In Starbucks Corp. v. McKinney, the Supreme Court held that a more stringent test applied to lawsuits filed by the National Labor Relations Board (the “Board”) that seek injunctions to halt serious labor violations.  While the decision directs district courts to adopt the tightened standard, several circuits, including the Fourth Circuit, have already been consistently applying the higher standard.   Continue Reading NLRB Injunctions Are Now More Difficult to Obtain, At Least in Some Jurisdictions

The United States Supreme Court has ruled that the requirement to file a charge of discrimination before bringing a discrimination lawsuit is a procedural requirement that may be waived, as opposed to a jurisdictional one that would deprive a court of the ability to even hear the case.
Continue Reading U.S. Supreme Court Finds Charge Filing Requirement to be Procedural, Not Jurisdictional

A more conservative Supreme Court than we’ve seen in recent history is poised to consider whether Title VII’s prohibition on discrimination based on “sex” includes sexual orientation and gender identity. The Supreme Court has agreed to hear a trio of cases in the 2019-2020 term, which begins in October. We previously wrote on this topic here as the Circuit split was developing.

Not even the federal government tasked with enforcing employment discrimination laws agrees on whether Title VII covers sexual orientation. The Department of Justice reversed course during the Trump administration and now takes the position that sexual orientation is not covered, whereas the Equal Employment Opportunity Commission is holding firm to its position, first adopted in 2015, that sexual orientation is covered, as is gender identity. Additionally, under an Executive Order signed by President Obama (not yet rescinded by President Trump) and enforced by the Department of Labor’s Office of Federal Contract Compliance Programs, federal contractors and subcontractors are prohibited from discriminating against applicants and employees on the basis of sexual orientation and gender identity, in addition to (and separate from) sex.
Continue Reading Does “Sex” Encompass Sexual Orientation and Gender Identity? The Supremes Will Soon Decide.

And with that elegantly pointed statement, the U.S. Supreme Court vacated an opinion on the Equal Pay Act that had been issued by the en banc U.S. Court of Appeals for the Ninth Circuit (i.e. the entire group of judges on the Ninth Circuit bench). The opinion had been authored by Judge Stephen Reinhardt, who unexpectedly passed away on March 29, 2018. The opinion was not issued until April 9, 2018 – 11 days after his death.
Continue Reading “…federal judges are appointed for life, not for eternity.”

Co-Author Nick Vogt*

In Janus v. American Federation of State, County, and Municipal Employees, Council 31, the United States Supreme Court held that public sector unions may not assess union fees against non-union employees covered by a collective bargaining agreement. In so holding, the Supreme Court overturned its decades-old ruling in the case of Abood v. Detroit Board of Education, in which the Court held that public sector unions could assess fees regardless of membership status, because all employees benefit from union collective bargaining agreements regardless of union membership.
Continue Reading Supreme Court Holds that Public Sector Unions May Not Assess Union Fees Against Non-Union Employees

On Monday, June 4, 2018, the U.S. Supreme Court, in a 7-2 decision, held that the Colorado Civil Rights Commission violated a baker’s constitutional right to the free exercise of his religion, by exhibiting hostility towards the baker’s religious views as expressed in his refusal to make a wedding cake for a same-sex couple. In so holding, the Supreme Court dodged broader questions about the interaction of the baker’s Constitutional rights to free speech and the free exercise of religion with customers’ rights to be free from discrimination.
Continue Reading Supreme Court Rules for Baker in Same-Sex Wedding Cake Case

On May 21, 2018, the U.S. Supreme Court held in Epic Systems Corp. v. Lewis that employment agreements containing waivers of the right to bring class or collective actions over employment-related disputes are enforceable under the Federal Arbitration Act (FAA). In so doing, the Court rejected the National Labor Relation Board’s position that such waivers violate the National Labor Relations Act (NLRA) – a position subject to much controversy in the courts and federal agencies.
Continue Reading U.S. Supreme Court Approves Use of Class Waivers in Employment Agreements