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It's Not a "Dream Court for American Business"

I've never understood media claims that the current Supreme Court is a "dream court" for business. On employment law, it tends to be neutral or hostile to business.

An example of an even-handed decision that doesn't favor business is the Supreme Court's decision yesterday in Sprint/United Management Co. v. Mendelsohn. That case, as the Washington Post notes, "may aid those charging bias"" by allowing plaintiffs to rely on "me, too" evidence in some cases. ("Me, too" evidence is where employees claim that they, like the plaintiff, were discriminated against by the company). The Court held that some "me, too" evidence is admissible, and some isn't, taking a stance more favorable to plaintiffs than many circuit courts (although not the Tenth Circuit). The decision strikes me as even-handed, but then, I used to bring discrimination suits. Business groups weren't too thrilled with it (they tried but failed to convince the court to categorically bar "me, too" evidence).

Sometimes, the Court can be downright hostile to business in discrimination cases. For example, in Burlington Northern v. White (2006), it adopted a definition of unlawful "retaliation" that was broader than most lower courts' definition. As I explained at Overlawyered, that not only burdened business, but also raised possible First Amendment problems.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.