While Wittmer does not change the federal law protecting LGBTQ people, it stands as an outlier among many recent decisions that have found that discriminating against them in the workplace is “because of sex.” The Fifth Circuit covers Louisiana, Mississippi, and Texas, all states that lack statewide protections for LGBTQ workers, and LGBTQ people in the South face higher rates of prejudice and intolerance than other parts of the country. Wittmer makes the conflict among the states and federal circuits even stronger, where LGBTQ workers can be protected in one part of our country but not in another.
Along with Disability Rights Advocates and the Disability Rights Education and Defense Fund, the Impact Fund has written an amicus brief urging the California Supreme Court to recognize that turning users away through discriminatory terms of service or other actions is illegal discrimination, and that users who are deterred by discriminatory terms should be able to bring legal claims in court.
Class actions involve decisions on strategy at every turn. The positions of the parties are constantly changing and counsel must always be looking ahead and, at the same time, carefully watching their flank. This book helps all practitioners and parties identify, analyze and answer key strategy questions. Ever evolving class action tactics, case law and rule make this insightful practice guide a must read for lawyers, judges, advocates and decision makers at every level.
Class and collective action empowers those that share the same experiences and injuries to stand together and assert their rights as a group, and they are critical to achieving widespread, systemic change. Class action waivers in mandatory arbitration agreements can erase all of these benefits, requiring employees to pursue their claims through individual arbitration.
But a series of Supreme Court decisions since the early 1980’s has largely sanctioned and accelerated the propagation of forced arbitration, including agreements that prohibit class litigation.
The amendments to the to the federal class action rule were set to take effect December 1, 2018 subject to Congressional action – rejection, modification, or deferment. That deadline passed without the legislature’s response. As a result, these proposed are now in effect, marking the first substantive update to Rule 23 in fifteen years.
Our twenty-five years of litigating civil rights cases, training plaintiffs’ attorneys in complex and impact litigation, and supporting innovative social justice cases have given us a unique understanding of what it will entail to enforce the laws protecting LGBTQ people. That’s why we are launching Impact LGBTQ.
The heightened and burdensome standard for ascertainability articulated by Sotelo and applied in Noel v. Thrifty Payless, Inc. will prevent meritorious employment class actions and undermine workers’ rights. This result is at odds with California’s strong public policies favoring the class mechanism and the robust enforcement of workers’ rights.
Our brief highlights the role afforded to courts to intervene and address the conduct of counsel and parties in litigation. This historical role is especially important in litigation connected to the workplace, where the power imbalance between employers and employees presents unique threats to the rights of employees in the form of coercion and retaliation.
Epic Systems expanded Concepcion, concluding that federal labor law does not block arbitration class waivers, rendering them permissible in the employment context, too. Justice Ruth Bader Ginsburg noted that this additional barrier will lead to the under-enforcement of employment law stemming from this restriction on collective power, as has already happened in the consumer context.
EerieAnna (27) and Carol (42) have identified as female since they were young children, and they have both undergone hormone therapy, psychological care, and the legal processes to change their names and genders. When they tried to undertake sex reassignment surgery, however, their health insurance carriers, managed by Iowa’s state Medicaid program, denied them coverage
Sworn statements explained how women at Microsoft are undervalued in comparison to men, are denied opportunities that men receive, are left out of important meetings, and work in a sexualized environment in which male employees stare at women’s breasts, grope them, and comment on their bodies and clothes. One woman explained the pressure that she and other women feel to “hit the sweet spot between being perceived as ‘too timid’ or ‘overly passionate’ and ‘too harsh’ in Microsoft’s male-dominated culture.” Her male manager lowered performance ratings for her and the team of women she supervised because he believed they did not “smile enough.”
Standing is like a light switch; a plaintiff has either alleged an identifiable injury or not. The concept of Article III standing is used by the courts to distinguish between a dispute that is properly before the court, rather than an abstract interest intended to be addressed by the legislature. Given this, the Supreme Court and the Ninth Circuit have consistently held that a minimal injury is sufficient to confer standing and have never weighed one’s injury relative to their resources.
The Court’s decision, in our opinion, is a grave departure from the goals of efficiency and economy inherent to class actions. Requiring plaintiffs to preemptively file multiple actions unnecessarily burdens the judiciary and clogs the system with duplicative cases. The Court’s decision also is at odds with what we regard as the reality of modern class actions in that many do not have a final decision on class certification within two or four years, for reasons outside the named plaintiff’s control. Necessary discovery, taxed courts, appeals, and recalcitrant defendants all slow the process and often prevent the parties from obtaining a final ruling on class certification within the first few years. In addition, orders denying class certification may identify remediable issues that can be addressed only by filing a new action. This week’s ruling prohibits plaintiffs who initially timely filed their case from filing those new actions if the court’s class certification order arrives outside the original statute of limitations.
Employers have consistently taken the position that challenges to employment processes that involve some element of subjectivity – and most do – cannot be brought on a class basis after Dukes. According to the logic of this argument, only non-discretionary evaluation measures, such as standardized tests or physical fitness tests, will satisfy commonality under Rule 23(a). Fortunately, a recent opinion from the Southern District of New York joins the growing list of decisions rejecting this extreme position.
The Ninth Circuit recently ruled that evidence offered in support of class certification need not meet standards for admissibility at trial. In a published opinion, Sali v. Corona Regional Medical Center, No 15-56460 (9th Cir. May 3, 2018), the panel reversed and remanded the district court’s determination that plaintiffs failed to satisfy typicality, adequacy, and predominance.
As explained in the amicus brief, that decision was an unwarranted departure from well-established precedent that differences between state consumer protection laws do not defeat predominance of common questions as to the defendant’s uniform misconduct. This precedent has facilitated nationwide class action settlements both within the Ninth Circuit and sister circuits for years. As the Impact Fund and their fellow amici explained, “Litigation is costly and time-consuming for plaintiffs, defendants, and the court system alike,” which has led to a “strong judicial policy” in favor of settlements. Contravening this policy, the divided majority panel “added requirements and shifted burdens” that would unfortunately operate to prevent settlement of nationwide claims.
On November 29, 2017, a representative action was filed in the U.K. alleging that Google was tracking activity of Apple Safari users without their knowledge or consent. They were then aggregating this data and selling the information to advertisers for a substantial profit. This conduct is alleged to violate the Data Protection Act of 1998. The claimants are looking for damages for the infringement of their data protection rights, and for the commission of the wrong and loss of control over personal data.
A fair workplace, free from discrimination, is an American ideal. Many of our nations F500 companies reflect this value in their forward-facing materials and practices, but sadly, at the contractual level with workers, the promise of an even playing field gets tilted…
That’s why, on August 17, 2017, together with NAACP Legal Defense & Educational Fund and Cohen Milstein Sellers & Toll PLLC, we filed an amicus brief in the U.S. Supreme Court in National Labor Relations Board v. Murphy Oil USA.
Last month, Lambda Legal and Transgender Law Center appealed the Secretary’s denial of the petition to the Federal Circuit, arguing in part that the denial of coverage for sex reassignment surgeries is sex discrimination that violates the Equal Protection Clause of the Fifth Amendment. We agree. Standing in solidarity, we have authored an amicus brief.