Discrimination

President Trump’s DOJ Takes Website Accessibility Regulations off the Table

As those interested in website accessibility regulations under Title III of the Americans with Disabilities Act (“ADA”) know, the Department of Justice announced in May 2016 that it would issue a rule governing website accessibility standards for places of public accommodation to take effect in 2018. It now appears that we can expect an even longer indefinite delay. Last month, the Trump Administration launched its Unified Regulatory Agenda, which “provides an updated report on the actions administrative agencies plan to issue in the near and long term.” The Agenda is meant to effectuate Executive Orders 13771 and 13777, which require agencies to reduce unnecessary regulatory burden. According to the Office of Information and Regulatory Affairs, the Agenda “represents the beginning of fundamental regulatory reform and a reorientation toward reducing unnecessary regulatory burden on the American people. By amending and eliminating regulations that are ineffective, duplicative, and obsolete, the Administration can promote economic growth and innovation and protect individual liberty.” READ MORE

Fool’s Gold: Second Circuit Vacates Order Affirming Arbitrator’s Certification of Class of Jewelry Store Workers Including Absent Class Members

On July 24, 2017, the Second Circuit Court of Appeals rejected a federal district court’s approval for a class of roughly 69,000 women claiming that Sterling Jewelers, Inc. (“Sterling”) discriminated against them based on sex. The decision overturned a district court ruling that affirmed an arbitrator’s decision to let the women proceed to trial as a class in an arbitration.

Plaintiffs initially filed a class action lawsuit in March 2008, alleging that Sterling’s practices and policies led to women being deliberately passed over for promotions and paid them less than their male cohorts. The case was sent to arbitration several months later under Sterling’s arbitration clause.

In 2009, an arbitrator ruled that Sterling’s dispute resolution program did not specifically bar class actions and allowed claimants to seek class status. From there, the case took a number of twists and turns, which we reported on more fully at the time here.

In June 2013, the employees moved for class certification. In February 2015, the arbitrator ruled that that the employees could proceed as a class in the arbitration.  In November 2015, the district court affirmed the arbitrator’s decision concluding that the arbitrator did not exceed her authority by certifying a class that included absent class members i.e., employees other than the named plaintiffs and those who have opted into the class.  Sterling appealed. READ MORE

Access Denied: Trial on Website Accessibility Claims Results in Decision for Disabled Individual

Web accessibility online internet website computer for people with disabilities symbol blue keyboard Access Denied: Trial on Website Accessibility Claims Results in Decision for Disabled Individual

On Tuesday, a federal district court in Florida issued an order in the first known trial involving accessibility to a public accommodation’s website.  Ultimately, the court found that grocery giant Winn-Dixie violated Title III of the Americans with Disabilities Act (“ADA”) because its website was inaccessible to a visually impaired customer.  As we have written about previously here and here, currently there are no binding regulations that specify the accessibility standards for websites under Title III of the ADA.

READ MORE

No Similarly Situated Employees, No Claim: Vanderbilt Prevails on Summary Judgment in Professor’s Sex Discrimination Lawsuit

Last week the Sixth Circuit upheld a grant of summary judgment in the employer’s favor on a former employee’s sex discrimination claim, finding plaintiff failed to meet her burden to establish a prima facie case of discrimination.

The Case

Dr. Jean Simpson was a professor at Vanderbilt University School of Medicine. While teaching at the University, Dr. Simpson started her own private consulting practice doing breast-pathology.  Upon learning of Dr. Simpson’s consulting practice, the University instructed her the external employment violated the Conflict of Interest Policy, the Vanderbilt Medical Group (“VMG”) By-Laws and the VMG Participation Agreement and asked her to cease the consulting work.  She refused.  The University later terminated Dr. Simpson because of these violations. READ MORE

Back To The Drawing Board: Tenth Circuit Denies EEOC Subpoena Request Seeking To Expand Individual Charge Into Pattern-or-Practice Investigation

“[A] single discriminatory act does not, by itself, warrant a broader patter-or-practice investigation.” That was the conclusion the Tenth Circuit reached recently when it affirmed a federal district court’s denial of an EEOC subpoena request.  Although the Tenth Circuit disagreed with part of the lower court’s reasoning, it ultimately determined the EEOC’s request was flawed on several grounds. READ MORE

I’ll Defer To You: Supreme Court Rules Appellate Courts Should Apply Abuse Of Discretion Standard When Reviewing EEOC Subpoena Efforts

Recently, in McLane Co., Inc. v. EEOC, case number 15-1248 , the United States Supreme Court clarified the standard for when an appellate court reviews a trial court’s order to enforce or quash a subpoena from the EEOC. Vacating a Ninth Circuit decision applying a de novo standard of review, the Court ruled that appellate courts should review based on the abuse of discretion standard. READ MORE

Salary History Becomes a Thing of the Past in New York City

On April 5, 2017, the New York City Council passed an amendment to the New York City Human Rights Law prohibiting employers or their agents from inquiring about the salary history of an applicant.  The law also restricts an employer’s ability to rely upon that salary history in determining the salary, benefits or other compensation during the hiring process “including the negotiation of a contract.” The term “salary history” is defined to include current or prior wages, benefits or other compensation, but does not include “objective measures of the applicant’s productivity such as revenue, sales or other production reports.”

There are several notable exceptions to the law.  READ MORE

Third Circuit Court of Appeals Rejects Broadening USERRA’S Evidentiary Burden For Discrimination Claims

The Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C. §§ 4301–4335, prohibits discrimination against members of the U.S. military and imposes various obligations on employers with respect to service members returning to their civilian workplace. 

 USERRA differs from other employment laws (e.g., Title VII, ADEA) in multiple respects.  For example, USERRA has no statute of limitations of any kind for claims that accrued after October 10, 2008 (and claims that accrued after October 10, 2004 may be timely as well). See 38 U.S.C. § 4327(b); 20 C.F.R. § 1002.311.  Also, USERRA applies to all public and private employers, irrespective of size.  Therefore, “an employer with only one employee is covered….” 20 C.F.R. § 1002.34(a).  READ MORE

Marrying Sex and Sexuality under Title VII

Several recent cases are poised to set a major tonal shift in the realm of LGBT employee rights following the Supreme Court’s 2015 landmark decision in Obergefell v. Hodges. As part of its ongoing coverage of LGBT employment issues, Orrick offers its insights and predictions as courts continue to contemplate where sexual identity fits within this changing landscape of protected statuses. READ MORE

Vive la France! French Parent Company Potentially Liable on Alleged ADEA Claim on a Single-Employer Theory

Gavel on top of book with Age Discrimination chapter French Parent Company Potentially Liable on Alleged ADEA Claim on a Single-Employer Theory

With some exceptions, the ADEA applies to the U.S.-incorporated subsidiaries of foreign corporations. It remains unsettled whether employees can sue foreign parent companies of U.S. subsidiaries for age discrimination under the ADEA. Recently, in Downey v. Adloox Inc., Case No. 16-CV-1689 (JMF) (S.D.N.Y. Feb. 28, 2017), the U.S. District Court, Southern District of New York, found that the plaintiff plausibly alleged age discrimination under the ADEA against both his United States employer and its French parent company on a “single-employer” theory.

READ MORE