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Labor of Law: New Title VII Arguments: 8th Circuit | SCOTUS Docket Watch | Wellness Programs Questioned | Who Got the Work

Thanks for taking a break from all the Mueller coverage for this week's Labor of Law, where we spotlight a closely watched Title VII case in the Eighth Circuit, and offer a peek at next Monday's big EEOC-related argument at the U.S. Supreme Court. Feedback, ideas & what's your plate—please reach out! I'm Mike Scarcella in Washington, and you can reach me at mscarcella@alm.com. Follow me on Twitter @MikeScarcella.



'Because of Sex' Gets Day in Eighth Circuit

A three-judge Eighth Circuit panel this week didn't sound eager to conclude that sexual orientation protection is incorporated in Title VII. Judges on the panel expressed skepticism about the argument the EEOC's Gail Coleman made as amicus supporting Mark Horton in his suit against St. Louis-based Midwest Geriatric Management. Here's a link to the audio.

“We’re left with what is the meaning ‘because of sex.’ The EEOC believes that ‘because of sex’ incorporates sexual orientation discrimination,” Coleman told Judges James LokenRoger Wollman and David Stras. “The very definition of who is gay or lesbian—you can’t define it without considering sex.”

As one panel judge pointed out, the court's looking at the words Congress used in a "a particular statute for a particular purpose at a particular time with a particular legislative history." Title VII, of course, forbids discrimination on the basis of "religion, national origin, race, color or sex."

Gregory Nevins, senior counsel and director of Lambda Legal’s employment fairness project, argued for Horton, who claims a job offer was rescinded after his would-be employer learned he was gay.

Arguing for Midwest Geriatric Management, Neal Perryman of the St. Louis firm Lewis Rice asked the appeals court to avoid weighing into public policy issues and societal concerns—”not that they’re not important questions for someone to answer, but it’s not for this panel.”

Harvard law student Adrienne Spiegel has a recap of the argument here at the On Labor blog.

We're all awaiting action by the U.S. Supreme Court several petitions that tee up the issues in Horton's case. Those cases include Altitude Express v. Zarda from the U.S. Court of Appeals for the Second Circuit, Bostock v. Clayton County from the Eleventh Circuit. “We should all be paying attention to whether or not they grant cert or deny cert in the Bostock and Zarda cases,” Nevins told the Eighth Circuit panel Wednesday.

>> A Law.com Legal Speak podcast worth your time: Why This Quinn Emanuel Litigator (and His Corporate Clients) Are Fighting for LGBT Workers



SCOTUS Watch: Let's Get Jurisdictional

The U.S. Supreme Court next Monday will hear the labor and employment case Fort Bend County v. Davis, and check back for our highlights. Federal appeals courts are divided over whether Title VII’s "administrative exhaustion" requirement is a jurisdictional prerequisite before a suit or a waivable rule. The Fifth Circuit, reversing a trial judge, said the exhaustion requirement is not jurisdictional.

Here's a snapshot of some of what the parties and friends-of-the-court said in their filings: 

>> Hogan Lovells partner Colleen E. Roh Sinzdak (at left), arguing for Fort Bend: "The EEOC cannot fulfill its central role in combatting employment discrimination and detecting patterns and practices of misconduct if courts may resolve discrimination claims that the EEOC knows nothing about. And allowing courts to exercise jurisdiction in the first instance would mean leapfrogging not only the EEOC, but also the state and local administrative proceedings that must be initiated before EEOC review."

>> Raff Melkonian of Houston's Wright Close & Bargerarguing for Lois Davis: "Title VII requires exhaustion, and a court must enforce that requirement if a defendant timely raises the issue. But an employee’s failure to exhaust does not deprive the district court of jurisdiction because Congress has not clearly stated that the exhaustion requirement is jurisdictional."

>> Jonathan Bond, assistant SG, arguing for the U.S. Justice Department: "Congress established jurisdiction over Title VII suits in two other, separate provisions; neither makes jurisdiction contingent on filing a charge with the EEOC. This court’s precedent powerfully confirms that conclusion."

>> Rae Vann of NT Lakis LLP represents Center for Workplace Compliance, US Chamber of Commerce, National Federation of Independent Business and other business advocates: "Title VII’s detailed administrative and enforcement scheme thus is both premised and dependent upon the exhaustion of administrative remedies. Treating that requirement as anything less than jurisdictional would diminish its role in the statutory scheme and be inconsistent with many of the purposes underlying Title VII, such as empowering the EEOC to investigate and attempt to resolve discrimination claims informally, reserving litigation as an avenue of last resort.

>> Samuel Spital represents the NAACP Legal Defense and Educational Fund: "The importance of private attorneys general in enforcing Title VII weighs against interpreting presuit filing requirements as jurisdictional. Lay people generally initiate Title VII’s machinery without legal aid."

>> Michael Foreman of the Penn State Law Civil Rights Appellate Clinic represents the National Employment Lawyers Association: "Interpreting Title VII’s administrative investigative process as a jurisdictional requirement would unjustly limit the available paths to remedy employment discrimination. Because Title VII’s procedures are intricate and initiated by laypersons, the accompanying Title VII administrative process initiating those procedures should continue to be flexible and one that can be navigated by workers unsophisticated in legal technicalities."

Over at Katz, Marshall & Banks, senior counsel Carolyn Wheeler offersanalysis: "If the court concludes that exhaustion of administrative remedies is a jurisdictional requirement, the biggest practical consequence will be that charging parties will have to be zealous in assuring that the EEOC has recorded any amendments to their charges to encompass adverse actions taken against them after they filed their original charge." And on the flip side: "Even if the court agrees with the court of appeals that exhaustion is not a jurisdictional requirement, plaintiffs will continue to file charges with administrative agencies for a host of reasons."



Who Got the Work

>> A team from Morgan, Lewis & Bockius—including Harry Johnson IIIDaniel Bordoni and Grace Tse—represented Quicken Loans Inc. in a long-running dispute at the NLRB. The board on April 10, overturning an administrative law judge, said a mortgage banker's obscenity-laced restroom remarks were not protected activity. Fernando Anzaldua was counsel for the NLRB general counsel. Read the NLRB's decision here.

>> Jackson Lewis principal Ruthie White (at left) in Houston represented Verizon Wireless Texas LLC at the U.S. Labor Department in a whistleblower case that was brought under the Sarbanes-Oxley Act. An administrative law judge, Patrick Rosenowruled against the employee, who was represented by B.R. Johnson. Rosenow wrote: "Ultimately, the clear weight of the evidence shows that Respondent fired Complainant solely because of his poor performance. Even if I were to assume Complainant had been able to carry his burden of proof as to all of his allegations of protected activity, he would still fall far short of establishing that it is more likely than not that any of those protected activities played a role in or contributed to the adverse actions taken against him."

>> Daniel McCarthy of New Jersey's Rogut & McCarthy, representing General Nutrition Corp., couldn't convince the Third Circuit to overturn an age-discrimination jury verdict in favor of an employee who was fired at the age of 57. The appeals court has upheld the $259,000 judgment. Richard Pescatore in New Jersey advocated for the employee, who had been a store manager for 13 years before his termination. The Legal Intelligencer has more here.



Around the Water Cooler

>> HSBC Sexual Harassment Case Shows Banks' Struggles in the MeToo Era. "Reported cases of alleged harassment have spread throughout the business world, including finance, exposing weaknesses in some of the banks’ internal procedures and adding pressure on companies to improve their handling of misconduct claims." A spokesperson for HSBC said: “We conducted a thorough investigation into the allegations that were made and took appropriate steps based on the outcome." Bloomberg

>> Was Your Boss Weird About Your Pregnancy? You're Not the Only One. "Three pregnancy discrimination lawsuits were filed last week by women who claim they were pushed out or laid off from their jobs because they were pregnant. The cases involve different companies, in different industries, and women at different stages of their careers, including one who was the CEO and co-founder of a company." Bloomberg

>> U.S. Companies Reveal Pay Gap Between Bosses and Workers. "A closer examination of the small print underpinning the headline figures shows wide disparities between companies, along with an array of asterisks and anomalies that cast doubt on the utility of a disclosure that is increasingly being demanded in countries from India to the UK. 'If you really dig behind the number you can see it’s a weak and inaccurate number,' said Deborah Lifshey, managing director at Pearl Meyer, an executive compensation consultancy." Financial Times

>> Goldman Says Some Women in Gender Bias Class Must Arbitrate. "Goldman Sachs asked a federal judge to force more than 1,000 women from a gender discrimination class action to arbitrate their claims, but attorneys for the women say they shouldn’t be kept out of court." Bloomberg Law Read the motion to compel arbitration, filed by lawyers from Sullivan & Cromwell and Paul Hastingshere.

>> Employee Wellness Programs Yield Little Benefit, Study Shows. "While workers who enrolled in the wellness program reported that they learned to exercise more and watch their weight, the research found no significant differences in outcomes like lower blood pressure or sugar levels and other health measures. And it found no significant reduction in workers’ health care costs." NYT NPR has more here. Read the study.

>> Company Led by Trump Nominee Was Rife With Harassment, Including Groping and Kissing, Report Says. The Washington Post obtained details about an Office of Federal Contract Compliance Programs investigation that found sexual harassment and retaliation at AccuWeather, whose then-CEO, Barry Myers, is the Trump nominee to lead the National Oceanic and Atmospheric Administration. “This sexual harassment was so severe and pervasive, that some female employees resigned,” according to the report. The Washington Post

>> NY State Lawmakers Move to Outlaw 'No-Poaching' Agreements in Employment Setting. "Businesses in New York may soon no longer be allowed to enter into so-called “no-poaching” agreements that prevent their workers from being recruited by other franchises within the same company during their employment. State lawmakers in Albany are moving on legislation that would outlaw those agreements, which research has suggested limit the ability of individuals to seek better pay and advance their careers," my colleague Dan M. Clark reports. Law.com

>> The New Way Your Boss Can Tell If You’re About to Quit Your Job. "From recruiting to hiring to performance evaluations, HR executives have been investing in tech-driven data analysis to make better people decisions. 'We’re kind of coming of age in our ability to really put a number on human capital, to really understand what it takes to recruit a certain skill set and what it costs the company to lose a rare talent,' said Anna Tavis, a professor at New York University who studies human capital and technology." The Washington Post



Notable Moves & Announcements

• Seyfarth Shaw is adding two former Eversheds Sutherland attorneys—Martin Hopkins and Ana Cid Velasco—to its international employment law practice in London, my colleague Dan Packel reports. Hopkins, who had spent three decades at Eversheds, will serve as the firm’s director of European practice development.

• Danielle Brown, Google's chief diversity officer, is reportedly leaving the company. Melonie Parker, formerly head of the company's diversity, equity and inclusion team, will succeed Brown.

• Jean Yu has joined Jackson Lewis in Los Angeles as a principal. Yu left Venable, where her practice included employee benefits, ERISA and corporate transactional.