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DOJ Abandons EEOC at the US Supreme Court

Despite Corporate America's growing support for LGBT inclusion and protection in the workplace, the U.S. Justice Department is making it clear that, under the Trump administration, the rights of transgender and gay workers are far from guaranteed. The U.S. Justice Department made its latest move Wednesday—in the U.S. Supreme Court—to curtail the scope of workplace rights for gay, lesbian and transgender employees. Read DOJ's brief here.

The movement in recent years has been towards inclusion and openness—we've seen that in the numerous amicus briefs that have been filed in some of the closely watched appeals court cases regarding sexual orientation. Meanwhile, the New York Times reported recently that the Trump administration wants to roll back recognition of transgender people through federal civil rights laws that apply to housing assistance and education programs.

➤➤ U.S. Attorney General Jeff Sessions last year rescinded Obama-era guidance that offered some measure of protection transgender employees. At least five circuit courts have said gender identity should be considered under the sex discrimination provision of Title VII. The issue came to a head Wednesday in a case pending before the U.S. Supreme Court.

Purporting to represent the EEOC—none of whose lawyers were on the brief—the Justice Department said a federal appeals court was wrong to conclude a Michigan funeral home violated civil rights laws in firing a transgender employee named Aimee Stephens. The Justice Department's stance was unsurprising, and it marked the latest clash given with the EEOC. Read my full take here on what the government said in its brief. And here's a link to the ACLU brief that was filed on the same day.

➤➤ In a recent report, two Seyfarth Shaw partners—Sam Schwartz-Fenwick and Ben Conley—said they advised companies to craft policies to benefit transgender workers. Companies should have their own non-discrimination policies in the absence of federal law offering broad protections, the report said. They also said they recommend training opportunities, and allowing workers to dress according to their gender identity. Restroom access, leave policies and health benefits are also recommended.

“We live our lives with our gender identity,” said James Esseks, director of the ACLU Lesbian Gay Bisexual Transgender & HIV Project. Esseks spoke at a recent panel at the Practising Law Institute in New York. “Transgender people want to interact with the world consistent with their gender identity.”

A recent report from the Human Rights Campaign Foundation found that nearly half of gay and transgender workers remain closeted at work, a statistic that has remained largely unchanged in the last decade. The group tracks LGBT policies at major companies across the country, and has found a record number of companies are adopting progressive policies for gay and transgender workers.

Melissa Gold, managing director and associate general counsel at BNY Mellon, said corporate America has been a leader on pushing for gender-identity protections, and that state and local laws have helped on that front.

Who Got the Work

>> Latham & Watkins has taken over a probe into sexual abuse allegations at a seminary connected to Seton Hall University, after the school initially announced that Paul, Weiss, Rifkind, Wharton & Garrison was handling the work, my colleague Dan Packel at The American Lawyer reports. The Catholic University initially named Paul Weiss partner Theodore Wells Jr. as the lead attorney. The firm withdrew over an unidentified conflict. Latham partner Kathryn Ruemmler (above), a former Obama White House counsel, is now the lead lawyer on the Seton Hall investigation.

>> Drinker Biddle & Reath has settled a racial discrimination lawsuit filed by a black legal assistant in its Princeton, New Jersey, office, who claimed she was paid less than colleagues because of her race and was subject to racially insensitive comments, according to my colleague Charles Toutant. Alan Schorrof Schorr & Associates represented the plaintiff. Read more here at NLJ.

>> Morgan Lewis partner Blair Robinson in New York argued for Urban Outfitters on Tuesday in the U.S. Court of Appeals for the Second Circuit in an age-discrimination case against the national clothing retailer, Bloomberg Law reports. Brian Heller, a partner at New York's Schwartz Perry & Hellerargued for the employee.

Notable Moves and New Hires

>> McDermott Will & Emery has hired Chicago-based Theodore Becker, who most recently was chair of the national employee benefits and ERISA litigation team at Drinker Biddle & Reath, according to Roy Strom, reportingat The Legal Intelligencer. McDermott also said it hired Drinker Biddle counsel Richard Pearl, who previously worked at Morgan Lewis before joining his now former firm in 2016.

>> Employment law expert Theresa Mak has left Jackson Lewis to join Grube Brown & Geidt, a San Francisco-based boutique formed in 2014 by a trio of ex-Paul Hastings labor and employment lawyers, Xiumei Dong reports at The Recorder. Mak had joined Jackson Lewis last year from Morgan Lewis. Being at a small firm now, she said, will make her able to give clients “more bang for their buck.” Mak told The Recorder: “We provide really high-quality work, the same quality work that clients from very large, well-known firms expect. But we can do that with more rate flexibility than a large firm.”

>> Robert Wilson III has joined Fisher Phillips in San Diego as partner from Gordon Rees Scully Mansukhani. Wilson specializes in wage-and-hour class action and California Private Attorneys General Act matters, the firm said. Christopher Hoffman, regional managing partner of the firm's San Diego office, said Wilson's “substantial litigation experience informs his workplace investigations.”

Around the Water Cooler

>> “Employers in four U.S. industries felt the brunt of the EEOC's annual fiscal-year-end enforcement rush, especially health-care providers such as MedStar and Life Care Centers of America and retailers like Target and Dollar General,” Bloomberg Law reports.

>> Reports that Amazon built a resume-scraping platform that unintentionally incorporated gender bias put a spotlight on the ways automation can expose companies. Amazon says it had not deployed the technology, but more and more companies are looking to innovation to reduce inefficiencies. Read my report here on the National Law Journal.

>> “A recent case from the U.S. Court of Appeals for the Tenth Circuit, First American Title Insurance v. Northwest Title Insurance Agency, illustrates nicely the complicated issues faced in non-compete litigation,” Patricia Collins of Antheil Maslow & MacMinn writes at The Legal Intelligencer. Read the ruling here.

>> A year after the #MeToo movement took hold in the United States, more than half of the ousted 201 men on corporate boards were replaced by women. The New York Times dug into the outcome of the reckoning of corporate America here. The Wall Street Journal also rounded up the effect of the movement here.

>> Gig economy companies Airbnb, Uber and Postmates are asking the Securities and Exchange Commission to allow them to give their hosts, drivers and couriers stakes in the companies. The move is intended to build loyalty among the independent contractors, the San Francisco Chronicle reports. Meanwhile: Google used more contract workers than salaried employees for the first time, CNBC reports.

>> In Silicon Valley, wages dropped across the board, except for the top 10 percent. Nine in 10 workers in area typically known as a hub of economic prosperity make less than they did in 1997, Recode reports.

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 protected] and on Twitter @erinmulvaney. Thanks for reading!