In Young v. UPS, the Court rejected the positions of Young, UPS, and most importantly, the Solicitor General. In its brief, the SG urged the Court to grant Skidmore deference to EEOC Regulations.

The Solicitor General argues that we should give special, if not controlling, weight to this guideline. He points out that we have long held that “the rulings, interpreta- tions and opinions” of an agency charged with the mission of enforcing a particular statute, “while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.” Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944). See Brief for United States as Amicus Curiae 26.

Justice Breyer’s majority opinion soundly rebuffed this overture, finding the lack of “thoroughness” in the EEOC’s consideration’s “limit” its “power to persuade.

But we have also held that the “weight of such a judg- ment in a particular case will depend upon the thorough- ness evident in its consideration, the validity of its reason- ing, its consistency with earlier and later pronouncements, and all those factors that give it power to persuade, if lacking power to control.” Skidmore, supra, at 140. These qualifications are relevant here and severely limit the EEOC’s July 2014 guidance’s special power to persuade.

Specifically, the Court faults the EEOC for issuing the guidance *after* cert was granted.

We come to this conclusion not because of any agency lack of “experience” or “informed judgment.” Rather, the difficulties are those of timing, “consistency,” and “thor- oughness” of “consideration.” The EEOC promulgated its 2014 guidelines only recently, after this Court had granted certiorari in this case.

The Court stressed that the position taken after cert was granted was different from positions taken in the past.

In these circumstances, it is fair to say that the EEOC’s current guidelines take a position about which the EEOC’s previous guidelines were silent. And that position is inconsistent with positions for which the Government has long advocated. See Brief for Defendant-Appellee in Ensley-Gaines v. Runyon, No. 95– 1038 (CA6 1996), pp. 26–27 (explaining that a reading of the Act like Young’s was “simply incorrect” and “runs counter” to this Court’s precedents). See also Brief for United States as Amicus Curiae 16, n. 2 (“The Department of Justice, on behalf of the United States Postal Service, has previously taken the position that pregnant employees with work limitations are not similarly situated to em- ployees with similar limitations caused by on-the-job injuries”).

 

The government offers no explanation for this change of heart.

Nor does the EEOC explain the basis of its latest guidance. Does it read the statute, for example, as embodying a most-favored-nation status? Why has it now taken a position contrary to the litigation position the Government previously took? Without further explanation, we cannot rely significantly on the EEOC’s determination.

This creates a presumption that the regulation was issued for the purposes of this case.

This isn’t the first time the Court faulted the Solicitor General for changing the government’s position. A quick search of my archives (and I’m sure I’m missing some) reveals similar admonitions in Kiobel (arguments), Levin v. United States, and Myriad. Justice Scalia and the Chief comments during oral argument in Kiobel sums up the issue well:

JUSTICE SCALIA: — it was the responsibility of your predecessors as well, and they took a different position. So, you know, why — why should we defer to the views of — of the current administration?

GENERAL VERRILLI: Well, because we think they are persuasive, Your Honor.

JUSTICE SCALIA: Oh, okay. …

CHIEF JUSTICE ROBERTS: Your successors may adopt a different view. And I think — I don’t want to put words in his mouth, but Justice Scalia’s point means whatever deference you are entitled to is compromised by the fact that your predecessors took a different position.

GENERAL VERRILLI: So, Mr. Chief Justice, let me be clear: In this case our position is that the Court ought not recognize a cause of action.

In any event, the SG is now on clear notice that the Court will not defer to these types of last-minute changes.

Walter Olson comments:

My other favorite bit came when the majority opinion smacked down the EEOC and the U.S. Department of Justice over the EEOC’s maximally liberal guidelines on pregnancy discrimination, which the commission hurriedly came out with last summer and which DoJ, through the Solicitor General, insisted were entitled to special weight before the Court. Writing for his liberal colleagues, Breyer rejected the guidelines on grounds of “timing, ‘consistency,’ and ‘thoroughness’ of ‘consideration,’” pointing out that they ran “contrary to the litigation position the Government previously took,” that they offered no coherent reading of the statute, and, pointedly, that the EEOC had put them out “only after the Court had granted certiorari in this case” – almost as if it had been trying to influence the Court.