Title VII
 Retaliation Claims under 42 U.S.C. § 1981
CBOCS West, Inc. v. Humphries
No. 06-1431 Supreme Court of the United States NCLC urged the Supreme Court to reverse a Seventh Circuit decision allowing retaliation claims to be filed under 42 USC § 1981. Section 1981 protects the rights of all persons to make and enforce contracts without respect to race. Unlike Title VII, which contains a specific cause of action for retaliation, nothing in the plain language of § 1981 allows for retaliation claims. In its brief, NCLC argued that the Seventh circuit decision expands the scope of Section 1981 claims to include retaliation and undermines Title VII’s comprehensive enforcement and conciliation scheme. To hold otherwise would allow an employee claiming to have suffered retaliation for reporting race discrimination to file a lawsuit under Section 1981 well outside of Title VII’s limitations period, and without Title VII’s mandatory conciliation procedures. Amicus brief filed 11/21/07. Moot Court to be held 1/16/08. Oral argument to be held 2/20/08.
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Employer Liability for Supervisory Bias
BCI Coca-Cola Bottling Company v. Equal Employment Opportunity Commission
No. 06-341
Supreme Court of the United States
NCLC urged the Supreme Court to reverse a Tenth Circuit decision addressing the "cat's paw" or "rubber stamp" theory of employer liability for discrimination under Title VII. Under that theory, an employer may be held liable for discrimination even if the ultimate decision maker had no discriminatory intent or bias, if another employee who was biased somehow influenced the employment decision. There is a split among the circuits on how much influence over the employment decision the biased subordinate must have before his or her bias will be imputed to the neutral decision maker and therefore the employer. In its brief, NCLC argued that the high Court should apply principles of causation and agency law that hold employers liable only for discriminatory exercises of delegated authority. The Tenth Circuit erred in its focus on whether the bias of the employee had a causal connection to the firing. By skipping over the proximate cause and agency law inquiries, the Tenth Circuit allowed automatic imposition of vicarious liability on employer once causation is established, thereby expanding the meaning of "agent" under Title VII.
Amicus brief filed 2/20/07. Case dismissed by BCI Coca-Cola on 4/12/07.  View brief................................................................................................................  Statute of Limitations for Compensation Claims under Title VII
Ledbetter v. Goodyear Tire and Rubber Company, Inc. No. 05-1074 Supreme Court of the United States
NCLC urges the Supreme Court to uphold an Eleventh Circuit decision considering how far back in time an employee alleging sex discrimination in pay may go to challenge employer actions affecting her pay. In its brief, NCLC argues that the statute of limitations under Title VII requires an EEOC charge to be filed within 180 or 300 days (depending on the jurisdiction) after the alleged unlawful employment practice occurs. This requirement does not vary depending on the form of discrimination involved, and compensation cases should be treated no differently. The limitations period begins to run when the alleged discriminatory decision is made and communicated, not when the complainant feels the consequences of that decision. Unless an employer receives prompt notice that it will be called upon to defend a specific compensation decision, it is unlikely to have the necessary witnesses or evidence at its disposal to defend itself.
Amicus brief filed 10/23/06. Oral Argument held 11/27/06. Decision 5/29/07.
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Sex Discrimination and Contraceptive Coverage to Class of Female EmployeesStandridge, et al. v. Union Pacific Railroad Co.
No. 06-1706
U.S. Court of Appeals for the Eighth Circuit
The Eighth Circuit agreed with NCLC and reversed a lower court ruling holding that Union Pacific violated the sex discrimination provisions of Title VII and the Pregnancy Discrimination Act (PDA) by failing to provide coverage for prescription contraceptives to a class of female employees under its benefit plans. NCLC argued that the trial court wrongfully expanded Title VII and the PDA beyond their scope--the statutes were not intended to apply to health plan benefit coverage. Further, the decision of whether or not to mandate employer provided health benefits lies with Congress, and not with the courts.
Amicus brief filed 5/15/06. Oral argument held 11/16/06. Decision 3/15/07.
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 Nature of Title VII's 15 Employee Threshold RequirementArbaugh v. Y & H Corp., dba The Moonlight CafeNo. 04-944 Supreme Court of the United States NCLC will urge the Supreme Court to resolve a split in the Circuits and rule that Title VII's threshold applicability requirement that an employer have 15 employees is a jurisdictional requirement. As such, this "bright line" issue should be decided by the judge at the outset of the case, rather than it being submitted to the jury as part of the jury's consideration of the merits. In addition, as a jurisdictional requirement, it would not be waived if not raised initially in the case. As a practical matter, NCLC will point out that small businesses are unlikely to be aware of this issue and so may fail to raise it initially, that small businesses can least afford to bear the costs of discovery and trial that would have to be incurred if resolution of this issue is put off until the case goes to the jury, and that a jury's consideration of this issue may be unfairly tainted by its view of the merits. Amicus brief to be filed 10/5/05. Oral argument held 1/11/06. Decision 2/22/06. View brief................................................................................................................
Definition of Adverse Employment Action
Burlington Northern & Santa Fe Railway Co. v. Sheila WhiteNo.05-259 Supreme Court of the United States
The NCLC has asked the Supreme Court of the United States to reverse a lower court ruling holding employers at fault for changing an employee's assigned job responsibilities. The case involves a Burlington Northern & Santa Fe Railway Co. (BNSF) employee who was temporarily suspended from company service, pending investigation, for not accepting changes in assigned job responsibilities. The employee asserted that Title VII protections under the Civil Rights Act of 1964 applied to such action. The lower court held the broad view that job reassignment under temporary suspension constituted an unlawful retaliation by the employer. NCLC argues that Title VII anti-retaliation section should not be used to impinge on management's traditional prerogatives to assign work.
Amicus brief filed 1/23/06. Moot court held 4/13/06. Oral argument held 4/17/06. Decision 6/22/06.
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Certification of Class Action under Title VIIReeb, et al. v. Ohio Department of Rehabilitation & CorrectionNo. 04-3994 U. S. Court of Appeals for the Sixth Circuit
NCLC urges the Sixth Circuit to reverse the district court's certification of a class of female state prison employees who allege sex discrimination in violation of Title VII. This is the second time the Sixth Circuit has granted interlocutory review to evaluate the district court's certification of the class in this case. NCLC argues that, even upon its second review, the district court still has failed to conduct a "rigorous analysis" as was so ordered by the appellate court and is required under Federal Civil Rules of Procedure Rule 23(a). In addition, NCLC argues that the fact that the plaintiffs are asking for compensatory and punitive damages in this case renders it unsuitable for Rule 23(b)(2) certification.
Amicus brief in support of defendant-appellant and in support of reversal filed 10/19/04. Decision 1/24/06. View brief................................................................................................................
Religious Discrimination and Employee Affinity Groups
Moranski v. General Motors CorporationNo. 05-1803 U.S. Court of Appeals for the Seventh Circuit
Agreeing with NCLC, the Seventh Circuit held that that General Motors does not violate the anti-religious discrimination provisions of Title VII in refusing to recognize company-sponsored employee affinity groups that promote positions concerning religion. To promote diversity, General Motors sponsors special groups for racial and ethnic minorities, veterans, and disabled individuals, among others, but specifically prohibits groups that advocate religious or political positions. While John Moranski argued that his religious faith is his main identifying characteristic and, therefore, like race, gender, or sexual orientation, the court disagreed. Judge Ann Claire Williams stated that "General Motors's Affinity Group policy treats all religious positions alike-it excludes them all from serving as the basis of a company-recognized Affinity Group." Judge Williams further noted that Title VII requires equal treatment within categories, not "cross-categorical comparisons."
Motion for leave to file and amicus brief filed 6/17/05. Motion granted 6/22/05. Oral argument held 10/24/05. Decision 12/30/05. View brief................................................................................................................
Certification of Class Action under Title VII
Grosz v. The Boeing CompanyNo. 04-55428 U. S. Court of Appeals for the Ninth Circuit
NCLC urges the Ninth Circuit to affirm the district court's decision to deny certification of this class of employees who are alleging employment discrimination in violation of Title VII. NCLC argues that certification of this class is improper in that it involves thousands of individual employment decisions made by several hundred different managers using both subjective and objective criteria. Further, NCLC argues that certifying a large Title VII class action for damages pressures employers to settle the claims regardless of their merits or lack thereof.
Amicus brief in support of Petitioner filed 10/4/04. Oral argument held 3/8/05. Decision 7/5/05.
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Abusive Class ActionsDukes, et al. v. Wal-Mart Stores, Inc.Nos. 04-16688 and 04-16720 U.S. Court of Appeals for the Ninth Circuit The Ninth Circuit in this case granted review of Wal-Mart's challenge of the certification of a nationwide class of 1.5 million women in a gender discrimination case under Title VII, the largest class action in history. Filing in support of Wal-Mart's efforts to de-certify the class, NCLC argues that the trial court made serious errors in certifying the case as a class action by permitting the use of statistical evidence of discrimination, ignoring the requirements of proof of individual discrimination, and allowing the plaintiffs to bring their class claim based on a "common" allegation that Wal-Mart decentralized its hiring and promotion practices. NCLC warns that class certifications based on these types of decisions would lead to an avalanche of similarly unmanageable and impossible to defend nationwide class actions. Motion for leave to file and amicus brief in support of interlocutory review filed 7/14/04. Interlocutory granted 8/13/04. Amicus brief on the merits filed 12/8/04. Oral argument held 8/8/05. View brief................................................................................................................
Reasonable Accommodation for Religion under Title VII
Kimberly Cloutier v. Costco Wholesale Corp.No. 04-1475 U. S. Court of Appeals for the First Circuit
Agreeing with NCLC and affirming the district court's grant of summary judgment in favor of Costco, the First Circuit held that an employee's insistence that she be exempted from Costco's dress code ban on all facial jewelry (except earrings), based on her "religious beliefs" as a member of the Church of Body Modification, constituted an undue hardship on Costco. Accordingly, Costco did not violate Title VII when it terminated Cloutier's employment for her failure to adhere to Costco's dress code. The Court emphasized Costco's legitimate interest in presenting its customers with a workforce that has a reasonably professional appearance.
Amicus brief in support of Petitioner filed 8/2/04. Decision 12/1/04. Petition for rehearing and rehearing en banc denied 12/20/04.
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Title VII and Age Discrimination in Employment ActHill v. Lockheed Martin Logistics Management Inc. Case No. 01-1359 U. S. Court of Appeals for the Fourth Circuit
The Fourth Circuit en banc agreed with NCLC that an employer should not be liable under Title VII or the ADEA when a biased subordinate was involved in events that led up to an adverse employment decision if upper level managers independently investigated the incidents of misconduct and were responsible for the termination decision.
Amicus brief filed 4/2/03. Oral argument held 5/7/2003. Decision 1/5/04.
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Mixed-Motives Analysis for Discrimination Charge Under Title VII
Desert Palace d/b/a Caesar's Palace Hotel v. Costa
No. 02-679 U.S. Supreme Court NCLC had urged the Supreme Court to reverse the Ninth Circuit's holding allowing a mixed-motives analysis of a Title VII claim without any direct evidence of discrimination. The direct evidence standard is based on Justice O'Connor's concurrence to the Court's decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). The Court rejected this standard and ruled that either direct or circumstantial evidence of discrimination presented by the plaintiff is sufficient to trigger the mixed-motives analysis. Amicus brief filed 2/28/03. Moot court held 4/3/03. Oral argument held 4/21/03. Decision 6/9/03. View brief
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Arbitration Agreements under Title VII
EEOC v. Luce, Forward, Hamilton & Scripps No. 00-57222 U.S. Court of Appeals for the Ninth Circuit Although the Petition for Appeal to be Heard En Banc initially was denied, the panel has now issued a favorable ruling holding that employers may require employees to sign agreements to arbitrate Title VII claims as a condition of employment. In so holding, the court overruled its decision in Duffield v. Robertson Stephens & Co., 144 F.3d 1182 (9th Cir. 1998). Amicus letter in support of Petition for Appeal to be Heard En Banc initially filed 3/6/01. Petition denied 1/2/02. Panel decision 9/3/02.
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Availability of Affirmative Defense to Sexual Harassment ClaimsWalton v. Johnson & Johnson Services, Inc., et al. No. 02-12520-JJ U.S. Court of Appeals for the Eleventh Circuit
NCLC had urged the Eleventh Circuit to affirm a district court ruling that an employee alleging sexual harassment by her supervisor could not proceed with her Title VII claims. NCLC argued that the employer had an anti-harassment policy in place and promptly investigated the employee's complaint. Further, the employee had delayed in filing her complaint with the company's human resources department. In addition, NCLC argued that the employee's placement on long-term disability at her request did not constitute constructive discharge.
Amicus brief filed in support of Defendants/Appellees filed 7/26/02. Motion to file amicus brief denied 8/13/02.
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Employer Liability for Supervisory Sexual Harassment
Min Jin v. Metropolitan Life Insurance Company
No. 01-7013
U.S. Court of Appeals for the Second Circuit
In response to a request to NCLC from the U.S. Court of Appeals for the Second Circuit, NCLC filed an amicus brief in this Title VII sexual harassment case. NCLC had argued that employers are not automatically liable under Title VII and may assert the affirmative defenses set forth in Burlington Industries, Inc. v. Ellerth, 524 U.S. 724 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998) when a supervisor threatens to (but did not) terminate an employee. The court held that the district court defined "tangible employment action" too narrowly and that the jury should have been allowed to consider sexual abuse by a supervisor as a tangible employment action, thus preventing the employer from asserting the Ellerth/Faragher affirmative defense.
Amicus brief filed 2/22/02. Affirmed in part, vacated in part, and remanded, 6/27/02. View brief
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'Continuing Violations' Under Title VII
National Railroad Passenger Corporation v. MorganNo. 00-1614 U.S. Supreme Court
The Supreme Court held that plaintiffs raising claims of discrete discriminatory or retaliatory acts must file their charges within the appropriate 180- or 300-day period. Earlier discrete acts will not be considered, as there is no "relation-back" for prior acts. However, charges of hostile environment are different. Because such a claim is composed of a series of separate acts that collectively constitute one "unlawful employment practice," it does not matter that some of the component acts fall outside the statutory time period. NCLC had urged the Supreme Court to reverse the Ninth Circuit's decision holding that, under the continuing violation theory, an otherwise time-barred Title VII claim could be revived merely because it is "sufficiently related" to conduct that occurred within the limitations period. NCLC's brief argued that time-barred Title VII claims are "revived" only if it would have been unreasonable to expect the plaintiff to file a charge within the limitations period.
Amicus brief in support of petitioner filed 8/29/01. Oral argument held 1/9/02. Decision 6/10/02. View brief
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Title VII DamagesPollard v. E. I. du Pont de Nemours and CompanyNo. 00-763 U.S. Supreme Court
Rejecting NCLC's arguments to the contrary, the Court ruled that "front pay" awards under Title VII are not compensatory damages and, thus, are not subject to the Civil Rights Act of 1991's cap on compensatory and punitive damages.
Amicus brief filed 3/23/01. Oral argument held 4/23/01. Decision 6/4/01. View brief |
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