Welcome to Labor of Law. The U.S. Supreme Court has postponed its Nov. 30 private conference on cases confronting the scope of anti-discrimination rights for gay, lesbian and transgender workers. What’s at stake? Will the justices take up the dispute this term? The window is closing for the court to decide, and meanwhile, uncertainty remains for companies and workers. Plus: Labor Secretary Alex Acosta faces new scrutiny over his previous role as Miami’s top federal prosecutor, and scroll down for our latest roundup Who Got the Work highlighting some action in court.
I’m Erin Mulvaney in Washington, D.C., covering labor and employment from the Swamp to Silicon Valley. Follow this weekly newsletter for the latest analysis and happenings. If you have a story idea, feedback or just want to say hi, I’m at email@example.com and on Twitter @erinmulvaney. is underway, and those innovations will impact how parties resolve their disputes in the very near future with such monitoring
What’s Up With the LGBT Cases at SCOTUS?
We’ll have to wait a bit longer before we learn whether the U.S. Supreme Court decides to take up a trio of cases that grapple with whether Title VII protections extend to gay and transgender workers who allege workplace discrimination.
The cases, which had been set on the justices’ Nov. 30 private conference, are ripe with tension and have inspired broad interest in the business community. Back in August, I spoke with Quinn Emanuel Urquhart & Sullivan partner Todd Anten, whose corporate clients contend broad protections for LGBT workers are good for business and the economy. (Listen to our conversation on Law.com’s Legal Speak podcast.)
Federal appeals courts—and even government agencies—are divided. The U.S. Justice Department, then under the leadership of Jeff Sessions, took positions in court against the EEOC, which has advocated for wider protections. The trio of cases—if they’re granted review—could deliver this Supreme Court term’s blockbuster decision. The window to grant review is closing.
The court didn’t announce when it would reschedule its conference for the three cases: Altitude Express, Inc. v. Zarda (Second Circuit); Bostock v Clayton County, Georgia (Eleventh Circuit); and R.G. & G.R. Harris Funeral Homes Inc. v. EEOC (Sixth Circuit).
There’s only speculation at this point why the court scheduled—and then removed from the schedule—the three cases. Justices don’t give reasons for such moves. The next scheduled conference in Dec. 7. The court must make a decision by mid-January if it plans to take up the cases this term.
Zarda and Bostock grapple with whether sexual orientation should be considered sex discrimination under Title VII of the Civil Rights Act. The Harris Funeral Home case considers gender identity protections.
The retirement of Justice Anthony Kennedy at the end of last term—he spoke recently about how he kept his plans secret—alters the dynamic of the bench as the LGBT cases await the justices’ conference. Kennedy had been a champion of gay rights, and now all eyes are on his successor, Brett Kavanaugh, whose workplace rulings don’t inspire much confidence among rights advocates.
“There is now a new person on the Supreme Court,” Seyfarth Shaw partner Sam Schwartz-Fenwick told me. “There is a possibility the court will hear these issues through a different lens with a conservative majority.”
Big companies are moving forward with extending protections, but uncertainty persists.
“There is flux in this area of the law. It was a priority of the Obama administration to take an inclusive view, now it’s a high priority of the Trump administration to adopt a stricter interpretation,” Schwartz-Fenwick says. “I think as power changes hands we will continue to see wide shifts in this area, until Congress passes a clear statute or the Supreme Court weighs in.”
FisherBroyles employment attorney Eric Meyers in Philadelphia says the Justice Department’s resistance to protections could have a chilling effect. “I can’t imagine passing all together on all three cases,” he told me.
Ria Tabacco Mar, senior staff attorney with the ACLU’s Lesbian, Gay, Bisexual, Transgender and HIV Project, recently wrote at National Law Journal about interpreting Title VII. “The high court should look not to the Justice Department’s retrograde political agenda, but to its own recent history,” she said.
“Most people in this country agree that no one should lose their job because of who they are,” Mar wrote. “Those people will not be silent if the court gets it wrong. Congress may be able to clean up the law, but it can’t fix the damage to the court if it bows to political pressure to scapegoat transgender people.”
Who Got the Work
>> The Pulitzer Board hired Williams & Connolly to conduct a review of allegations against author Junot Diaz, who stepped down as chairman of the board amid sexual misconduct claims. The firm conducted “an exhaustive review” that lasted five months, according to a statement from the board. The independent review did not find evidence warranting Diaz’s removal and he was reinstated. Diaz won a Pulitzer Prize in 2008 for his novel The Brief and Wondrous Life of Oscar Wao. The New York Times has more.
>> Lawyers for KPMG employees are seeking class status in a sex bias case that claims unequal pay and promotion practices between men and women. The proposed class would include 10,000 women who worked at the firm from 2009 to the present. Teams from Sanford Heisler Sharp and Lieff Cabraser Heimann & Bernsteinrepresent the workers. Lawyers from three firms—Sidley Austin, Ogletree, Deakins, Nash, Smoak & Stewart, and Constangy, Brooks, Smith & Prophete—represent KPMG. Bloomberg BNA has more here.
>> Walker Coleman, managing partner of the K&L Gates office in Charleston, S.C., argued for International Paper Company in the U.S. Court of Appeals for the Fourth Circuit. The court on Wednesday overturned a lower judge who had dismissed an employee’s hostile workplace claims. Brian Murphy of Stephenson & Murphy in South Carolina represented the worker.
>> A jury in Pennsylvania federal court awarded a $6.1 million verdict for a Teva Pharmaceuticals worker who claimed his Israeli manager discriminated against him on the basis of age and American nationality. Stevens & Lee attorney Larry Rappoport and Jennifer Ermilio represented the company. The worker was represented by a team from Console Mattiacci Law. Read more at the Legal Intelligencer.
>> Walmart, represented by a team from Quarles & Brady, said in papers filed in federal court that the EEOC did not prove widespread pregnancy discrimination at a Wisconsin facility. The retail giant argued against the agency’s attempt to certify a class, Reuters reports.
>> A jury verdict found that a dentist practice at the University of Pennsylvania did not engage in race discrimination and hostile work environment. The defense was represented by Morgan, Lewis & Bockius partner Jeff Sturgeon and associate Ali Kliment. The plaintiff was represented by David McComb and Zachary Silverstein of Zarwin Baum Devito Kaplan Schaer Toddy.
Notable Moves & Announcements
>> Reed Smith has added two new labor and employment partners from Polsinelli, including Michele Haydel Gehrke, who chaired Polsinelli’s traditional labor relations practice. Gehrke joined Reed Smith’s San Francisco office along with Anne Cherry Barnett. The two lawyers have practiced together since Gehrke joined Polsinelli in 2015. The Recorder has the full story. Read the firm’s release.
>> McDermott Will & Emery hired Daniel Doron as partner in the firm’s employment practice group in the New York office. Doron focuses his practice on labor and employment aspects of M&A transactions.
>> Dykema announced that Arlene Switzer Steinfield, Dallas-based senior counsel in the firm’s labor and employment practice, was elected to serve as the Treasurer of The College of Labor & Employment Lawyers.
Around the Water Cooler
>> “How a future Trump Cabinet member gave a serial sex abuser the deal of a lifetime.” That’s the headline of a Miami Herald deep-dive into the criminal case against Palm Beach, Florida, multimillionaire Jeffrey Epstein. Alex Acosta (above), now the U.S. Labor Department secretary, was then Miami’s top federal prosecutor. From the Herald’s report: “This is the story of how Epstein, bolstered by unlimited funds and represented by a powerhouse legal team, was able to manipulate the criminal justice system, and how his accusers, still traumatized by their pasts, believe they were betrayed by the very prosecutors who pledged to protect them.” Acosta did not provide comment to the Herald.
>> Sidley Austin bowed to pressure on mandatory arbitration and nixed a requirement that associates and staff sign the agreements. DLA Piper, meanwhile, is defending its practice despite efforts from Harvard Law School students to pressure the firm to end the practice, The American Lawyer reports.
>> The American Lawyer reports Weil, Gotshal & Manges announced a plan to allow associates to work from home once a week. Third-years and up can start working one day a week from home under the new policy, which the firm said recognizes that millennial expectations are “different.”
>> Workers for Facebook and Google took complaints of discrimination and human rights outside internal processes. Bloomberg reports here on the memo posted widely by a former Facebook employee, who is black, that criticized the company for its diversity and treatment of people of color. Mark Luckie’s memo is available here. Meanwhile, Google employees wrote an open letter protesting the company’s effort to create a censored search engine in China. Thousands of employees also staged a protest for sexual harassment claims against the company last month. These efforts pressured the company to revamp its policy.
>> The U.S. Labor Department announced it would now require employers to use a new H-1B application to compel information from companies about the visa holder program. “This revision to the labor condition application is nothing more than an attempt to discourage contracting out for services by U.S. companies whose contractors employ H-1B professionals,” said Vic Goel, managing partner, Goel & Anderson, in an interview with Forbes.