Guest Commentary

Gay Rights, Job Bias Cases Define Court Term

, The Connecticut Law Tribune


In Maryland v. King, a 5-4 court upheld Maryland's law permitting police to take a DNA swab of the cheek of someone arrested, but not convicted, of a serious crime. And in two cases, involving drug-sniffing dogs named Franky and Aldo, the court ruled, 5-4, in Florida v. Jardines that a dog alert at the front door of a house where police suspected drugs were being grown constituted a search for the purposes of the Fourth Amendment, but it held unanimously in Florida v. Harris that a dog alert at a truck's door can provide probable cause to search the vehicle.

In a pair of 5-4 job discrimination decisions issued on the same day in June, the court's conservative majority continued a general trend of narrowly interpreting federal protections against job bias. In Vance v. Ball State University, the majority said a "supervisor" for purposes of Title VII liability is someone with power to take "tangible employment actions," such as hiring and firing, not someone who just directs another employee's day-to-day activities. And in University of Southwestern Texas Medical Center v. Nassar, the same majority imposed "but for" causation as the standard of proof in retaliation cases, a stricter standard of proof than for other Title VII claims.

The justices have been closely examining the requirements for certification of class actions and the role of class actions in arbitrations. In Comcast v. Behrend, a 5-4 majority held that plaintiffs must show at the class-certification stage whether damages could be decided on a classwide basis. And a 5-3 majority in American Express v. Italian Colors Restaurant said that waivers of class action arbitrations in arbitration agreements are strictly enforced under the Federal Arbitration Act.

The justices continued their fascination with patents in Association for Molecular Biology v. Myriad Genetics. A unanimous court, in a case involving gene mutations associated with breast cancer, said Myriad could not patent genes that it isolated in the bloodstream because natural occurring phenomena are not patentable, but a synthetic form of DNA was patent-eligible.

U.S. District Judge Beryl Howell on June 11 struck down the federal law banning demonstrations on the grounds of the court, finding the statute "unreasonable, substantially overbroad, and irreconcilable with the First Amendment." Days later, Supreme Court Marshall Pamela Talkin promulgated a new regulation that invoked a different law to prohibit demonstrations on court grounds.•

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