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May 26, 2011

Supreme Court Upholds Arizona Immigration Law

This morning, the Supreme Court announced its decision in Chamber of Commerce v. Whiting, a case challenging Arizona's immigration law. The law imposes strict sanctions --  the suspension or revocation of business licenses -- on employers who intentionally or knowingly hire unauthorized workers. It also requires Arizona businesses to use the federal government's electronic system for verifying work authorization, E-Verify

A group of business and civl rights organizations challenged the law, claiming that it was preempted by the federal Immigration Reform and Control Act (IRCA). The Supreme Court disagreed. Although IRCA does preempt many types of state laws that attempt to control illegal immigration, it includes an exception that allows states to pass and enforce licensing and similar laws. Because the Arizona law imposes its sanctions through the suspension and revocation of business licenses, it falls into this exception and can coexist with IRCA. The Court also noted that Arizona took pains to bring its sanctions scheme into harmony with IRCA by, for example, using the federal definition of "unauthorized alien" and deferring to the federal government's determination of an employee's authorization to work in the U.S. 

The Court also upheld the requirement that Arizona employers use E-Verify to check on work authorization. Although the statute authorizing the E-Verify program prohibits the Secretary of Homeland Security from requiring any employer outside the federal government to use E-Verify (unless the employer has already violated the law), it doesn't impose any limits on state laws mandating use of E-Verify. 

Several other states have passed laws similar to Arizona's, and others are likely to follow on the heels of the Court's opinion today. 

April 25, 2011

Supreme Court Refuses to Step in on Healthcare Reform . . . for Now

This morning, the Supreme Court denied the state of Virginia's request to hear a case on the constitutionality of the healthcare reform law. (You can read about this morning's decision, and find the briefs and order in the case, at scotusblog.) This isn't the end of the issue: Virginia asked the Supreme Court to allow it to jump the usual line of appellate review and go straight from the district (trial) court to the Supreme Court, without waiting for the federal Court of Appeals to hear the case and issue its own decision. In today's order, the Supreme Court declined to hear the case before the Court of Appeals had a chance to deal with it. After the Court of Appeals issues a judgment, however, either party could once again ask the Supreme Court to hear the case. 

There have been a handful of cases around the country challenging the constitutionality of various parts of the healthcare reform law, and these decisions conflict with each other. In the Virginia case, the district court found that the "minimum essential coverage provision" -- the individual mandate, which requires everyone to have health insurance by 2014 or pay a penalty -- was unconstitutional. The Obama administration argued that Congress had the right to enact this provision by virtue of the Commerce Clause, which gives Congress the right to regulate commerce among the states. Ultimately, the district court sided with Virginia on this claim, finding that Congress's right to regulate existing commerce did not confer the right to force people to engage in commerce (by requiring them to purchase health insurance). 

The federal Court of Appeal for the Fourth Circuit is scheduled to hear the Virginia case next month, and the other cases that have challenged the law across the country are also finding their way to other circuit courts. As these appeals are decided -- and we march inexorably toward the effective dates of the most controversial parts of the healthcare reform law -- the Supreme Court will undoubtedly be asked again to decide whether the law is constitutional. 

March 24, 2011

Supreme Court: Oral Complaints Trigger Retaliation Protection

In yet another win for an employee claiming retaliation, the Supreme Court decided this week that an employee's oral complaints of violations of the Fair Labor Standards Act could protect that employee from employer retaliation. (The case is called Kasten v. Saint-Gobain Performance Plastics Corporation.)

Kevin Kasten claimed that he had made numerous oral complaints within the company -- to his supervisor, his lead operator, the operations manager, and human resources personnel -- about the location of the company's time clocks, which were situated between where the employees had to don their protective gear and where the employees actually had to work. This meant that employees were not paid for the time they spend putting on their gear at the beginning of their shift and taking it off at the end, in violation of the Fair Labor Standards Act (FLSA). 

In a separate lawsuit, a federal court found in Kasten's favor on the underlying complaint about the time clocks. The lawsuit that made it to the Supreme Court was about Kasten's retaliation claim: He alleged that he was disciplined and ultimately fired because of his complaints to the company. The company countered that Kasten was fired because he refused to use the time clocks. It also argued that Kasten couldn't claim retaliation, because the FLSA protects only employees who "file" a complaint, which must be done in writing. 

The Supreme Court found for Kasten. Consulting the dictionary, other provisions of the statute, and other sources, the Court found that the term "file" doesn't necessarily require a document. The Court also found that requiring employees to put complaints in writing would thwart the statute's protective purpose by discouraging complaints from those who are less educated, illiterate, or simply overworked. On the other hand, the Court agreed with the employer that the employee's complaint had to be sufficient to put the company on notice of the problem in order to trigger the law's retaliation provisions. So the Court came up with this standard:

To fall within the scope of the antiretaliation provision, a complaint must be sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection.  

In an odd twist, the Court explicitly declined to address whether the employee must make a complaint to a governmental agency to be protected, even though the case involved an employee who complained only to the employer. (In other words, if the employee must complain to an agency, Kasten doesn't have a retaliation claim.) Apparently, the employer hadn't kept this argument alive properly on appeal, so the Court wasn't required to consider it. And in the majority opinion, Justice Breyer argued that there was no need for the Court to resolve this question, because it wasn't necessary to the Court's decision in the case. Still, it's a fairly large issue to leave undecided, especially when the claims of the actual employee in the case depend on how it's resolved. 

March 2, 2011

Supreme Court Victory for Employees in Discrimination Case

Yesterday, the Supreme Court issued its much-anticipated decision in Staub v. Proctor Hospital, in which an employee claimed that he was discriminated against because of his military service, in violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA). This case has been dubbed the "cat's paw" case, after an Aesop's fable. (Justice Scalia's opinion recounts the narrative details, if you're interested; they involve a cat, a monkey, some roasting chestnuts, and a moral about princes and kings). The upshot in these cases is that one person has the intent to discriminate, but another person -- without a discriminatory motive -- ultimately makes the decision to fire the employee. In this situation, courts have split on whether the employer is liable for discrimination. 

In the Staub case, the evidence showed that Staub's immediate supervisor and her supervisor were hostile to his service obligations as a member of the Army Reserves. Both had made negative comments about it and were described as "out to get" Staub. Staub was written up for violating a rule about leaving his work area; he claimed that there was no such rule and, at any rate, he had not left his work area. As part of the disciplinary action, Staub was required to check in with a supervisor whenever he left his work area. Several months later, one of the hostile supervisors reported to Buck, the vice president of HR, that Staub had violated this directive by leaving his work area without checking in; Staub again denied the accusation. Buck fired Staub for violating the requirement.  

A jury found in Staub's favor, but the federal Court of Appeals reversed this victory. The Court found that Buck wasn't motivated by discrimination. In this situation, the company could be held liable for discrimination based on the hostile motives of the supervisors only if Buck "blindly relied" on their information in firing Staub. Because Buck looked into the facts a bit before making her decision ( the Court of Appeal admitted that her "investigation" wasn't very thorough) and wasn't "wholly dependent" on the recommendations of the hostile supervisors, the Court of Appeals found that the company wasn't liable. 

The Supreme Court overruled this decision. It found that an employer is liable if:
  • a supervisor takes action, motivated by discriminatory bias, intending to cause an adverse employment action against the employee, and
  • the supervisor's action is a proximate cause of the action against the employee. 
Because Buck relied on the hostile supervisors' disciplinary write-up and version of the facts in deciding to fire Staub, rather than independently examining those facts -- and Staub's allegation that they were false and motivated by discrimination -- in making her decision, the company was liable. 

This is a big win for employees, not least because the language of USERRA also appears in Title VII and other laws prohibiting discrimination, so the effect of the case is likely to be far-reaching. Here are a few takeaways for employers looking to avoid cat's paw liability:
  • Investigate! Cat's paw liability depends on causation -- in other words, the person with the discriminatory motive must have some effect on the decision. If the decision maker independently examines the facts, the causal chain is broken. Presumably, the decision maker will uncover the discriminatory bias (and therefore decide not to take action against the employee at all). It wouldn't have been hard in the Staub case, in which these supervisors were apparently willing to tell everyone how they felt about Staub's military obligations.  
  • Train managers. In the Staub case, two supervisors appear to have had an ongoing campaign against an employee for wholly inappropriate and discriminatory reasons. A little training could have gone a long way here. If supervisors aren't making discriminatory statements and decisions in the first place, they won't be creating liability for the company. 
  • Think about settlement. For the unhappy employers that find themselves on the wrong end of a valid cat's paw claim, the Supreme Court's decision virtually guarantees that the case won't end early. Questions of motive (in a cat's paw case, the motives of at least two people: the allegedly discriminatory supervisor and the ultimate decision maker), cause, and the effectiveness of an investigation can be answered only by examining the underlying facts. If those facts are in dispute, the employer won't be able to end the case by winning a motion for summary judgment. Instead, the case will go to trial, where a jury will have to ultimately decide where the truth lies. 

January 26, 2011

Another Supreme Court Win for Employees in Retaliation Case

The Roberts Supreme Court, markedly pro-business in many ways (as discussed in this recent New York Times article), has yet to meet a retaliation claim it doesn't like. This week, in Thompson v. North American Stainless, the Court found in favor of a man who claims he was fired because his fiance filed a sex discrimination claim against their mutual employer. 

In previous terms, the Court has found that an employee may bring a retaliation claim under Section 1981 (a Reconstruction Era civil rights law that prohibits race discrimination in contracts) and that a federal employee may sue for retaliation under the Age Discrimination in Employment Act, despite any explicit mention of "retaliation" in either law. The court also found in favor of an employee who claimed she was fired after answering questions as a witness in an investigation of another employee's sexual harassment claim (my previous post about the Supreme Court case here; and the jury's subsequent $1.5 million award in the employee's favor here). And, the Roberts Court also decided Burlington Northern & Santa Fe Railway Co. v. White, which held that retaliation under Title VII encompasses any employer action that "well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." 

This is the standard on which Justice Scalia relied in this week's case, Thompson v. North American Stainless. Eric Thompson met Miriam Regalado when she was hired by North American Stainless in 2000, where he already worked. The two began dating and got engaged, a fact that was known throughout the company. Regalado filed a charge of discrimination against the company, alleging that her supervisors had discriminated against her based on gender. The company was notified of the charge in early 2003; several weeks later, Thompson was fired. He sued the company for retaliation. 

The federal Court of Appeals found that Thompson didn't have a valid claim, because it was his fiance who brought a charge of discrimination against the company. Thompson himself hadn't engaged in any "protected activity" under Title VII, and so had no basis for a lawsuit, even if the company fired him because of Regalado's EEOC charge. 

The Supreme Court disagreed, finding that Thompson could sue for retaliation. Firing someone's fiance is clearly the type of action that could dissuade a reasonable employee from asserting her rights, as the Court found. The trickier part, however, is who has the right to sue for that harm. In this situation, Regalado had the discrimination claim -- and was the target of her employer's retaliation, presumably intended to get her to drop the case -- but Thompson is the one who lost his job. The Court found that the language of Title VII, which allows a "person aggrieved" by a statutory violation to sue, goes beyond only those who have themselves engaged in protected activity. Adopting a standard used in other cases, the Court decided that Thompson could sue because he fell within the "zone of interests" protected by Title VII. Because the company fired him intentionally, with the purpose of undermining the goals of the statute, he had a right to his day in court. 

There has been a lot of discussion about whether this case will radically expand the number of retaliation charges (already at an all-time high -- and the most frequently filed charge at the EEOC in the past two years, surpassing even race discrimination charges). In other words, can a fired employee turn around and argue that he or she was fired because someone else at the company -- a manager or coworker -- filed a discrimination claim? Justice Scalia, who wrote the Thompson opinion, addressed this issue directly, saying that although "we acknowledge the force of this point," it justifies neither a blanket rule that bars all claims of third-party retaliation nor a rule that defines which third parties have a close enough relationship to the discrimination claimant to warrant a retaliation claim. So these issues will have to be decided case by case. 
January 24, 2011

Supreme Court Upholds Contractor Background Checks

On January 19, the Supreme Court rejected a challenge to the federal government's standard background check (called the National Agency Check with Inquiries, or NACI). The majority opinion assumed -- without deciding -- that there is a right to informational privacy, but found that this right wasn't violated by the background checks. (You can read the case here.) 

In the case, a group of employees at the Jet Propulsion Laboratory, a research lab jointly run by Cal Tech and NASA, claimed that two aspects of the NACI violated their rights to privacy: a question about rehabilitation and treatment for illegal drug use, and a requirement that they authorize the government to ask open-ended questions of former landlords, employers, and other references, in which the references are asked broadly about the applicants' financial integrity, "mental and emotional stability," and "general behavior and conduct," among other things. 

The employees who challenged the NACI were government contractors; their official employer was Cal Tech. They were already working at the JPL when they were asked to submit to the screening. (Although federal government employees were already subject to the NACI screening procedures when applying for jobs, contractors were not, until the 9/11 Commission recommended that they also be screened.)

The Supreme Court's opinion began by assuming -- without deciding -- that there is a Constitutional right to informational privacy. This assumption has been seen as a victory by employee advocates, some of whom believed the Court might use this case as an opportunity to decide otherwise. As Justice Scalia wishes it had: His concurring opinion indicates that he sees the Court's failure to decide this issue as a dereliction of duty. He believes the Court should have simply decided that there is no right to informational privacy; his opinion begins with the observation, "Like many other desirable things not included in the Constitution, 'informational privacy' seems like a good idea . . . " (He also believes that the majority's opinion, which weighs the government's need and use for the information against the employees' assumed privacy rights, is "a generous gift to the plaintiff's bar.")

The majority's opinion discusses a number of factors that, in its view, weigh in the government's favor, such as the existence of protections against unnecessary disclosure of the information once it is gathered; the government's role in this case as a manager of its employees (rather than a sovereign of its citizens); the important -- and taxpayer funded -- work done by the employees who brought the case; the common practice in private industry of asking open-ended reference questions such as those on the NACI; and, in the case of the question about drug rehab and treatment, the government's stated intention of using that information for good rather than evil, by considering an employee's efforts to turn things around as a favorable quality. 

These considerations, however compelling, seem to skirt an important issue, which the Court didn't spend much time on: Why does the government need this information in the first place? If there is a privacy right, then the government must have a strong interest in the information it seeks, and the way it goes about getting that information may not be unnecessarily intrusive. It isn't enough to say that everyone else gathers this type of information too, and we'll keep it confidential once we get it. To me, it looks like the Court's assumption of a privacy right was fairly half-hearted. The opinion doesn't read as if the Court thought this information was protected by a privacy right but the government's need for it outweighed the employees' interests. Instead, it seems the Court didn't much believe in the right it assumed, and accorded it relatively little weight in the balance. 

Because this case involves public employment and a (possibly) Constitutional right, it does not apply directly to the private sector. And, despite the Court's claims to the contrary, many private employers don't go this deep in their background checks, at least not for employees who won't hold the highest ranks on the company ladder. The main takeaway from this case may be simply that privacy continues to be a divisive, tentatively handled issue on the Supreme Court -- with this timely reminder arriving only a few days before the anniversary of the Court's ultimate privacy case, Roe v. Wade. 
October 11, 2010

Lots of Employment Cases at the Supreme Court: Half a Dozen to Watch

court_front_med.jpgThe U.S. Supreme Court opened its latest session last week with a number of employment law cases on the docket. Plenty of interesting issues to keep an eye on for this term, including:

  • Oral complaints of violations of the Fair Labor Standards Act (Kasten v. Saint-Gobain Performance Plastics Corp.). An employee is fired for repeatedly failing to punch in and out on the time clock. The employee claims that he made numerous oral complaints that the location of the time clock required employees to clock in only after donning their safety gear for work, and to clock out before taking that gear off, which resulted in unpaid overtime. The employee filed -- and won -- a class action lawsuit on the overtime question; now, the Supreme Court will decide whether he has a retaliation claim. At issue is whether an oral complaint is protected by the FLSA's provision prohibiting retaliation, or whether a complaint must be in writing to be protected. (The excellent SCOTUSBLOG has links to key documents in the case here.)
  • Evidence of bias in someone who influenced the decision maker (Staub v. Proctor Hospital). This is the cat's paw case, so-called because of a French fable (which also involves, according to the Court of Appeals decision in the case, some chestnuts and "a clever-- and rather unscrupulous--monkey"; but we digress). In this case, the employee was fired and claimed it was because of his military service, in violation of USERRA. There was plenty of evidence of bias against him on this basis, but by someone other than the person who decided to fire him. The Supreme Court agreed to decide whether an employer can be held liable for the discriminatory bias of someone who caused or influenced but did not ultimately make the employment decision at issue. 
  • Retaliation against someone associated with the complaining employee (Thompson v. North American Stainless). An employee filed an EEOC charge, alleging that her employer discriminated against her based on gender. Three weeks after the EEOC notified her employer of the charge, the employer fired her fiance, also an employee; the two met at work and their relationship was known in the workplace. Can the fiance file a retaliation case, even though he never engaged in any protected activity (complained of discrimination or harassment) himself? The federal Court of Appeals for the Sixth Circuit said no; the Supreme Court will decide.
  • Background checks for federal contractors (NASA v. Nelson). This case, brought by employees of CalTech who worked in a research lab jointly run with NASA, challenges the federal government's background check requirements as a violation of the right to informational privacy. You can read my previous post summarizing the facts of the case here. For a summary of the oral argument (held last week), check out this recap on SCOTUSBLOG.
  • Arbitration agreements that don't allow class-wide arbitration (AT&T v. Concepcion). This is a consumer case rather than an employment case, but it could have far-reaching effects in the employment field. Several people sought redress from AT&T, which advertised that subscribers got a free phone, but in fact charged sales tax on the value of the phones. The subscriber agreement with AT&T required customers to arbitrate their claims, and prohibited them from bringing a class action-style arbitration on behalf of all subscribers who got hit with the tax. The federal Court of Appeals for the Ninth Circuit found that the arbitration agreement was unconscionable -- and therefore unenforceable -- because it prohibited class-wide claims. The Supreme Court agreed to hear the case.  
  • The requirements Arizona's immigration law imposes on employers (Chamber of Commerce v. Whiting). In a rare case in which the Chamber of Commerce and the SEIU are on the same side, this lawsuit alleges that Arizona's controversial immigration law -- and specifically, its sanctions (including revocation of business licenses) against employers who hire unauthorized workers is preempted by federal law -- is preempted by federal immigration law. The case also challenges Arizona's requirement that all employers use the federal eVerify system.   
June 20, 2010

Government Employer May Read Employee Text Messages, Says Supreme Court

The Supreme Court has decided its first case on workplace electronic monitoring, City of Ontario, California v. Quon. The case involved Jeff Quon, a member of the city's SWAT team, who -- along with the rest of the team -- was issued a pager with texting capabilities. The city had a written policy informing employees that their email and Internet use was not private, and told employees that same policy applied to the pagers. However, employees were told that their usage wouldn't be monitored as long as they paid any fees imposed for going over the character limit each month.

After Quon exceeded the limit several times, the city decided to audit his messages for the past two months to determine whether the city should raise its character limit. The audit revealed that Quon had used his pager extensively for personal messages, including sexually explicit messages. Quon and several people with whom he had texted sued, alleging invasion of privacy. (You can find more details on the facts of the case in my earlier post, here.)

The U.S. Court of Appeal for the Ninth Circuit found in Quon's favor. It found that Quon had a reasonable expectation of privacy in his text messages, based on his supervisor's statements that those messages would not be read. It also found that the city had a reasonable justification for searching. In the end, the Court found that the city should have used less intrusive means of determining whether to raise its character limit, such as asking Quon to perform the audit himself or warning Quon that his messages would be audited going forward.

The U.S. Supreme Court disagreed, finding that the city's monitoring was justified and that Quon had no legal claim that he had been subjected to an unreasonable "search" under the Fourth Amendment of the Constitution. The outcome isn't surprising: Courts have largely upheld the rights of employers to monitor employee communications, in the public and private sector. The Ninth Circuit's decision was the outlier in this regard.

What was more interesting, however, was the Court's discussion of how the law should treat technology. Justice Kennedy's opinion for the majority says:

The Court must proceed with care when considering the whole concept of privacy expectations on communications made on electronic equipment owned by a government employer. The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear. . . . Cell phone and text communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification. That may strengthen the case for an expectation of privacy.

This section of the opinion led to a separate opinion by Justice Scalia, who didn't much care for the notion that the Court should exercise caution by making a limited decision simply because technology is evolving. In his words, "The-times-they-are-a-changin' is a feeble excuse for disregard of duty." He nonetheless agreed with the outcome of the case.

Because Quon involved a public employer, it doesn't apply directly to the private sector, which is not bound by the Fourth Amendment. However, courts have generally followed similar principles in analyzing these cases against private employers. One clear takeaway from the Quon case is, in the words of Justice Kennedy: "[E]mployer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated." (And now a word from the shameless commerce division: If you need help putting together clear communications policies, pick up a copy of my book, Smart Policies for Workplace Technologies.) 


June 18, 2010

Supreme Court Says Two-Member NLRB Had No Authority to Issue Decisions

The Supreme Court has ruled that the National Labor Relations Board (NLRB), the administrative body that decides representation and unfair labor practices cases, had no authority to issue decisions while it had only two members. For more than two years, the NLRB (which ordinarily has five members) was down to two members, one Republican and one Democrat. These two members decided about 600 cases in which they could agree on the outcome; if the panel split, no decision was issued.

The dispute before the Supreme Court was over the interpretation of a provision of the National Labor Relations Act that gives the NLRB the authority to delegate its powers to a quorum of at least three members -- and, that once such a three-member group has been designated to handle certain issues, two of its members may constitute a quorum as to those issues. Confused? So were the federal Courts of Appeal, which split as to whether this provision allowed the NLRB to decide cases with only two members or required at least three members. (See my previous post for a few more details on this dispute.)

In the Supreme Court case, New Process Steel v. National Labor Relations Board, five Justices found that the provision about two members acting was effective only if everyone in the three-member quorum was still on the Board. So, for example, if a three-member quorum had properly been delegated the right to hear cases, and one of the members had to recuse him- or herself from hearing a particular case (say, because of a conflict of interest), the remaining two members could issue a decision -- but only if the third member was still on the Board. Once the Board had only two members, they were no longer authorized to issue decisions.

But they did anyway. Which raises the question: What about those 600 or so decisions? Can the party that lost go back and reopen the case? If so, where should those cases be heard -- by the now four-member NLRB? In federal court? And what of the parties who have had to act in accordance with the rulings of the now-declared illegitimate two-member "rump" by, for example, recognizing a union or losing an unfair labor practice case? 

Lots of questions, and not so many answers just yet. There's a nice analysis of the issues over at SCOTUSBLOG. The post points out that the NLRB has issued a statement saying that it expects all pending appeals of two-member Board decisions to be remanded to the Board, so it can "further consider" and resolve them. However, it's still unclear how the many more cases that are now done and dusted -- either because they were never appealed or because the appeal has been decided -- will be dealt with.    

May 24, 2010

Supreme Court Decides Disparate Impact Case

A while back, I wrote a post about a disparate impact case on the Supreme Court's docket, Lewis v. City of Chicago. The case dealt with time limits: specifically, which events start the 300-day statute of limitations clock for filing a charge of discrimination with the EEOC. (To bring a Title VII lawsuit, the plaintiff employee or applicant must first file a discrimination charge with the agency.) In this case, the municipal employer claimed that the applicants waited too long to file their discrimination charges. Today, the Court unanimously disagreed, finding that the applicants filed their charges in time and were entitled to bring their lawsuit.

The case involved a written test the city gave for applicants to be firefighters. The city gave applicants their test scores (which divided applicants into the categories of "well qualified," "qualified," or "not qualified") and were told that they were unlikely to be hired unless they fell into the "well qualified" category. Later, the city began its actual hiring, and did just what it had said it would do: It used the earlier announced cut-off scores to choose successful applicants from those in the well qualified category.

A group of African-American applicants challenged the practice as discriminatory based on disparate impact. The city countered that the applicants should have filed their charges at the EEOC within 300 days of learning what their test scores were and how the city intended to use them. The applicants contended that they filed their charges in a timely manner, within 300 days after the city applied that announced policy to actually make hiring decisions, and the Court agreed.

It's hard to see how the Court could have held otherwise, for two reasons: First, as Justice Scalia's opinion points out, requiring the plaintiffs to sue within 300 days of the announcement of a policy or forever hold their peace would insulate ongoing discrimination from challenge. Once the employer made it past the 300-day mark, it could apply its discriminatory policy with impunity forever.

Second, what if circumstances changed or the city decided not to go forward with the policy after all? For example, what if the city suddenly had the money to hire many more firefighters than it had previously planned to hire, and so was able to accept applicants whose scores were too low for the well qualified category? Or, what if the city had second thoughts about the policy and decided not to follow it by the time hiring began? An applicant who sued anyway based solely on the city's announcement of its policy -- which it didn't go on to apply -- would have a tough time prevailing in court.