“Liberal” Supreme Court Justice Stephen Breyer is retiring. Here are three times he joined “conservative” justices when deciding employment law cases.


Yesterday, several news outlets reported that Supreme Court Justice Stephen Breyer will retire at the end of this term. President Bill Clinton appointed Justice Breyer in 1994. Justice Breyer sided with OSHA and HHS in the vaccine mandate cases earlier this month. Indeed, Breyer is considered one of the more “liberal” justices.

But did you know that some (or all) of the “conservative” justices joined in significant employment law decisions that Justice Breyer authored?

Here are three of them.

FLSA Retaliation

In Kasten v. Saint-Gobain Performance Plastics Corp., the plaintiff alleged that his employer retaliated against him for complaining about wage and hour practices. The lower court and appellate sided with Kasten’s employer. Why? Because although Kasten complained, he never did so in writing.

Justice Breyer (joined by Justices Alito, Kennedy, and Roberts, among others) disagreed. Writing for the Court, Justice Breyer concluded that the Fair Labor Standards Act protects employees from retaliation for complaining about violations of the statute, whether written or spoken.

Title VII Retaliation

Burlington Northern & Santa Fe Railway Co. v. White involved a plaintiff who alleged that her employer retaliated against her for complaining about harassment by giving her less desirable work duties. She was also suspended for 37 days without pay but eventually reinstated with full back pay.

White won $43,000 at trial. The Sixth Circuit affirmed, rejecting the employer’s argument that by making the plaintiff whole after the suspension and changing her job responsibilities, it did not commit any “adverse employment actions.”

The plaintiff’s win streak extended to three at the Supreme Court. The Supreme Court unanimously agreed that White suffered retaliatory discrimination. Justice Breyer’s opinion emphasized that Title VII‘s anti-retaliation provision covers those employer actions that would have been materially adverse to a reasonable employee or applicant. A plaintiff need only show that the challenged action “well might have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.'”

An employer-friendly ADA decision.


In US Airways, Inc. v. Barnett, an employee sued his employer, claiming that it failed to accommodate his disability (back injury) and violated the Americans with Disabilities Act. First, it was all good; he transferred into a new, less physically demanding position. However, the plaintiff later lost his job due to the employer’s seniority system.

The lower court granted summary judgment to the employer, holding that altering a seniority system would result in an “undue hardship” to the employer. The Ninth Circuit reversed, reasoning that disrupting a seniority system does not per se create an undue hardship. Instead, the analysis is more fact-intensive.

So, does the ADA require an employer to reassign a disabled employee to a position as a reasonable accommodation even though another employee is entitled to hold the position under the employer’s seniority system?

No, wrote Justice Breyer. Justices Rehnquist, O’Connor, and Kennedy agreed. (So did Justice Stevens.) An employer’s showing that the requested accommodation conflicts with seniority rules ordinarily establishes that an “accommodation” is not “reasonable.” However, the employee remains free to present evidence of special circumstances that makes a seniority rule exception reasonable in the particular case.

It just goes to show that, reputation aside, you never really know how a Supreme Court Justice will decide a case.

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