Supreme Court

North Carolina’s “Bathroom Bill” Dealt a Blow as Debate on Transgender Access Continues


On August 26, 2016, a North Carolina federal judge blocked the University of North Carolina (UNC) from enforcing a state law requiring transgender people to use bathrooms and locker rooms corresponding to the sex on their birth certificates.

With the passage of House Bill 2 (HB2) in March 2016, North Carolina became the first state to ban people from using restrooms consistent with their gender identity in government buildings and schools.  News of HB2 stirred up a public outcry, including a Department of Justice lawsuit and the NBA’s decision to relocate the 2017 All-Star game from Charlotte, North Carolina to another location.


Supreme Court Ties Underscore Justice Scalia’s Missing Influence


After the passing of Justice Antonin Scalia, we predicted: “Justice Scalia’s passing will immediately impact several employment-related cases pending before the Court.” Specifically, cases in which Scalia was expected to provide the needed fifth vote were at risk of ending in a tie. After two recent rulings from the Court, this prediction appears to have come true.


Pork Processing Plant Employees Can Keep the Bacon: Supreme Court Affirms Jury Award and Permits Proof of Wage and Hour Class Claims By Representative Evidence


While the Supreme Court in Tyson Foods, Inc. v. Bouaphakeo dashed employers’ hopes that the Court would broadly preclude statistical evidence and severely limit wage and hour class actions in a fashion similar to its restriction of discrimination class actions in Wal-mart v. Dukes, the Court was also clear that this type of evidence will not be appropriate or probative in all wage and hour claims.  In ruling for the class action claimants, the Court affirmed a $2.9 million jury award for overtime claims related to donning and doffing at an Iowa pork processing plant.  In so ruling, the Supreme Court refused to adopt the position advanced by Tyson Foods and several of its amici that class actions cannot be resolved by reliance upon representative evidence or statistical samples.  It also refused to embrace Tyson Food’s reading of Wal-mart v. Dukes as standing for the proposition that representative sample is an impermissible means of establishing class-wide liability.  But the Court also made clear whether statistical evidence could be used for liability depends on the claims asserted and the particular evidence.  While the decision is not unsurprising after oral arguments, it seems likely that employers will see an uptick in plaintiffs aggressively relying on “representative” statistical evidence in wage and hour collective and class cases.  There are, however, several “lessons learned” based upon the majority’s decision.


EEOC Ratchets Up Focus On Retaliation: EEOC Publishes First New Enforcement Guidance on Retaliation In Nearly Two Decades


The EEOC seeks public comment on its new Enforcement Guidance on Retaliation and Related Issues, which will supersede the agency’s last-issued guidance on the topic from 1998.  The updated guidance addresses several significant rulings by the Supreme Court and lower courts from the past two decades.  The guidance was also informed by public input on retaliation and best practices that the Commission gathered from its June 17, 2015 meeting on “Retaliation in the Workplace:  Causes, Remedies, and Strategies for Prevention.”  The 30-day input period on the guidance ends on February 24, 2016.


California Legislature Tries Again to Thwart Arbitration With Bill Purporting to Make Mandatory Arbitration Unlawful


California employers should keep an eye on a new challenge to arbitration provisions on its way to the Governor’s desk.  On August 24, 2015, the California Senate passed AB 465, which would make it unlawful for any employer or other company to “require another person to waive any legal right, penalty, remedy, forum, or procedure for a violation of any provision of [the California Labor Code], as a condition of employment, including the right to file and pursue a civil action or complaint with, or otherwise notify, the Labor Commissioner, state agency, other public prosecutor, law enforcement agency, or any court or other governmental entity.”  The Senate version eliminates the originally proposed $10,000 per violation penalty, but continues to authorize an award of injunctive relief and attorneys’ fees to a prevailing plaintiff seeking to enforce the section. The Assembly concurred in the Senate’s amendments on August 27, 2015, and the bill will reach the Governor shortly.


D.C. Circuit Confirms: Attorney-Client Privilege Applies to Internal Investigations of Whistleblower Complaints Conducted at the Direction of Counsel


The ability to preserve privilege for highly sensitive internal investigations conducted at the direction of attorneys is alive and well.  In a closely watched decision on the scope of the attorney-client privilege as applied to internal investigations, the D.C. Circuit granted defense contractor Kellogg Brown & Root’s (“KBR”) petition for a writ of mandamus and vacated a district court’s order that privileged documents from an internal investigation must be produced.


EEOC Rules that Sexual Orientation Discrimination is Sex Discrimination Under Title VII

On the heels of the landmark decision by the Supreme Court in favor of gay marriage, the EEOC held on July 15, 2015 that sex discrimination under Title VII includes discrimination on the basis of sexual orientation.  Even though the decision is not binding precedent in federal court, and runs contrary to a significant body of case law holding that Title VII does not prohibit discrimination on the basis of sexual orientation, it could be regarded by some courts as persuasive authority.  The decision could also have an impact on employers in the form of an increased number of administrative charges of discrimination filed with the EEOC based on sexual orientation, as courts determine whether to adopt the EEOC’s interpretation.


High Court Says “Let It Ride”; Limo Company Fails to Flag Down Enough Justices to Hear PAGA Carve-out Case


On January 20, the United States Supreme Court denied certiorari in CLS Transportation Los Angeles LLC v. Iskanian, leaving intact a decision by the California Supreme Court holding that representative Private Attorney General Act (PAGA) claims cannot be waived in arbitration agreements. Enacted in 2004, PAGA deputizes private citizens to seek penalties on behalf of the state by bringing representative suits for workplace violations.


Including PAGA Representative Action Waivers in Arbitration Agreements Post-Iskanian

Decorative Scales of Justice in the Courtroom

After the California Supreme Court’s recent decision in Iskanian v. CLS Transportation, which held that PAGA representative action waivers are unenforceable under California law, employers have struggled with whether to retain such waivers in their arbitration agreements.  The answer to whether such waivers should be retained is not as straightforward as one might expect.


Three Key EEO Cases to Watch on the SCOTUS Docket This Term

US Supreme Court

The Supreme Court is set to weigh in on several key questions for employers this term related to employee discrimination.  When does an employer have to accommodate a pregnant employee?  How about a job applicant who wears a head scarf in an interview but does not make it clear she is doing so for religious reasons and needs an accommodation?  Can a court decide whether the EEOC has done enough to resolve your case?  Here are three key EEO cases to keep your eye on in the coming months. READ MORE