Cert petition: Does Title VII prohibit sexual orientation discrimination?

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"It shall be an unlawful employment practice for an employer … to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s … sex."

OK. What about discrimination because of one's sexual orientation? That's the issue raised in a petition for certiorari filed by a gay female security officer. Evans v. Georgia Regional Hospital (cert filed 09/07/2017) [Petition and other briefs].

Jameka Evans claimed that her supervisors harassed her and otherwise punished her because of her sexual orientation. The district court magistrate judge said Title VII “was not intended to cover discrimination against homosexuals.” The district court dismissed the case, and the 11th Circuit held that Evans could not state a claim by alleging workplace discrimination because of her sexual orientation. Evans v. Georgia Regional Hospital (11th Cir 03/10/2017) [Opinion].

So Evans (originally a pro se plaintiff, and now backed by Lambda Legal) is asking the US Supreme Court to take up this case.

Discussion of Hively v Ivy Tech Community College decision on sexual orientation discrimination

There is a split of authority between Circuits. Hively v. Ivy Tech Community College, 853 F.3d 339 (7th Cir 2017) (en banc) [Opinion] held that – indeed – Title VII forbids discrimination on the basis of sexual orientation. The 7th Circuit – typically described as a "conservative" court – voted 8-3 on this issue. Also, two judges (out of three) in Christiansen v. Omnicom Grp., Inc., 852 F.3d 195 (2nd Cir 2017) [Opinion] expressed the opinion that Title VII forbids discrimination on the basis of sexual orientation; however that court held just the opposite because they lacked authority to overrule prior circuit precedent. Zarda v. Altitude Express, Inc., 855 F.3d 76 (2nd Cir 2017) [Opinion] also asserted a lack of authority to overrule prior circuit precedent, but that case is now under en banc review by the entire 2nd Circuit.

At the same time, there are plenty of court decisions taking essentially the same position as the 11th Circuit's.

Federal agencies have taken conflicting positions. The EEOC has opined that allegations of discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex. The Department of Justice has taken the opposite position.

With splits of authority, and with the obvious importance of the issue involved, this seems like an ideal case for the Supreme Court to decide. There is some more pre-certiorari briefing to be done before the Court even puts this case on its conference calendar to decide whether to grant the cert petition.

[For a list of current employment law cases, see Supreme Court Watch]

Cert petition: Are "contractor" truck drivers covered by Federal Arbitration Act?

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It seems a bit of a strange twist that the 1st Circuit held that an independent contractor truck driver's agreement with his trucking firm is a "contract of employment." Oliveira v. New Prime, Inc. (1st Cir 05/12/2017) [Opinion]. So the employer has filed a certiorari petition at the US Supreme Court. New Prime, Inc. v. Oliveira [Petition] [Briefs] The formal statement of the issues:

"(1) Whether a dispute over applicability of the Federal Arbitration Act’s Section 1 exemption is an arbitrability issue that must be resolved in arbitration pursuant to a valid delegation clause; and (2) whether the FAA’s Section 1 exemption, which applies on its face only to 'contracts of employment,' is inapplicable to independent contractor agreements."

We usually draw a firm line between "employees" and "independent contractors."

This matters big time because the Federal Arbitration Act does not apply to "contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce." So, if the driver has a "contract of employment," then the FAA does not apply to that contract. And if that contract has an arbitration agreement, then the FAA does not require that it be enforced.

All of this is important because the driver in this case went ahead and filed a suit in court – and a putative class-action suit at that. The trucking firm moved to compel arbitration – citing an arbitration clause in his contract – and the 1st Circuit held that arbitration could not be compelled because the FAA did not apply.

Using FAA-era dictionaries, the 1st Circuit said that "contracts of employment" contained in FAA § 1 means simply "agreements to do work." The court said:

"[W]e hold that a transportation-worker agreement that establishes or purports to establish an independent-contractor relationship is a contract of employment under § 1. We emphasize that our holding is limited: It applies only when arbitration is sought under the FAA, and it has no impact on other avenues (such as state law) by which a party may compel arbitration."

The 1st Circuit also held that the district court, and not the arbitrator, must decide whether the § 1 exemption applies. This is true even where the parties have delegated questions of arbitrability to the arbitrator.

There's a split of authority as to both issues involved in this case, so this might be one for the Supreme Court to take up. We'll just wait and see.

[For a list of current employment law cases, see Supreme Court Watch]

Dissecting SCOTUS' class-action arguments

Can employers enforce arbitration agreements in which employees have agreed not to bring class actions? Or are such agreements unenforceable because they interfere with employees' right to engage in concerted activity? Those are the issues in  Epic Systems Corp v. Lewis (consolidated with Ernst & Young v. Morris and NLRB v. Murphy Oil) [Briefs], argued this morning at the US Supreme Court. [Oral argument transcript]

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This is a classic case of the Federal Arbitration Act vs. the NLRB's interpretation of the National Labor Relations Act.

The employers argue that The Federal Arbitration Act requires the enforcement of arbitration agreements unless Congress has clearly commanded otherwise, which it has not.

The NLRB and the employees argue that class-action waivers interfere with employees' right to engage in concerted activity – which is protected by the National Labor Relations Act – and that agreements with class-action waivers are unlawful and unenforceable.

As a bonus, we got to see a Department of Justice lawyer argue against an NLRB lawyer – the DOJ having switched sides and now arguing in favor of the employers and against the employees and the NLRB. We live in strange times.

The pundits are saying that the employers will win these cases by a 5-4 vote. I'm keeping my wallet in my pocket.

Justice Gorsuch remained silent, which was eerie in light of his previous talkativeness in previous arguments. Justice Thomas (as is his custom) was also silent.

Justices Breyer, Kagan, Sotomayor, and Ginsburg (unsurprisingly) voiced strong support for the NLRB and the employees.

Justice Breyer suggested a narrow holding: that in these cases the agreements unlawfully forbid employees from filing their claims in a single proceeding. That would allow the Court to avoid deciding the larger issue of whether it is unlawful to prohibit a single employee from filing a class action.

Chief Justice Roberts and Justice Alito seemed to lean toward the employers' views. The Chief Justice at one point said to the employee's lawyer, "So this decision in your favor would invalidate the agreements covering 25 million employees?"

Justice Kennedy – usually seen as the "swing vote" between liberal and conservative Justices – pointed out that the employees still have other concerted activities available, such as hiring the same lawyer, using the same evidence, and otherwise collaborating. (I'm not impressed with an argument that says it's OK to take away part of a right so long as you don't take it all away.)

Look for a close vote, and a decision in January or February.

[For a list of current employment law cases, see Supreme Court Watch

SCOTUSblog's amazing iPhone App

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SCOTUSblog has launched an amazing iPhone App. Don't read any more; just go get it HERE. It's free, of course.

The menu is lovely:

Merits Cases opens to a list of all cases being heard on the merits, in the order in which they will be argued. One more click and you get them listed in alphabetical order.

Petitions opens to a list of cases that have been featured as "Petition of the Day" – most recent cases first. If you scroll all the way down you get cases in which the Court has asked for the views of the Solicitor General. One more click and you get "Petition of the Day" listed in alphabetical order. [I suggest moving the Solicitor General cases to their own separate page.]

This Week tells you what the Court is doing this week – arguments, conferences, etc.

Calendar gives you a lovely color-coded calendar telling you what cases will be argued, whether orders will be issued, and whether the Court is in a conference.

Videos gives you – well – videos. Mostly speeches by the Justices.

Special Features gives you symposiums on various current legal issues. Usually scholarly stuff.

Statistics tells you how many opinions each Justice is writing, a tally of how the Circuit Courts are doing in terms of being affirmed or reversed, and a nifty chart showing how frequently each Justice agrees with each other Justice.

Polls gives you a chance to vote on specific cases.

Twitter and Facebook buttons will whisk you away to your favorite social media platform.

This is easily the best law blog app I've ever seen.

Janus v. AFSCME could end public sector "agency shop" agreements

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Public sector unions ought to be trembling today.

Abood v. Detroit Board of Education, 431 U. S. 209 (1977) – which upheld fair share clauses in the public sector – is being teed up to be overruled. I don't know anyone who thinks Abood will survive.

The US Supreme Court granted certiorari today in Janus v. AFSCME Council 31 [Order] [Briefs] raising this simple question:

Whether Abood v. Detroit Board of Education should be overruled and public-sector "agency shop" arrangements invalidated under the First Amendment.

We thought we would get this issue resolved in Friedrichs v. California Teachers Association but Justice Scalia's death left us with an evenly divided Court [Opinion].

The Supreme Court has already opined that Abood's analysis is "questionable." Harris v. Quinn (US Supreme Court 06/30/2014).Technically, Harris v. Quinn did not overrule Abood. Yet the 5-4 majority laid out a set of reasons why it believes Abood's analysis is "questionable."

Here is the majority's anti-Abood manifesto:

*  Abood relied on Railway Employes v. Hanson, 351 U. S. 225 (1956), but Hanson's first amendment analysis was "thin."

*  Abood relied on Machinists v. Street, 367 U. S. 740 (1961), but Street was a private sector case.

The Abood Court fundamentally misunderstood Hanson's narrow holding.

*  Abood failed to appreciate the difference between public sector union speech and private sector union speech.

*  Abood failed to appreciate the conceptual difficulty in public sector cases of distinguishing union expenditures for collective bargaining from those designed for political purposes.

*  Abood did not anticipate the administrative problems involved in classifying union expenditures as chargeable and non-chargeable

*  Abood did not anticipate the practical problems that arise from the heavy burden facing objecting nonmembers wishing to challenge the union’s actions.

The Abood Court’s critical “labor peace” analysis rests on the unsupported empirical assumption that exclusive representation in the public sector depends on the right to collect an agency fee from nonmembers.

[For a list of current employment law cases, see Supreme Court Watch.]

Service advisors' FLSA claims return to the Supreme Court

It's a simple question: Does 29 U.S.C. §213(b)(10)(A) exempt service advisors at car dealerships from the Fair Labor Standards Act’s overtime-pay requirements. The 9th Circuit [Opinion] holds that service advisors are non-exempt. Other courts are going the other direction.

The case was at the US Supreme Court in 2016 - Encino Motorcars, LLC v. Navarro (US Supreme Court 06/20/2016) [Opinion]. Then the big question was whether to defer to the Department of Labor's most recent flip-flop on the issue. The Court (all eight Justices) agreed that no deference was warranted as to the Department of Labor's most recent iteration of an interpretation of the Fair Labor Standards Act. But rather than giving us its interpretation of the statute, the Court (6-2) sent the case back to the 9th Circuit to do that work.

The 9th Circuit again found the service advisors are non-exempt, so here we are again.

We do have some clear hints from the last time this case was at the Supreme Court. Justices Thomas and Alito opined that service advisors are exempt. And Justices Ginsburg and Sotomayor provided some support for them being non-exempt. The others preferred to say nothing about the ultimate merits of the case. Thus, it looks like the Justices that need persuading are Chief Justice Roberts and Justices Kennedy, Breyer, Kagan, and Gorsuch.

I expect this case to be a nominee for the most boring case of the season.

[For a list of current employment law cases, see Supreme Court Watch.]