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 More
Amicus Briefs
Bafford 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 More
Moses-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 More
Pambakian 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 More
Oracle 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
DHS v. Regents of University of California, U.S. Supreme Court
On October 1, The Lawyers’ Committee For Civil Rights Under Law filed an amicus brief in the United States Supreme Court in the case of DHS v. Regents of the University of California. NELA and The Institute signed on to this brief, along with the Anti-Defamation League, the Leadership Conference on Civil and Human Rights, and other civil and immigrants’ rights organizations. The amicus brief argues that the Department of Homeland Security (“DHS”) failed to consider serious reliance interests engendered by the Deferred Action for Childhood Arrivals (“DACA”) program prior to terminating the program, in violation of the Administrative Procedures Act (“APA”). It describes the various vital roles that DACA recipients play in the economic and social structure of the United States – roles that were given no consideration by DHS when they made the decision to roll back the program. DACA recipients serve in the United States military, pay to attend public and private educational institutions, and pay taxes. Of vital interest to NELA, DACA recipients are both employers and vital members of the United States workforce. DHS failed to consider the interests of those who rely, economically or otherwise, on DACA recipients, thus violating the APA. We
Babb v. Wilkie, U.S. Supreme Court
On September 25, AARP and AARP Foundation filed an amicus brief with the United States Supreme Court in the case of Babb v. Wilkie (No. 18-882). NELA and The Institute joined the Leadership Conference on Civil and Human Rights and the National Women’s Law Center in signing on to this brief, which addresses the standard for federal sector employees to prove age discrimination in violation of the ADEA. Dr. Noris Babb was employed by the U.S. Veterans Affairs Department. She filed suit against the VA, asserting that the VA made various decisions regarding her employment that violated the Age Discrimination in Employment Act (“ADEA”). The ADEA’s text governing federal employees, 29 U.S.C. § 633a(a), requires that decisions “shall be made free from any discrimination based on age,” in contrast to the ADEA’s private- and non-federal public-sector provision, which simply bars discrimination “because of” age. A U.S District Court dismissed Babb’s ADEA case, which was affirmed by the Eleventh Circuit, ruling that federal sector employees must show that age considerations were a “but-for” cause and not just a “motivating factor” in employment decisions. In its brief, AARP argues that the Eleventh Circuit’s interpretation of 633a(a) ignores the broad language of the
Amicus Brief: Bostock v. Clayton County, Georgia
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
