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 More
On July 12, 2018, NELA was pleased to join our colleagues at AARP and AARP Foundation Litigation on an amicus brief in support of the Respondents John Guido and Dennis Rankin in Mt. Lemmon Fire District v. Guido & Rankin, pending currently in the U.S. Supreme Court. This case concerns whether the Age Discrimination in Employment Act (ADEA) applies to state and local government entities with fewer than twenty employees. The brief makes a number of compelling arguments in favor of upholding the Ninth Circuit Court of Appeals ruling that the ADEA covers the entities in question. First, settled principles of statutory construction that have been reaffirmed many times by the U.S. Supreme Court support the conclusion that the employer in question is covered by the ADEA. Second, the brief draws on a number of previous decisions in which the Court declined to apply interpretations from cases arising under Title VII of the Civil Rights Act to the ADEA, where there were key differences in the texts, contexts, and histories of the respective statutes. Finally, the brief does well to point out that the Petitioners’ arguments regarding the potential threats that ADEA enforcement would pose to the financial survival … Read More
On October 26th, NELA, joined by AARP, The National Employment Law Project, The Legal Aid Society, the California Rural Legal Assistance Foundation, the DC Employment Justice Center, filed an amicus brief in support of the Respondent, Laura Symczyk, in Genesis Healthcare Corp. v. Symczyk, currently pending in the United States Supreme Court. Our brief was drafted by Richard J. (Rex) Burch (Houston, TX), with assistance from J. Derek Braziel (Dallas, TX) and Douglas M. Werman (Chicago, IL).
Our brief discusses the importance of collective actions in remedying violations of our wage and hour laws. The brief points out that wage theft continues to be a serious problem for many American workers, particularly those employed in relatively low-wage positions. In order to attract legal representation and avoid retaliation, low-wage workers must be allowed to band together and collectively challenge unlawful wage policies and practices. Allowing employers to “pick off” individual plaintiffs before other aggrieved workers are allowed to join a case would permit a wide range of unlawful behavior to proceed unchecked. Moreover, an adverse ruling in this case could affect the other statutes that use the FLSA’s collective action procedures, such as the Age Discrimination in Employment Act and the … Read More
On August 9, 2011, NELA filed an amicus brief in support of the respondents in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, et al. (Case No. 10-553). The issue in this case is whether the First Amendment’s so-called “ministerial exception” bars a claim that a parochial school teacher was dismissed in retaliation for stating that she was going to assert her rights under the Americans with Disabilities Act (ADA). In this case, Cheryl Perich was terminated from her teaching position after returning from medical leave. Though she primarily taught secular classes, Perich devoted approximately forty-five minutes of the seven hour school day to religious activities. When she attempted to return to work, the school prevented her from doing so and she told the school she planned to sue for discrimination. Perich was then sent a letter stating that she had “damaged, beyond repair” her working relationship with Hosanna-Tabor by “threatening to take legal action.” Approximately, one month later she was fired. The U.S. Equal Employment Opportunity Commission (EEOC) decided to take her case to court in late 2007 and Perich intervened in early 2008. The district court granted summary judgment in favor of Hosanna-Tabor, dismissing the claim on the … Read More