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WASHINGTON � Besides adding such high-profile issues as the constitutionality of lethal injection executions and voter ID laws to its docket, the Supreme Court ensured, through its latest grants of review, the new term is likely to be a “banner” year for labor and employment law. When the justices left for their summer recess in June, they already had agreed to hear arguments in the 2007-2008 term in two job bias cases involving the Age Discrimination in Employment Act (ADEA) and a major retirement plan case involving 401(k) plans and the scope of remedies under the Employee Retirement Income Security Act. The high court on Sept. 25 raised the stakes by agreeing to decide two additional age-related discrimination challenges as well as a race-related job bias claim involving retaliation. “In the academy, labor and employment law is sometimes considered the Rodney Dangerfield of topics � it gets no respect,” said employment law scholar Paul Secunda of the University of Mississippi. But the high court, active last term in this area, is clearly still interested, given the notably large number of labor cases on its relatively small docket, he said. The justices added 17 cases to the new argument docket, including a second arbitration case, a patent challenge and a second federal pre-emption challenge � this one involving state tort suits alleging fraud on the Food and Drug Administration (FDA). In Kentucky Retirement Systems v. EEOC, No. 06-1037, the high court will decide whether proof that a plan is facially discriminatory creates a prima facie case of age discrimination, without regard to whether the plan is based on animus against older workers. The 6th U.S. Circuit Court of Appeals found a prima facie case because a Kentucky plan disqualifies employees who are still working from receiving disability retirement benefits if they are of normal retirement-benefit age at the time they become disabled. “It seems to be taking age as a factor in deciding whether someone of a given age is eligible for one pension but not another,” said Secunda. “It’s probably a very common provision that exists in these types of public pension plans. Obviously it’s a way for them to save money.” In Gomez-Perez v. Potter, No. 06-1321, the justices will consider whether the federal-sector provision of the ADEA prohibits retaliation against employees who complain of age discrimination. The ADEA applies to employees in federal departments and agencies, such as the U.S. Postal Service in this case, but it is silent on retaliation claims. The Bush administration is arguing there is no cause of action for retaliation. In CBOCS West Inc. v. Humphries, No. 06-1431, CBOCS is asking the court to overturn a lower court ruling that a fired manager for one its Cracker Barrel restaurants, Hedrick Humphries, has a claim for retaliation under 42 U.S.C. 1981. Section 1981 of the Civil Rights Act of 1870 has been read “fairly consistently” with Title VII of the Civil Rights Act of 1964 to eliminate race discrimination in the workplace, according to Secunda. Title VII does have an anti-retaliation provision. Courts are “all over the place” on whether to read an anti-retaliation provision into Section 1981, he added. In the court’s latest arbitration challenge, a former Florida judge, now a syndicated television judge, and an attorney, now a talent manager, have asked the court to determine the pre-emptive effect of the Federal Arbitration Act (FAA) on an arbitration clause in their talent-management agreement. A California court held that the state labor commissioner, not the FAA, had jurisdiction over their dispute. Preston v. Ferrer, No. 06-1463. And, in Warner-Lambert v. Kent, No. 06-1498, the justices are asked whether federal law pre-empts a Michigan state law barring products liability suits against a drug manufacturer, if the manufacturer can demonstrate that the drug has been approved for marketing by FDA and is, in fact, being marketed in accordance with that FDA approval. At issue is an exception: The bar is lifted if the plaintiff can demonstrate that the manufacturer obtained FDA product approval by defrauding the agency.

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