Welcome to Labor of Law, our weekly summary of news and trends affecting the L&E community. On the clock: US Supreme Court spurns DOJ's position against EEOC | Littler opens in Singapore | MetLife, McDonald's face new lawsuits | Perkins Coie new-hire.

I'm Mike Scarcella in Washington, joined this week by our veteran Supreme Court reporter Marcia Coyle. You can reach us at [email protected] and [email protected] and on Twitter @MikeScarcella and @MarciaCoyle. Thanks for reading!

Justices Pass Up DOJ's Swipe at EEOC's Win

The U.S. Supreme Court on Tuesday refused to hear a disability discrimination case in which the Trump administration's Justice Department took a position in the high court at odds with the Equal Employment Opportunity Commission's position in the lower courts. The denial of review left unresolved questions about the independent litigating authority of the EEOC.

U.S. Solicitor General Noel Francisco had joined BNSF Railway Company, represented by Gibson, Dunn & Crutcher partner Andrew Tulumello, in urging the justices to vacate and remand a ruling by the U.S. Court of Appeals for the Ninth Circuit. The EEOC had won a favorable decision from the appellate court for Russell Holt, who had applied for a job with the railway company.

The appellate court said BNSF had violated the Americans with Disability Act when it required Holt to pay for a follow-up MRI after an initial physical exam because it perceived him as having a physical impairment—a back condition.

In their Supreme Court briefs, Francisco and Holt's counsel—Stanford Law School professors Brian Fletcher and Pamela Karlan(at left) —sparred over Francisco's claim that a grant-vacate-remand of the case, known as a "GVR," was warranted because of the EEOC's "confession of error" in the high court about its litigating position in the lower courts. The agency's current position, Francisco told the justices, was that the Ninth Circuit's ruling was wrong.

Francisco wrote that a confession of error is an "express repudiation" of any argument to the contrary and it is binding throughout the rest of the litigation.

But Fletcher and Karlan told the court that no EEOC attorneys had signed the solicitor general's brief. The appearance of agency counsel lawyers is customary whenever an agency is litigating in the Supreme Court. Citing the agency's independent litigating authority, Fletcher and Karlan argued the EEOC was not bound to adhere to the solicitor general's legal positions in the lower courts.

Following the high court's denial of review, the status of the case is somewhat uncertain. The Ninth Circuit upheld monetary damages against BNSF but vacated, with instructions, a district court injunction against the company. The case is likely to return to the district court on the scope of the injunction.

In a trio of Title VII cases involving sexual orientation and gender identity discrimination heard by the justices last month, the Justice Department's legal position, opposing Title VII protection, also was contrary to the EEOC's stance in the lower courts. —Marcia Coyle

Littler Mendelson's Opening in Singapore

Am Law 100 employment specialist firm Littler Mendelson is opening an office in Singapore, as the firm enters Asia-Pacific for the first time, my colleagues at Legal Week report.

The new office, which is pending final approval from Singaporean authorities, will be led by Littler shareholder Trent Sutton, who will relocate from the firm's office in Rochester, New York.

Sutton is currently the firm's point of contact for client matters in China, Japan, Korea and Singapore.

Sutton had been, until August, the Rochester office's managing shareholder. He joined the firm in 2009 from Nixon Peabody and was promoted to shareholder in 2014. Special counsel and China specialist Nancy Zhang, now based in the firm's New York office, will join Sutton.

"Establishing a physical presence in Asia is a natural outgrowth of our extensive experience counselling employers in the region," Littler co-managing directors Tom Bender and Jeremy Roth said in a joint statement.

Who Got the Work

>> Attorneys from Wigdor LLP—including Douglas Wigdor, Michael Willemin and Taylor Crabil—represent a former Metlife Inc. executive, Mona Moazzaz, suing over an alleged gender pay gap and sexist comments. "Ms. Moazzaz was subjected to repeated acts of discrimination and harassment by members of MetLife's top leadership team," the suit said. Read the complaint. A MetLife spokesperson told Bloomberg: "We believe the allegations are without merit and plan to defend this matter vigorously."

>> The plaintiffs firm Altschuler Berzon, the American Civil Liberties Union and the Michigan firm McKnight, Canzano, Smith, Radtke & Brault this week filed a class action—read the complaint—alleging "pervasive" sexual harassment at McDonald's. The New York Times has more here, and the Wall Street Journal here: "A McDonald's spokeswoman said the company has demonstrated its commitment to safe and respectful workplaces by implementing anti-harassment training at all of its corporate-owned restaurants. The company strengthened the training and protocol for reporting potential employee misconduct this year for its roughly 850,000 U.S. employees."

>> "A California law intended to create more gender equity in corporate boardrooms is facing a second legal challenge, this time in federal court," the Sacramento Bee reports. Read the complaint, filed by the Pacific Legal Foundation, here.

>> Stanley Graham of the Nashville firm Waller Lansden Dortch & Davis was counsel to Dollar General in an EEOC case in the Southern District of Georgia. "The owner-operator of a Georgia Dollar General store will pay $70,000 and provide other significant relief to settle a disability discrimination lawsuit," the agency said. Keyana Laws, senior trial attorney at the EEOC in Atlanta, was on the agency's team with EEOC trial attorney Robyn Flegal. The consent decree is posted here, and read the EEOC media statement here.

>> Jeffrey Elliott and Rick Long of the Pennsylvania firm Kozloff Stoudt represented Bisconti Farms Inc. in a $200,000 sexual harassment settlement with the EEOC. Senior trial attorneys Catherine Sellers and Gregory Murray were on the EEOC's team. The consent decree is posted here, and read the EEOC media statement here.

>> Pittsburgh's Lieber Hammer Huber & Bennington is representing a former AIG employee who claimed he was terminated in 2017 "after reporting certain improprieties to senior management and internal investigations." Read the complaint.

Around the Water Cooler

Trump Labor Board Chief Rejects Democrats' Ethics Concerns. "The federal labor board's top official Nov. 8 shot back at Democrats on Capitol Hill who have accused the board of using new regulations to sidestep ethical concerns about Republican members' conflicts of interest. 'I categorically reject any suggestion that there are ethics problems at the NLRB or that the Board has undertaken rulemaking to enable individual members to avoid compliance with their ethical obligations,' National Labor Relations Board Chairman John Ring (R) said in a letter to Sen. Patty Murray (D-Wash.) 'These are baseless claims, which I have already addressed, and the partisan press reports cited in your letter, based as they are on incomplete information, do not make them any more valid.'" [Bloomberg Law] Read Chairman Ring's letters here.

A Face-Scanning Algorithm Increasingly Decides Whether You Deserve the Job. "An artificial intelligence hiring system has become a powerful gatekeeper for some of America's most prominent employers, reshaping how companies assess their workforce—and how prospective employees prove their worth." [Washington Post]

The Rise and Fall of WeWork. "WeWork's critics on Wall Street have recently argued that the company was mislabelled: that it pretended to be a tech company but was really in the boring old business of subleasing office space. This may be true, but one of the upshots was that, for a little while, thousands of people in the relatively staid "elds of real-estate development, design, and construction experienced life aboard a Silicon Valley unicorn." [The New Yorker]

Women's Soccer Players Win Class Certification in Unequal Pay Suit. In a new order, U.S. District Judge R. Gary Klausner of the Central District of California granted certification of two classes: one seeking injunctive relief to change its practices and one seeking damages such as back pay. The judge also granted certification of a conditional collective action under the Fair Labor Standards Act. [Law.com] CNN has more here, and the NYT here.

Third Accuser Files EEOC Claim About Former DLA Piper Partner. A third woman who worked in DLA Piper's Silicon Valley office has come forward with accusations of improper conduct by the firm and Louis Lehot, the influential Silicon Valley rainmaker who recently left the firm amid sexual assault allegations brought by a junior partner. [Law.com]

'Don't Game My Paycheck': Delivery Workers Say They're Being Squeezed By Ever-Changing Algorithms. "The nation's largest retailers are jostling to win over customers through their groceries, fueling explosive revenue growth for delivery services such as Postmates, Door Dash, Instacart and Fresh Direct. The companies also have caught on with investors, attracting hundreds of millions of dollars in venture capital." [Washington Post]

Notable Moves & More

Perkins Coie has hired Gary Gansle as senior counsel in its labor and employment practice in Palo Alto. Gansle formerly led a Squire Patton Boggs labor practice in California. Perkins Coie said the new hiring is the fifth lateral to join the firm's labor and employment practice since July.

Fisher Phillips partner Charles Caulkins has been named the new chairman of the Florida Chamber of Commerce. Caulkins, who is in the labor and employment law firm's Fort Lauderdale office, began his two-year term Nov. 1, replacing Holland & Knight Tampa partner Bob Grammig.