the Fair Labor Standards Act (FLSA), in light of the Eleventh Amendment sovereign immunity of the states. An overview of the 1997 and 1998 Term employment law cases is provided in Section II of this article.

The most important of the October 1999 Term employment law cases focused on the pretext-plus doctrine in employment discrimination law and standards for ruling on motions for summary judgment and judgment as a matter of law. The Court also considered the impact of Eleventh Amendment sovereign immunity of the states on private law suits brought under the Age Discrimination in Employment Act (ADEA) against state government employers, forced use of FLSA compensatory time by public employees, liability of HMOs under the Employee Retirement Income Security Act (ERISA) for mixed eligibility and treatment decisions, and ERISA actions against nonfiduciaries.

If one takes a three year view of the nineteen employment law cases, from the perspective of victories for employee plaintiffs versus victories for employer defendants, the results are mixed, but generally favor employees. Beneath the surface, one sees three voting patterns. First, two members of the Court, Justices Scalia and Thomas, usually joined by Chief Justice Rehnquist, consistently vote in favor of employer interests unless they are constrained by Supreme Court precedent or controlling statutory language. Four members of the Court, Justices Breyer, Ginsburg, Souter, and Stevens, generally support employees, although deviations from this pattern occur based upon the specifics of individual cases. The remaining two Justices, Kennedy and O'Connor, are unpredictable in their voting patterns. Alone, or in combination with each other, they determined the outcome in six of the nineteen employment law cases.

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Co-authored with Douglas D. Scherer.