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Supreme Court Hears Environmental, Employment Discrimination Cases
Legal Times
October 09, 2008
Correction: An earlier version of this article misidentified attorney Richard Kendall of Irell & Manella.
The Supreme Court on Wednesday heard arguments in what may be its top environmental and employment discrimination cases of the term, and from the tenor of the debates, the verdict seems to be: whales, dolphins and employers will lose.
In the environmental case, Winter v. Natural Resources Defense Council, most justices seemed to accept the Bush administration's argument that the needs of the military should trump environmental concerns about damage to marine mammals when it comes to Navy sonar training off the coast of California.
And in the employment case, Crawford v. Nashville and Davidson County, lawyers for a Nashville, Tenn., school employee and for the Bush administration appeared to persuade the Court that Title VII of the Civil Rights Act protects employees from retaliation even when they complain about sexual harassment during an internal investigation -- before any formal charges are made.
The Navy sonar case tests the extent to which environmental laws -- and federal judges -- can impinge on military operations. In 2007, the Natural Resources Defense Council sought and won an injunction against the Navy's plans to run training exercises on the use of sonar in detecting submarines. The 9th U.S. Circuit Court of Appeals stayed the injunction, directing the district court to impose limitations on the exercises to mitigate potential damage to dolphins and whales caused by the sonar.
Richard Kendall of Irell & Manella, representing the environmental group, told the justices the effect of sonar is as if "in this courtroom ... we had a jet engine and you multiplied that noise by 2,000 times, correcting for water." Beaked whales react by diving down, but when they come back up they can get the bends and die.
But Solicitor General Gregory Garre insisted that the Navy's own environmental assessment indicates that "no marine mammals will be killed as a result of these exercises."
Several justices questioned the adequacy of that assessment, and Justice David Souter said the Navy could have avoided the problem by preparing a full-blown environmental impact statement.
But Garre said the injunction and subsequent 9th Circuit action "seriously interferes with critical training exercises that the president and his chief naval officers have determined to be in the paramount interest of the United States."
That argument seemed to hold sway. Justice Anthony Kennedy, often a swing vote, said the president's determination "must be given great weight" in determining whether the injunction should continue.
"Isn't there something incredibly odd about a single district judge making a determination on that defense question that is contrary to the determination that the Navy has made?" Justice Samuel Alito Jr. asked.
Justice Stephen Breyer also sounded deferential. "I don't know anything about this. I'm not a naval officer. But if I see an admiral come along with an affidavit" swearing to the necessity of the training exercises, Breyer said he was inclined to go along.
In the employment case, the Court has in recent years been favorable to claims by those who suffer retaliation for complaining about Title VII workplace discrimination in the context of Equal Employment Opportunity Commission investigations. But the case before the Court involves the firing of someone who complained about sexual harassment during an internal investigation before any EEOC charges were filed -- a not uncommon scenario.
Vicky Crawford, the Nashville school employee in the case, complained about a supervisor's lewd behavior in an interview with a human resources department official, but made no formal charges and was later fired. The 6th U.S. Circuit Court of Appeals ruled that she was not protected from retaliation because her complaints did not amount to the kind of "active opposition" to school policies that Title VII requires.
University of Washington School of Law professor Eric Schnapper, a veteran advocate for employees in civil rights cases, argued strenuously that the law covers Crawford's situation because in making her complaints, she was actively objecting to her employers' conduct.
Justices peppered him with several hypotheticals, but Schnapper held to his position. Arguing in support of Crawford, assistant to the solicitor general Lisa Blatt also said Crawford should be protected against retaliation.
Francis Young, an assistant city attorney for Nashville, argued that Crawford did not meet the "opposition" requirement of the law because she did not make formal charges of sexual harassment.
Justice John Paul Stevens and other justices reacted incredulously. Noting that Crawford had told her harasser to "get the hell out of my office," Stevens said, "That's an active opposition, it seems."
