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
Morgan v. United States Soccer Federation
On July 30, NELA and 63 other organizations signed on to the National Women’s Law Center amicus brief in the 9th Circuit case Morgan v. United States Soccer Federation. This high-profile case concerns the pay disparity between the US men’s and women’s soccer teams. Amici submit this brief to provide additional context regarding the broader struggle for women’s pay equity and to highlight significant errors in the district court’s decision. The gender wage gap harms hundreds of millions of women in the United States and is persistent across every segment of the labor market, including professional sports, where women receive fewer resources, less support, and far less pay. The district court’s erroneous interpretation of the EPA and Title VII-and its endorsement of the blatant pay disparities here-threatens to perpetuate unequal pay and thus, gender discrimination. We are grateful to NWLC for the opportunity to sign on to this important brief.… Read More
Pelcha v. MW Bancorp
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
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_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: 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: Green V. Brennan (U.S. Supreme Court)
On July 13, 2015, NELA filed an amicus brief in support of petitioner in Green v. Brennan, No. 14-613, pending in the U.S. Supreme Court on appeal from the U.S. Court of Appeals for the Tenth Circuit. This case concerns the timeliness of an EEO complaint alleging constructive discharge under Title VII.
Petitioner Marvin Green, while postmaster for Englewood, Colorado, applied in 2008 for a promotion, which he did not get. Believing he was subjected to race discrimination because the successful candidate had less experience and did not submit an application, Green contacted a Postal Service EEO counselor and asked to have his concerns investigated. Thereafter, relations with his supervisors soured. In 2009, he twice went to Postal Service EEO counselors complaining about retaliation. In November 2009, while his claims were under investigation, Green was summoned by his superiors to an “investigative interview,” which was held on December 11, 2009 and attended by agents from the Postal Service’s Office of the Inspector General. There, Green was accused of mismanagement and “intentionally delaying the mail,” which is a crime. He was put on Emergency Placement in Off-Duty Status without pay. After several days of negotiations in which his union participated, … Read More
NELA Amicus Brief: Powers v. Union Pacific RR Co. (ARB)
On December 17, 2014, NELA joined the National Whistleblowers Legal Defense and Education Fund, Truckers Justice Center and Teamsters for a Democratic Union to file an amicus brief in support of Complainant Robert Powers in the case of Powers v. Union Pacific RR Co., Case No. 13-034, pending before the Administrative Review Board (ARB) of the U.S. Department of Labor. The ARB is reviewing this appeal en banc and invited submission of amicus briefs from interested entities. This case presents the pure legal issue of whether the majority opinion in an earlier case before the ARB, Fordham v. Fannie Mae, articulated the correct contributing factor causation standard for retaliation claims brought under certain whistleblower statutes. See Fordham v. Fannie Mae, ARB Case No. 12-061, ALJ Case No. 2010-SOX-051 (October 9, 2014).
The amicus brief argued that the Fordham opinion faithfully follows the plain language of the statute, the legislative history behind it, and the treatment that the ARB and federal courts have given to the family of AIR 21 retaliation statutes, which protect employees of air carriers (including contractors and subcontractors) who report violations. Proof of retaliation under AIR21 is different from that under Title VII’s burden-shifting scheme established … Read More
NELA Amicus Brief: EEOC V. Abercrombie & Fitch Stores, Inc. (U.S. Supreme Court)
On December 10, 2014, NELA joined the General Conference of the Seventh-day Adventists and other religious and civil rights organizations to file an amicus brief supporting Petitioner EEOC in the case of EEOC v. Abercrombie & Fitch Stores, Inc., Case No. 14-86, pending in the U.S. Supreme Court. The question presented is whether an employer can be liable under the religious accommodation provision of Title VII for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required and the employer’s actual knowledge resulted from direct, explicit notice from the applicant or employee. This case provides the Supreme Court with the opportunity to clarify the knowledge and notice requirements for religious accommodations under Title VII.
At the district court, the EEOC was granted summary judgment on its claims that Abercrombie violated Title VII by failing to provide a religious accommodation to a female applicant who wore a hijab or head scarf to an interview and declining to hire her. After a trial limited to damages, a jury awarded $20,000 in compensation. The U.S. Court of Appeals for the Tenth Circuit reversed, instructing … Read More
NELA Amicus Brief: DeMasters v. Carilion Clinic (4th Circuit)
On February 25, 2014, NELA filed an amicus curiae brief in the U.S. Court of Appeals for the Fourth Circuit in support of plaintiff DeMasters who was wrongfully terminated in retaliation for using established internal complaint mechanisms to notify Carilion Clinic about the sexual harassment of a co-worker by a supervisor. The court in the Western District of Virginia granted Carilion’s Rule 12(b)(6) motion to dismiss, holding that DeMasters failed to state a plausible claim of retaliation under Title VII because he did not produce sufficient facts to establish that he engaged in a protected activity. The circumstances surrounding DeMasters’ termination were egregious. DeMasters worked as an Employee Assistance Program (EAP) counselor for Carilion Clinic for more than five years. In October 2008, DeMasters reported to Carilion’s human resources department that another employee, John Doe, had confided to DeMasters that Doe was being subjected to harassment. This was well before Doe filed an EEOC charge and subsequent lawsuit. In August 2011, shortly after Doe’s lawsuit was settled, DeMasters was questioned by Carilion managers about his involvement with Doe in 2008. DeMasters was asked why he had not taken the “pro-employer side” concerning Doe’s complaints. DeMasters also was told that he … Read More