Security Checks, Discrimination, and Jerusalem at the Supreme Court

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Supreme Court’s latest term included decisions on labor, housing, and employment law and the separation of powers.

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Among its many important regulatory cases decided this past year, the Supreme Court held that workers do not have to be paid for security checks, and that agencies can continue to refuse to list Jerusalem as a birthplace on U.S. passports.

In a unanimous opinion handed down in Integrity Staffing Solutions, Inc. v. Busk, the Supreme Court decided that the Fair Labor Standards Act (FLSA) does not require employers to pay warehouse workers for the time they spent waiting to undergo a required security check before leaving work.

The FLSA established minimum wage and overtime requirements for all workers. However, it did not fully define the term “work,” leading to a series of judicial decisions broadly defining the amount of time for which employers must compensate employees. In response, Congress passed the Portal-to-Portal Act amending the FLSA in 1947. The Portal-to-Portal Act exempted employers from having to pay employees for their travel time or for activities preliminary or “postliminary” to their “principal activity or activities.”

In Integrity Staffing Solutions, the court held that required security screenings, designed to look for theft as the employees were leaving work, were neither the principal activity of the employee nor integral to the employee’s duties. As the purpose of the screening was to prevent theft from the warehouse, the employees could have completed their duties even if the employer eliminated the screenings.

Unlike the unanimous decision in Integrity Staffing Solutions, the Court divided 5-4 in a case involving the interpretation of the Fair Housing Act (FHA). The case, Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc., involved disparate impact claims, which raise allegations of subtle forms of discrimination that result in disparate effects across racial groups but do not involve claims of discriminatory intent. The Court held that disparate impact claims are covered under the FHA; in other words, plaintiffs do not need to prove discriminatory intent to win a housing discrimination claim.

In the Texas case, a non-profit organization brought a claim alleging that the state Department of Housing and Community Affairs was promoting segregation by allocating too many tax credits to primarily black neighborhoods and too few too predominantly white neighborhoods. The organization provided statistical evidence of disparity, but no evidence of discriminatory intent.

Drawing parallels to Title VII of the Civil Rights Act and the Age Discrimination in Employment Act, the Supreme Court held that disparate impact claims are consistent with FHA’s purpose. The Court’s majority did, however, place some limits on disparate impact claims, such as requiring plaintiffs to show actual evidence that the state’s policies actually caused the disparities.

The Court also addressed employment discrimination this term. In Young v. United Parcel Service, the Court interpreted the Pregnancy Discrimination Act of Title VII, which defines pregnancy bias as a form of sex discrimination and requires employers to treat female workers the same as other employees.

In Young, a pregnant UPS driver argued that her employer should be obligated to provide the same accommodations for her pregnancy that the company provided to other employees who cannot perform their normal work functions, such as disabled employees. UPS countered that the entire purpose of the Pregnancy Discrimination Act was to specify that pregnancy based discrimination is discrimination based on sex, and that the company had a non-gender based rationale for its accommodations.

Apparently unhappy with the arguments presented by both parties, the Court rejected both positions and instead held that the law works in three steps. First, it allows a worker to establish a prima facie case by proving that she asked to be accommodated when her ability to perform her job was limited by the pregnancy, that the employer refused, and that the employer provided similar accommodations for employees who were not pregnant. If an employee can establish this, then the employer next has an opportunity to prove it had an unbiased business reason for employing the policy. Finally, the worker gets the chance to prove that the employer’s reason is merely a pretext and that the burden the employer’s policy places on female workers is more significant than the employer’s rationale.

Moving from cases interpreting statutes to a case involving the U.S. Constitution and its separation of governmental powers, the Supreme Court decided a case that has been ongoing on for almost thirteen years. The case, Zivotofsky v. Kerry, involved the parents of a child born in Jerusalem who asked the American Embassy to list his birthplace as Israel under the law.

The embassy refused because of a longstanding executive branch policy not to list Israel for people born in Jerusalem. That executive branch policy, though, conflicted with a 2002 statute permitting US citizens to list Israel as the place of birth on a passport instead of Jerusalem.

The Court’s six-member majority held that the legislation was an unconstitutional infringement on the executive branch’s power to recognize foreign governments. The 2002 statute impeded the executive’s ability by forcing the government implicitly to recognize Jerusalem as part of Israel. The court did limit its decision, though, declining to reach broader issues about the executive branch’s foreign power.

The Supreme Court’s past term has been consequential for many reasons. Among these reasons are the Court decisions affecting the rights of pregnant women in the workplace, the amount of pay workers can claim when subjected to security checks, the ways that those who feel discriminated in housing can win judicial relief, and the power of the executive branch to resist congressional assertions of authority in the area of foreign policy.


This essay is part four of a five-part series, The Supreme Court’s Regulatory Term.