Welcome to Labor of Law. Tech giants are making moves to end arbitration for victims of sexual harassment—but plaintiffs lawyers and other advocates say these efforts, while good PR, don't do enough. A group of big law firms are joining a growing list of companies and businesses that are backing broad protections for LGBT workers—just as the Supreme Court is set to take up a series of cases Nov. 30. Plus: Neomi Rao gets the Trump nod for the D.C. Circuit—and there's a lot to look at from the labor and employment vantage.

Why Stop at Sexual Harassment?

Facebook, Google, Airbnb and eBay are part of the wave of tech companies making moves to end arbitration—drawing praise from plaintiffs lawyers who simultaneously are asking: Why stop there?

Singling out sexual harassment raises questions for some plaintiffs attorneys, particularly if these companies acknowledge the need to give employees the choice in those specific instances. The new policies do not extend, for example, to gender equality in pay and promotion disputes or harassment for other protected classes, including race, religion or national origin.

Airbnb is among the exception here. The company said it was ending employment practices that required workers to arbitrate both harassment and discrimination claims.

Joe Sellers, a Cohen Milstein Sellers & Toll partner, said technology companies—competing for employees—are trying to capitalize on the #MeToo movement.

“The perception that they want to be more transparent with sexual harassment resonates with people who they would like to retain or attract to the workplace,” Sellers told me. “The decision to exempt sexual harassment claims from binding arbitration is revealing in another respect. The proponents of arbitration have argued that arbitration is the best way to resolve every workplace dispute. If it were that good, you wouldn't think they would be offering this to appeal to their workers. The reality is different.”

Sellers said he applauded the moves by companies to restrict mandatory arbitration “but I don't see a legitimate basis to draw the line there.” He continued: “Exempting all workplace claims from arbitration would make more sense. Otherwise, it seems they are taking advantage of a popular movement, hoping that it would have some symbolic effect that will resonate.”

Terri Gerstein, director of the Project on State and Local Enforcement at the Harvard Law School Labor and Worklife Program, wrote a similar take in a New York Times op-ed that posted this week.

“How do you tease apart the sexism, racism and economic exploitation in this situation? You can't. They're inseparable.” She added, “So why would it make sense to end forced arbitration in cases of sexual harassment only? Why should any company still block people from filing in court when they're racially harassed or underpaid or paid less because of their national origin? All are offenses against human dignity, and in all of these cases, there is the same tremendous power differential that makes it so hard for people to speak up.”

Dan Goldstein, an attorney and owner of the marketing firm Page 1 Solutions, said Google's move and others are a step in the right direction. “It is, however, unfortunate that it required an employee walkout and demonstration to prompt the company to take action,” Goldstein said.

“Alphabet, Google's parent company, includes the sentence, 'Don't be evil' in its mission statement. Eliminating forced arbitration for sexual harassment claims shows that it is attempting to honor that sentiment,” he said. “Maybe Google's prominence and the fact that this action is certain to be heavily reported will prompt other companies throughout the US to take similar action.”

D.C. Circuit Pick Scuttled Employment Rules

Neomi Rao, a chief architect of the Trump administration's moves to curtail the regulatory landscape, will find herself in the klieg lights of Capitol Hill soon—as the White House nominee to the D.C. Circuit to replace Brett Kavanaugh. My colleagues C. Ryan Barber and Ellis Kim have some background at The National Law Journal about Rao's deregulatory agenda.

Rao's time in the Trump administration gives us some insight into her posture on employment issues. Rao was instrumental in the administration's move to rollback a pay-data requirement for employers as part of the annual EEO1 report. The report requires employers to submit information on the gender and racial breakdown of its workforce.

The advocacy group Democracy Forward is suing over the government's move to pull back the requirement to add pay in reporting. Rao also was singled out as a key Trump official who was overruled in a dispute over tip pooling. Bloomberg BNA reported in March: “Labor Department leadership convinced OMB Director Mick Mulvaney to overrule the White House regulatory affairs chief and release a controversial tip-sharing rule without data showing it could allow businesses to skim $640 million in gratuities.”

Law Firms Join Push for Transgender Equality

The number of companies that are speaking out for transgender equality and federal civil rights protections has doubled since a letter was issued earlier this month. The companies that have signed the statement represent more than 7 million employees, have a collective annual revenue of more than $3.2 trillion and represent many industries, including financial services, consumer and technology.

Several law firms are now on the list, including Perkins Coie; Orrick, Herrington & Sutcliffe; Littler Mendelson; Hogan Lovells; and Sheppard Mullin.

This show of support from the corporate world—and law firms—comes as the Supreme Court is set to consider whether to take up cases that weigh the scope of protection under Title VII of the Civil Rights Act. The justices are scheduled at their Nov. 30 conference to review three cases: R.G. and G.R. Harris Funeral Homes v. EEOC; Altitude Express v. Zarda and Bostock v. Georgia Regional Hospital.

The Justice Department said in its brief in the Harris case that it did not believe federal protections should extend to gender identity, representing a clash with the EEOC. The DOJ has also argued against protections for gay workers in lower appeals courts.

Around the Water Cooler

>> “The first-ever trial on the gig economy misclassification to reach a judicial merits determination has now turned into the first-ever appeal on gig economy misclassification,” Fisher Phillips partner Richard Meneghello writes. GrubHub plaintiffs are pressing their appeal—read their opening brief here in the Ninth Circuit—over a ruling that denied employment status to the company's workers. The case takes on new significance in the shadow of a California Supreme Court decision that makes it more difficult for companies to classify workers as independent contractors. [Fisher Phillips]

>> In the midst of the deadly California wildfires, the state calls on inmates to help fight the blaze. Yet, when they are released, they are denied firefighter jobs. [Axios]

>> Lawyers told a federal court that employees were not properly given notice of their rights in a $10 million settlement agreement between the EEOC and Ford Motor Co. The case centered around widespread sexual harassment claims at two Chicago plants. [Reuters]

>> The Google walkout represented a boiling point and a long history of discrimination in the tech industry. [The Verge]

>> EEOC chair Victoria Lipnic and commissioner Chai Feldblum said the Supreme Court should take up the question of whether LGBT workers should be extended protections under Title VII. The agency has pushed for broader protections. [Bloomberg Law]

Thanks for reading! We're going to take a break next week—and I hope everyone enjoys their holiday. We're grateful for your interest in Labor of Law, and your feedback is always welcome. I'm at [email protected].