Supreme Court Invites DOJ to Weigh In on Scope of Title VII

shutterstock_litigationOn October 15, 2019, the U.S. Supreme Court asked the U.S. Solicitor General of the Department of Justice (DOJ) to weigh in on a petition to revive the discrimination case of Peterson v. Linear Controls Inc.  David Peterson, a former offshore electrician at Linear Controls, petitioned for a writ of certiorari on May 7, 2019, asking the Supreme Court to overturn the Fifth Circuit’s holding that more difficult working conditions alone are not enough to be considered an “adverse employment action” under Title VII of the Civil Rights Act of 1964.  The petition is currently pending, with the most recent action being the Supreme Court’s invitation to the DOJ’s Solicitor General to file a brief in the case to express the views of the United States.  So what is the case about, and what might the implications be for employers? 

Under Section 703(a)(1) of Title VII of the Civil Rights Act of 1964, it is unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual” with respect to “compensation, terms, conditions, or privileges of employment” because of the individual’s race, religion, sex, or other protected status.  In this case, Peterson alleged Continue reading

U.S. Supreme Court Declines to Rule on Website Accessibility Issue

In a blog post from February of this year, we discussed the case of Robles v. Domino’s Pizzain which a blind man sued Domino’s in 2016 for violating the Americans with Disabilities Act (“ADA”) shutterstock_pizzaafter he was unable to order food from the pizza chain’s website using screen reading technology because the website lacked sufficient software compatibility capabilities.  Because the ADA guarantees people with a disability “full and equal enjoyment of the goods and services … of any place of public accommodations,” the plaintiff claimed that he had been the victim of unlawful disability discrimination.  Domino’s, on the other hand, argued that while the ADA applies to its brick-and-mortar locations, it does not apply to its website because a website is not defined in the ADA as a place of public accommodation.

In its decision, the U.S. Court of Appeals for the Ninth Circuit agreed with the plaintiff, finding that the ADA protects not just restaurants, hotels, stores, and other physical “brick and mortar” locations, but also the “services of a public accommodation,” notably websites and apps.  The Court then found that Domino’s violated Title III of the ADA because its website’s incompatibility with screen reader software impeded access to the goods and services of its physical pizza franchises.  Notably, this decision was the first by any U.S. Court of Appeals Continue reading

Supreme Court Poised to Decide Whether Title VII Protects LGBT Employees

On Monday, April 22, 2019, the United States Supreme Court granted petitions for certiorari for three cases that center on the question of whether Title VII of the Civil Rights Act of 1964 (“Title VII”) protects LGBT rights.  Two of the cases, Altitude Express v. Zarda and Bostock v. Clayton County, Georgiaconcern whether, under Title VII, sex discrimination includes discrimination on the basis of an emploshutterstock_EEOCyee’s sexual orientation.  The third case, R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, poses the question of whether the Title VII prohibition against sex discrimination prohibits gender identity discrimination.  Due to the similarity of the issues, the Supreme Court has consolidated the Altitude Express and Bostock matters for briefing and oral argument.  The Supreme Court’s ultimate decision in each of these three matters is significant because it will settle current Circuit splits, as well as disagreement among Agencies in the Federal government, on the scope of Title VII.

As discussed in a prior blog post, in Altitude Express, the Second Circuit joined the Seventh Circuit in finding that Title VII does protect employees from being discriminated against based on sexual orientation.  Specifically, the Second Circuit held that the text of Title VII necessarily includes sexual orientation as “…the most natural reading of [Title VII]’s prohibition on discrimination ‘because of…sex’ is that it extends to sexual orientation discrimination because sex is necessarily a factor in sexual orientation.”  The Seventh Circuit in Hively v. Tech Community College, similarly determined that a reading of Title VII in the current cultural and legal context includes sexual orientation in the scope of Title VII. Continue reading

U.S. Supreme Court to Hear Legal Challenge to Auer Deference Standard

shutterstock_gavelIn 1997, the U.S. Supreme Court decided the case of Auer v. Robbins, establishing the standard for what has become known as Auer deference (or Seminole Rock Deference from Bowles v. Seminole Rock and Sand Co. (1945)).  This decision and the standard it set is significant for employers because it gives substantial latitude to federal agencies, like the Department of Labor, to interpret their own ambiguous standards.  Specifically, in Auer, the Supreme Court held that an Agency’s, in this case the Department of Labor, interpretation of its own standards is “controlling unless ‘plainly erroneous or inconsistent with the regulation.’”  In other words, if it’s not clear what is required by the plain language of the standard, the Court will generally defer to the Agency’s own reasonable interpretations of its regulations.

However, the Supreme Court will now have the opportunity to reconsider Auer deference in the case of Kisor v. Wilkie.  On December 10, 2018, the Court agreed to review Question 1 of the petition for certiorari, which specifically asks “[w]hether the Court should overrule Auer and Seminole Rock.”  Continue reading