NELA

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Title VII

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

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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

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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

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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 More

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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.
… Read More
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NELA Amicus Brief: Vance v. Ball State University (U.S. Supreme Court)

On September 5, 2012, NELA, joined by AARP, filed an amicus brief supporting Petitioner Maetta Vance in Vance v. Ball State University, currently pending in the United States Supreme Court. Our brief was drafted by Professor Michael L. Foreman of the Penn State University Dickinson School of Law, with support from his students in the Civil Rights Appellate Clinic. The issue in this case concerns the appropriate definition of “supervisor” under Title VII.

Ms. Vance was the only African-American employee in her department, which provided banquet and catering services to the Ball State University campus community. She alleged numerous instances of fairly egregious, racially-motivated conduct in support of her hostile work environment and retaliation claims. Some of this conduct was engaged in by employees who arguably directed at least some of her day-to-day work activities. The Seventh Circuit Court of Appeals, in an opinion by Judge Diane Wood, affirmed summary judgment in favor of the defendant. In so doing, Judge Wood held that the definition of supervisor is limited to those who possess the power to “hire, fire, demote, promote, transfer, or discipline an employee.”

By contrast, the Equal Employment Opportunity Commission (EEOC) developed guidance in response to the … Read More

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NELA Amicus: Parisi/Chen-Oster v. Goldman Sachs (2d Circuit)

NELA, along with a broad coalition of employee rights and civil rights organizations, including the Asian American Justice Center, the Lawyers’ Committee for Civil Rights Under Law, the NAACP Legal Defense and Education Fund, the National Employment Law Project, the National Partnership for Women & Families, the National Women’s Law Center, The Employee Rights Advocacy Institute For Law & Policy, Women Employed, and 9to5, National Association of Working Women, filed an amicus brief urging the U.S. Court of Appeals for the Second Circuit to affirm the district court’s refusal to enforce an arbitration agreement containing a class action ban in an employment discrimination case involving Title VII pattern-or-practice discrimination claims. Amici agree with the district court’s holding that pattern-or-practice claims are distinct from individual disparate treatment claims and that arbitration agreements therefore are unenforceable if they preclude plaintiffs from vindicating pattern-or-practice claims. Our brief also contends that vindication of pattern-or-practice claims is vital to achievement of Title VII’s purpose and is largely infeasible on an individual basis due to limitations on the scope of discovery in bilateral adjudications, the substantial costs of proving a pattern-or-practice claim, and limitations on the scope of injunctive relief. Our brief serves to highlight the … Read More

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NELA Amicus Brief: Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, et al. (U.S. Supreme Court)

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

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