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Labor of Law: Post-Kennedy LGBT Protections | Age-Bias Case to Watch | Plus: New & Notable Moves

Welcome to Labor of Law. Supreme Court Justice Anthony Kennedy will leave the bench with a legacy of boosting LGBT rights, just as new cases confronting workplace protections for gay workers are arriving. The court dealt a blow to organized labor with its decision in Janus. No surprise, but what to expect now? Also: There's a big new age-discrimination case about to unfold in a federal appeals court. Scroll down for new moves, and who got the work. ➤➤ I’m Erin Mulvaney in Washington, D.C., covering labor and employment from the Swamp to Silicon Valley. If you have a story idea, feedback or just want to say hi, I’m at emulvaney@alm.com and on Twitter @erinmulvaney

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With Kennedy’s Retirement, LGBT Workplace Protections Face Uncertain Future

During Justice Anthony Kennedy’s three decades on the bench, he authored important and controversial decisions, including significant rulings supporting LGBT rights. Kennedy’s retirement comes at a particularly dynamic moment for these issues. Federal appeals courts are divided over the scope of federal civil rights laws as they apply to LGBT workplace protections. The U.S. Equal Employment Opportunity Commission and gay rights advocates have pushed a broad interpretation of federal civil rights laws that includes “sexual orientation” as a form sex discrimination. Trump’s Justice Department has pushed back against that interpretation. Two petitions arrived in recent weeks at the high court—and they could be acted on by the time the new term starts in the fall. Kennedy won't be on the court then—and we'll all closely watch whether the Trump administration and Congress can get a new justice seated by then. “I’m still optimistic, but I would have been more optimistic had Kennedy been on the court,” P. David Lopez, a Washington-based Outten & Golden attorney and soon-to-be law dean at Rutgers University, tells me. Lopez, former Obama-era EEOC general counsel adds: “He was always the margin of difference. Social issues is where there was some hope in him for more progressive people.” Lopez points out that the business community has pushed for broader protections for gay workers. He predicts that arguments in support of a broad interpretation of Title VII could have some resonance at the post-Kennedy Supreme Court. “It won’t be a unanimous decision. You will have different sides of the coin. I still think it’s possible that the Supreme Court will follow what the Seventh and Second have done," Lopez says. "Those circuits have Democratic and Republican appointees.” Still, he acknowledged: “Not everyone agrees with me here.” Seyfarth Shaw partner Sam Schwartz-Fenwick said there will be more uncertainty surrounding questions of LGBT protections, but even if Kennedy were still on the court, it wasn't so clear how the justices might interpret Title VII's anti-discrimination protections. Schwartz-Fenwick notes that Justice Antonin Scalia authored a 1991 opinion that extended the definition of sex stereotyping in a case that confronted harassment against a man. “It’s not a right versus left, conservative versus liberal issue,” Schwartz-Fenwick told me. “It will be about the specific question that is presented.” Gay rights groups, reacting to the retirement news, acknowledged Kennedy’s role in supporting LGBT rights. Still, Lambda Legal CEO Rachel Tiven said Kennedy's departure leaves unanswered how far protections might be extended. Lambda Legal has played a key role in the cases making the way through the appeals courts surrounding Title VII protections. “We are shocked and saddened that a justice who was once the defender of dignity for LGBT people and our families on the court would chose this moment to hang up his robe and give the Trump administration the opportunity to further derail anti-discrimination laws and undermine the rule of law,” Tiven said. >> It was a big final week of the Supreme Court, beyond Kennedy’s retirement.The court said public-sector unions could not charge non-union members fees. The divided ruling was expected but the consequences will be far-reaching. Early predictions from employment attorneys on this case: Private sector unions won’t be unscathed, unions will get more creative and the impact on case law could be broad. Check back on Law.com for more on the impact of Janus v. AFCME Council 31.


In Other Court News…

There's been no shortage of cases to watch, especially with the Supreme Court’s term coming to a close. → The Seventh Circuit agreed to take an age discrimination case en banc that considers whether job applicants, not just employees, are covered under the federal age discrimination law. An experienced attorney named Dale Kleber sued after being denied an in-house position that came with a seven-year experience cap. The question of how far the age discrimination law can extend has divided appeals courts. Read more at The National Law Journal. → Jones Day attorneys sought an extension to Aug. 23 in the U.S. Supreme Court to file a cert petition challenging the Ninth Circuit decision in April that said employers cannot use prior salary history to justify the gender wage gap. "Petitioner and respondent are currently attempting to resolve their dispute through settlement," Jones Day's Shay Dvoretzky told the Supreme Court in the case Yovino v. Rizo. → A Seattle court denied class action certification in a case against Microsoft Corporation. The suit involves women suing over alleged bias in pay and promotion practices. A team from Orrick, Herrington & Sutcliffe represents Microsoft. Legal teams from Outten & GoldenLieff, Cabraser, Heimann & Bernstein and Frank Freed, Subit & Thomas represent the women. Bloomberg has the story. → The U.S. Supreme Court gave a Washington florist a new chance to argue that she did not discriminate against a gay couple in refusing to make a floral arrangement. The justices, citing their decision in Masterpiece Cakeshop, remanded the case Arlene’s Flowers v. Washington for further review.

Who Got the Work

>> A New York appellate court found Postmates couriers are contractors, not employees, and a fired worker is not entitled to unemployment benefits. The issue is high on the minds of on-demand businesses, particularly given a California Supreme Court ruling that made it more difficult for companies to call classify their workers as contractors. David Cooper at Quinn Emanuel Urquhart & Sullivan represented Postmates. Albany-based attorney Francis J. Smith argued for the worker. Read the decision here. >> Jimmy John’s won a case in the U.S. District Court for the Northern District of Illinois that found the company is not a joint employer for its franchise employees. The employees brought a collective action against the employers arguing they were misclassified. Gerald Maatman Jr., partner in Seyfarth Shaw’s Chicago and New York offices, represented Jimmy John’s. Attorneys at Myron M. Cherry & Associates;Foote, Mielke, Chavez & O'Neil and Klafter Olsen & Lesser represented the plaintiffs.

New & Notable Moves

→ Fisher Phillips hired two partners from Constangy, Brooks, Smith & Propheteand another lawyer as of counsel from Buchanan, Ingersoll & Rooney. The Atlanta-based firm hired partners Theresa Connolly, who will become the managing partner of the Washington office, and Boyd Rogers in Charlotte. The firm hired Paul Greco in Philadelphia as of counsel from Buchanan Ingersoll, where he co-chaired the firm’s trade secrets and restrictive covenants practice. Read more here. → Constangy, based in Atlanta, recruited seven lawyers in different offices from Jackson Lewis and several regional labor and employment firms. The firm recruited Kathleen Barrow as a partner in its Austin office. At Jackson Lewis, where she spent the last 11 years. Barrow handled ERISA, tax and executive compensation matters. In Birmingham, Alabama, it added two partners—Tom Scroggins and Brooke Nixon—from the Tuscaloosa firm Rosen Harwood. Constangy added Dana Nelson in Atlanta as senior counsel from an in-house position at Zurich North American Insurance. → Morgan, Lewis & Bockius announced Scott Fischer, executive deputy superintendent for insurance at the New York State Department of Financial Services, will join the law firm’s insurance industry team in its New York office.

Around the Water Cooler...

• The New York Division of Human Rights will investigate allegations of pregnancy discrimination at Walmart, Merck, Novartis and Glencore. "Walmart, Merck and Glencore have denied engaging in pregnancy discrimination. Novartis previously said in a statement that after settling a class-action lawsuit in 2010 for $175 million, it had taken additional steps to promote gender equality." [New York Times] • My colleague Scott Flaherty updates the new Jones Day bias suit and a case against Ogletree: "Jones Day is looking to put a lid on a gender discrimination suit brought by former partner Wendy Moore, while women suing Ogletree Deakins are seeking to add new allegations." [The American Lawyer] • Is Amazon Flex a good deal for workers? "A lot of these gig-type services essentially rely on people not doing the math on what it actually costs you,” Sucharita Kodali, a Forrester analyst who covers e-commerce. This first-person account does that math. [The Atlantic] • The resignation of Intel Corp. CEO Brian Krzanich, amid accusations he had a relationship with an employee, sheds light into how companies are looking into relationships in the workplace. [WSJ] • Tesla sued a former employee for allegedly hacking the company’s computer system and stealing secrets. The employee, Martin Tripp, claims he is a whistleblower. [LA Times] • Ivy League universities diverge on whether they will cut deals with graduate students fighting to organize. [Bloomberg]

That's all for this week! Thanks for reading. Shoot me a note with story idea, tips and feedback: emulvaney@alm.com