Publication Date


Document Type

Survey Article


The United States Supreme Court continued to be extremely active in the realm of employment discrimination during the 2009 survey period. The Court decided five significant employment cases during 2009. Perhaps the most significant was the decision in Gross v. FBL Financial Services, Inc., in which the Court handed employers a huge victory as to the burden of proof necessary to establish age discrimination claims pursuant to the Age Discrimination in Employment Act of 1967 (ADEA). On the other hand, employees were the clear winner in Crawford v. Metropolitan Government of Nashville, in which the Court expanded the scope of potential retaliation claims pursuant to Title VII of the Civil Rights Act of 1964 (Title VII). Finally, in Ricci v. Destefano, the Court, in upholding the use of test scores for promotion to lieutenant and captain within the New Haven, Connecticut Fire Department, held that the city could not lawfully engage in disparate treatment discrimination in order to avoid a good faith concern that its test for promotion resulted in disparate impact discrimination.

In stark contrast to the Supreme Court, the most significant trend during the survey period for the United States Court of Appeals for the Eleventh Circuit was the huge decrease in the number of employment discrimination cases handed down by the court during the survey period. In recent years, the court has followed a trend of handing down fewer and fewer published employment discrimination opinions; however, this trend had been offset by the significant increase in unpublished decisions handed down by the appellate court. While the trend toward fewer published decisions continued during the 2009 survey period (indeed, there was only one published Title VII opinion during the entire survey period, and only three published employment discrimination decisions overall), there was also a marked decrease in the number of unpublished discrimination opinions during the survey period. In 2008 the Eleventh Circuit handed down approximately eighty-five unpublished Title VII opinions and approximately one hundred twenty unpublished employment discrimination opinions overall; in 2009 the number of unpublished opinions dwindled to only twenty-six unpublished Title VII opinions and forty-five unpublished employment discrimination opinions overall-or approximately one-third of the number of cases handed down the previous year. This is an indication that the law in this area is becoming so well established that not only are there fewer and fewer unanswered questions for the appellate court to address, but practitioners have greatly diminished the number of appeals they are pursuing above the trial court level.