Labor of Law: Watch This Case: Pregnancy Bias Action in 11th Circuit | Oracle Blasts DOL for 'Bad Faith' | Plus: Who Got the Work & All the Moves
Welcome to Labor of Law. There's a new pregnancy discrimination case unfolding in the Eleventh Circuit, and we've got a snapshot of what's at stake. Meanwhile, there’s a fascinating—and fast-moving—noncompete and trade secrets dispute in Boston federal district court featuring a big healthcare company's efforts to restrict a former executive from working for the startup venture involving Amazon, JPMorgan Chase and Berkshire Hathaway. Scroll down for Who Got the Work, notable moves and more. Thanks for reading!
Watch This Case: ACLU Files Opening Brief in Pregnancy Bias Action
Pregnancy discrimination in the workplace has emerged as a central focus for employee advocates in recent years, particularly after the 2015 Supreme Court decision Young v. United Parcel Service. The Supreme Court, ruling 6-3, ruled in favor of Peggy Young, who alleged discrimination.
But as the New York Times noted in a deep-dive last year on the alleged pervasiveness of pregnancy discrimination within U.S. companies: "The justices stopped short of establishing an outright protection for expectant mothers."
A team of lawyers from ACLU offices this week filed their opening brief in a new Eleventh Circuit case, and here are some of the issues in play.
What’s the new appeal? An Alabama EMT named Kimberlie Michelle Durham sued her company for alleged pregnancy discrimination. She claimed her employer, Rural/Metro Corporation, did not reassign her to a less strenuous job during her pregnancy.
Durham and her attorneys, including lawyers Gillian Thomas and Lenora Lapidus of the ACLU women's rights project, claim a company policy that provides temporary reassignments only to employees injured on the job violates the law. The ACLU lawyers are working with Birmingham, Alabama, attorney Heather Leonard.
The company is represented by a team from Constangy, Brooks, Smith & Prophete.
Enter the Supreme Court's ruling in Peggy Young's case. Durham's lawyers put a big focus on the Supreme Court's 2015 decision—which, as an aside, was argued for the employee by Sharon Gustafson, the Trump administration's pending EEOC general counsel nominee.
"The Young Court found that if an employer grants such accommodations to any non-pregnant employees, regardless of the reason, pregnant workers are entitled to that benefit, too, unless the employer can articulate a 'sufficiently strong' reason for denying it," Durham's lawyers wrote.
They contend the trial judge misapplied the Supreme Court's ruling. They write: "Under its reasoning, Young might as well never have been decided."
There's no shortage of cases and disputes. In a client advisory last year, Constangy Brooks lawyers noted that "most employers have instituted more flexible accommodation practices for pregnant workers and women returning to work post-childbirth since the U.S. Supreme Court’s 2015 decision in Young v. United Parcel Service and the enactment of the federal Nursing Mothers Act."
Still, cases and disputes abound. As the NYT reported in its investigation last year: "Many of the country’s largest and most prestigious companies still systematically sideline pregnant women. They pass them over for promotions and raises. They fire them when they complain."
The ACLU alone is handling several cases involving alleged pregnancy discrimination and policies that directly or indirectly punish women who are expecting a child. A class action alleges an AT&T Mobility policy unfairly discriminates against pregnant women, and another case says seniority and benefits are stripped for pregnant dock workers.
“Pregnant workers’ right to be treated on the same terms as their nonpregnant colleagues was reaffirmed by the Supreme Court as recently as 2015, but the trial judge just didn’t get it. We need the appeals court to reverse the lower court decision and make clear to that the law means what it says,” Thomas, senior staff attorney with the ACLU Women’s Rights Project, said.
Who Got the Work
>> The Boston-based firm Beck Reed Riden LLP is representing Optum Inc., a subsidiary of UnitedHealth Group Inc., in a suit against David W. Smith, a former senior executive who jumped to a healthcare startup led by the chief executives of Amazon, Berkshire Hathaway and JPMorgan Chase. The case, in Boston federal district court, alleges breach of contract and misappropriation of trade secrets. Lawyers from McDermott Will & Emery and Boston-based firm Bello Welsh LLPrepresent Smith, who is accused of breaking nondisclosure and noncompete agreements. Smith is going to the First Circuit in his quest to push the dispute to arbitration, and Optum's attorneys on Wednesday filed papers in the district court seeking an injunction pending appeal. The New York Times has more here on recent hearings in the dispute.
>> The Fourth Circuit revived a dispute between the U.S. Equal Employment Opportunity Commission and McLeod Health Inc. over a “fitness for duty” test for a woman with a disability. The appeals court reversed the summary judgment in favor of the company. EEOC lawyer Jeremy Horowitz argued for the agency. A team from Ogletree, Deanks, Nash, Smoak & Stewart, including Michael Shetterly, managing shareholder in the Greenville, South Carolina, office, represented the company. Read the opinion here.
>> The Federal Education Association is suing the Federal Labor Relations Authority in U.S. District Court for the District of Columbia over the agency's alleged "arbitrary and capricious actions in setting aside nine arbitration awards from five different arbitrators." The complaint alleged "these nine awards resulted from five years of intense litigation." William Freeman Jr., FEA-Europe general counsel, represents the plaintiff.
Notable Moves & Announcements
>> Morgan, Lewis & Bockius has bulked up its Los Angeles labor and employment practice, taking eight lawyers from Sidley Austin, my colleague Xiumei Dong reports. The group is led by partner and veteran class action litigator Douglas Hart. Partner Jennifer Zargarof, who co-led Sidley Austin’s global labor and employment practice, and partner Max Fischer also joined Morgan Lewis from Sidley.
>> Jackson Lewisannounced Teri Wilford Wood has joined the firm’s New York City office as of counsel. Wood joins after more than two decades at International Business Machines Corporation, serving for many years as chief global labor and employment counsel.
>> Holland & Knighthas hired labor and employment partner William Delany from Morgan, Lewis & Bockius. Delany's practice is split between ERISA matters and labor and employment litigation. Earlier, he joined Morgan Lewis in 1996 from Ballard Spahr, my colleague Lizzy McLellan reports.
>> Blank RomeaddedMara Levin as a partner in the labor and employment and commercial litigation groups in the New York office. Levin joins the firm from Herrick Feinstein, where she was partner and co-chair of the business litigation and employment practices.
>> Perkins Coie announced that “KoKo” Ye Huang has joined as a partner in the Seattle office and will counsel on employment-based immigration matters. She joined the firm from Jackson Lewis.
>> Cozen O'Connor has hired litigator Kelly Kindig in Philadelphiafrom Ballard Spahr, where she was of counsel in the litigation and L&E practices. Daniel Johns earlier joined
>> Seyfarth Shawhas hiredRichard Chen in the labor and employment department in Los Angeles. Chen joins from Ogletree Deakins, where he was a shareholder in the employment law group in Orange County.
Around the Water Cooler
• Judge James Ho (above) of the U.S. Court of Appeals for the Fifth Circuit offered some thoughts Wednesday in a case touching on the scope of Title VII rights. Writing in a concurring opinion to his majority ruling, Ho, appointed to the bench by President Trump, said: "To a fluent speaker of the English language—then and now—the ordinary meaning of the word ‘sex’ does not fairly include the concept of 'sexual orientation.’" The U.S. Supreme Court hasn't yet acted on several petitions that confront the scope of Title VII protections for gay, lesbian and transgender workers. Read Ho's ruling here.
• Oracle's lawyers at Orrick, Herrington & Sutcliffe fired back at the US Labor Department's move to bring more discrimination claims, saying the agency has acted in "bad faith" in coordination with private plaintiffs lawyers. The Recorder
• The technology industry has created a divide in the workforce with a system built on well-educated professionals experiencing rising wages and a low-wage workforce with little change to advance. NYT
• "Theft of 'non-cash' property—ranging from a single pencil in the supply closet to a pallet of them on the company loading dock—jumped from 10.6 percent of corporate-theft losses in 2002 to 21 percent in 2018." The Atlantic
• The U.S. Labor Department issued notices of violation to 200 federal contractors between 2016 and 2018, including big names like Wells Fargo & Co., Deloitte, and Huntington Ingalls Industries Inc. Bloomberg Law
• Labor regulators have dropped its appeal to collect a broad swath of salary information in a long-running probe with Google. Craig Leen, head of the agency's contract compliance office, said it will continue the audit of the company under its new directives that speak to transparency and consistency. The Recorder
• The National Labor Relations Board is moving forward with its attempt to overturn the 2015 Obama-era decision that expanded the scope of joint-employment liability. Big law firms and advocates were among the thousands of commenters. The National Law Journal
I’m Erin Mulvaney in Washington, covering labor and employment from the Swamp to Silicon Valley. Follow this weekly newsletter for the latest analysis and happenings. If you have a story idea, feedback or just want to say hi, I’m at emulvaney@alm.com and on Twitter @erinmulvaney.
