By Harper Jean Tobin

For workers and retirees, the current Supreme Court term may not look so bad – but appearances can be deceiving.

So far, three employment decisions this term have come out well: one concerning the procedures for bringing an employment discrimination suit, another concerning evidence in discrimination suits, and a third that expanded remedies for workers whose 401(k) plans were harmed by mismanagement. The one notable loss has been the 5-3 decision in Stoneridge v. Scientific-Atlanta, which immunized from private suit a broad class of corporate wrongdoers (including most of those responsible for the Enron scandal) whose crimes threaten the security of Americans’ retirements.

As with other areas of its docket, the Court’s employment decisions seem to be lining up with Supreme Court maven Tom Goldstein’s prediction that the ’07-’08 term would give the appearance of a retreat from the Court’s sharp rightward turn last term. But as he noted then, that appearance is largely misleading.

For one thing, the more moderate decisions just noted have nowhere near the seismic impact of last term’s conservative triumphs, such as the already-notorious 5-4 decision in Ledbetter v. Goodyear Tire & Rubber Co., which drastically cut back workers’ ability to take pay discrimination claims to court. The two discrimination cases decided so far this term have been modest in their impact, and the same is likely to be true of a pending case concerning age discrimination in retirement plans. The 401(k) decision –LaRue v. DeWolff, Boberg & Associates – is more significant, but leaves many questions unanswered. While the result in LaRue was unanimous, a concurring opinion by Chief Justice Roberts and Justice Kennedy advocated new obstacles for worker pension suits.

And of course, there is more yet to come. In oral arguments last month in two pending cases, the Court’s most conservative justices appeared ready to drastically cut back protections for workers who blow the whistle on discrimination. If this happens, it will be a stark about-face from the Court’s longstanding approach to retaliation – including a decision written by Justice O’Connor just three years ago – and a leading contender for the title of this term’s Ledbetter. The Court also has oral argument in three additional discrimination cases scheduled, and while experts generally doubt the results will be uniform, the Court is certainly on-track to continue its gradual erosion of the nation’s civil rights law.

The Court has also expressed interest in two pending certiorari petitions of note, asking the Solicitor General to weigh in on both cases. While the lower court judgments being appealed in these cases are very different, both reflect the overall anti-worker and –retiree tone that has been set by the Court (and, of course, by lower court judicial appointments), and each could prove to be very significant.

In Amschwand v. Spherion, a worker was deprived of his employee life insurance coverage because he was on medical leave fighting cancer at the time his employer switched plans. Although the employer and the new insurer had an agreement that workers like Amschwand would be covered, he was never granted coverage and never notified of this fact, although he continued to pay premiums until he died of cancer. After his widow was denied the benefits of the policy, the Fifth Circuit Court of Appeals held that, under the Supreme Court’s highly restrictive approach to employee benefit plans, she could recover only to a refund of the insurance premiums, and not any of the benefits she should have received. One circuit judge concurred only reluctantly, lamenting that the facts of this case “scream out for a remedy beyond the simple return of premiums,” but that “regrettably, under existing law it is not available.” That “existing law” is recent Supreme Court precedent that, incredibly, interpreted the term “equitable relief” in the federal employee benefit law as invoking a long-discarded technical distinction between types of judicial remedies – something that even the Court admitted Congress probably did not intend.

In the second case, Hulteen v. AT&T, a group of workers challenged the denial of retirement benefits based on AT&T’s past, and now clearly illegal, employee leave system. All of these workers took pregnancy leave during the 1960s and ‘70s, when pregnancy leave was treated as personal rather than medical leave – a practice subsequently banned by the Pregnancy Discrimination Act of 1978. When they retired, between 1994 and 2000, they discovered that AT&T had calculated their retirement benefits based on their old, illegal leave policy. When they (along with their union) brought suit, however, AT&T claimed, and a panel of Republican-appointed judges agreed, that all their claims were time-barred, because anything the company did wrong took place more than three decades ago. This argument is a variation of the reasoning in Ledbetter v. Goodyear: if your employer got away with discriminating against you before, it can continue to discriminate against you now. Happily, a majority of Ninth Circuit judges assigned to the case subsequently rejected this argument – but the court split 11-4 along partisan lines, with the dissenting, Republican-appointed judges relying heavily on Ledbetter.

The outrageous defenses urged by employers of these cases should be laughable. But thanks to years of divided Supreme Court decisions that favor unscrupulous employers, they are deadly serious. To be sure, the Court’s pending cases may bring the occasional, modest victory for workers and retirees. But there’s every reason to expect that the Chief Justice Roberts’s Court will continue to shape the law in ways that primarily serve business interests at the expense of the rest of us.