Judge Sonia Sotomayor, President Obama’s nominee to replace retiring Supreme Court Justice David Souter, will bring a pragmatic perspective on employment law to the High Court if she is confirmed, say court watchers and attorneys who have argued cases before her.
Currently serving as one of 21 judges on the United States Court of Appeals for the 2nd Circuit, Sotomayor has authored more than 150 opinions in civil cases since 1998, including several that directly dealt with employment law. The picture that emerges from an analysis of her decisions, according to Tom Goldstein, a Washington, D.C., attorney and legal-affairs blogger, is of a jurist who sides with employees some of the time, and with employers in the kinds of cases that often reach the Supreme Court.
Other employment law attorneys who have argued cases before Sotomayor say she does her homework and expects attorneys to have done theirs.
“My colleagues who have tried cases before Judge Sotomayor say she is incredibly well prepared and asks good questions,” says Louis P. DiLorenzo, editor of HR Specialist’s New York Employment Law newsletter and co-chair of the Department at Bond, Schoeneck & King. “She’s very active from the bench.”
Sotomayor has tackled many employment law cases from the 2nd Circuit bench. Her opinions have addressed:
- Dismissed claims brought by a disabled black woman that her employer failed to provide accommodations comparable to those provided to white employees. Sotomayor ruled that the woman failed to prove she was similarly situated to the other employees. (Norville v. Staten Island University Hospital, 1999)
- Overturned a district court decision against an employee who alleged his employer violated the ADA. Sotomayor concluded that the man had made a prima facie case that he had been discriminated against because of his disability. (Parker v. Columbia Pictures, 2000)
- Ruled that an employee alleging race bias hadn’t proved that it was discrimination when her employer declined to create a new position for her, when it had never done so for any other particular employee. (Williams v. R.H. Donnelly Co., 2004)
- Upheld a decision by the city of New Haven, Conn., to start over when no black or Hispanic firefighters scored high enough on an exam to earn promotions. The Supreme Court heard the firefighters’ appeal earlier this spring, and a decision is expected before the High Court ends its session in June. (Ricci v. DeStefano, 2008)
Hostile work environment
- Reversed a district court decision granting summary judgment for the employer on a hostile environment claim in which an employee alleged she had been subject to racial slurs and sexual threats. Sotomayor wrote that the “physically threatening nature of the… behavior brings this case over the line separating merely offensive or boorish conduct from actionable sexual harassment." (Cruz v. Coach Stores, 2000)
- Ruled in favor of a female New York City Police Department officer who was assigned to undesirable shifts, threatened with violence and suffered other forms of retaliation after she complained about sex discrimination. (Raniola v. Bratton, 2001)
- Wrote a forceful dissent in a case in which a minister alleged he suffered discrimination when his church forced him to retire at age 70. The 2nd Circuit majority ruled that federal law prohibits the government from excessive interference in the activities of religious institutions, including employment decisions. Sotomayor wrote that the Age Discrimination in Employment Act still applied in religious settings. (Hankins v. Lyght, 2006)
- Rejected claims by black employees that they suffered retaliation when they were brought up for discipline after complaining about discrimination. She said the adverse consequences weren’t severe enough to constitute retaliation. (Washington v. County of Rockland, 2004)
Sotomayor has been sharply critical of excessive punitive damages in civil suits involving employers. Some legal observers expect her to join in a rising judicial chorus calling for lower courts to clamp down on massive damage judgments.
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