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
Discrimination
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
NELA Amicus Brief: Fort Bend County, Texas v Davis (U.S. Supreme Court)
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
NWLC NELA Amicus Brief_Parker v. Reema Consulting_4th Cir_053018
On Wednesday, May 30, 2018, NELA was proud to join with a coalition of women’s, employee, and civil rights groups led by the National Women’s Law Center (NWLC) in filing an amicus brief in support of the Plaintiff-Appellant Evangeline Parker in Parker v. Reema Consulting Services, Inc., pending currently in the U.S. Court of Appeals for the Fourth Circuit. In the course of rising in the ranks while working at the defendant firm, the Plaintiff was subjected to a false and repugnant rumor that her professional advancement was due to her having a sexual relationship with a male manager. The rumor’s spreading resulted in Ms. Parker facing harassment and discrimination, and when she tried to stop the rumor and complained about the harassment she was facing, the company retaliated against her and ultimately terminated her employment. The district court relied on a number of inappropriate grounds in dismissing her claims, including erroneously holding that the type of rumor to which she was subjected could not support a claim for gender discrimination because it could be made about either a male or female employee. The amicus brief marshals a wide array of legal and social science evidence in demonstrating that … Read More
NWLC NELA Amicus Brief_Jock, et al. v. Sterling Jewelers (2d Cir.)_031418
On Wednesday, March 14, 2018, NELA joined the National Women’s Law Center (NWLC) and a group of over two dozen women’s, employee, and civil rights organizations in supporting the Plaintiff-Appellants in their appeal in Jock, et al. v. Sterling Jewelers, pending currently in the U.S. Court of Appeals for the Second Circuit. This long-running case involves a challenge to systemic sex discrimination in pay and promotion opportunities under Title VII of the Civil Rights Act and the Equal Pay Act. After being moved from court into arbitration, the plaintiffs in this case argued successfully to the arbitrator that they are entitled to proceed as a class. The defendant convinced the district court to reverse the arbitrator’s decision to certify the class, and the plaintiffs have appealed. Among other important arguments, the amicus brief highlights how essential class actions are to efficiently and effectively addressing pervasive workplace abuses, while also protecting class members from the retaliation they are far too likely to face if forced to proceed individually. The brief was drafted by our colleagues at the NWLC and NELA member Carolyn Wheeler from Katz, Marshall & Banks, LLP (Washington, DC).… Read More
NELA Amicus Brief: Punt v. Kelly Services & GE Controls Solutions (10th Cir.)
On April 5, 2016, NELA was joined by our colleagues from the National Disability Rights Network (NDRN) in filing an amicus brief in the U.S. Court of Appeals for the Tenth Circuit, in support of the Plaintiff-Appellant Kristin Punt in Punt v. Kelly Services & GE Solutions Controls.
The district court granted summary judgment against the Plaintiff regarding her failure to accommodate claim, based on an out-of-context interpretation of Cisneros v. Wilson (10th Cir. 2000), regarding whether her request for medical leave as a reasonable accommodation under the Americans with Disabilities Act (ADA) was “indefinite.” Specifically, the district court erred by: 1) finding that the Plaintiff’s accommodation request amounted to a request for indefinite leave, and was thus unreasonable as a matter of law, because she could not specify how long her impairment would last, and therefore guarantee that she would not need additional future leave; 2) imposing no obligation on the Defendant to engage in the ADA’s interactive process; and 3) focusing on her cancer’s duration rather than on its workplace impact.
Our amicus brief makes three arguments:
1) It describes the extent to which the facts of this case are clearly distinguishable from the peculiar facts of … Read More
NELA Amicus Brief: Jones v. City of Boston (1st Cir.)
On March 11, 2016, NELA joined the Equal Justice Society, Justice at Work, the American Civil Liberties Union of Massachusetts, and the Charles Hamilton Houston Institute for Race and Justice in filing an amicus brief in support of the Plaintiff-Appellants in Jones v. City of Boston, currently pending in the U.S. Court of Appeals for the First Circuit.
The amicus brief provides the court with important historical context regarding the development of the law governing disparate impact, and its importance to addressing systemic discrimination in professions, like law enforcement, with deeply-imbedded cultures of exclusion that would otherwise be practically impossible to remedy.
After providing that background, the brief turns to the problems raised by the manner in which the district court evaluated both “business necessity” and “availability of a less-discriminatory alternative” in the context of resolving a motion for summary judgment. As the brief argues, the district court applied a “watered-down” version of the business necessity requirement to the Department and a heightened version of the less discriminatory alternative standard to the plaintiffs. This is particularly problematic at the summary judgment stage, because doing so necessitated drawing a number of inferences against the plaintiffs, weighing the evidence inappropriately, and … Read More
NELA Amicus Brief: Carcaño v. McCrory (4th Circuit)
On October 25, 2016 NELA joined a coalition of groups led by Bay Area Lawyers for Individual Freedom (BALIF) and the Impact Fund in signing onto an amicus brief in Carcaño v. McCrory, currently pending in U.S. Court of Appeals for the Fourth Circuit. This case involves a challenge to a portion of North Carolina’s notorious “HB-2” law that would prevent transgender persons from using public restrooms in line with their gender identity, if that identity does not match the gender on their birth certificate. The plaintiffs in this case sought a preliminary injunction against enforcement of the provision as applied to all transgender persons who reside in or visit North Carolina. The district court, however, chose only to enjoin enforcement of the law against the plaintiffs.
The amicus brief was drafted by NELA member Lindsay Nako and Lynnette Miner (Impact Fund, Berkeley, CA), and the amicus sign-on outreach was coordinated by NELA member Julie Wilensky (Disability Rights California, Oakland, CA), on behalf of BALIF.… Read More
NELA Amicus Brief: Mach Mining, LLC v. EEOC (U.S. Supreme Court)
On November 4, 2014, NELA joined the Impact Fund, AARP and other organizations to file an amicus brief in support of respondent EEOC in the case of Mach Mining, LLC v. EEOC, Case No. 13-1019, pending in the U.S. Supreme Court. The question presented in this case is: Whether and to what extent may a court enforce the Equal Employment Opportunity Commission’s duty under 42 U.S.C. § 2000e-5(b), (f)(1) to conciliate discrimination claims before filing suit. The amicus brief was drafted by NELA Amicus Advisory Council Co-Chair Michael L. Foreman and the Civil Rights Appellate Clinic at the Pennsylvania State University’s Dickinson School of Law, which he directs, and NELA members Jocelyn Larkin and Robert Schug at the Impact Fund.
The case arose in 2008 when a rejected female applicant for a mining position filed a charge of discrimination with the EEOC, alleging that Mach Mining, which had never hired a woman for this position, refused to hire her based on her gender. After conducting an investigation, the EEOC found reasonable cause to believe Mach Mining had discriminated against a class of women who applied for mining-related jobs, and invited it to conciliate. From late 2010 to late 2011, … Read More
NELA 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 More
NELA 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.
