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35 Lab. & Emp. L. 1 (2006-2007)

handle is hein.journals/laboemplo35 and id is 1 raw text is: 

Claiming that no substantive pat-
tern is obvious in the decisions of
the raonstituted Supreme Court
    n Secretary Robert Rabin
detects a subtle shift' toward
pragmatism in the Court s direction
concerning statutory interpretation
from its labor and employment de-
cisions durig the 2005-2006 term
   Presenting the Section secretary s
lecture on the Supreme Court term
at the AIAAnnual Meeting's plenary
session, Rabin, a professor at Syra-
cuse University School of Law, ob-
served that the departures of Chief
Justice William Rehnquist and Jus-
tice Sandra Day 0 Connor- whom
he described as strong textual-
ists- and their replacement by
Chief Justice John Roberts and
Justice Samuel Auito may have
brought about a Court that takes
a less literal and more contextual
approach to statutory interpretation.
   Rabin focused his review on
three employment decisions, two
of which turned on statutory con-
  I , Inc. v. Alvarez. In this case
the Court examined Section 4(a) of
the Portal-to-Portal Act in consider-
ing whether the time employees at
a food-processing plant spent walk-
ing between the place where they

don and doff their protective gear
and the assembly line was compen-
sable under the Fair Labor Stan-
dards Act. In an opinion that took
into account the plain text of the
statute as well as the public policy
considerations underlying its en-
actment, the Court unanimously
concluded that, because donning
and doffing equipment were inte-
gral to the job, they were principal
activities as defined by the act.
Therefore, the time it took the em-
ployees to get to the assembly line
after donning the equipment and to
return from the assembly line at
the end of their shift before doffing
the equipment was compensable.
   From his review of the oral argu-
ment as well as the decision, Rabin
found no hint of a rift between the
textcial and contextual approaches
to statutory interpretation. Rather,
you find nine highly skilled techni-
cians trying to figure out the mean-
ing of a complex statute, taking
into account whatever tools seem
helpful. None of the justices sug-
gested that the text should be
given controlling weight or that the
justices should pay no attention to
policy considerations.
   Burlintn Northern & Santa
Fe y v. White. Rabin suggested

that the Court used a similar ap-
proach in this case. The Court con-
sidered Title ViI's anti-retaliation
provision, Section 704(a), which
generally forbids discrimination
against an employee because he
has opposed any practice made an
unlawful employment practice by
Section 703(a) of the act, which
prohibits discrimination against an
employee with respect to his
compensation, terms, conditions,
or privileges of employment.
   The plaintiff employee was sus-
pended for more than a month and
reassigned after filing an Equal Em-
ployment Opportunity Commis-
sion charge. Her employer, which
later rescinded the suspension and
afforded her backpay, argued that
retaliation claims should be limit-
ed to the specific forms of discrimi-
nation prohibited by Section
703(a) It maintained that the em-
ployee could not bring a retaliation
claim because she did not suffer a
change in her compensation,
terms, conditions, or privileges of
   In an 8-i decision written by
Justice Stephen Breyer, the Court
held that the limiting language in
Section 703(a) does not apply to
              continued on page 10


               FALL 2006
     Section of Labor and
         Employment Law
American 8at Association


Rabin Finds Pragmatism in Court's Approach

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