9th US Circuit Court of Appeals (InFootage/Shutterstock.com)
In the past week, the US Court of Appeals for the Ninth Circuit issued two decisions on the class-action status of lawsuits against two major tech companies, denying class-action status to Uber employees seeking a ruling on their employment classification but saying it would hear arguments for a class action against Microsoft in a lawsuit alleging gender discrimination. In the Microsoft case, the Seattle Times reported last Monday, the court said it would hear an appeal of a lower court’s decision denying class-action status:
The plaintiffs in the lawsuit are seeking to add to the case more than 8,600 women who have worked in engineering jobs at the company, making it a class-action suit. U.S. District Judge James Robart denied the class-action motion in June, saying there were not strong enough similarities between the women’s claims to prove companywide bias practices.
The case, Moussouris v. Microsoft, is one of a few high-profile gender-discrimination lawsuits against big tech companies weaving its way through the courts. It has been going on for three years and alleges gender discrimination across Microsoft, particularly tied to the way performance reviews and promotions were conducted. Microsoft has denied the claims, saying its processes do not discriminate against women. Lawyers for the plaintiffs appealed Robart’s ruling this summer that blocked class-action status.
The case against Microsoft was first filed by three female employees in 2015, alleging that the company’s pay and promotion processes systematically discriminated against women in technical and engineering roles. Documents unsealed in the lawsuit last November also suggested the tech company failed to respond appropriately to reports of sexual harassment and assault. The appeals court is expected to hear oral arguments in this case next year.
Meanwhile, on Tuesday, a three-judge panel at the Ninth Circuit ruled in favor of Uber in a lawsuit concerning whether drivers using the ride-sharing app should be classified as employees or independent contractors. According to the Verge, the court determined that Uber’s arbitration clause prohibits drivers from engaging in class actions, so it had no choice but to reverse a lower court’s class certification order:
A group of job seekers, backed by the Communications Workers of America and the American Civil Liberties Union, filed charges with the Equal Employment Opportunity Commission on Tuesday against Facebook and nine employers who they say used the social media site’s demographic targeting features to discriminate against female candidates in job ads, the New York Times reports:
The employers appear to have used Facebook’s targeting technology to exclude women from the users who received their advertisements, which highlighted openings for jobs like truck driver and window installer. The charges were filed on behalf of any women who searched for a job on Facebook during roughly the past year. …
The lawyers involved in the case said they discovered the targeting by supervising a group of workers who performed job searches through their Facebook accounts and clicked on a variety of employment ads. For each ad, the job seekers opened a standard Facebook disclosure explaining why they received it. The disclosure for the problematic ads said the users received them because they were men, often between a certain age and in a certain location.
A recent court ruling has added to the small but growing pile of jurisprudence at the intersection of marijuana legalization and labor law. In a decision handed down on September 5, a federal court in Connecticut found that Bride Brook, a federal contractor, had run afoul of that state’s Connecticut Palliative Use of Marijuana Act (PUMA) by rescinding a job offer to Katelin Noffsinger, a medical marijuana user, after she tested positive on a pre-employment drug test. The court granted summary judgment to Noffsinger but declined to award her attorney fees or punitive damages, Jackson Lewis attorney Kathryn J. Russo explains:
Bride Brook argued that its refusal to hire Noffsinger is allowed by an exception to PUMA’s anti-discrimination provision (when “required by federal law or required to obtain federal funding”). It argued that the federal Drug-Free Workplace Act (DFWA) barred it from hiring Noffsinger because that law prohibits federal contractors from allowing employees to use illegal drugs. Marijuana is illegal under federal law. The court rejected Bride Brook’s argument, noting that the DFWA does not require drug testing and does not regulate employees who use illegal drugs outside of work while off-duty. …
Bride Brook also argued that it did not violate PUMA because it did not discriminate against Noffsinger based on her status as a medical marijuana user; rather, it had relied on the positive drug test result. The court dismissed this argument, concluding that acceptance would render a medical marijuana user’s protection under the statute a nullity.
While possession and sale of the drug remain illegal under federal law, as more states relax their prohibitions on either medical or recreational marijuana, this has created legal conundrums for employers, who must rethink their zero-tolerance drug policies lest they end up in the same situation as Bride Brook.
In April, the Ninth US Circuit Court of Appeals ruled in an en banc rehearing of a case decided by a three-judge panel last year that differences in past salaries don’t justify disparities in pay between male and female employees in the same role. The unanimous ruling, authored by the late Judge Stephen Reinhardt, concluded that even though the Fresno, California, school district’s pay structure was not discriminatory in intent, it perpetuated gender-based wage disparities in a manner “contrary to the text and history of the Equal Pay Act.”
Because pay gender disparities in pay may have arisen from sex discrimination, the court reasoned, a system that allows these gaps to persist throughout an employee’s career effectively functions to “perpetuate rather than eliminate the pervasive discrimination at which the Act was aimed.” The Ninth Circuit’s judgment is in keeping with a trend that has been building up over the past few years in which employers are feeling greater pressure to stop basing pay structures on salary history, due to the potential for perpetuating unfair pay gaps. Appeals courts have divided on the question, however, with the 10th and 11th Circuits also finding that salary history-based pay systems are not exempt from Equal Pay Act claims, while the Seventh and Eighth Circuits have disagreed.
A circuit court split is often a prelude to Supreme Court review of a legal question. The Fresno school district had planned to appeal the Ninth Circuit’s ruling to the highest court, but had suspended that process while it attempted to reach a settlement with the plaintiff, Aileen Rizo. Now, however, the settlement talks have broken down and the district is preparing to petition the Supreme Court for review next month, Erin Mulvaney reports at the National Law Journal. That doesn’t mean the court will take the case, Mulvaney notes, but “any petition would likely fuel friend-of-the-court briefs”:
A Texas state appeals court last week temporarily blocked a local ordinance in the capital city of Austin requiring employers to provide paid sick leave from going into effect, the Texas Tribune reported:
[T]he measure quickly drew opposition from local and state leaders, including a lawsuit filed in April by the right-leaning Texas Public Policy Foundation claiming that the city measure violates the Texas Minimum Wage Act. … The ordinance had been set to take effect Oct. 1.
“Without this stay, Austin business owners would be forced to incur significant costs implementing the requirements of the ordinance while its legality was in serious doubt,” said Robert Henneke, general counsel and litigation director for TPPF’s Center for the American Future. Texas Attorney General Ken Paxton, who has lent support to the lawsuit, also praised the news, saying the issue of minimum wage is “entrusted by the Texas Constitution solely to the Texas Legislature.”
Austin’s ordinance, which the city council passed in a 9–2 vote in February, has also faced opposition from Republicans in the state legislature, who promised at the time to pass legislation at the state level that would preempt it. Other states with conservative legislatures have taken similar measures to stop local governments from enacting liberal labor laws in the past year. Indiana banned cities from implementing “ban-the-box” laws, Missouri passed a preemption law to prevent cities like St. Louis from legislating higher minimum wages, and a Florida court found that a minimum wage increase in Miami Beach was preempted by state law.
Over the past week, the US Equal Employment Opportunity Commission has sent a series of signals to US employers that it is focusing its energies on rooting out sexual and other forms of harassment in the American workplace. On Thursday, the agency announced that it had filed seven separate lawsuits against employers throughout the country over allegations of sexual harassment and misconduct, as well as racial harassment and other forms of abuse.
“As the nation has seen over the past nine months, harassment at work can affect individuals for years in their careers and livelihoods,” EEOC Acting Chair Victoria A. Lipnic said in a press release announcing the lawsuits. “There are many consequences that flow from harassment not being addressed in our nation’s workplaces. These suits filed by the EEOC around the country are a reminder that a federal enforcement action by the EEOC is potentially one of those consequences.” About a quarter of the lawsuits filed by the EEOC in recent years has involved an allegation of harassment, Lipnic added, as do one third of the 80,000 to 90,000 discrimination charges the EEOC receives each year.
The EEOC also recognizes that most instances of harassment never come to its attention. Studies show that more than 80 percent of harassment victims never file a formal complaint, the agency noted in its statement, while nearly three quarters never even raise the issue internally within their organizations. To that end, and in light of the heightened public consciousness of sexual harassment brought about by the #MeToo movement, the agency is also looking to promote changes in American workplace culture to make harassment less common and more likely to be addressed when it does occur.
On June 11, the EEOC reconvened its Select Task Force on the Study of Harassment in the Workplace, a panel of experts including academic scholars, legal practitioners, and representatives of advocacy groups and organized labor, which was established in 2015 to study the problem of harassment (including, but not limited to, sexual harassment) and what employers and the agency itself could do to prevent and respond to it. In her opening remarks at last Monday’s meeting, Lipnic, who co-chairs the task force along with Commissioner Chai R. Feldblum, stressed that harassment had been on the EEOC’s radar for some time, but that the government could not solve the problem alone:
UK plumber Gary Smith has won his case against his former employer Pimlico Plumbers in the Supreme Court, which rejected the company’s contention that Smith had been self-employed and upheld his claim to basic workers’ rights like paid leave, Jo Faragher reports at Personnel Today:
Smith’s case against Pimlico Plumbers, which has been running since 2011, is the latest in a long line of legal challenges on employment status, and “is in line with a number of recent decisions relating to gig economy workers”, according to Jeremy Coy, an associate in the employment team at law firm Russell-Cooke.
He said: “The judgment of the UK’s highest court underlines the point that simply labelling workers ‘self-employed’ does not guarantee the corresponding legal status. The nature of the relationship and the degree of bargaining power and obligation between the parties is crucial in determining workers’ rights.”
Smith had prevailed in the Court of Appeal last year, but Pimlico challenged that ruling in the high court, which took up the case in February. The company considered Smith a self-employed independent contractor, and he was described as such in his agreement with Pimlico and in his tax filings. Smith did not claim to be an “employee” of the company, but rather a “worker”—a designation specific to UK law that falls between “employee” and “contractor” and entitles an individual to certain rights like a minimum wage and paid annual leave. The Court of Appeal had ruled in Smith’s favor largely on the basis that his contract with Pimlico required him to provide his services personally, such that he could not re-subcontract the work out to someone else.
In ruling for Smith, however, the Supreme Court stressed that its decision rested on the unique facts of the case and did not establish any new legal guidelines for employers to follow in determining whether they could safely classify workers as self-employed, much to the dismay of UK employers and their attorneys: