Document Type



Employee Rights and Employment Policy Journal




It has become nearly a commonplace to say that the Supreme Court under the leadership of Chief Justice John Roberts is a court of “incrementalism.” The 2008 Term, however, featured several opinions that showcase the procedural extremism of the current conservative majority. In a series of sharply divided decisions, the Court re-shaped the law that governs the workplace - or more specifically the law that governs whether and how employees will be permitted access to the courts to litigate workplace disputes. At least as important as the Court’s changes to the substantive legal standards are the procedural hurdles the five justices in the majority were willing to sidestep or ignore to reach their desired outcomes. In Gross v. FBL Financial Services and 14 Penn Plaza v. Pyett, the Court ignored - and essentially overruled - long-settled precedent. In Ricci v. DeStefano, the Court took upon itself the role of fact-finder, resolving disputed facts in the underlying record as it applied a newly-minted legal standard to the case. And in Ashcroft v. Iqbal, the Court completed what was essentially a revision of the pleading rules, articulating a standard under Federal Rule of Civil Procedure 8 that imposes particular burdens on plaintiffs - like those in employment discrimination disputes - whose claims include an element of intent. Together, these four opinions demonstrate that the Court’s current reputation for incrementalism - at least in this important area of civil rights - is unwarranted.