Vote now or forever hold your peace.

This presidential election is the most critical election of our time. Aside from the obvious presidential contest, all 435 seats in the United Stated House of Representatives, 35 of the 100 seats in the United States Senate, 13 state and territorial governorships, and numerous other state and local elections are contested. This election does not only decide who will occupy the oval office for the next four years, but also who will sit on our country’s highest court, and enforce our local laws.  The impacts of this election will be felt for years, especially in the context of issues involving labor and employment law.

To put that into perspective, this year alone has been one of the most impactful years that the Supreme Court has had on labor and employment law. The Court heard a number of important and controversial issues including gender identity and sexual orientation discrimination, the DACA program, the standard that must be met for providing age discrimination under the Age Discrimination in Employment Act (“ADEA”) and race discrimination under Section 1981, whether the ministerial exception applies to teachers at religious schools, and whether the government properly exempted religious institutions from the contraception mandate under the Affordable Care Act (Obamacare). The trickle-down effect of these decisions will last years. Labor and employment laws will continue to evolve as a result.

For example, on June 15, 2020, the Supreme Court held that Title VII of the Civil Rights Act of 1964 prohibits discrimination against individuals based on their gender identity and their sexual orientation. In essence, the Supreme Court held that employers cannot discriminate against employees on the basis of their sex, which includes gender identity and sexual orientation. This was by far the biggest case to come out of the Supreme Court in employment law in years.

Notably, Justice Alito’s dissent highlighted some of the most controversial issues that will be decided by future cases heard by the Court. The most anticipated issue will involve the law’s prohibition against gender identity and sexual orientation discrimination and its protection of religious liberty. This election will play a paramount role in determining who will be appointed to the Supreme Court and how  issues stemming from the Court’s June 15, 2020 decision prohibiting discrimination against individuals based on their gender identity and sexual orientation will be decided.

Additionally, on April 6, 2020, the Supreme Court  ruled that under the ADEA a plaintiff need only prove that age is a motivating factor (one factor among others) in an adverse employment decision for there to be a violation of the ADEA.  Although the ADEA requires but-for causation to determine the appropriate remedy for a violation of the ADEA, this decision will make it easier for plaintiffs to obtain relief under the ADEA as some forms of relief may be available even if they cannot meet the but-for causation standard.

On the other hand, on March 23, 2020, the Supreme Court unanimously ruled that under Section 1981 a plaintiff must show that race was a but-for cause of the plaintiff’s injury rather than a mere motivating factor. This decision will make it harder for plaintiffs to prove race discrimination under Section 1981. However, plaintiffs who cannot meet that but-for causation standard may be able to meet the motivating factor standard under Title VII. Plaintiffs who opt to assert a Title VII claim must file a charge of discrimination with the United States Equal Employment Commission or its respective state agency. In Texas, the Texas Workforce Commission.

Moreover, on June 18, 2020, The Supreme Court ruled that Trump’s administration’s order to undo the Deferred Action for Childhood Arrivals (“DACA”) was arbitrary and capricious. Hence, the Supreme Court struck Trump’s administration’s order leaving DACA in effect. If you don’t know, DACA protects certain people that were brought to the United States as children from deportation and allows them to get a job or attend school. They cannot obtain permanent residency through the program but may obtain work authorization and continue to reside in the country. While this case is not strictly an employment law case, it will certainly have a big impact on employment, and, therefore, employment law.

In another case decided by the Supreme Court on July 8, 2020, the court held that the Department of Health and Human Services, Labor and Treasury had authority under the Affordable Care Act (Obamacare) to create rules exempting employers with religious or moral objections from providing contraceptive coverage to their employees. This decision may provide some insight into how the Court will likely view religious liberty issues in the future within an employment context, especially how they relate to sexual orientation and gender identity discrimination.

Lastly, on July 8, 2020, the Supreme Court applied the ministerial exception to teachers at religious schools. The ministerial exception bars ministers from suing churches, synagogues, mosques, and religious institutions for employment discrimination. The Court took the exception a step further and held that religious schools meet the exception because the teachers are responsible for instructing the students in their faith. The reach of the exception will generally be limited as it only applies to people that teach the faith. It will not be broadened to apply to those that work at religious institutions that are not tasked with teaching the faith such as janitors and administrators.

In just one year, the Supreme Court handed down labor and employment decision after decision. We can expect to see the Supreme Court decide more controversial labor and employment issues in the near future. This year’s election will shape the makeup of our Supreme Court and local elected officials. For instance, by the time the winner of this years’ presidential election takes the oath of office, three justices will be north of 70 years old. In addition to Justice Ginsburg’s seat, three more Supreme Court seats may require to be filled. The individuals appointed to fill those seats will earn a life-time appointment to the highest court of our land and will shape the future of this country, especially in the context of labor and employment law.

Vote now or forever hold your peace.

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