employment

14 Penn Plaza LLC v. Pyett

Issues

Is an arbitration provision in a collective bargaining agreement which precludes an employee from bringing a lawsuit in court for an alleged violation of statutory anti-discrimination law enforceable?

 

Steven Pyett, Thomas O’Connell, and Michael Phillips (the "employees") claim that their employer, Temco Service Industries, Inc., and the company, 14 Penn Plaza, LLC, that owns the building in which they worked, discriminated against them on the basis of their age, in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"). The employees are members of Service Employees International Union, Local 32BJ, which negotiated a collective bargaining agreement ("CBA") with the Realty Advisory Board on Labor Relations, Inc. ("RAB"), of which Temco and 14 Penn Plaza are members. The CBA stated that the sole and exclusive remedy for all employment discrimination claims, including those brought under the ADEA, is the union’s grievance and arbitration procedure. The issue in this case is whether a union has the power to bargain away its members’ rights to litigate employment discrimination claims. The employees argue that the answer should be no, while the employers argue the opposite. The outcome of this case will clarify whether a union has the power to waive its members' statutory right to sue their employers in federal court for certain types of discrimination in favor of a mandatory arbitration procedure.

Questions as Framed for the Court by the Parties

Is an arbitration clause contained in a collective bargaining agreement, freely negotiated by a union and an employer, which clearly and unmistakably waives the union members’ right to a judicial forum for their statutory discrimination claims, enforceable?

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18-882

Issues

To prove a violation of the federal-sector provision of the Age Discrimination in Employment Act, must a plaintiff prove that age discrimination was a but-for cause of an adverse employment action or merely a motivating factor?

This case asks the Supreme Court to determine whether, under Section 633a(a) of the Age Discrimination in Employment Act of 1967 (“ADEA”), federal-sector plaintiffs must show that age discrimination was the but-for cause of an adverse employment action, or whether federal-sector plaintiffs must merely show that their age was a motivating factor for the adverse action. Section 633a(a) states that employment decisions affecting employees or applicants at least 40 years of age “shall be made free from any discrimination based on age.” Noris Babb, a clinical pharmacist, sued Secretary of the Department of Veterans Affairs (“VA”) Robert Wilkie alleging, among other claims, age and gender discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) and the ADEA after she was denied a promotion, training, and two clinic positions. Babb argues that Section 633a(a) requires her only to prove that age was a motivating factor in the VA’s adverse personnel decisions. Wilkie, on the other hand, contends that Section 633a(a) requires Babb to prove that age was the but-for cause of—that is, the actual reason for—the employment decisions. This case has implications on the ability of federal-sector workers to prove age discrimination claims under the ADEA.

Questions as Framed for the Court by the Parties

Whether the federal-sector provision of the Age Discrimination in Employment Act of 1967, which provides that personnel actions affecting agency employees aged 40 years or older shall be made free from any “discrimination based on age,” 29 U.S.C. § 633a(a), requires a plaintiff to prove that age was a but-for cause of the challenged personnel action.

In 2004, Noris Babb joined the C.W. “Bill” Young Veterans Affairs (“VA”) Medical Center’s Pharmacy Services division in Bay Pines, Florida as a clinical pharmacist. Babb v. Wilkie at 2–3. Two years later, Babb began working as a geriatrics pharmacist in the Medical Center’s Geriatric Clinic, a position governed by a service agreement between the Pharmacy Services division and the Geriatric Clinic. Id. at 3.

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Acknowledgments

The authors would like to thank Professor Angela B. Cornell for her guidance and insights into this case.

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affirmative action

Affirmative action is defined as a set of procedures designed to eliminate unlawful discrimination among applicants, remedy the results of such prior discrimination, and prevent such discrimination in the future. Applicants may be seeking admission to an educational program or looking for professional employment.

Ames v. Ohio Department of Youth Services

Issues

Do plaintiffs suing under Title VII of the Civil Rights Act who are members of “majority groups” have to show “background circumstances” showing their employer discriminates against the majority?

This case asks the Supreme Court to determine whether a plaintiff suing under Title VII of the Civil Rights Act who is a member of a majority group must provide “background circumstances” to show that their employer discriminates against majority groups. Ames argues that the background circumstances rule treats plaintiffs differently based on their protected characteristics, contradicting the goals of Title VII. The Ohio Department of Youth Services argues that the background circumstances rule is only a method for deciding individual cases and does not discriminate based on a protected characteristic. This case has important implications for how readily individuals can use the civil rights laws to sue, and how courts determine discrimination without direct evidence.

Questions as Framed for the Court by the Parties

Whether, in addition to pleading the other elements of an employment discrimination claim under Title VII of the Civil Rights Act of 1964, a majority-group plaintiff must show “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.”

In 2014, the Ohio Department of Youth Services (“Department”) appointed Marlean Ames, a heterosexual woman, to be the Administrator of the Prison Rape Elimination Act (“PREA Administrator”); this was an at-will employment position which meant that she could be fired without cause. Ames v. Ohio Dep’t of Youth Servs. at 2. Then in 2017, Ginine Trim, a gay woman, was assigned to be Ames’s new supervisor.

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collective bargaining

Epic Systems Corp. v. Lewis

Issues

Does the National Labor Relations Act prohibit the enforcement of agreements between employers and employees requiring individual employees to waive the right to participate in collective litigation, collective actions, and collective arbitration under the Federal Arbitration Act? 

At issue in this case is whether employment contracts barring employees from collectively arbitrating disputes with employers are illegal under the National Labor Relations Act (“NLRA”). Employees argue that preventing collective arbitration interferes with the NLRA’s Section 7 protections of “concerted activity” for “mutual aid and protection”. Employers counter that the Federal Arbitration Act governs the arbitration agreements, under which they are enforceable. Employers also contend that enforcing the agreements protects freedom of contract, thus promoting efficiency and protecting judicial resources. Employees respond that collective arbitration allows them to share the costs and risks of litigation, thereby allowing them to pursue claims that, in the aggregate, may reveal abusive practices by employers. One on hand, freedom of contract in the interest of judicial economy may be harmed if the Court does not uphold the validity of the waivers. On the other hand, if the Court does uphold the validity of the waivers, it will may become more difficult for employees to challenge abusive work practices in their workplaces.

Questions as Framed for the Court by the Parties

Whether the collective-bargaining provisions of the National Labor Relations Act prohibit the enforcement under the Federal Arbitration Act of an agreement requiring an employee to arbitrate claims against an employer on an individual, rather than collective, basis.

The Court here considers three consolidated cases: Epic Systems Corp. v. Lewis, Ernst & Young, LLP v. Morris, et al., and National Labor Relations Board (“NLRB”) v. Murphy Oil USA, Inc. Epic Systems, Ernst & Young, and Murphy Oil (“Employers”) urge the Court to uphold class action and collective arbitration waivers between employers and employees.

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Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc.

Issues

Does an employer violate Title VII by refusing to hire an applicant or by discharging an employee based on a religious observance when the applicant or employee failed to provide actual knowledge to the employer, through explicit notification, of the applicant’s or employee’s need for a religious accommodation?

The Supreme Court will determine whether an employer can be liable under Title VII for refusing to hire a candidate or dismissing an employee only if the employer had actual knowledge, gained by the candidate’s or employee’s explicit notification, that the candidate or employee required a religious accommodation. The EEOC argues that an employer violates Title VII when the employer refuses to hire an applicant or dismisses an employee based on “a religious observance and practice” that could be reasonably accommodated. Abercrombie & Fitch counters that its denial of an exception to a religion-neutral store policy—a look policy considered crucial to the vitality of its business—is not intentional discrimination under Title VII. The Supreme Court’s decision will implicate Title VII’s role in religion-neutral work policies as well as who bears the burden of raising the need for religious accommodations in the workplace.

Questions as Framed for the Court by the Parties

Title VII of the Civil Rights Act of 1964 makes it illegal for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's * * * religion." 42 U.S.C. 2000e-2(a)(l). "Religion" includes "all aspects of religious observance and practice" unless "an employer demonstrates that he is unable to reasonably accommodate" a religious observance or practice "without undue hardship on the conduct of the employer's business." 42 U.S.C. 2000e(j).

The question presented is whether an employer can be liable under Title VII for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required and the employer’s actual knowledge resulted from direct, explicit notice from the applicant or employee. 

Abercrombie & Fitch Stores, Inc. (“Abercrombie”) is an American clothing company with stores across the United States that operates under several names, including Abercrombie & Fitch, Abercrombie Kids, and Hollister Co. See Equal Employment Opportunity Commission v.

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Federal Unemployment Tax Act (FUTA)

Federal Unemployment Tax Act (FUTA) was the bill passed in 1939 that established a payroll tax to fund unemployment benefits. The tax is 6% of the first $7,000 that each employee makes in a year, and the employer is responsible for all of the tax unlike similar payroll taxes. For example, if XYZ Co. paid Tina $20,000, Jerry $7,000, and Patricia $5,000 last year, XYZ Co.

Feliciano v. Department of Transportation

Issues

Is a federal civilian employee who is called or ordered to active duty during a national emergency entitled to differential pay under 5 U.S.C. § 5538(a) regardless of whether their duty is directly connected to the national emergency?

This case asks the Supreme Court to determine if any civilian employee who is called to active military duty during a national emergency is entitled to differential pay—compensation for the difference between their civilian pay and military pay—under 5 U.S.C. § 5538(a). Feliciano contends that all civilian employees called to duty during a national emergency should receive differential pay. The Department of Transportation (“DOT”) counters that 5 U.S.C. § 5538(a) requires the civilian employee’s work to be related to a contingency operation rather than merely coinciding temporally with the national emergency to qualify for differential pay. The outcome of this case has profound implications for the United States military’s effectiveness and financial security of military reservists.

Questions as Framed for the Court by the Parties

Whether a federal civilian employee called or ordered to active duty under a provision of law during a national emergency is entitled to differential pay even if the duty is not directly connected to the national emergency.

Nick Feliciano served as a civilian air traffic controller for the Federal Aviation Administration and a member of the Coast Guard Reserve. Feliciano v. Dep’t of Transp. (“Federal Circuit”) at 2. From July to September 2012, Feliciano performed active-duty service. Id. His service was pursuant to 10 U.S.C.

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