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 More
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 More
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 More
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
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
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
On July 3, 2019 the National Employment Lawyers Association (NELA) and The Employee Rights Advocacy Institute for Law & Policy (The NELA Institute) joined the Impact Fund in filing an amicus brief in the United States Supreme Court (S.C. 17-1618, 17-1623, 18-107) in support of LGBTQ workers. Impact Fund, NELA, and The NELA Institute filed this brief in support of the Petitioners in Bostock v. Clayton County, Georgia and Altitude Express, Inc. v. Zarda, and Respondent in R.G. & G.R. Harris Funeral Homes, Inc. v. E.E.O.C., addressing not only the pervasive workplace discrimination LGBTQ workers face, but more importantly the lack of clarity that exists in applying workplace protection laws to those who are discriminated against on the basis of sexual orientation or gender identity.
The amicus brief, written by Impact Fund’s Lindsay Nako and David Nahmias, working in close collaboration with NELA members, focuses on the circuit split in the treatment of discrimination on the basis of sexual orientation. This is further confused by the existing consensus among the circuits regarding discrimination based on transgender status. As the brief notes, “The three decisions under review underscore the unpredictability in the law for LGBT people. Faced with similar … Read More
On June 6, 2019 NELA and The NELA Institute filed an amicus brief in the United States Court of Appeals for the 10th Circuit (10th Cir. Case No. 0:19-cv-01063). NELA and The NELA Institute filed this brief in support of the Plaintiffs, challenging the district court decision that the Plaintiffs, older female employees fired by management while younger women and older men remained, failed to state a claim under Title VII. The district court ruled in contradiction to longstanding jurisprudence, both in the Supreme Court and the circuits, who have long held that discrimination on the basis of sex plus an additional factor (“sex plus”) is discrimination on the basis of sex under Title VII.
The amicus brief, written by NELA member Darold Killmer (CO) and Liana Orshan (CO), argues that the district court not only ignored the legal precedent of “sex plus” claims, but also failed to recognize the sociological impact that the intersection of sex and age have on older female workers. Contrary to the district court’s contention that the Plaintiffs failed to state a claim of sex discrimination because all women were not affected, courts regularly recognize “sex plus” claims as evidence of discrimination on the basis … Read More
On April 3, 2019, NELA and The NELA Institute jointly filed an amicus brief with the U.S. Supreme Court, urging the Court to rule that Title VII’s administrative-exhaustion requirement is a waivable claim-processing rule and not a jurisdictional prerequisite to suit. This case arose after employee Lois M. Davis filed an internal complaint alleging sexual harassment and assault by an individual in her department, who was investigated and eventually resigned. Soon thereafter, her supervisor, a friend of the alleged harasser, retaliated against Ms. Davis. When he required her to work on a Sunday—a time she had requested off for religious observance—she declined and was fired. Prior to her termination, Ms. Davis filed an official charge with the Texas Workforce Commission, a state agency with a work-sharing agreement with the EEOC, alleging sexual harassment and retaliation. After being fired, Ms. Davis amended her intake questionnaire, but not her charging document, to include religious discrimination.
Ms. Davis proceeded to take all her claims to court and went all the way through the summary judgment phase, including her appeal to the 5th Circuit (which she won) and Fort Bend County’s petition for cert. (which the Supreme Court denied). It was only then, some … Read More