Following the excitement of the same-sex marriage decision by the U.S. Supreme Court on June 26th, the question remains how much the Opinion may impact Title VII employment discrimination claims. Based on our reading of the Obergefell v. Hodges decision, and the many states that have passed legislation protecting employees from sexual-orientation discrimination, we recommend that employers revisit and update their anti-discrimination policies.
Lynne C. Hermle
Lynne Hermle, a Silicon Valley employment partner, has a long track record of defeating class certification, obtaining summary judgment and winning high-profile jury trials on behalf of industry-leading clients. She has significant experience working on complex discrimination and wage-and-hour class actions for global leaders in the retail and technology sectors including Apple, The Gap, Genentech, Microsoft, Sears, Burlington Coat Factory, Gymboree, Spencer’s Gifts, Banana Republic, Old Navy, Williams Sonoma and Pottery Barn Kids, among others.
Most recently, Lynne led the trial team that obtained a complete defense verdict for Kleiner Perkins in Pao v. Kleiner Perkins, the high-stakes gender discrimination and retaliation case that garnered intense international media scrutiny. Following 24 days of trial, a San Francisco jury rejected all of former partner Ellen Pao's claims that she was passed over for promotion and terminated because of her gender and complaints about discrimination. In naming Lynne “Litigator of the Week” for this victory, American Lawyer described her effective voir dire and how she “steadily poked holes in Pao’s testimony.” The Recorder called Lynne’s cross-examination “masterful” and Bloomberg reported that her “charismatic, intimidating oratory made her the trial’s breakout star.”
Additional Representative Actions:
- Class Actions. Represented large employers in wage-and-hour class actions, including The Gap, Blockbuster and Burlington Coat Factory. Bucking the legal tide, Lynne defeated class certification in statewide wage-and-hour class actions for Banana Republic, Old Navy, Pottery Barn Kids and Burlington Coat Factory and has had other cases dismissed on summary judgment and other grounds.
- AMD. Obtained a quick defense verdict in the high-profile trial of Maghribi v. Advanced Micro Devices on behalf of AMD. Plaintiff, a senior Arab Muslim executive, sought $200 million in lost salary, bonuses and stock options and emotional distress damages, punitive damages and attorneys’ fees, alleging post-September 11th discrimination. After a several-week trial, the jury returned in less than two hours with a defense verdict.
- Morgan Stanley. Obtained dismissal of unlawful deduction class claims in New Jersey multidistrict litigation, addressing issues of long-standing concern to the financial services industry.
- Inland Container Corp. Obtained direct verdicts for Inland Container in Thrush v. Inland Container Corp., a case involving allegations of disability discrimination, intentional infliction of emotional distress and related claims after several weeks of a federal jury trial.
- City of Tracy. Obtained directed verdicts for the City of Tracy and individual defendants in Vizza v. The City of Tracy on all nine claims brought by the City’s former Director of Public Works, including constitutional and common law claims, after five days of jury trial in federal court.
- IBM. Obtained a defense verdict on all claims on behalf of IBM in Pi v. IBM, a hard-fought jury trial alleging claims of retaliation for sexual harassment complaints.
- Varian. Obtained dismissal of all wrongful discharge claims asserted by plaintiff David Kern in Kern v. Varian Associates, Inc., and obtained a verdict of more than $3.5 million on Varian’s cross-claim for trade secret theft. Mr. Kern served time in a federal prison for that theft.
Lynne serves as an Early Neutral Evaluator for the Northern District of California and has been appointed by that court to serve as a mediator in a complex class action. In addition to training and counseling employers, she teaches classes on trial advocacy and substantive employment topics.
Before coming to Orrick, she was in-house counsel for AT&T, where she handled employment matters for a several-state region.
With the increasing prominence of social media, employers have been rightfully concerned about the impact of employees’ out-of-work statements on the work place—particularly when it comes to the reputation of the employer. In the last few years, the National Labor Relations Board has held that even offensive language can be protected concerted activity [See previous Orrick blog postings on this topic from September 25, 2012 and May 16, 2013]. However, apparently there is a limit: an administrative law judge held last week that the expletive-laden Facebook posts of two youth center employees crossed a line. Read More
After suffering defeat in the United States Supreme Court, Plaintiffs in Dukes et al. v. Wal-Mart Stores, Inc. returned to court in California in an attempt to certify a newly defined and smaller class of 150,000 current and former female employees. On August 2, 2013, Judge Charles R. Breyer of the United States District Court for the Northern District of California denied Plaintiffs’ Motion for Class Certification, which leaves each member of the proposed class to pursue her claims individually against Wal-Mart. Dukes v. Wal-Mart Stores, Inc., No. 3:10-CV-03005-CRB, Slip Op. at 2 (N.D. Cal. Aug. 2, 2013). Read More
Earlier this month in Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (2013), the U.S. Supreme Court held that it is permissible for defendants to “pick off” plaintiffs in FLSA collective actions. In jurisdictions that hold that an unaccepted offer of judgment fully satisfies and renders moot a plaintiff’s individual claim, a defendant can moot a collective action brought under the FLSA by simply tendering the named plaintiff a Federal Rule of Civil Procedure 68 offer of judgment. Read More
In the last several years, the enforcement of agreements to arbitrate disputes, whether between businesses or between businesses and their employees, has become a hotly contested issue in the courts. The U.S. Supreme Court issued two significant pronouncements in this area in the past few years. In 2010, in Stolt-Nielsen S.A. v. Animalfeeds International Corp., 130 S.Ct. 1758 (2010), the Court held that where an agreement to arbitrate is silent on the question of whether a plaintiff can arbitrate her claims on behalf of a proposed class of similarly situated individuals (similar to a class action lawsuit), class arbitration is not permissible. Last year, in AT&T Mobility v. Concepcion, 131 S. Ct. 1740 (2011), the Court held that (1) under the Federal Arbitration Act (“FAA”), arbitration agreements are to be enforced “according to their terms”; and (2) state law rules prohibiting the use of “class-action waiver” provisions, in which a party waives his or her right to arbitrate claims on a class basis, are preempted by the FAA. Together, these cases stand for the fundamental proposition that the parties to arbitration agreements should be bound by the clear terms of such agreements, especially with respect to class arbitration issues. Read More