The United States Supreme Court began its 2016-2017 term on October 3, 2016 and promptly denied review in hundreds of cases, including twenty-nine (29) key labor and employment cases. The Supreme Court currently has granted review to only thirty-one (31) cases in total—despite typically hearing approximately eighty (80)—and only one case involves a labor and employment matter. Several commentators believe that the Court’s caution in granting review of cases is because the Court currently only has eight (8) members due to Justice Scalia’s death in February 2016 and the Senate Republican’s refusal to consider President Obama’s nomination of Judge Merrick Garland. This article analyzes some of the key labor and employment cases that were denied review and what effect the denial may have on employers.
ADA Does Not Protect Obesity Unless Resulting From Underlying Physiological Disorder
In April 2016, Campbell Litigation reported on the Eighth Circuit’s decision granting summary judgment in favor of an employer on an Americans with Disabilities Act (“ADA”) claim regarding whether obesity qualifies as a disability under the ADA (see related article). The Eighth Circuit determined that unless the obesity results from an underlying physiological disorder, the ADA does not protect obese employees. The employee petitioned for a writ of certiorari to the Supreme Court, but the Court denied review in the matter. Employers investigating ADA accommodation requests based on obesity should, during the interactive process, request information regarding the underlying nature of the obesity. If there is no physiological disorder or condition causing the obesity, it will likely not be considered a disability given the Supreme Court’s denial of review, which allows the Eighth Circuit decision to stand.
Single Disparaging Comment From a Decisionmaker Insufficient to Support Discrimination Claim
In January 2016, the Seventh Circuit in Bagwe v. Sedgwick Claims Management Services affirmed the District Court’s grant of the employer’s summary judgment motion in a race and national origin discrimination claim where one of four decisionmakers called the plaintiff-employee an “Indian Bitch” on the same day as plaintiff’s termination. The Seventh Circuit—covering the states of Indiana, Illinois, and Wisconsin—found that the single comment was not enough to support plaintiff’s termination claim because the decisionmaker did not make the ultimate termination decision, and the other three decisionmakers based their decisions on an independent assessment following multiple complaints of the plaintiff’s inability to work with others. The Supreme Court denied plaintiff’s petition for certiorari.
While the Bagwe decision is helpful for Seventh Circuit employers facing discrimination claims with similar facts, employers should not rely on the decision. Rather, Bagwe’s key takeaways are: (1) employers should always base employment decisions based on legitimate business reasons; and (2) an independent investigation into employee misconduct can be a key tool for employers to use to make employment decisions and help defend potential discrimination claims.
Campbell Litigation will continue to monitor the Supreme Court’s docket throughout the 2016-2017 term and report back when and if the Supreme Court accepts other employment cases.
 Daily Labor Report, U.S. Supreme Court Denies Review in 29 Labor and Employment Cases on Oct. 3, 2016, Bloomberg BNA Daily Labor Report (Oct. 3, 2016). Some of the employment cases the Supreme Court denied involved the Fair Labor Standards Act and whether employees met the duties test to be exempt from overtime; whether an employee must show that protected activity was a contributing factor in a whistle-blower suit under the Sarbanes-Oxley Act; and whether supporting a co-worker who was sleeping on the job is protected activity in a retaliation claim under Title VII of the Civil Rights Act of 1964.
 The Leadership Conference, U.S. Supreme Court (available at: http://www.civilrights.org/judiciary/courts/supreme.html) (last accessed Oct. 6, 2016).
 Kevin McGowan, Justices Return to Slim Docket of Employment Cases, Bloomberg BNA Daily Report (Sept. 26, 2016).
 Morriss v. BNSF Ry. Co., 817 F.3d 1104 (8th Cir. 2016).
 Morriss v. BNSF Ry. Co., No. 16-233 (U.S. cert. denied Oct. 3, 2016).
 See 29 C.F.R. §§ 1630 App’x and 1630.9. Such a request is a disability-related inquiry, which can only be made after the employee requests an accommodation, or if the inquiry is job-related and consistent with a business necessity. See also 42 U.S.C. § 12112(d)(4)(A).
 Bagwe v. Sedgwick Claims Mgmt. Servs., Inc., 811 F.3d 866 (7th Cir. 2016).
 Id. at 886.
 Bagwe v. Sedgwick Claims Mgmt. Sevs., Inc., No. 15-1428 (U.S. cert denied Oct. 3, 2016).