Orientation Bias, FMLA Retaliation Waiting in Wings for Justices

Bloomberg BNA Jay-Anne B. Casuga
September 25, 2017

The U.S. Supreme Court has a relatively light labor and employment docket so far this year, but attorneys tell Bloomberg BNA there are a number of petitions that the justices could end up considering.

There are plenty of interesting issues waiting in the wings, ” said Collin O’Connor Udell, of Counsel at Jackson Lewis in Hartford, Conn. Udell’s practice focuses on Supreme Court litigation.

More than five dozen labor and employment petitions are pending before the high court, according to Bloomberg Law’s Supreme Court Today Navigator

It’s difficult to predict which cases the justices will decide to review. It may be easier to identify issues the justices are most likely to hear at some point, if not necessarily in this term, but in future terms, attorneys said.

Those issues include debates over whether federal civil rights law prohibits discrimination based on sexual orientation or gender identity, and the proper standard for analyzing retaliation claims under a federal medical leave law.

Sexual Orientation Bias Under Title VII

There’s a mature split ” among federal appeals courts on whether Title VII of the 1964 Civil Rights Act’s prohibition against workplace sex discrimination encompasses sexual orientation bias, Paul W. Mollica, a plaintiff’s side attorney with Outten & Golden in Chicago, told Bloomberg BNA. Mollica has written numerous friend-of-the-court briefs before the high court in employment cases.

The Supreme Court could take up the issue in Evans v. Georgia Regional Hospital(No. 17-370), in which the U.S. Court of Appeals for the Eleventh Circuit held that Title VII doesn’t expressly protect lesbian, gay, or bisexual workers.

The issue is never going to be more ready, ” Mollica said.

But it’s unclear whether the justices will decide to review the issue in Evans or wait for the full Second Circuit to decide the same issue in Zarda v. Altitude Express, Inc.

In Zarda, the Equal Employment Opportunity Commission and the Trump administration’s Justice Department filed opposing friend-of-the-court briefs. The EEOC has taken the position that Title VII prohibits sexual orientation discrimination, putting it at odds with the DOJ.

Competing interpretations of a workplace law between two agencies in the federal government is also at issue in a trio of cases currently before the justices. In those cases, the DOJ and the National Labor Relations Board are on opposing sides over whether class action waivers in arbitration agreements are unenforceable under federal labor law.

Causation Standard for FMLA Retaliation Claims

Another open question the justices might consider focuses on what standard of proof applies to employees who allege that their request or use of leave under the Family and Medical Leave Act caused them to be disciplined or fired.

The issue of what causation standard applies in FMLA retaliation claims has been percolating and floating around, ” Professor Michael Foreman, director of the Civil Rights Appellate Clinic at Penn State Law, told Bloomberg BNA.

It appears in Bartels v. 402 E. Broughton Street, Inc.(No. 17-208).

The Labor Department has taken the stance that a motivating factor ” standard should apply for establishing causation. Employees would have to show that FMLA retaliation was among the reasons that motivated an adverse employment action, even if an employer has put forth other, legitimate reasons to explain why it disciplined or fired a worker.

But some courts have said a more difficult but for ” standard should apply. It would require employees in FMLA cases to show that an employer wouldn’t have retaliated at all if not for their request or use of leave.

The but-for standard has been adopted by the Supreme Court in retaliation cases under Title VII and the Age Discrimination in Employment Act, said Rae T. Vann, a partner with NT Lakis in Washington, which represents employers. Vann is also general counsel of the Center for Workplace Compliance. The employers’ association, formerly known as the Equal Employment Advisory Council, has filed friend-of-the-court briefs in more than 100 employment cases that have gone before the high court in the past two decades.

Given the court’s rationale in other retaliation cases, the same but-for standard should also apply to the FMLA, Vann said.

There’s a chance, however, that the justices might pass on reviewing Bartels, Foreman said. That’s because the causation issue was raised for the first time on appeal, and the Eleventh Circuit declined to decide whether to apply a motivating factor standard. It’s also an unsigned non-precedential opinion.

Other Petitions to Watch, Lawyers Say

Wage & Hour

  • “‰ DirectTV, LLC v. Hall (No. 16-1449): whether a business is liable as a joint employer under the Fair Labor Standards Act of technicians who were hired by an intermediary and claim they weren’t paid overtime. The workers in this case waived their right to file a reply brief, but the justices subsequently requested that they file a response.
  • “‰ Taylor Farms Pacific, Inc. v. Pena (No. 17-395): whether evidence that wouldn’t be admissible at trial can nevertheless be used to support class certification under Rule 23 of the Federal Rules of Civil Procedure in a California wage and hour case.
  • “‰ Opalinski v. Robert Half International, Inc. (No. 16-1456): whether a court or an arbitrator should decide in an FLSA collective action case whether class arbitration is permitted by an agreement that doesn’t expressly refer to class arbitration. The high court previously declined to review an earlier ruling in this case. The employer in this case waived its right to file a reply brief, but the justices subsequently requested that it file a response.


  • “‰ Vaughan v. Anderson Regional Medical Center (No. 16-1386): whether compensatory and punitive damages are available to employees who prevail on ADEA retaliation claims. This case is on the justices’ Sept. 25 conference list.
  • “‰ Clark v. Virginia Department of State Police (No. 16-1043): whether sovereign immunity bars a state employee’s discrimination lawsuit under the Uniformed Services Employment and Reemployment Rights Act against a state police department in state court. The justices have asked the solicitor general to weigh in on the issue.
  • “‰ Wilson v. Department of Navy (No. 16-1400): whether USERRA allows the Merit Systems Protection Board to make inquiries on behalf of, and provide a remedy to, a federal employee who alleged that his security clearance was revoked because of military discrimination. This case is on the justices’ Sept. 25 conference list.

Labor Law

  • “‰ Janus v. State, County, and Municipal Employees, Council 31 (No. 16-1466): whether mandatory fair share ” fees for public sector workers who don’t join a union are constitutional. This case is on the justices’ Sept. 25 conference list.
  • “‰ MasTec Advanced Technologies v. NLRB(No. 16-1370): whether an objective or subjective standard applies under the National Labor Relations Act for firing an employee for disloyalty. This case is on the justices’ Sept. 25 conference list.