Labor of Law: Secretary Acosta, Your Table Is Ready | LGBT at SCOTUS: Early Reax | Who Got the Work, Notable Moves & More
Good afternoon Labor of Law readers. Welcome back. Breaking: We heard today from the DC judge in the EEOC pay-data collection case—check out our just-published story about the new deadline, and remarks from the judge. Meanwhile, some early commentary on the Supreme Court granting cert in the Title VII sexual orientation and gender identity cases. Plus: Who's snagging dinner time with Labor Secretary Alex Acosta? Scroll down for the guest list, and more—including Who Got the Work and our weekly moves roundup. I'm Mike Scarcella in Washington, and you can reach me at email@example.com. Follow me on Twitter @MikeScarcella.
SCOTUS, Sans Kennedy, Returns to LGBT Cases
The U.S. Supreme Court next term will take up a trio of cases that confront whether federal civil rights laws carry protections against discrimination on the basis of sexual orientation and gender identity. The justices will hear arguments in the cases Altitude Express v. Zarda from the U.S. Court of Appeals for the Second Circuit, Bostock v. Clayton County from the Eleventh Circuit and R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission from the Sixth Circuit.
"The cases, closely watched by employers, consumers, civil rights groups, conservative and religious organizations, will draw the high court back into the culture wars amid the 2020 presidential election year," my colleague Marcia Coyle reported at Law.com.
That was the long-awaited news this week, and now we'll watch for the merits and amicus briefing. The Trump-era U.S. Justice Department is sure to argue for a narrow interpretation of Title VII—against the position of the EEOC, which has advocated for greater protections for gay, lesbian and transgender employees. And watch out for a brief from big-name companies, as we saw in some lower court action.
Quinn Emanuel's Todd Anten spoke with us last year—listen to our Legal Speak podcast—about an amicus brief he filed in one of the cases on behalf of major U.S. companies. "There are many reasons why a business would want to make sure that sex orientation is not subject to discrimination in the workplace," Anten told Law.com. "It helps businesses recruit talent. It helps workplaces generate innovative ideas—by having a larger diversity of thought and having people speak openly and freely."
Here's a roundup of some of the early commentary about the U.S. Supreme Court's action:
>> Seyfarth Shaw partner Sam Schwartz-Fenwick, who leads the firm’s LGBT Affinity Group, and associate John Ayers-Mann, said: "In its first gay rights ruling in a generation without the voice of Justice Kennedy it is unclear how the court will rule. The Supreme Court’s decision may create a federal right of action for individuals who suffer discrimination on the basis of sexual orientation or gender identity, the Court may rule that no such right exists under current law, or the Court may find that a right exists but must be balanced against an employer’s religious liberty interest. Stay tuned as we continue to follow this matter."
>> “This is an important issue, it will impact thousands of workers in states where there is no coverage based on gender identity and sexual orientation,” David Lopez (at left), former Obama-era general counsel at the EEOC, told Bloomberg Law. “The courts were hampered previously by cultural biases against the LGBT community.”
>> James Paretti Jr., a Littler Mendelson shareholder, said: "The court’s decision to review these cases, and potentially give a definitive answer to whether federal protections against sex discrimination implicitly prohibit sexual orientation and gender identity discrimination, is likely to provide clarity to employers that have faced conflicting decisions from various federal courts around the country. Given the current composition of the court, the substance and scope of how the court will decide this matter is hotly debated."
>> "Not great news from the Supreme Court this morning—unlikely that the new conservative majority will find that sexual orientation and gender identity discrimination are forms of sex discrimination under Title VII. Our work, like in almost all other areas now, will be harm reduction," Katherine Franke, professor of law, gender and sexuality studies at Columbia Law School, said in a Facebook post.
>> James Esseks, director of the ACLU LGBT & HIV Project, said: “Most of America would be shocked if the Supreme Court said it was legal to fire Aimee because she’s transgender or Don because he is gay. Such a ruling would be disastrous, relegating LGBTQ people around the country to a second-class citizen status. The LGBTQ community has fought too long and too hard to go back now, and we are counting on the justices not to reverse that hard-won progress.”
Getting Dinner With Alex Acosta
Back in late February, Twitter was abuzz about a tipster sighting of Labor Secretary Alex Acosta grabbing dinner with Justice Samuel Alito Jr. at the downtown Washington restaurant Central Michel Richard. Acosta wasn't meeting with a stranger. He clerked for Alito in the early 1990s when he was a judge on the U.S. Court of Appeals for the Third Circuit.
Washington does love its secretary (and justice) sightings. Flash back to February 2018, when then-U.S. Attorney General Jeff Sessions—whose tenure was in jeopardy—was spotted eating with Deputy Attorney General Rod Rosenstein and Noel Francisco, the U.S. solicitor general.
The Acosta dinner got us thinking—who else is he eating with? Some federal agencies post the calendars of their cabinet secretaries—thank you, U.S. Labor Department. We know Acosta's dinner guests. But we don't know the venue. The Alito dinner got a mention—as did many others.
Acosta grabbed a bite in February with Glenn Spencer, senior vice president, employment policy division, at the U.S. Chamber of Commerce. The Labor secretary also ate dinner with Secretary of State Mike Pompeo and his wife.
Some of the January dinner-guest notables: Michael Chertoff, senior of counsel at Covington & Burling and a former secretary of Homeland Security; Eugene Scalia (at left), former Labor solicitor and current Gibson, Dunn & Crutcher partner; and Paul Atkins, a former SEC commissioner who played a lead role on the Trump transition team.
Politico posted a piece last month based on a review of Acosta's calendars and concluded the secretary more often meets with Republicans and business advocates than with labor union leaders. The watchdog group American Oversight first obtained more than 1,000 pages associated with Acosta's calendars via the Freedom of Information Act.
Who Got the Work
>> Laurie McCann of the AARP Foundation is counsel of record on a new U.S. Supreme Court petition that says the federal age-discrimination law protects job applicants and not just employees. The Seventh Circuit, sitting en banc in January, turned down lawyer Dale Kleber's challenge against CareFusion Corp. At 58, Kleber said CareFusion discriminated against him as he sought an in-house post. The company was represented by a team from Ogletree, Deakins, Nash, Smoak & Stewart. Bloomberg Law has more here.
>> Thomas Saenz and Julia Gomez of the Mexican American Legal Defense and Education Fund is suing the Silicon Valley company VMware in San Francisco federal court, alleging DACA discrimination. Read the complaint here. "The case is one of several filed recently against major U.S. corporations that allegedly refused to employ people enrolled in the federal program known as Deferred Action for Childhood Arrivals, or DACA. It allows immigrants brought illegally to the U.S. as children to remain in the country," the Associated Press reported.
>> "UPS Ground Freight Inc. lost its bid April 19 to get the D.C. Circuit to overturn a union election by delivery drivers at one of its Pennsylvania distribution facilities," Bloomberg Law reports. Kurt Larkin, a Hunton Andrews Kurth partner in Richmond, argued for UPS, and Eric Weitz of the NLRB argued for the agency. Several groups participated as friends of the court, including the U.S. Chamber of Commerce, represented by Covington & Burling. Read the decision here by the U.S. Court of Appeals for the D.C. Circuit.
>> Ogletree, Deakins, Nash, Smoak & Stewart represented Lockheed Martin in a retaliation dispute in the Fifth Circuit. "Lockheed Martin Corp. convinced a federal appeals court to affirm the rejection of claims it retaliated against two former employees for their disclosures about potential fraud under a NASA contract," Bloomberg Law reports. Smith Law Firm represented the whistleblowers. Read the decision here.
Around the Water Cooler: H-1Bs; Yale Depo; Online Rants
>> Small-Time Crimes a Dealbreaker for Banking Jobs. "The law can 'pose unnecessary and inappropriate obstacles to banks’ ability to employ qualified individuals with limited criminal records…who have taken steps to rehabilitate themselves,' the Bank Policy Institute, a bank trade group, said in an April letter to Congress asking lawmakers to revisit the statute. There are no ongoing legislative efforts to change it." The Wall Street Journal
>> H-1B: Meet the Attorneys Behind the Tech Industry's Favorite Visa. "Fragomen had more attorneys among the top 100 in H-1B applications last year than any other firm. Thirty-two of the 100 most prolific H-1B application attorneys worked for Fragomen at the time of the filings." Underneath Fragomen, the firms included (in descending order): EY Law LLP, Berry Appleman & Leiden; Masuda Funai, Garson LLP; Chugh LLP, USILaw Inc.; and Morgan, Lewis & Bockius. The Mercury News
>> Yale President Can't Escape Deposition in Retirement Plan Suit. "Yale University president Peter Salovey must sit for a deposition in a proposed class action challenging how the school manages its $3.8 billion retirement plan." Bloomberg Law. Read the ruling here from U.S. District Judge Robert Richardson. A team from Mayer Brown represents Yale. The plaintiffs are represented by Schlichter Bogard & Denton and Cohen & Wolf PC.
>> Google Walkout Organizers Say They're Facing Retaliation. "Two employee activists at Google say they have been retaliated against for helping to organize a walkout among thousands of Google workers in November, and are planning a 'town hall' meeting on Friday for others to discuss alleged instances of retaliation." Wired NYT has more here.
>> Hairstyles and Anti-Discrimination Laws: What You Need to Know. "Recent actions by New York City and California state governments to extend legal protections against racial discrimination to include hairstyles linked to ethnic, racial or cultural identity are likely the start of a trend that employers will need to consider, employment lawyers say," my colleague MP McQueen writes. Law.com
>> No Impunity for Online Rant, 5th Circuit Rules in Heterosexual's Reverse Discrimination Suit. “The question is not whether people are entitled to disagree (rudely or politely) about sensitive issues. The question is whether O’Daniel has stated a claim under Title VII. Simply put, Title VII does not grant employees the right to make online rants about gender identity with impunity,” Fifth Circuit Judge Catharina Haynesin a concurring opinion. Here's a link to the ruling. Law.com
>> Derivative Suit Accuses Alphabet Directors of Fostering Workplace Harassment. "Investors in Alphabet Inc.—the parent company of Google—have accused the Mountain View, California-based conglomerate’s board of fostering a culture of “rampant sexual harassment” and covering up misconduct by its senior male executives," my colleague Tom McParland writes. Law.com
>> Global Investigations: A Step-by-Step Process. "Conducting an international employment investigation is essentially a game of three-dimensional chess: an in-house lawyer has to think and act across multiple legal dimensions. Here are some key practical and strategic considerations for making the right moves," Tahl Tyson, shareholder at Littler Mendelson, writes. Among them: Are employee data privacy rights implicated? And: "Knowing what goals and outcomes are possible will help with making critical decisions as to how to proceed along the way, and what to prioritize." Corporate Counsel
Notable Moves & Announcements
• Ann Caresani has joinedBakerHostetler as a partner in its employee benefits practice. She arrives from Tucker Ellis LLP, where she led the firm’s employee benefits and executive compensation practice.
• Jackson Lewis has hired veteran litigator Ronald Stadler as a principal in Milwaukee. He arrives from Mallery & Zimmerman.
• Fisher PhillipshiredVincent Adams and Robert Rodriguez as associates in California. Adams, who represents businesses in employment and insurance matters, previously was at Wilson Elser Moskowitz Edelman & Dicker. Rodriguez, who focuses on wage-and-hour class actions, harassment, discrimination and other areas, previously was at Ogletree, Deakins, Nash, Smoak & Stewart.
• Gordon Berger has joinedFisherBroyles as a partner in its labor and employment and litigation practices from Atlanta-based labor and employment firm FordHarrison. Berger has more than 25 years’ experience representing management in employment, contracts and business disputes.
• LittlerMendelson has hiredAnthony Kuchulis as a shareholder in the firm's Portland, Oregon, office. Kuchulis joins the firm from Barran Liebman LLP.
• After 21 years as a partner at Troutman Sanders, labor and employment practitioner Mike Kaufman has rejoined former colleague Charlie Hawkins at The Hawkins Firm. Hawkins, also a labor and employment lawyer, left Troutman in 2016 to start the Atlanta-based firm.