Welcome to Labor of Law, our weekly summary of news and trends affecting the L&E community. On the clock:

• A race bias claim catches SCOTUS attention
• Progressive group pitches would-be justices
• Who got the work: New DOL whistleblower ruling
• Headlines: Women in tech have their own questions

I'm Mike Scarcella in Washington, and you can reach me at [email protected] and on Twitter @MikeScarcella. Our veteran Supreme Court reporter Marcia Coyle is also dropping by this week. Reach Marcia at [email protected] and on the Twitter machine at @MarciaCoyle. Thanks for reading!

 

 

 

Justices Want DOJ's Views in Race Bias Case

The U.S. Supreme Court on Monday asked for the views of the U.S. solicitor general on whether the high court should review a job discrimination challenge involving the scope of "terms, conditions or privileges of employment" in Title VII of the Civil Rights Act of 1964.

Section 703(a)(1) of Title VII makes it 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.

Electrician David Peterson, who is African-American, sued Louisiana-based Linear Controls, an electrical maintenance business, for alleged race discrimination. He claimed Linear required a group of its black employees to work outdoors in the Louisiana summer while assigning their white counterparts to work indoors with air conditioning and water breaks. The U.S. Court of Appeals for the Fifth Circuit ruled that this assignment did not violate Title VII because the different treatment of black and white employees did not affect their terms or conditions of employment.

In Peterson v. Linear Controls, Stanford Law's Pamela Karlan (at left) is counsel of record for Peterson and is joined on the petition by Daniel Broussard Jr. of Alexandria, Louisiana. Karlan argued in her petition that the Fifth Circuit, along with the Third Circuit, consistently limits the Title VII provision to what it has termed "ultimate employment decisions"—"hiring, granting leave, discharging, promoting, or compensating." That limitation, Karlan wrote, is "flatly inconsistent" with the plain text and the Equal Employment Opportunity Commission's position.

Her arguments are supported by an amicus brief on behalf of three veteran Title VII litigators: Brian Wolfman and Aderson Francois of Georgetown University Law Center and Eric Schnapper of the University of Washington School of Law.

Linear's lawyers—William Helfand of Houston's Lewis, Brisbois, Bisgaard & Smith, and Joel Babineaux of Babineaux, Poché, Anthony & Slavich—have urged the Supreme Court not to take the case. Their opposition to review stated that the supervisors' copnduct did not amount to adverse employment actions that constitute discrimination with respect to compensation, terms, conditions, or privileges of employment.

Helfand, counsel of record, also argued that Peterson waived the issue by failing to raise it in the lower courts. He also rejects the claim of circuit conflicts, writing, "The relevant legal standards utilized in most, if not all, courts of appeals would construe the record in Peterson's case to require the same judgment the Fifth Circuit affirmed." —Marcia Coyle

 

 

 

Who Got the Work

>> Littler Mendelson shareholders Jeffrey Hiller and Chad Kaldor in Columbus, Ohio, are representing UBS Financial Services Inc. as a plaintiff in a suit in Ohio federal court alleging breach of employment. Michael Sandner of Dayton's Pickrel Schaeffer & Ebelin represents the defendant. Read the complaint.

>> Littler Mendelson shareholder A. Michael Weber in New York was counsel to Citigroup Inc. in a whistleblower case at the U.S. Labor Department's administrative review board. The panel ruled against an employee who worked in Mexico for a foreign subsidiary of Citigroup. "It is undisputed that Complainant's only place of work was Mexico and never the United States," the review board concluded. "The only domestic contacts in this matter arc that the fraud Complainant allegedly reported concerned an account in the U.S. and that U.S. shareholders were potentially affected by Complainant's allegations. These facts, without more, do not create a domestic application of Section 806." Kathleen Kundar, of counsel at New York's Fox Horan & Camerini, represented the whistleblower.

>> The law firm Murtha Cullina is representing University of St. Joseph in a sex discrimination suit. St. Joseph is fighting a suit from former associate athletic director Jaclyn Piscitelli, who named the school as the sole defendant in a federal lawsuit. Two Murtha Cullina attorneys are representing the university: Patricia Reilly, who is the chairwoman of the firm's labor and employment practice, and associate Martha Royston. Piscitelli's attorneys are Jacques Parenteau and Magdalena Wiktor of Madsen, Prestley & Parenteau in New London, Connecticut.

>> The California firm Abrolat Law is representing plaintiff Andrea Martin Inokon, senior counsel and senior vice president at Pacific Investment Management Co., in a new gender and race discrimination complaint against the company and its general and deputy counsels. A spokesman for the company said the "allegations in this filing, in relation to PIMCO's employee policies generally and the specific circumstances of this employee, are not accurate, and PIMCO will demonstrate that she was treated and compensated fairly based on her role and performance." My colleague Phillip Bantz has more here at Law.com.

 

 

Around the Water Cooler

Liberal Group, Shunning Big Law, Pitches 32 SCOTUS Shortlisters. Former NLRB member Sharon Block and former EEOC chair Jenny Yang were among 32 lawyers and judges named by the progressive group Demand Justice as Supreme Court candidates any Democratic president should consider. [Law.com]

Congress Wants to Grill Uber and Lyft on Safety. The Companies Are Blowing Them Off. Uber and Lyft have decided to skip a congressional hearing Wednesday aimed at examining their safety and labor practices, risking aggravating members of the committee who are threatening to press ahead regardless with new legislation. The two companies have come under increased scrutiny in recent months over their treatment of drivers and their efforts to keep passengers safe, prompting a House Transportation and Infrastructure subcommittee to call a committee meeting and demand that the companies testify on the future of ride-hailing." [The Washington Post]

Uber: The Ride-Hailing App That Says it Has 'Zero' Drivers. "In materials related to the Harris case, sealed after the matter was privately settled, Uber attorneys and executives contend that the company is nothing more than a marketplace that happens to be used for arranging transportation. And its chief legal officer, Tony West (at left), said last month that Uber's business is 'serving as a technology platform for several different types of digital marketplaces.'" [The Washington Post]

Turning the Tables: Women in Tech Job Interviews Have Questions of Their Own. "The tech industry remains far from gender parity, and in interviews with NBC News, women in various stages of their careers said they were finding ways large and small to cooperate with one another and push back against male dominance. The thousands of young female workers who are entering the tech industry through channels like this one are taking lessons from the recent sexual misconduct scandals, and considering ways they can reshape the places they'll work." [CNBC]

He, She, They: Workplaces Adjust As Gender Identity Norms Change. "Employers are going to be faced with an increasing percentage of employees over time who have nonbinary identities," because there is greater prevalence of gender ambiguity among young people, says Jody Herman, a public policy scholar at the Williams Institute at UCLA law school.[NPR]

Nevada Regulator Seeks to Ban Steve Wynn from State's Casino Industry. "Steve Wynn should be banned from Nevada's casino industry because of his alleged sexual misconduct against former employees, according to a state regulator's filing on Monday. The Nevada Gaming Control Board recommended the action in a complaint filed against Mr. Wynn, seeking to have his status as a person suitable to hold a casino license revoked, asserting that his alleged misconduct had damaged the reputation of the state's gambling industry." [WSJ] US Judge Tosses Sexual Orientation Bias Claim Against Parx Casino. A federal judge has dismissed a casino worker's lawsuit over claims that she was discriminated against due to her sexual orientation. But in tossing the case the judge also suggested that questions underpinning the precedent that bars sexual orientation discrimination claims under Title VII "warrants serious consideration." [ALM]

 

Notable Moves & More

>> Ketan Bhirud has been sworn in as legal counsel at the EEOC, where he will oversee internal and external policy. Bhirud formerly worked at Lionel Sawyer & Collins in Las Vegas for nearly a decade. The EEOC said Bhirud joins the agency from the Nevada attorney general's office, where he served as chief litigation counsel.

>> Haynes and Boone said Jennifer Beth Ingram has joined the firm as labor and employment counsel in San Antonio. Ingram served most recently as vice president and associate general counsel at Sally Beauty Holdings Inc.