NELA filed an amicus brief in EEOC v. Abercrombie & Fitch Stores, Inc. in support of the U.S. Equal Employment Opportunity Commission’s petition for rehearing en banc before the U.S. Court of Appeals for the Tenth Circuit, in which the panel reversed a grant of summary judgment to the EEOC in this religious accommodation case, and granted summary judgment in favor of Abercrombie & Fitch. In a 93-page opinion, containing a strong dissent, the majority dismissed the plaintiff’s religious accommodation claim because she never informed Abercrombie that she wore her hijab for religious reasons and needed an accommodation for that practice due to a conflict between the practice and Abercrombie’s clothing policy. The assistant manager who interviewed the plaintiff, however, assumed she was a Muslim and wore a hijab for that reason. The plaintiff was never made aware of Abercrombie’s clothing policy, and thus was unaware of any conflict between that policy and wearing a hijab. The EEOC’s petition focuses on the Tenth Circuit’s creation of a rigid prima facie case requirement in this case, which is contrary to Tenth Circuit and U.S. Supreme Court precedent. Its brief also addressed the court’s requirement that the individual must be the source … Read More
Amicus
NELA Amicus Brief: Hithon v. Tyson Foods, Inc. (11th Circuit)
NELA Vice President Alicia K. Haynes and NELA members Kenneth D. Haynes and Eric Schnapper have litigated the famous Ash and Hithon v. Tyson Foods case since December 1996. Their clients prevailed through two successful jury trials, endured three appeals to the U.S. Court of Appeals for the Eleventh Circuit (in the 2011 appeal, they prevailed with a reversal in part en banc), and made new law with the landmark decision in Ash v. Tyson Foods, Inc., 546 U.S. 454 (2006). On March 19, 2013, the trial court refused to award attorney’s fees for their work as reflected in their fee petition, slashed their hours by 80% across the board, and awarded just $281,103.25, or 14% of the $1,981,678.00 originally sought. NELA’s amicus brief urges the Eleventh Circuit to vacate the fee determination and remand for a more detailed explanation of the fee reductions. The brief asks the court to keep an eye on the goal of encouraging competent attorneys to accept civil rights cases. The brief notes that failure to encourage competent attorneys to take contingent cases will lead to an increase in the number of claimants who proceed pro se. NELA extends its gratitude to NELA … Read More
NELA Amicus Brief: Lawson v. FMR LLC (U.S. Supreme Court)
NELA and the Government Accountability Project argue in this amicus brief that the remedial nature of the Sarbanes-Oxley Act (SOX) calls for broad and inclusive application, which is necessary to prevent a crisis in the mutual fund industry, such as the one that occurred in the banking sector in 2008. An interpretation of “employee” that limits coverage to employees of public companies would undermine SOX’s basic purpose. Publicly traded companies increasingly use a variety of contractual relationships to separate functions into organizations focused on those functions. These employees are in a position to expose corporate fraud. In the context of the mutual fund industry, all the employees would be without whistleblower protection under Section 806.
We further argue that an interpretation of the term “employee” to cover employees of private contractors and subcontractors is consistent with the plain text of the statute, the legislative history, the remedial purpose, and Department of Labor procedural regulations and policy implementing Section 806. A contrary interpretation would leave a significant number of employees unprotected.
Authors: R. Scott Oswald and Kellee Boulais Kruse (The Employment Law Group, Washington, DC), Richard R. Renner (Kalijarvi, Chuzi, Newman & Fitch, P.C., Washington, DC), Michael T. Anderson (Murphy Anderson … Read More
NELA Amicus Brief: Adams v. Festival Fun Parks (2nd Circuit)
NELA was joined by The Arc of the Unites States, the National Disability Rights Network, The Office of Protection and Advocacy for Persons with Disabilities, and Disability Rights Vermont on an amicus brief in this case to ensure that the U.S. Court of Appeals for the Second Circuit had a full understanding of the ADA Amendments Act’s (ADAAA) changes to the disability analysis and, when applying those changes, of the inherent nature of intellectual disability. Both are issues of first impression for the Second Circuit and both analyses were badly botched by the district court. Author: Brian East
… Read MoreNELA Amicus Brief: Summers v. Altarum Institute Corp. (4th Circuit)
On July 14, 2013, NELA joined AARP in filing an amicus brief supporting Carl Summers, a contract statistician with Altarum Institute Corp. who sustained serious injury to both legs in 2011 accident, in his appeal to the U.S. Court of Appeals for the Fourth Circuit. Mr. Summers was terminated while recuperating from these injuries despite properly requesting an accommodation under the federal disability laws. Amici address several aspects of disability law not analyzed with clarity or precision by the district court, including the significance of enactment of the ADA Amendments Act of 2008 (ADAAA) as well as the issuance of revised regulations by the U.S. Equal Employment Opportunity Commission (EEOC) regarding the status of non-permanent medical conditions. In particular, the district court failed to properly analyze whether Summers was “substantially limited” in a “major life activity,” and whether Altarum “failed” to “reasonably” accommodate his injuries.
Authors: Daniel B. Kohrman, Brian East
… Read MoreNELA Amicus Brief: Tatum v. RJ Reynolds (RJR) (4th Circuit)
In the Fourth Circuit case, Tatum v. RJ Reynolds Investment Committee, et al. (Case No. 13-1360), after RJR Nabisco Holdings Inc. spun off defendants R.J. Reynolds Tobacco Co. and R.J. Reynolds Tobacco Holdings Inc. in 1999, Nabisco stock was sold and removed from the pension plan. The plaintiffs argue that defendants hoped this sale and removal decision would make raise the Nabisco stock’s value by distancing it from litigation against the tobacco companies. The district court found that the plan had breached its fiduciary duties of procedural prudence by removing and selling the stock without a proper investigation, but then found that because a hypothetical prudent fiduciary “could” have taken this same action, the plan was absolved of liability—this was a far more lenient standard than the “would” have taken standard that plaintiffs urged the court to use. Our amici brief argues that the protections afforded by ERISA are of vital concern to workers of all ages and to retirees, as the quality of workers’ lives in retirement depends heavily on their eligibility for, and the amount of, their retirement and welfare benefits. In order to provide participants’ retirement security, we advocate that ERISA must be construed to actually protect … Read More
NELA Amicus Brief: Heimeshoff v. Hartford Life & Accident Insurance Co. and Wal-Mart Stores, Inc. (U.S.Supreme Court)
Heimseshoff v. Hartford Life & Accident Insurance Co. and Wal-Mart Stores, Inc. (Case No. 12-729) involves the question of when a statute of limitations should accrue under ERISA for judicial review of an adverse disability benefit determination. In this case, the plaintiff brought suit to obtain long-term disability benefits to which she was entitled under the employee benefit plan. The lower courts, however, dismissed her cases time-barred by the three-year statute of limitations period set out in the benefit plan policy. If the Court were to adopt Hartford’s reading, the plan’s statute of limitation for judicial review of such adverse determinations would run before the employee even knew that his or her claim had accrued.
NELA and AARP’s amici brief argues that despite the Court’s decision last term in U.S. Airways v. McCutcheon, 569 U. S. ____ (2013), holding that clear plan terms are enforceable, here an implied term must be read into the long-term disability ERISA plan at issue in order to make the plan term surrounding the limitations period workable. In particular, amici urge the Court to allow for equitable tolling of the contractual limitations period during the time a claimant is unable to bring suit because … Read More
NELA Amicus Brief: Howe v. Akron (6th Circuit)
NELA’s amicus brief joins with the plaintiffs and their counsel in urging the Sixth Circuit to adopt the majority view of Circuits around the country that court-initiated sanctions under section 1927 requires a finding of bad faith by the trial court. No such finding was made in this case. Different panels of the Sixth Circuit have applied varying standards concerning section 1927 sanctions. Nevertheless, even using the lowest standard applied by certain panels of the Sixth Circuit (which requires only “something more than negligence or incompetence”), plaintiffs counsel’s conduct would not have warranted sanctions. Counsel, instead, undertook the natural and proper steps of complying with a change in the court’s orders. NELA’s amicus also argues that imposition of this sanction has an undue chilling effect on civil rights advocacy, violates due process, and raises a concern about the unusually high incidence of controversial sanctions imposed by this particular trial court judge.
Brief writers: Richard R. Renner; Bennet D. Zurofsky
… Read MoreNELA Amicus Brief: University of Texas Southwest Medical Center v. Nassar (Supreme Court)
Summary of NELA’s Amicus Brief:
- The Supreme Court has repeatedly recognized that to effectively enforce Title VII’s substantive protections, Title VII’s antiretaliation provision must be broadly interpreted to ensure unfettered access to statutory remedial mechanisms.
- The Court should reaffirm that while unlawful retaliation must prompt an employment decision, it need not be the sole factor.
- It is a workplace reality that adverse employment decisions can have multiple causes, and that Title VII is violated if an illegitimate motive plays a meaningful role in the ultimate decision made. Congress explicitly recognized that employment decisions involve multiple motives, but a discriminatory “motivating factor” should never be tolerated and must be purged from the employment process.
- When the language of Title VII after the 1991 amendments is read in context with the Court’s broad protection of the right to be free from workplace retaliation and the legislative history of the Civil Rights Act of 1991, a fair reading compels the conclusion that the law is violated if an illegitimate motive is a “motivating factor” in an adverse employment decision.
- Having different standards for proving intentional discrimination under the same statute would only create confusion for the parties, the trial courts, and the jury.
NELA Amicus Brief: Day v. Department of Homeland Security (MSPB)
On February 28, 2013, NELA filed an amicus brief urging the Merit Systems Protection Board (MSPB) to give retroactive effect to provisions of the Whistleblower Protection Enhancement Act (WPEA) in Day v. Dept. of Homeland Security, MSPB Docket No. DC-1221-12-0528-W-1. At issue in this case was whether provisions of the WPEA which clarified the definition of protected whistleblowing applied retroactively to Mr. Day’s July 2010 disclosures. Section 101 of the WPEA reversed prior decisions by the MSPB and the U.S. Court of Appeals for the Federal Circuit (in particular, Huffman v. Office of Personnel Management, 263 F.3d 1341 (Fed.Cir. 2001)) to exclude disclosures made to an employee’s supervisor and disclosures made by employees within the scope of their normal duties from whistleblower reprisal protection. The issue for Mr. Day was whether the WPEA definition applied to his July 2010 disclosures, or if the pre-WPEA Huffman standard applied. If the Huffman standard applies, Mr. Day’s whistleblower reprisal claim could likely be dismissed; if Section 101 of the WPEA applies, Mr. Day’s claim could then proceed to hearing. An MSPB Administrative Judge applied the Huffman standard, but certified the case for interlocutory appeal to the MSPB on the question of … Read More
NELA Amicus Brief: Genesis Healthcare Corp. v. Symczyk (U.S. Supreme Court)
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
NELA Amicus Brief: US Airways v. McCutchen (U.S. Supreme Court)
On Thursday, October 25th, NELA joined AARP in filing an amicus brief in U.S. Airways v. McCutchen, an ERISA case currently pending in the United States Supreme Court. While the underlying cause of action in this case was a tort claim, an adverse ruling in this case could have profound consequences for any employees who currently participate in employer-sponsored benefit plans. The brief was drafted by Mary Ellen Signorille of AARP, with the assistance of NELA ERISA experts Jeffrey Lewis (Lewis, Feinberg, Lee, Renaker & Jackson P.C.) and Ronald Dean (Ronald Dean, A Law Corporation).
The amicus brief seeks to refute the claim made by the Petitioner and their amici in this case that reimbursement rights are essential to preserving the stability of employer-sponsored benefit plans. AARP’s brief argues persuasively that all available data undermines the employers’ claims about the importance of reimbursement to the financial integrity of benefit plans. Moreover, the brief points out that employees would be deterred from pursuing claims against third parties if they knew that not only would they not get to keep any portion of their recovery, but also that they would have to pay additional money to their employer for the privilege … Read More