Articles Posted in SCOTUS

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Lev Craig

Earlier this year, we reported on the Eleventh Circuit’s decision in Evans v. Georgia Regional Hospital affirming the dismissal of a former security guard’s claims that her employer had discriminated against her because she is a lesbian and did not conform to gender stereotypes. This Monday, December 11, 2017, the U.S. Supreme Court declined to review the Eleventh Circuit’s ruling in Evans, leaving unanswered the question of whether Title VII covers sexual orientation discrimination.

Plaintiff Jameka Evans, who is a lesbian, worked at an Atlanta regional hospital as a security officer. She was open about her sexual orientation with her coworkers and dressed in a masculine manner, wearing the men’s security guard uniform, men’s shoes, and a short haircut. According to Evans’s complaint, the hospital discriminated against her because of her sexual orientation and nonconformity with gender stereotypes by denying her equal pay, harassing her, physically assaulting her, and targeting her for termination, then retaliated against her after she complained about the discriminatory treatment.

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Leah Kessler

On Tuesday, November 28, 2017, the U.S. Supreme Court heard oral arguments in the case of Digital Realty Trust, Inc. v. Paul Somers. While the Supreme Court’s ruling on this case is not expected until next June, the outcome, as well as the arguments made this week, have serious ramifications for the accepted legal definition of “whistleblowing” and the protections that definition provides.

Paul Somers was the Vice President at Digital Realty Trust, Inc., from 2010 to 2014, during which time he filed reports to senior management about possible securities law violations by the company. When Digital Realty fired Somers, he filed suit in the U.S. district court for California, alleging that Digital Realty fired him for his reports of securities law violations in violation of the anti-retaliation protections created by the Dodd-Frank Wall Street Reform and Consumer Protection Act. Dodd-Frank was passed in 2010 in the wake of the 2008 financial crisis and expanded the whistleblower incentives and protections under the 2002 Sarbanese-Oxley Act. (Here is a side-by-side comparison of these two whistleblowing acts, including both the definitions they use and the protections they provide.) Although the district court held Somers to be a “whistleblower” under the statute, and the Ninth Circuit affirmed the district court’s decision on behalf of Somers, Digital Realty appealed to the Supreme Court on the grounds that Somers was not a “whistleblower” as defined by Dodd-Frank because Somers did not report his concerns to the Securities and Exchange Commission (SEC) before he was terminated.

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Owen H. Laird, Esq.

We recently wrote about two labor and employment law cases that will be heard by the United States Supreme Court in its current session: Janus v. American Federation of State, County and Municipal Employees and Encino Motorcars, LLC, v. Hector Navarro, et al. These cases, however, were not the only labor and employment law cases submitted to the Court for certiorari. The Supreme Court only takes a small fraction of the cases that are submitted to it each year, and, this year, the Court elected not to weigh in on several significant employment law cases. Because the Court decided not to hear the appeals, the decisions of the circuit courts in those cases will stand.  Two cases in particular, Stevens v. Rite-Aid Corp. and Bartels v. 402 East Broughton Street Inc., could have a significant impact on employees.

In Stevens v. Rite-Aid Corp., the Second Circuit addressed the question of what constitutes an essential job function for the purposes of the Americans with Disabilities Act (ADA). The ADA prohibits discrimination in employment against a “qualified individual” on the basis of their disability. A “qualified individual” is defined as someone who, with or without reasonable accommodations, can perform the “essential functions” of their job. In short, employers may not discriminate against employees with disabilities that do not prevent job performance, but when an employee cannot perform the essential functions of the job, even with an accommodation, the employer can terminate the employee.

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Owen H. Laird, Esq.

The U.S. Supreme Court recently agreed to hear two cases that will have major ramifications for workers across the country. One case threatens one of organized labor’s most important rights, and the other impacts employees of car dealerships nationwide.

The Court agreed to hear arguments on Janus v. American Federation of State, County and Municipal Employees, which concerns a union’s right to take dues from non-members who are in the same bargaining unit as members the union represents. This issue of union dues has been long, and corporate interests have been successful in gradually rolling back organized labor’s ability to raise funds.

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Edgar M. Rivera, Esq.

Arbitration between employees and employers favors employers’ interests at employees’ expense. Ostensibly, arbitration merely requires that any employment claims be litigated in a private forum; in reality, it discourages employees from suing their employers because, as compared to litigation, employees are less likely to win and generally recover lower damages. As such, many employers require their employees to sign arbitration agreements.

Indeed, a report from the Economic Policy Institute has found that, since the early 2000s, the number of workers subject to mandatory arbitration has more than doubled, covering 60 million U.S. private-sector non-union workers. These agreements prevent 55 percent of U.S. workers from accessing the courts to protect their employment rights.  This figure increases to 65.1 percent among large companies—those with 1,000 or more employees.  Of the employers who require mandatory arbitration, 30.1 percent also include class action waivers in their procedures—meaning that about 25 million employees also lose the right to address widespread employment rights violations through class action.  For large companies, the number of employees subject to class action waivers increases to 41.1 percent. In total, 23.1 percent of private-sector non-union employees no longer have the right to bring or participate in a class action against their employers.

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Owen H. Laird

The Harman Firm blog has run several stories over the past year about the evolving case law concerning sexual orientation discrimination under Title VII of the Civil Rights Act.  Last week, a plaintiff in a sexual orientation discrimination case in the Eleventh Circuit, Evans v. Georgia Regional Hospital, requested that the United States Supreme Court take up the issue.

To recap: Title VII is one of the foundational federal anti-discrimination statutes; it protects employees against discrimination on the basis of sex, race, color, national origin, and religion.  Sexual orientation is not one of the protected statuses enumerated in Title VII.  In 2016, however, the U.S. Equal Employment Opportunity Commission (“EEOC”) – the federal agency tasked with administering Title VII – filed two lawsuits asserting sexual orientation discrimination claims under Title VII.  This was a major change, as both the EEOC and nearly every federal court had previously taken the position that sexual orientation discrimination was not prohibited under Title VII.

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Lev Craig

Last week, on June 26, 2017, the U.S. Supreme Court denied plaintiff Richard Villarreal’s petition for a writ of certiorari, declining to review the U.S. Circuit Court of Appeals for the Eleventh Circuit’s decision in Villarreal v. R.J. Reynolds Tobacco Co., a case arising under the Age Discrimination in Employment Act of 1967 (ADEA). In Villarreal, the court was asked to consider whether the ADEA permits job applicants who have been disadvantaged in the hiring process because of their age to bring disparate impact claims. The Eleventh Circuit ruled against Villarreal, holding that the ADEA only creates a disparate impact cause of action for existing employees, not job applicants. The Supreme Court’s refusal to grant certiorari means that the Eleventh Circuit’s decision will stand and, for now, the issue will remain open to interpretation by lower courts and the other Circuits.

In 2007, Richard Villarreal applied for a position as a territory manager at R.J. Reynolds, a large tobacco manufacturer and distributor. R.J. Reynolds rejected Villarreal, who was 49 years old at the time, based on a set of standardized internal guidelines. These guidelines stated that the ideal candidate for the territory manager position would be “2–3 years out of college” and instructed reviewers to “stay away from” applicants whose résumés stated that they had been “in sales for 8–10 years.”

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Owen H. Laird, Esq.

Today, the United States Senate will hold its second day of confirmation hearings for Supreme Court Nominee Neil M. Gorsuch. Judge Gorsuch currently serves on the United States Court of Appeals for the 10th Circuit. Although his confirmation hearings have been contentious, President Trump’s nominee is likely to be confirmed, as Republicans control enough votes in the Senate to do so. As the Supreme Court is presently split 4-4 between liberal and conservative Justices, Judge Gorsuch would likely represent the swing vote on the Court.

Judge Gorsuch has a long history of judicial decisions and legal writing to parse for clues as to what type of a Supreme Court Justice he might be. Putting aside some of the judicial issues that have received more attention recently—such as abortion, gay marriage, healthcare, use of force by the police—the incoming Supreme Court Justice will have a significant impact on the state of employment law in the U.S. in light of the Court’s current mixed political makeup.

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Yarelyn Mena and Edgar M. Rivera, Esq.

On February 13, 2016, Supreme Court Justice Antonin Scalia passed away after 30 years of service on the bench. Justice Scalia was widely renowned for his conservative political views and eloquent legal opinions. His passing left a vacanct seat at the Supreme Court, without Justice Scalia, the Supreme Court; is evenly split between four liberals and four conservatives. The Constitution tasks the President to fill that vacancy by appointing a candidate “by and with the advice and consent” of the Senate.

The media has been whirling as it awaits President Obama’s nomination in light of the President’s ongoing battle with the Republican-filled Senate’particularly because any Republicans in  the Senate have vowed to block any of President Obama’s nominations. In fact, many Republicans in the Senate wish to prevent President Obama from nominating any Justice in hopes that when his term is over at the end of 2016, a new Republican President will nominate a conservative justice.

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Yarelyn Mena and Owen H. Laird

When the Supreme Court of the United States affirmed the right for same-sex couples to marry, the LGBT community won a long and hard-fought battle for marriage equality. The Human Rights Coalition (HRC), one of America’s largest civil rights organizations committed to ensuring legal rights for the LGBT community, continues the struggle for LGBT rights by supporting the Employment Non-Discrimination Act (ENDA), legislation aimed at protecting the LGBT community from discrimination in the workplace. ENDA would make it illegal for employers to discriminate against potential or current employees based on their sexual orientation or identity.

ENDA resembles Title VII of the Civil Rights Act of 1964 in its purpose to prevent and eradicate discrimination of protected classes in the workplace. The HRC supports passing ENDA because there “is no federal law that consistently protects LGBT individuals from employment discrimination; there are no state laws in 29 states that explicitly prohibit discrimination based on sexual orientation, and in 32 states that do so on gender identity.” Currently, in the states that do not offer protection to LGBT workers, employees and prospective employees face routine and often legal discrimination because of their sexual orientation or gender identity. ENDA will provide LGBT workers with nationwide protection from employment discrimination, filling in the gaps left by state laws. Protection against sexual orientation and gender identity based discrimination is already widespread. According to a report by the HRC, 8 out of 10 voters already believe that discrimination based on sexual orientation and gender identity was illegal, showing that ENDA would provide the legal framework for rights that most Americans already believe exist.