While the U.S. Supreme Court’s landmark ruling that federal civil rights law protects LGBTQ employees resolved a closely watched question that had been brewing for years, the justices also devoted time this term to workplace law issues like religious employers’ rights and causation standards in civil rights cases.
The LGBTQ rights decision, known as Bostock, was in fact three consolidated cases, two of which involved gay workers and one that centered around a transgender funeral director, all of whom alleged they were illegally fired by their respective employers.
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Here, Law360 looks at five of the high court’s most notable employment decisions this term.
Bostock v. Clayton County, Georgia
The big-ticket item on the high court’s employment law docket during its 2019 term resolved an issue that split federal circuit courts in recent years — whether the part of Title VII of the Civil Rights Act that bans employers from discriminating against workers based on sex encompasses bias based on either sexual orientation or gender identity.
In a 6-3 ruling written by Justice Neil Gorsuch, the high court held that it does, extending the landmark civil rights law’s reach to workers who are lesbian, gay, bisexual or transgender.
Christine Webber, a partner in plaintiffs-side firm Cohen Milstein Sellers & Toll PLLC’s Civil Rights & Employment practice group, said the impact of Bostock is “huge” since “only a few states around the country had adopted state prohibitions of employment discrimination” based on sexual orientation or transgender status.
“So, it’s great to have that protection nationwide and not just state to state,” she said.
Webber said the decision will be felt in employment discrimination cases “across the board,” not just those that deal with sex-based bias, because of the “clarity it brings to the ‘but-for’ standard.”
That causation rule requires plaintiffs to show that allegedly unlawful actions wouldn’t have occurred absent an improper motive on the employer’s part in order for their suits to pass legal muster.
While the high court has addressed the standard numerous times before — including in several other cases this term — Webber said it “often tends to get muddied in the district courts.” But the justices’ articulation of the standard in Bostock “is going to be very important in acknowledging that being the but-for cause does not mean being the only cause.”
“Events often have multiple but-for causes … and the defendant cannot avoid liability just by citing some other factor that contributed to its employment decision as long as one of the but-for factors was sex or any other prohibited basis of discrimination. Then that permits plaintiffs to establish their claim,” Webber said, while adding that the high court’s opinion is “fundamentally interpreting what Title VII requires and that’s going to be true for every basis in which Title VII applies.”
The case is Gerald Lynn Bostock, Petitioner v. Clayton County, Georgia, case number 17–1618, in the Supreme Court of the United States.
Comcast Corp. v. National Association of African American-Owned Media et al.
The issue of but-for causation also came up in a case involving Comcast Corp., with the justices ruling in March that the standard should apply to race discrimination claims brought under Section 1981 of the Civil Rights Act of 1866.
That statute was passed in the wake of the Civil War to prohibit discrimination in the context of contracts. Courts have read it to bar race discrimination in a handful of contexts, including employment and business-to-business contracting.
In a largely unanimous decision — Justice Ruth Bader Ginsburg concurred in the judgment with a caveat — the justices said accusers now must prove discrimination was the defining factor in a contracting decision, not that it played “some role,” as the Ninth Circuit had held in a 2018 decision that cleared a $20 billion race discrimination suit by a Black-owned production studio against Comcast over the latter’s refusal to carry the studio’s channels. The suit settled last month shortly after the high court remanded the case.
“I think virtually all courts that had been applying Section 1981 had applied it with a but-for causation standard,” Webber said. “So … the Supreme Court’s decision doesn’t represent any real change in the law. And I think any concerns that by establishing a but-for standard that it was establishing too high a standard or too unclear a standard should be ameliorated by the court’s language in Bostock articulating exactly what that but-for standard means.”
The case is Comcast Corporation, Petitioner v. National Association of African American-Owned Media et al., case number 18-1171, in the Supreme Court of the United States.
Babb v. Wilkie
Although in a slightly different context, the justices in April also tackled but-for causation when they analyzed a provision in the Age Discrimination in Employment Act that applies to federal workers, saying they need only show that age bias crept into adverse employment actions to successfully prove a claim in court.
In reaching that conclusion, the justices by an 8-1 vote eschewed a standard that calls for federal workers to show that age was the but-for cause of an employment action that is alleged to be discriminatory, as the Eleventh Circuit had ruled when it dismissed a retaliation claim lodged against the U.S. Department of Veterans Affairs by clinical pharmacist Noris Babb.
The ruling interpreted Section 633a(a), which applies to federal sector employees and states that employment actions affecting workers at federal agencies “shall be made free from any discrimination based on age.”
The Eleventh Circuit had revived Babb’s gender discrimination claim under Title VII in 2018, but reluctantly affirmed the dismissal of her age bias claims.
Webber, the plaintiffs attorney from Cohen Milstein, noted that Babb was different than the Bostock or Comcast cases since the statutory language it interpreted was different than the laws in those other matters.
However, Webber noted that the Supreme Court in its decision said that but-for causation does come into play when determining the remedies that plaintiffs in those cases can recover for unlawful behavior, which she says brings Bostock‘s analysis of but-for causation once again into play.
“I think that Bostock‘s really going to have an impact in not only all of Title VII cases but in other employment discrimination cases that incorporate that but-for causation discussion,” Webber said.
The case is Noris Babb, Petitioner v. Robert Wilkie, Secretary of Veterans Affairs, case number 18-882, in the Supreme Court of the United States.
Credit Suisse Group AG (CSGN.S) agreed to pay $15.5 million to settle a lawsuit accusing it of defrauding shareholders about its risk appetite and management before taking $1 billion of write-downs on souring debt, court filings on Friday show.
The preliminary settlement of the proposed class action by holders of the Swiss bank’s American depositary receipts from March 2015 to February 2016 requires approval by U.S. District Judge Lorna Schofield in Manhattan federal court.
Investors led by four pension and retirement plans in New York, Illinois and Alabama claimed they lost money after the bank misled them by touting its “comprehensive” risk controls and “binding” limits on its exposure to risky and illiquid debt.
Credit Suisse took two write-downs in early 2016 on $4.3 billion of collateralized loan obligations and distressed debt, contributing to its first full-year loss since the 2008 global financial crisis.
Across the country, drug and alcohol recovery programs claiming to help the poor and the desperate are instead conscripting them into forms of indentured servitude, requiring them to work without pay or for pennies on the dollar, in exchange for their stay.
Some work at rehab-run businesses, such as thrift stores or car washes. Others work at outside enterprises, including small businesses, temp agencies and some of the largest, most profitable corporations in the country. Rehab participants have worked at Williams Sonoma, Shell, Walmart and Tyson Foods.
They have manufactured supplies used in the coronavirus pandemic, staffed hospitals, maintained oil refineries, made lawnmowers, roasted coffee, detailed cars and sorted clothing donations.
Many of the programs claim the work is treatment, often calling it “work therapy.” Labor experts call it illegal.
“I don’t think there’s any real ambiguity about what the law requires,” said D. Michael Hancock, former assistant administrator for the U.S. Department of Labor’s Wage and Hour Division. “There’s nothing therapeutic about not paying workers.”
For the first time, Reveal from The Center for Investigative Reporting has determined how widespread these programs have become, identifying at least 300 rehab facilities in 44 states that have required participants to work without pay. In recent years, at least 60,000 people a year attended such rehab programs, Reveal found.
To identify these rehabs, Reveal contacted several hundred programs with survey questions, interviewed hundreds of current and former employees and participants, and reviewed thousands of pages of tax records, financial documents, and wage and injury reports.
The programs provide shared room and board. Some offer basic rehab services, such as drug counseling, classes and recreational activities; others, only church services and Bible study. While participants put in 20 to 80 hours per week of often-backbreaking labor, the payment for their work goes to their rehab operators. A few facilities offer participants a token amount of their pay in return or a small allowance; others offer nothing at all.
Yet the U.S. Department of Labor, tasked with enforcing the country’s labor laws, has failed to rein in these labor abuses. Rehab regulation is left to the states, and few states require these programs to obtain a license or report information. Less than 1 out of 5 programs Reveal identified were licensed.
In this oversight vacuum, the programs have multiplied, spurred by staggering addiction rates, a growing demand for alternatives to prison and a shortage of treatment facilities.
Law360 has named Emmy Levens, a partner in the firm’s Antitrust practice group a “Rising Star” in the Class Action category.
The annual list recognizes lawyers under the age of 40 whose professional accomplishments transcend their age. See the list of Law360’s 2020 “Rising Stars.”
GenX study shows contamination in 80% of wells tested; mice studies show liver damage from Nafion Byproduct 2
Raw water supplies for at least 150 public utilities in North Carolina contained some level of toxic PFAS, underscoring the call of many scientists this week to regulate the thousands of perfluorinated compounds as a class.
Some of those raw water samples contained GenX and Nafion Byproduct 2, which new findings published this month show the detrimental health effects of these compounds on mice. Other studies have suggested similar effects on humans.
Samples of raw water — which has not yet been treated at the plant — were collected by scientists with the NC PFAST Testing Network from April through November 2019. The NC PFAST Testing Network is composed of scientists from seven universities working under the auspices of the NC Policy Collaboratory, which is funded by the state legislature and grants.
The sampling sites were chosen in consultation with the NC Department of Environmental Quality. The full dataset was released this month.
- Researchers looked for 15 to 47 types of PFAS compounds in raw water supplies, either from wells or surface water, depending on the utility.
- Of the 320 public utilities whose raw water supply was tested, nearly half had a sample that contained PFAS concentrations above the reporting detection level. (See chart below.)
- When broken down by the number of samples, of the 405 collected — 44%, or 178 — had at least one type of PFAS compound above the reporting detection level.
Because of a lack of federal regulations, there are a wide range of goals and thresholds for these compounds in drinking water — none of them enforceable. The state health department has set an provisional goal of 140 ppt for GenX. The EPA has set a recommended threshold of 70 ppt for PFOA and PFOS combined. And NC DEQ has stated that no one should drink water with levels of any individual PFAS above 10 ppt.
Cohen Milstein is Interim Co-Lead Counsel in this consolidated environmental toxic tort class action against E.I. DuPont de Nemours Company, and its former wholly-owned subsidiary, The Chemours Company.
Cohen Milstein’s team is led by Theodore J. Leopold, and includes S. Douglas Bunch, Jamie Bowers and Alison Deich.
A new lawsuit in the Michigan Court of Claims places the blame for damages done to homes and businesses during the May 19 flooding on state agencies.
The lawsuit, filed on June 25, alleges the state agencies Michigan Department of Environment, Great Lakes, and Energy (EGLE) and Michigan Department of Natural Resources (MDNR) “caused the catastrophic failures” of the dams through negligence.
“The failure of these dams was not the result of happenstance,” the lawsuit states. “It was the predictable result of defendants’ mismanagement over the course of years.”
The suit’s 15 plaintiffs are identified in the 56-page lawsuit as residential and commercial property owners who reside near the Edenville and Sanford Dams. EGLE and MDNR are the listed defendants.
…
“This is an important step towards securing justice for the Midland community, which has been so dramatically harmed by the collapse of the Edenville and Sanford dams,” Theodore Leopold, one of three attorneys for the plaintiffs, stated in a press release. “Years of negligence caused our clients and so many others to lose their homes and businesses, and we look forward to helping them achieve a full measure of justice.”
Leopold, a partner at the Chicago-based Cohen Milstein Sellers & Toll and co-chair of the firm’s Complex Tort Litigation and Consumer Protection practice groups, is joined by attorneys Paul Stephan and Michael Pitt.
Two companies that facilitate collect calls made from U.S. jails and prisons and a mobile marketing company were hit with a class action Monday in Maryland federal court for allegedly colluding to inflate the cost of inmate calls for a decade.
Securus Technologies LLC, Global Tel*Link Corp. and 3Cinteractive Corp. were accused of working together to maintain the “astronomical” costs of inmate calls by Ashley Albert, Ashley Baxter, Karina Jakeway and Melinda Jabbie, who are family members of prisoners that had to pay the allegedly high call costs.
“Securus and GTL were able to charge these excessive [call] prices by agreeing to eliminate competition between themselves and to fix the same inflated single call prices to consumers in violation of the federal antitrust laws,” the lawsuit read.
Securus allegedly unveiled flat-rate prices for calls in 2010 that served as an alternative to per-minute rates. The company charged the recipient $14.99 for a call lasting up to 15 minutes and $9.99 for a call lasting up to 10 minutes. Securus contracted 3CI to develop, market, implement and operate the single-call programs.
Soon after Securus launched its single-call programs, the lawsuit claimed, GTL began to develop its own single-call programs and planned to charge less than Securus. However, Securus allegedly nipped the competition in the bud when it obtained a 3CI patent covering technology used to charge recipients for single calls in late 2012.
With the patent purchase, 3CI allegedly could not provide services involving the patent’s technology to GTL without Securus’ permission and approval of the contract terms.
Securus and 3CI allegedly agreed that 3CI would approach GTL and ask it to enter into a contract with it. The contract would make GTL offer its single-call programs at the same price as Securus’ while it used 3CI for marketing and implementation services.
According to the lawsuit, 3CI approached GTL in early 2013 with the contract offer and GTL eventually agreed. The agreement outlined two GTL services that would be offered through 3CI: a $14.99 flat-rate for a 15-minute call and a $9.99 fee for a 10-minute call.
To justify the high costs of the calls, Securus and GTL allegedly told consumers and state and local governments that much of the call costs went to transaction fees paid to 3CI to implement the calls. But the lawsuit claimed less than half of the call costs actually went to 3CI, and the two companies secretly pocketed the difference.
The lawsuit accuses Securus, GTL and 3CI of engaging in a conspiracy to fix prices, violating the Racketeer Influenced and Corrupt Organizations Act and engaging in a conspiracy to violate the RICO Act.
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The family members of prisoners and the proposed class are represented by Matthew K. Handley, Rachel E. Nadas, George F. Farah, Rebecca P. Chang and William A. Anderson of Handley Farah & Anderson PLLC; Benjamin D. Brown, Brent W. Johnson, Robert A. Braun and Christopher J. Bateman of Cohen Milstein Sellers & Toll PLLC; Benjamin D. Elga, Kelly Jo Popkin, Brian J. Shearer and Craig L. Briskin of Justice Catalyst Law Inc.; Daniel Marshall of the Human Rights Defense Center; and Hannah E.M. Lieberman of the Washington Lawyers’ Committee For Civil Rights And Urban Affairs.
For Immediate Release
Partnership from Flint Water Crisis Legal Team
Extended to Help More Michiganders
The Pitt Legal Team announces the addition of Cohen Milstein Sellers & Toll, PLLC, to the Edenville Dam legal team. The newly expanded team seeks to represent neighbors who suffered catastrophic damage to their lives and property after avoidable dam failures in Edenville, Sanford, Midland, and surrounding areas.
The Pitt Legal Team previously worked with Cohen Milstein on the Flint Water Crisis Class Action suit pending against the State of Michigan. Members of the Pitt Legal Team on-the-ground include Megan Bonanni, Bob Palmer, Kevin Carlson, & Beth Rivers.
Pitt, McGeehee, Palmer & Rivers, P.C., lead attorney Michael Pitt was appointed by the Federal Court as the Co-lead attorney in the Flint Water Crisis litigation along with Cohen Milstein Sellers & Toll, PLLC, attorney, Theodore Leopold.
Ted Leopold said, “With the successes we’ve had pursuing justice in Flint, we are pleased to once again be partnering with Pitt Law. These circumstances are never ideal for anyone involved. But justice must be sought, and we are here to help.”
Leslie M. Kroeger, partner, and Paul Stephan, associate, from Cohen Milstein also join the team. Ms. Kroeger focuses on complex, high-profile product liability, wrongful death, and managed care abuse litigation. Mr. Stephan focuses on litigating class actions on behalf of consumers who have been misled, deceived or harmed by large corporations.
Stern Law, PLLC attorney, Kenneth Stern is an experienced trial attorney also representing Flint victims as part of the Pitt Law Team and has litigated cases across the country against the largest corporations, and state governments.
These knowledgeable and experienced Michigan environmental attorneys who have worked since 2016 to pursue justice for the People of Flint.
“We believe the victims of the Edenville Dam Disaster deserve to be represented by professional, trained attorneys. The addition of Cohen Milstein represents an even stronger team to recover monetary damages from the State of Michigan Department of Environment, Great Lakes and Energy (EGLE) for individual clients,” said Michael Pitt.
The Pitt Legal Team has filed a lawsuit against (EGLE) on behalf of Michigan residents who suffered property damage and other losses as a result of the Edenville and Sanford dam disaster. Now they are signing up individual claimants.
The Michigan Constitution provides a unique avenue to sue the State of Michigan for damages or destruction to your property. Because the State’s deplorable conduct led to this disaster, it must be held accountable.
The Pitt Law Team wants to help our neighbors recover the compensation they deserve.
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FOR IMMEDIATE RELEASE
WASHINGTON, D.C – Today, families of prisoners filed a class action lawsuit against Global Tel*Link Corp. (“GTL”), Securus Technologies, LLC (“Securus”), and 3Cinteractive Corp. (“3CI”) for charging unlawfully inflated prices for collect calls made by incarcerated individuals in jails and prisons throughout the United States. Specifically, the lawsuit alleges that those Defendants secretly fixed inflated prices for calls between prisoners and their family members, friends, attorneys, and others, while also repeatedly lying to local governments and their own customers about the costs of those calls in order to charge the inflated prices.
“We are filing this class action lawsuit to stop these companies from exploiting the vulnerable families of prisoners and to also recover financial damages for those families that have already been overcharged,” said Ashley Baxter, one of the plaintiffs in the lawsuit who paid inflated prices to accept phone calls from her fiancé while he was incarcerated.
During the last ten years, Securus and then GTL, the nation’s two largest providers of inmate calling services, sold a new type of call from prisoners—the “single call.” These “single calls” charged an astronomical price, i.e. $14.99 or $9.99, to accept a one-time collect call from an incarcerated person. The lawsuit alleges that Securus and GTL were able to charge these excessive “single call” prices by secretly agreeing to eliminate competition between them and to fix the same inflated “single call” prices to consumers in violation of the federal antitrust laws.
To justify charging such high prices for “single calls,” GTL and Securus claimed, in communications with both governments and consumers, that most of the prices consisted of “transaction fees” paid to 3CI to implement the calls. The lawsuit alleges that, in reality, Securus and GTL paid 3CI a mere fraction of the supposed “transaction fees” and secretly pocketed the difference, in violation of the Racketeer Influenced and Corrupt Organizations Act.
“This lawsuit alleges that the Defendants engaged in unlawful schemes to maximize their profits at the expense of powerless individuals seeking the most basic communications—talking to their children, their parents, their spouses and their legal counsel,” said George Farah, a partner at Handley Farah & Anderson PLLC.
“Making it more expensive or unaffordable for prisoners and their loved ones to talk over the phone causes widespread social harm,” said Robert Braun, a partner at Cohen Milstein Sellers & Toll PLLC. “When incarcerated parents lack regular contact with their children, those children suffer from higher rates of depression and poor school performance, and the parents are more likely to be arrested again.”
“What makes the conspiracy alleged in this case especially offensive is that the excessive charges were borne by untold numbers of low-income individuals and families who could least afford them,” stated Hannah Lieberman, legal director for the Washington Lawyers’ Committee for Civil Rights and Urban Affairs. “Such crass exploitation of vulnerable persons needs to be publicly exposed and cries out for redress.”
“It’s inhumane to use hidden kickbacks, collusion, and exploitative pricing to profit off of incarcerated people seeking a lifeline to the outside world,” said Brian Shearer, Legal Director of Justice Catalyst Law. “Our complaint alleges Defendants engaged in these dishonest commercial practices that have plagued our criminal justice system for too long.”
“Consumers now turn to the courts to end these abusive practices and receive compensation for the immense losses they have suffered financially,” said Paul Wright, founder and executive director of the Human Rights Defense Center. “Yet, the litigation cannot rectify the damage already done to family ties and relationships as a result of the alleged misconduct.”
The following organizations are representing the plaintiffs in this class action lawsuit: Handley Farah & Anderson PLLC, Cohen Milstein Sellers & Toll PLLC, Justice Catalyst Law, Human Rights Defense Center, and the Washington Lawyers’ Committee for Civil Rights and Urban Affairs.
You can view the complaint here: https://www.washlaw.org/wp-content/uploads/2020/06/1-Filed-Prison-Calls-Complaint.pdf
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ABOUT HANDLEY FARAH & ANDERSON: Handley Farah & Anderson PLLC is a law firm that seeks to improve the world. The firm fights for: victims of antitrust abuses, workers deprived of wages, consumers deceived about products, tenants denied access to housing, investors who were defrauded, persons with disabilities denied access, whistleblowers who uncover fraud, and women and communities of color subject to discrimination. For additional information, please visit https://www.hfajustice.com or call (202) 559-2433.
ABOUT COHEN MILSTEIN SELLERS & TOLL: Cohen Milstein Sellers & Toll PLLC is is a national leader in plaintiff-side class action litigation. As one of the premier law firms in the country handling major complex lawsuits, Cohen Milstein has more than 100 attorneys, Cohen Milstein has offices in Washington, DC; Chicago, IL; New York, NY; Philadelphia, PA; Palm Beach Gardens, FL; and Raleigh, NC. For additional information, please visit https://www.cohenmilstein.com or call (202) 408-4600.
ABOUT THE WASHINGTON LAWYERS’ COMMITTEE: Founded in 1968, The Washington Lawyers’ Committee for Civil Rights and Urban Affairs works to create legal, economic and social equity through litigation, client and public education and public policy advocacy. While we fight discrimination against all people, we recognize the central role that current and historic race discrimination plays in sustaining inequity and recognize the critical importance of identifying, exposing, combatting and dismantling the systems that sustain racial oppression. For more information, please visit https://www.washlaw.org or call (202) 319-1000. Follow us on Twitter at @WashLaw4CR.
ABOUT JUSTICE CATALYST LAW: Justice Catalyst Law is a nonprofit that develops and litigates cases with broad-scale, real-world impact, focusing on the violations that underlie major social and economic injustice. With offices in New York and Washington, D.C., Justice Catalyst Law works nationally to support cases and policy work in the fields of antitrust, consumer law, employment law, and more on behalf of those denied access to justice.
ABOUT HUMAN RIGHTS DEFENSE CENTER: The Human Rights Defense Center, founded in 1990 and based in Lake Worth, Florida, is a non-profit organization dedicated to protecting human rights in U.S. detention facilities. In addition to advocating on behalf prisoners and publishing books and magazines concerning the criminal justice system, Human Rights Defense Center engages in litigation on prisoner rights issues, including wrongful death, public records, class actions and Section 1983 civil rights cases. Human Rights Defense Center has extensive experience with prison phone issues, having launched the Prison Phone Justice Campaign in 2012.
- Washington college professor blames automaker for brain injury.
- Company faces regulatory scrutiny over other safety issues.
Tesla Inc. was sued over a Maryland highway crash last year in which a Model 3’s airbags failed to deploy, leaving a college professor with brain damage.
Elon Musk, the company’s co-founder, has touted the Model 3 as the “safest car ever built” with the lowest risk of injury of any vehicle tested by government regulators. The lawyers who filed the suit said they believe it’s the first case targeting the electric-car maker’s airbags.
“Despite Tesla advertising the Model 3 as the safest car ever made, our lawsuit alleges there are fundamental problems with the safety features of the car,” said attorney Ted Leopold of Cohen Milstein Sellers & Toll, who represents the family that sued. “We look forward to reviewing Tesla’s design, development and testing of this car.”
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Alleged defects in Tesla’s Autopilot system have been blamed in several lawsuits for deaths and injuries and the company has faced scrutiny of the technology by federal safety regulators. Separately, the National Highway Traffic Safety Administration is investigating premature failures of the large central touchscreen and the computer that powers it in Tesla’s Model S sedans.
The Model 3 belonging to the family of Kristian and Jason Edwards was struck by another vehicle in July, causing it slam into a guardrail on the I-95 interstate highway, according to the 27-page complaint. The case couldn’t immediately be verified in electronic records for California Superior Court in Oakland.
None of the car’s airbags deployed and Edwards, a public-health professor at George Washington University in Washington who was wearing her seat belt, suffered major head trauma and other injuries. Her son in the back also was hurt, according to the suit.
The complete article can be viewed here.