On September 6, NELA, joined by the National Women’s Law Center and the NAACP Legal Defense Fund, filed an amicus brief in the U.S. Supreme Court in Muldrow v. City of St. Louis. The brief argues that the 8th Circuit erred when finding that a police sergeant’s job transfer did not constitute gender discrimination. The brief also argues that this interpretation contradicts the congressional intent of the federal law and does not comport with the text of the statute. Highlighting the importance of non-economic aspects of a job, the brief contends that adverse actions of this type can also run afoul of the Court’s ruling in Brown v. Board of Education. NELA member Carolyn Wheeler, Katz Banks Kumin, LLP (DC) states “The issue here is a straightforward question of statutory construction. The statute prohibits discrimination on the basis of sex, race, national origin, or religion in the terms, conditions, or privileges of employment without any qualifying adjectives about a degree of harm the discrimination must cause. The discriminatory decision is what is unlawful and plaintiffs should be able to pursue such claims without the burden of proving the decision caused some level of “material” harm, which courts usually … Read More
Discrimination
Harris v. FedEx
On July 21, NELA and the National Institute for Workers’ Rights, along with the Texas Employment Lawyers Association (TELA), filed an amicus brief in the 5th Circuit on behalf of the appellee in Harris v. FedEx. This case is FedEx’s appeal of a significant verdict against it under Section 1981 for retaliating against Ms. Harris when she complained about racial discrimination at work. Harris’ verdict was obtained by NELA members Brian P. Sanford and Elizabeth (B.B.) Sanford (The Sanford Firm, TX).
The amicus brief focused on FedEx’s claim that the court should have enforced the contractually-shortened statute of limitations contained in FedEx’s standard job application, which says that any claim needs to be brought within six months. Our brief argued that it was unreasonable to shorten Section 1981’s statute of limitations from four years, as specified in the statute, to just six months. In making this argument, we pointed both to Texas’ public policy interests in keeping access to courts generally and on contract claims specifically, and also explained that the practicalities of litigation and finding counsel meant that six months was far too short a time for prospective plaintiffs like Harris. Many thanks to NELA/TELA member Walt … Read More
Comments on the OPM’s Proposed Rule on Advancing Pay Equity in Governmentwide Pay Systems
Submitted via www.regulations.gov
Carey Jones
Lead HR Specialist
U.S. Office of Personnel Management
Re: Proposed Rule with Request for Comments; RIN 3206-AO39; 88 Fed.Reg. 30251-30262 (May 11, 2023)
Dear Lead HR Specialist Jones:
The National Employment Lawyers Association (NELA) respectfully submits the following comments concerning the Office of Personnel Management’s (OPM) Proposed Rule with Request for Comments, as published in the Federal Register at 88 Fed.Reg. 30251-30262 (May 11, 2023).
NELA is the largest professional membership organization in the country comprised of lawyers who represent employees in labor, employment, wage and hour, and civil rights disputes. Our mission is to advance worker’s rights and serve lawyers who advocate for equality and justice in the American workplace. NELA and its 69 circuit, state, and local affiliates have a membership of over 4,000 attorneys who are committed to working on behalf of those who have faced illegal treatment in the workplace. NELA has filed numerous amicus curiae briefs before the United States Supreme Court and other federal appellate courts regarding the proper interpretation of federal civil rights and worker protection laws and comments regularly on relevant proposed rules. NELA also engages in legislative advocacy on behalf of workers throughout the United States. … Read More
Fitzgerald v. Roncalli High School, Inc.
On February 1, 2023, NELA, joined by the National Employment Law Project (NELP), filed an amicus brief on behalf of the Appellant in Fitzgerald v. Roncalli High School, Inc. (7th Cir.), urging the court to maintain the totality-of-the-circumstances test established in Hosanna-Tabor when determining if an employee is a “minister” in a religious organization. Michelle Fitzgerald, a guidance counselor at a Catholic high school, was fired after Roncalli administrators learned she was married to a woman. The district court relied solely on one factor, Fitzgerald’s employment contract when finding that she was a “minister” and therefore unable to avail herself of the protections of Title VII. NELA’s brief argues that the current totality-of-the-circumstances test has proven a workable standard, that properly balances religious freedom and workers’ right to be free from discrimination. The brief further points out the large numbers of workers who would potentially be open to discrimination in the workplace should the court adopt the one-factor test from the district court decision. NELA is deeply grateful to Professor Michael L. Foreman and the Penn State Law Civil Rights Appellate Clinic, who drafted the brief. … Read More
Muldrow v. City of St. Louis
On September 30, NELA filed an amicus brief in Muldrow v. City of St. Louis, urging the Supreme Court to grant the petition for cert in this appeal from the 8th Circuit. In this case, Petitioner asks the Court to resolve the question of whether non-economic harms (including granting or denying lateral transfers) constitute discrimination in “terms, conditions, or privileges of employment” under the text of Title VII. NELA’s brief argues that the 8th Circuit’s atextual standard creates an impermissible barrier to the adjudication of meritorious discrimination claims and the Court should reject the economic tangible harm requirements. The brief also explains the current social science research which illustrates that non-economic aspects of the terms, conditions or privileges of employment are as critical to employees as wages and salaries. NELA is grateful to NELA Members Carolyn L. Wheeler, Katz Banks Kumin LLP (DC) and Stephen B. Pershing, Pershing Law PLLC (DC) for drafting this brief.… 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
The National Employment Lawyers Association Denounces Changes To EEOC Dispute Resolution Programs
Unilaterally rolled out by EEOC Chair, “pilot” projects hinder employee rights in discrimination cases
For Immediate Release
Contact: Andrea Hansen
509.306.1867
ahansen@flyingcrow.com
Washington, D.C. – August 17, 2020 – The National Employment Lawyers Association (NELA), the nation’s largest legal association whose members exclusively or primarily represent workers, today urged EEOC Chair Janet Dhillon to discontinue two pilot programs that limit the rights of those who suffer from workplace discrimination, such as sexual harassment or race discrimination.
The impacted programs – conciliation and mediation – are forms of dispute resolution intended to encourage settlement rather than litigation. Despite the EEOC’s mission to prevent and remedy unlawful employment discrimination, the proposed changes favor employers by limiting investigation, potentially hiding systemic discrimination on the part of a particular employer or industry, and weakening the employee’s ability to obtain relief from the discrimination and fair monetary damages.
While labeled “pilot” projects, with respect to the conciliation program the modifications were implemented nationwide, a departure from typical EEOC protocol. The pilots were executed unilaterally by Dhillon, without input from the other EEOC commissioners on the bipartisan commission. With respect to the changes in the mediation program, there is no plan to increase the number of … Read More
U.S. Supreme Courts Sides With LGBTQ+ Workers
In Landmark Ruling, U.S. Supreme Court Finds LGBTQ Workers Are Protected Under Title VII
“An employer who fires an individual merely for being gay or transgender defies the law.”
The Supreme Court ruled today that an employer who discriminates against an individual on the basis of their sexual orientation or gender identity violates Title VII of the Civil Rights Act of 1964, a landmark decision for LGBTQ workers.
The majority opinion in the 6-3 decision in Bostock v. Clayton County, GA (consolidated with Zarda v. Altitude Express Inc. and Harris Funeral Homes v. EEOC), was authored by Justice Neil M. Gorsuch. He was joined by Chief Justice John G. Roberts Jr. and Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan.
The opinion was largely based on the text of Title VII. As the majority notes:
“In our time, few pieces of federal legislation rank in significance with the Civil Rights Act of 1964. There, in Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. … 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
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
NELA Amicus Brief: Frappied, et al v. Affinity Gaming Black Hawk, LLC (10th Cir.)
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
