The Pro-Employee Bent of the Roberts Court

47 Pages Posted: 24 Mar 2012 Last revised: 13 Jun 2012

Date Written: March 22, 2012


A surprising yet documentable trend may be emerging from recent United States Supreme Court decisions – a trend favoring the rights of individual employees in cases requiring interpretation of federal employment statutes. Though marquee employment-context cases like Wal-Mart Stores, Inc. v. Dukes may be touted as exemplifying the pro-business tendencies of the Roberts Court, a closer and more comprehensive look suggests that the Court does not favor business interests at all, at least in the workplace. Indeed, the relative dark-horses of the Court’s last Term suggest the opposite – all three of the Court’s most recent decisions interpreting federal employment statutes expanded the rights of individual workers. And, perhaps more importantly, they did so in ways that reflect novel approaches to statutory interpretation, even sometimes casting aside otherwise well-established principles. Is the decisional trend reflected in these employment-law dark-horses mere happenstance? Or is it evidence of a more deeply-seated trend, a tendency to interpret federal employment statutes in ways that favor individual rights? This Article adopts the latter explanation, and breaks new ground in exposing for the first time the possibility of a pro-employee bent on the Roberts Court. It reveals this bent through a thorough exposition of the Court’s most recent cases interpreting employment statutes, then bolsters that theory with a retrospective examination of all such decisions rendered since Justice Roberts took the oath as Chief Justice in 2005. While outliers and exceptions certainly exist, this survey reveals the possibility of a pro-employee bent on the Roberts Court that is not only present, but indeed is well entrenched. Having exposed this trend, this Article then offers some ideas about the potential implications and predictive value of it.

Keywords: Supreme Court, employment law, employment discrimination, statutory interpretation

Suggested Citation

Taylor, Lisa Durham, The Pro-Employee Bent of the Roberts Court (March 22, 2012). Tennessee Law Review, Vol. 79, No. 4, 2012, Available at SSRN: or

Lisa Durham Taylor (Contact Author)

Atlanta's John Marshall Law School ( email )

1422 W. Peachtree Street, N.W.
Atlanta, GA 30309
United States


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