On February 11, NELA joined AARP in a 6th Circuit amicus brief in Pelcha v. MW Bancorp (17-497). The amicus brief was drafted in support of a petition for en banc review, asking the full 6th Circuit to weigh in on the issue of causation standards in ADEA cases. In Pelcha, the 6th Circuit concluded that the correct standard in ADEA cases was that of Gross, and not Bostock. This interpretation is incorrect and would deal a huge blow to older workers making ADEA claims. As the brief argues, “If ‘but for’ does not mean ‘sole cause’ under Title VII, it cannot mean “sole cause” under the ADEA for the simple reason that the plain text of the causation language in Title VII and the ADEA are identical.” We are grateful to NELA Board Member Dara S. Smith, NELA members Daniel B. Kohrman and Laurie A. McCann, and their AARP team for drafting the brief.
… Read MoreAmicus Briefs
Cedar Point Nursery v. Hassid
On February 10, NELA and The Institute joined NELP in a Supreme Court amicus brief in Cedar Point Nursery v. Hassid. In Cedar Point, employers argued that their private property rights were infringed upon by the presence of third-party inspectors, labor organizers, and government enforcers. The brief argues that inspection by government and third-party experts is vital to holding employers accountable and enforcing vital workplace harassment laws, and in no way do these inspections constitute a per se taking. We are grateful to NELP for drafted this brief.
… Read MoreFaith Bible Chapel v. Tucker
On January 19, NELA and The Institute signed on to an amicus brief drafted by The Institute For Constitutional Advocacy And Protection (ICAP) in the 10th Circuit case Faith Bible Chapel v. Tucker. The brief argued that any expansion of the church autonomy doctrine as a defense in workplace harassment claims would eliminate employment protections for workers at religious institutions. We are grateful to ICAP for drafting this brief.
… Read MoreDemkovich v. St. Andrew The Apostle Parish
On January 6, 2021, NELA and The Institute signed on to an amicus brief drafted by Lambda Legal in the 7th Circuit case Demkovich v. St. Andrew The Apostle Parish. Plaintiff Sandor Demkovich was subjected to workplace harassment and a hostile work environment as an LGBTQ employee. His employer argued that as Demkovich was a “minister”, all hostile work environment claims were barred under the ministerial exception. The amicus brief submitted by Lambda Legal urges the en banc 7th Circuit not to bar all hostile work environment claims for religious employers, and highlights the potential harms of an expansion of the ministerial exception on LGBTQ employees and others who often experience discrimination in the workplace. We are grateful to Lambda Legal for taking the lead on this brief.
… Read MoreBafford v. Northrop Grumman, 9th Circuit
On August 10, 2020, NELA and the Pension Rights Center filed an amicus brief in the 9th Circuit case of Bafford v. Northrop Grumman. This case speaks to vitally important pleading standards in ERISA cases, which have a direct impact on whether workers will be guaranteed a fair retirement after a lifetime of hard work, and whether employers and outside pension administrators will be held to the high standards required for any fiduciary.
During the Plaintiffs’ employment at Northrop Grumman, both the company and their outside pension administrator provided Plaintiffs with pension statements, indicating how much each Plaintiff had accumulated in pension funds. In 2017, Defendants notified each Plaintiff that they would receive less than 50 percent of the pension amount that had been stated in pension statements. Further, Northrop Grumman went so far as to demand repayment of pension amounts already provided to Plaintiffs.
This amicus brief argues that the District Court incorrectly “faulted Plaintiffs for failing to allege, inter alia, that Northrop had a particular process in place for monitoring the Committee, failed to follow that process, [and] failed to ensure that the Committee had an adequate process in place for monitoring” the outside pension … Read More
Fulton v. Philadelphia, U.S. Supreme Court
On August 20, 2020, NELA joined The Leadership Conference On Civil And Human Rights and 27 other organizations in filing an amicus brief in Fulton v. Philadelphia in the U.S. Supreme Court. This brief urges “the Supreme Court to affirm and reiterate that private entities that receive taxpayer-funded government contracts must follow anti-discrimination provisions.” For years, courts have found that contractors who receive government funds are bound by anti-discrimination laws and conditions, regardless of the religious status of the organization. This includes anti-discrimination laws aimed to prevent discrimination in the workplace. The decision in this case could determine if the millions of workers who are employed by government contractors are protected from insidious discrimination in the name of religion. We are indebted to The Leadership Conference On Civil And Human Rights for drafting this brief.
… Read MoreMoses-EL v. Denver, 10th Circuit
On August 17, 2020, NELA and The Institute joined Public Justice and other disability and civil rights organizations in filing an amicus brief in Moses-EL v. Denver in the 10th Circuit. This brief addresses the vital importance of maintaining a Rule 8 pleading standard that does not raise barriers for entry to the courthouse for plaintiffs. In this case, the district court stiffened the already strict interpretation of Rule 8 established by the Supreme Court in Bell Atlantic v. Twombly and Ashcroft v. Iqbal. This heightened standard is in direct contravention to the Federal Rules of Civil procedure, requiring a level of specificity in the pleading that was unacceptably high. Courts have long recognized the importance of pleading standards that allow plaintiffs access to the discovery phase, even if their initial pleading lacks some factual specificity and is unsophisticated. Many thanks to Public Justice for drafting this brief.
… Read MorePambakian v. Blatt, 9th Circuit
On July 6, 2020, NELA and The Institute joined National Women’s Law Center and 45 other organizations in filing an amicus brief in Pambakian v. Blatt in the 9th Circuit. The amicus brief highlights the inherent problems surrounding forced arbitration, which denies workers access to justice and results in fewer claims, lower chances of recovery for plaintiffs, and lower recovery amounts. Even more importantly for workers who have experienced sexual harassment in the workplace, arbitration requires secrecy from all parties, preventing survivors from speaking about their experiences and allowing corporations to protect abusers on their payroll. We are deeply grateful to National Women’s Law Center for leading the charge on this brief.
… Read MoreOracle America Inc. v. U.S. Department Of Labor, U.S. District Court for the District of Columbia
On April 4, 2020, NELA signed on to an amicus brief drafted by Equal Rights Advocates, in collaboration with their law firm partner Wilkinson Walsh and former Department of Labor (DOL) and EEOC officials Patricia Shiu, Patrick Patterson, and Stuart Ishimaru, in support of the interveners seeking dismissal in Oracle America Inc. v. U.S. Department Of Labor (D.D.C. 1:19-cv-3574). Oracle, a tech giant and government contractor, filed suit against the Department of Labor and its Office of Federal Contract Compliance Programs (OFCCP) in November 2019, shortly after OFCCP launched a $400 million race and gender discrimination suit against Oracle. Oracle argues that OFCCP does not have legal authority to enforce civil rights laws – an argument that would hamper OFCCP’s important enforcement abilities and allow federal contractors to discriminate without repercussion. As the brief notes, “Oracle’s challenge ignores decades of precedent confirming that OFCCP acts well within its regulatory authority when it employs those measures necessary to enforce contractor compliance.” Over 4 million workers in the United States work for federal contractors, and OFCCP’s regulatory practices and enforcement ability ensure that the government is not doing business with employers who discriminate against workers. NELA is grateful to Equal Rights Advocates
St. James School v. Biel
On March 11, 2020, NELA and The Institute jointly filed an amicus brief with the U.S. Supreme Court in St. James School v. Biel (consolidated with Our Lady Of Guadalupe School v. Morrissey-Berru (19-348 & 19-267)) urging the court to strike a delicate balance between religious organizations’ First Amendment rights and the right for workers to be free from discrimination in the workplace. Both Biel and Morrissey-Berru arose after teachers at Catholic schools filed suit alleging discrimination when their contracts were not renewed. Both schools argued that the teachers were “ministers” as they served important religious functions in the course of their employment, and decisions surrounding their employment were therefore exempt from anti-discrimination statutes. The 9th Circuit disagreed with this assessment, upholding the Hosanna-Tabor totality-of-the-circumstances test. The brief asks the Court to uphold this current test, which requires lower courts to engage in a fact-intensive examination of four factors (the employee’s formal title; the substance reflected in that title; the individual’s own use of that title; and the important religious functions the individual performed for the religious organization) when determining if an employee is a “minister.” NELA’s brief argues that the current totality-of-the-circumstances test has proven a workable standard, … Read More
Heimbach v. Amazon, Supreme Court of Philadelphia
On March 6, 2020, NELA joined our Western and Eastern Pennsylvania Affiliates, AFL-CIO, National Employment Law Project, SEIU, UFCWIU, Justice At Work, and Towards Justice in filing an amicus brief in the Supreme Court of Pennsylvania on behalf of the Appellants in Heimbach v. Amazon (No. 43 EAP 2019). Appellants are a class of men and women who engage daily in grueling work in Amazon’s Pennsylvania warehouses. At the end of each day, workers are required to use their personal, unpaid time to undergo Amazon’s mandated security screenings before they can leave the premises. This brief asks the Supreme Court of Pennsylvania to confirm that Pennsylvania’s Minimum Wage Act (“PMWA”) is more protective than the Fair Labor Standards Act (“FLSA”), the current federal floor for workplace protections, therefore ensuring that Amazon pays their workers for required screenings completed onsite. Amazon and its numerous staffing agencies have argued that they may rely solely on federal workplace laws, including the FLSA and Portal-To-Portal Act (PPA), in calculating labor costs and imposing its labor compensation practices. Additionally, Amazon asks the court to import the de minimis doctrine, which allows employers to avoid paying workers for “infrequent and insignificant periods of time beyond … Read More
National Women’s Law Center v. OMB
NELA, The Institute, and over twenty other worker and gender justice organizations signed on to an amicus brief filed on October 25, 2019, by the ACLU Women’s Rights Project with the United States Court of Appeals for the District of Columbia Circuit in the case of National Women’s Law Center v. Office of Management and Budget (No. 1:17-cv-02458-TSC). Oral argument in the case is set for Friday, January 24.
The EEO-1 Report is a compliance survey mandated by federal statute and regulation that requires large private employers and federal contractors above a certain number of employees to submit employment pay data to the EEOC every three years. Covered employers report on the race, gender, ethnicity, and job categories represented in their workforce.
In 2016 under the Obama administration, the EEO-1 was amended to require that covered employers also would have to provide compensation data on those same groups. The amended rule was finalized after two rounds of public comment. NELA, and many others submitted comments in support of the proposed changes to the rule and the amended rule requiring the added data became final and was scheduled to take effect in March 2018. The purpose of the amendment was to … Read More
