By: Matthew Gagnon, Steve Shardonofsky, Jim Swartz, and Coby Turner

The COVID-19 pandemic has spawned a wave of employment litigation directly and indirectly based on COVID-19-related health risks and employers’ response to the crisis.  Seyfarth has been tracking lawsuits filed in state and federal courts across the country, and will be reporting on the emerging trends within this wave of COVID-19 employment litigation and offering practical strategies for avoiding and responding to these lawsuits.  This legal update provides our initial impressions from our data collection and analysis.

1.    Types of Lawsuits

In both state and federal courts, employees have advanced a wide variety of claims in response to COVID-19’s effect on their workplaces. Given the unprecedented nature and breadth of the pandemic and corresponding economic repercussions, the claims cover a rather broad range of topics, but those advanced so far tend to fall into one or more of several categories:

  • Failure to provide a safe working environment. These claims have been asserted as negligence claims, violations of state or federal workplace safety laws and COVID-19 safety protocols, and even wrongful death claims.  Common allegations include failure to provide workers with adequate personal protective equipment and failure to implement customer or visitor policies (such as required temperature checks or masks) to protect employees.
  • Discrimination claims. Age and disability discrimination claims dominate COVID-19-related filings to date.  For instance, a 70-year-old plaintiff in New Jersey state court alleged that he was denied a work-from-home accommodation that he requested due to his medical condition and age, which he asserted presented additional risk of complications from COVID-19. Similar allegations—that a plaintiff was forced out of a job because of his age due to the employer’s concern about exposing an older worker to COVID-19—appear in this early wave of litigation and are arguably supported by the EEOC’s recent FAQ publication.
  • Leave claims. Numerous lawsuits have been filed alleging that employees have been unlawfully denied sick leave or family and medical leave for reasons related to COVID-19 under the Family Medical Leave Act, the Families First Coronavirus Response Act, state and local paid leave laws, and employer sick-leave policies.
  • Retaliation and whistleblower claims. Typically asserted in reference to an employee’s termination, retaliation claims commonly appear in these early COVID-19-related cases. Frequently, these lawsuits assert that an employee was terminated for complaining about workplace safety or working conditions (including complaints about the failure to provide appropriate personal protective equipment or the failure to comply with applicable COVID-19 safety protocols) or for exercising leave rights related to COVID-19. Some of these cases have also been couched in terms of state-law claims for wrongful termination against public policy.
  • Wage-and-hour claims. While the usual litany of wage-and-hour class and collective actions continues seemingly without regard to the pandemic, a number of new filings have involved circumstances directly caused by COVID-19 business impacts. For example, cases disputing compensation practices related to sanitation and hygiene protocols, expanded schedules, and on-call time have been filed in significant numbers across the country. In addition, a number of cases asserting an employer’s failure to pay contractually-agreed commissions or fees have been filed. Other categories of claims are reasonably foreseeable, as well. For example, wage-and-hour claims motivated by changes in working schedules or venues (e.g., work-from-home situations) and state-law-dictated expense reimbursement claims have not yet reached critical numbers, but may become a more fertile area for employee-litigants in the coming months.

2.    Affected Industries

Although no industry has been completely immune to this early wave of litigation, certain business sectors have seen heightened litigation activity as a consequence of the pandemic.  Three stand out due to either the risk of COVID-19 exposure or the typical conditions under which these businesses operate.

First and foremost, the health care sector has been targeted by employees and their unions, patients, and residents.  In the words of the Centers for Disease Control, “[g]iven their congregate nature and resident population served (e.g., older adults often with underlying chronic medical conditions), nursing home populations are at high risk of being affected by respiratory pathogens like COVID-19 . . . .”  Pharmacies and other healthcare businesses also experience the confluence of being an essential business and frequent exposure to potential COVID-19 patients.  Perhaps predictably, nursing homes, other residential or in-patient medical facilities, and other healthcare businesses are starting to see a wave of claims alleging failure to provide a reasonably safe workplace for healthcare provider staff and other employees.

Similarly, manufacturers have seen a significant share of newly filed COVID-19-related employment cases.   Manufacturing environments often involve close-contact, indoor operations.  Unlike healthcare facilities, manufacturing operations may not have the level of familiarity with personal protective equipment designed to inhibit the transmission of respiratory diseases. Accordingly, employees in these environments have tended to bring more claims related to workplace safety issues and attempts to exercise leave rights.

Finally, retail businesses have seen a variety of COVID-19-related claims.  Many retail businesses were permitted to remain open under state and local shelter-in-place orders and the rest are slowly reopening. Employees of these retailers have brought a panoply of claims related to accommodations needed for existing disabilities, working conditions, and retaliation.

3.    Proactive Steps to Avoid COVID-19 Litigation

While each lawsuit involves a close examination of the applicable law and relevant facts, there are some initial measures employers can take to minimize the risk of being sued and mitigate the potential exposure once a COVID-19-related lawsuit has been filed.

First, businesses should have a return-to-work plan that addresses some of the safety concerns that occupy a central place in this recent spate of lawsuits.  Seyfarth has published a checklist to assist employers with the process of bringing employees back into the workplace in a safe and transparent manner.  This resource covers a number of business re-opening topics, including many of the concerns alleged in recent COVID-19 litigation.  The checklist is available here.  Seyfarth safety, wage-hour, and employment counseling attorneys have also presented numerous webinars discussing a broad range of COVID-19-related compliance issues for the workplace. Those webinars can be viewed here.

Second, employers should prioritize addressing systemic issues that could affect large groups of employees. Employers should make time to create solid policies (and demonstrate its efforts to comply with them) that address and minimize risks and concerns  that could impact different employee populations on a collective basis. Seyfarth has discussed COVID-19-related class action avoidance here.

Third, employers should review existing policies and consider their application in the context of COVID-19.  Accommodation policies, typically used to provide reasonable accommodations for qualified employees with disabilities, may have broader application in light of the pandemic, and employers should consider whether it is feasible and desirable to extend the accommodation process to individuals whose medical conditions place them at higher risk of serious illness if they contract COVID-19.  Similarly, employers should carefully consider whether any of its efforts to promote a safe workplace—even those intended to protect older workers or workers with a medical condition that heightens risk—could have a discriminatory effect on the basis of protected characteristics.  Wage-and-hour policies could also be implicated as workers are asking to and being asked to work in different venues or with different hygiene protocols.  Existing policies likely do not address those situations from a pay perspective, so employers should either issue specific guidance to employees on these issues or contextualize existing policies.  Consulting with subject matter expert attorneys to develop the appropriate approach may help avoid the types of lawsuits now being filed in substantial numbers.

COVID-19 will continue to impact employers around the world in new and unpredictable ways. We will continue to monitor case filings and significant decisions and look forward to sharing our insights and analysis, guidance on best practices, and industry-focused information about COVID-19-related litigation activity.

By Gerald L. Maatman, Jr. and Jennifer A. Riley

Seyfarth Synopsis:  While many businesses hoped that the U.S. Supreme Court would blow up the ban on autodialed calls in the Telephone Consumer Protection Act (“TCPA”), on July 6, 2020, the nation’s highest court issued its long-anticipated decision in Barr v. American Association of Political Consultants, Inc., No. 19-631 (July 6, 2020), and accomplished the opposite.  Although the Supreme Court agreed that an exception allowing government debt-related robocalls was unconstitutional because it favored debt-collection speech, the Supreme Court merely struck down the carve out, effectively broadening the TCPA and reaffirming the law’s importance.

The ruling clears the way for a flood of TCPA-related lawsuits, as members of the plaintiffs’ bar move forward with TCPA-related lawsuits against those who use autodialers to collect debts, such as student loans or mortgages guaranteed by the federal government, and move forward with claims they previously put “on hold” pending the Supreme Court’s decision.  As a result, businesses that communicate with employees and customers via telephone and text message must continue to be cautious of the TCPA’s prohibitions.

Background

In response to consumer complaints, Congress passed the Telephone Consumer Protection Act in 1991 to prohibit, among other things, robocalls to cellular and residential telephone lines.  In 2015, Congress amended the robocall restriction and carved out calls made solely to collect a debt owed to or guaranteed by the United States.

The American Association of Political Consultants, Inc. and other political and non-profit organizations (“Plaintiffs”) filed a declaratory judgment action against the U.S. Attorney General and the FCC (the “Government”), arguing that the government-debt exception to the TCPA violated the First Amendment because it favored debt-collection speech over political and other speech.  Plaintiffs sought to invalidate the entire TCPA (rather than simply invalidate the government-debt exception).

Even though the district court identified the government-debt exception as a content-based restriction on speech, the district court held that the exception survived strict scrutiny because of the Government’s compelling interest in collecting debt.  Id.  On appeal, the U.S. Court of Appeals for the Fourth Circuit vacated the district court’s order.  Id. (citing Am. Ass’n of Political Consultants, Inc. v. FCC, 923 F.3d 159, 167 (4th Cir. 2019)).  The Fourth Circuit agreed that the government-debt exception was a content-based restriction on speech, but it held that the exception failed a strict scrutiny review and severed the exception.  Id. at 5-6.  The Supreme Court subsequently granted certiorari.

The Supreme Court’s Ruling

The Supreme Court affirmed the Fourth Circuit’s ruling.  As an initial matter, the Supreme Court found the TCPA’s robocall restriction, with the government-debt exception, a content-based restriction because it favors speech made for the purpose of collecting government debt over political and other speech.  As the Supreme Court explained, “A robocall that says, ‘Please pay your government debt’ is legal.  A robocall that says, ‘Please donate to our political campaign’ is illegal. That is about as content-based as it gets.”  Id. at 7.  As such, the Supreme Court found it subject to a strict scrutiny review.

The Supreme Court rejected the Government’s arguments to the contrary.  First, it noted that the TCPA does not draw any distinction based on the speaker, rather than the content, and, even if it did, that would not automatically render the distinction content neutral.  Id. at 8.  Second, it noted that the TCPA focuses on whether the caller is speaking about a particular topic and not, as the Government contended, on whether the caller is engaged in a particular economic activity.  Id.

Next, the Supreme Court held that the robocall restriction with the government-debt exception could not satisfy strict scrutiny.  It noted that the Government failed sufficiently to justify the differentiation between government-debt collection speech and other important categories of robocall speech, such as political speech, issue advocacy, commercial advertising, and the like.  Id. at 9.

Having so concluded, the Supreme Court then turned to the question of whether it should invalidate the entire TCPA or whether it could cure the problem by severing the government-debt exception from the remainder of the TCPA.  Because the TCPA was an amendment to the Communications Act, which contains an express severability clause, the Supreme Court concluded that it was required to sever the offending provision.  Id. at 18.

The Supreme Court noted that its “precedents reflect a decisive preference for surgical severance rather than wholesale destruction, even in the absence of a severability clause.”  Id. at 15.  Applying that preference, the Supreme Court explained it would sever the exception from the remainder of the TCPA because the remainder of the law “is capable of functioning independently” and in fact “function[ed] independently . . . 20-plus years before the government-debt exception was added in 2015.”  Id. at 18.

Implications Of The Supreme Court’s Ruling

Although many businesses hoped that the Supreme Court would invalidate the TCPA, the ruling in Barr gives it a boost.

Writing for the majority, Justice Kavanaugh noted that, while “Americans passionately disagree about many things,” they “are largely united in their disdain for robocalls” and he quoted legislative history that described robocalls as the “scourge of modern civilization.”  Id. at 1, 3.

As such, businesses should brace for a renewed flurry of TCPA-related class action lawsuits, as the plaintiffs’ bar moves forward with TCPA-related lawsuits against debt collectors and other businesses previously put “on hold” pending the Supreme Court’s decision, aided by Plaintiff-friendly “gems” from the opinion in Barr.

That said, the Supreme Court’s opinion opens the door to new defenses, including challenges to other portions of the TCPA.  The Supreme Court ruled that Plaintiffs “still may not make political robocalls to cell phones, but their speech is now treated equally with debt-collection speech.”  The TCPA and FCC regulations, however, provide for other exceptions that may be equally problematic and subject to challenge in that they similarly fail to treat speech equally.  Thus, as TCPA litigation gets a boost, the Supreme Court’s decision may provide a roadmap for new angles of attack.

By: Gerald L. Maatman, Jr., Christopher DeGroff, Matthew J. Gagnon, and Alex S. Oxyer

Seyfarth Synopsis:  On July 7, 2020, the EEOC announced in a press release two new six-month pilot programs aimed at increasing voluntary resolutions of discrimination charges. One of the new programs seeks to increase the effectiveness of the conciliation process at the Commission, and the other will create more opportunities to resolve matters through the EEOC’s popular mediation process. The details of the EEOC’s latest programs are a critical “must read” read for all employers dealing with EEOC charges.   

Conciliation Pilot Program

The conciliation process is an informal process at the EEOC that seeks to resolve findings of discrimination by the Commission before litigation. The EEOC’s conciliation pilot program, which reportedly began on May 29, 2020, and was first reported by us here, updates the conciliation process to “drive accountability” and “emphasize the importance of conciliation as a tool for remedying complaints of discrimination.” The Commission’s announcement of the program provides that the pilot reestablishes the commitment for full communication between the EEOC and the parties to a charge of discrimination and, notably, adds a requirement that conciliation offers be approved by the “appropriate level of management” before they are shared with respondents.

This new pilot, which has been underway for several weeks, appears focused on enhancing oversight over the conciliation decisions made by EEOC personnel in the field and materially changes how the agency conciliates discrimination and harassment allegations. However, the pilot has garnered criticism from Senator Patty Murray, Ranking Member of the Senate HELP Committee, and Representative Bobby Scott, Chair of the House Committee on Education and Labor, who wrote to EEOC Chair Janet Dhillon on June 22, 2020, to question the rollout of the program and the moderation of EEOC field personnel discretion in conciliation efforts. (In that letter, the legislators cited our recent blog post on the impact of these changes on employers.)

Mediation “ACT” Pilot Program

The EEOC first implemented an agency-wide mediation program in 1999 and, since its implementation, it has been a popular option for employers to resolve charges of discrimination. However, the mediation program has historically only been available for certain categories of charges at the beginning of the charge process. The EEOC’s new “ACT” Mediation pilot, which stands for “Access, Categories, Time,” now expands the kinds of charges eligible for the mediation process and allows for mediation throughout the entire charge investigation. This program purports to allow parties more opportunities to resolve charges, though the Commission’s announcement does not contain any additional detail on the types of charges that may now be eligible for mediation. For example, large-scale, systemic cases were historically not subject to mediation, but it is unclear if that is still the case.

The EEOC also announced that the pilot will expand the use of technology to hold virtual mediations, presumably to continue this program despite challenges posed by the COVID-19 pandemic.

Implications For Employers

While additional details about these programs have yet to be disclosed, the changes described by the EEOC in its press release are potentially positive developments for employers. The conciliation program requirements that personnel in the field must obtain approval from a higher level of management before making conciliation demands could provide more clarity and assurance on conciliation demands offered to employers, and the mediation program changes may allow for more opportunities for employers to resolve charges throughout the investigation process.

These new measures are the latest in a variety of changes made by EEOC Chair Dhillon and are consistent with the EEOC’s previously-announced strategic priorities to emphasize pre-suit conciliation and mediation. The ongoing changes at the Commission are a must-watch for employers, as they considerably expand the opportunities for pre-litigation resolution of discrimination claims.

By Gerald L. Maatman, Jr. and Jennifer A. Riley

Seyfarth Synopsis:  As employers embark on reopening their businesses and implementing return to work plans, they face a potential wave of workplace class action litigation.  Such lawsuits have begun to roll in and courts have started to weave a patch-work quilt of responses.  Early results show trends beginning to emerge and lessons for employers embroiled in these actions.  In this blog post, we outline items that businesses need to have in their defense arsenals as they start responding to and defending post-COVID-19 class actions. A sound class action survival guide is a business imperative

  1. A Good Sense Of Common Sense:

The COVID-19 pandemic has provided some welcome direction from courts and clarity to litigants to focus on things that matter.  Over the past few months, numerous courts have suggested that litigants should act with a greater sense of awareness and many judges have exhibited a lower tolerance for frivolity and thoughtlessness.  This sense of the bigger picture has come through in not-so-subtle terms in the tenor and substance of many recent rulings.

In one illustrative example, a district judge in Chicago famously rejected a motion for reconsideration of a ruling continuing a TRO hearing noting that, even if the plaintiff were successful in securing an order that directed a slew of third-parties to spring into action to prevent the proliferation of “infringing unicorn” and “knock off elf” images, the order either would be ignored or would distract people who may have “bigger problems” on their hands.  Art Ask Agency v. Individuals, Corporations, Limited Liability Cos., No. 1:20-CV-01666 (N.D. Ill. March 18, 2020).  Similar examples abound from courts throughout the country.

Even as schedules and deadlines ease back into rigidity, employers in class actions are well-served by picking their battles and, when it comes to presenting issues to the court, refining their approach to account for the bigger picture, so as to avoid an inflated sense of urgency, and to jettison needless bickering.

  1. A Solid Understanding Of Class Certification Standards

As the tide of lawsuits alleging personal injury and wrongful death have started to roll in, some employers remain paralyzed by fear that an exposure on their premises could prove crippling to their survival.  Further frustrating any sense of security, courts have begun issuing inconsistent rulings on whether exposure claims are appropriate for class treatment.

In one of the first rulings, on April 10, 2020, a court in the Northern District of Illinois declined to certify a class of state inmates concerned about their risk of COVID-19 infection because it found that each putative class member came with a unique situation and the imperative of individualized determinations rendered the case inappropriate for class treatment.  Money v. Pritzker, No. 1:20-CV-02093 (N.D. Ill. April 10, 2020).

On June 6, 2020, a court in the Southern District of Florida reached a different result.  Focusing on the threat of a heightened risk of severe illness, despite the need for individualized assessment of each detainee’s vulnerabilities to COVID-19, it found the commonality required by Rule 23 because plaintiffs alleged common conduct, including failure to implement adequate precautionary measures and protocols, lack of access to hygiene products, and lack of social distancing.  Gayle v. Meade, No. 20-Civ-21553 (S.D. Fla. June 6, 2020).

Employers defending class cases should come prepared with a solid understanding of certification standards to navigate this growing patchwork of rulings.

  1. An Understanding Of The Various Laws That Shield Employers From Liability

Although Congress has not yet passed any COVID-19 liability shield on the federal level, a growing number of states have taken steps to immunize businesses from lawsuits by employees or customers who contract COVID-19.

A slew of bills await review that would shield businesses in certain states from coronavirus-related lawsuits, including one that would shield Louisiana restaurants from civil liability related to COVID-19, and others that would broadly block employees from bringing complaints in court and limit remedies for on-the-job infections to those available through the workers’ compensation system.

Whereas states such as North Carolina, Oklahoma, Utah, and Wyoming have enacted broad liability protections for businesses related to COVID-19, additional states such as Arizona and Michigan have adopted more limited protections specific to health-care providers.  These laws create a patchwork of protection, with varying scope and conditions, that companies facing broad scale class actions should understand and come prepared to invoke.

  1. A Sense Of Creativity Relative To Applicable Legal Standards

One example of creative thinking on the part of the plaintiffs’ bar lies in the workplace safety arena.  The Occupational Safety & Health Act (“OSHA”) requires that employers provide a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm.”  In the context of COVID-19, OSHA has advised employers to follow guidelines from the CDC, such as sanitizing surfaces and ensuring social distancing.

Whereas federal administrative guidance does not generally give rise to a private cause of action, members of the plaintiffs’ bar have attempted to shoehorn failures to comply into claims for public nuisance as well as claims for breach of duty to protect the health and safety of employees.  Lawsuits have started to roll in from employees who allege that they were “encouraged” to continue attending work and prevented from adequately washing hands or sanitizing workstations.  Employees allege that masks created a “facade of compliance” that fell short of the measures that actually would have provided protection.

Courts have started to weave a patchwork quilt of rulings as to whether those alleging “failure to protect” can state a viable claim, particularly if they did not contract the disease.  In connection with Hurricane Harvey, for example, the U.S. Court of Appeals for the Eleventh Circuit ruled that a plaintiff could not state a claim by citing a laundry list of every possible injury imaginable without any factual allegations that he suffered any harm.  Motions to dismiss COVID-19 claims on similar grounds remain pending.  See, e.g., Chao v. Princess Cruise Lines, Ltd., No. 2:20-CV-03314 (C.D. Cal. June 2, 2020).

Court have disagreed over whether they should weigh in on such claims.  A federal court in Missouri, for instance, granted a motion to dismiss claims that an employer failed to protect employees at a meat processing plant, declining to hear the case pursuant to the primary jurisdiction doctrine to allow the OSHA to consider the issues.  Rural Community Workers Alliance v. Smithfield Foods, Inc., No. 5:20-CV-06063 (W.D. Mo. May 5, 2020).  An Illinois state court, however, recently refused to toss accusations by a proposed class of Chicago employees that their employer failed to do enough to protect them during the ongoing pandemic.  Massey v. McDonald’s Corp., 2020-CH-04247 (Cir. Ct. Cook County June 3, 2020).

To effectively defend these new theories, businesses should be prepared to think outside the box and mount a multi-faceted attack, including challenges on the pleadings, challenges to class certification, as well as a series of defenses on the merits.

  1. Thoughtful Policies And Documented Efforts To Comply

As legislators grapple with whether and on what terms to extend COVID-19 liability protections to employers, and plaintiffs grapple with turning non-compliance into legal theories, employers should be prepared to address the guidelines, their safety efforts, and their workplace policies.  Employers can create a positive defense posture by being prepared to demonstrate that they adopted and enforced reasonable and appropriate workplace policies and reporting mechanisms.  In addition to considering the risks and developing a plan, employers should be prepared with documentation that will enable them to rebut allegations of any widespread shortfall.

In sum, as members of the plaintiffs’ bar continue to pivot their theories to meet the next phase of the COVID-19 pandemic, and courts continue to issue rulings on their various claims, employers should be prepared to meet these new challenges with advance preparation and multi-faceted defense strategies.

By Gerald L. Maatman, Jr., Matthew J. Gagnon, and Alex W. Karasik

Seyfarth Synopsis:  In a landmark decision for gay and transgender employees, the U.S. Supreme Court held in Bostock v. Clayton County, Georgia, No. 17-1618, 2020 U.S. LEXIS 3252 (June 15, 2020), that Title VII prohibits discrimination against gay or transgender employees as a form of sex discrimination. Although Title VII does not explicitly prohibit discrimination based on sexuality or gender identity, the 6-3 decision authored by Justice Gorsuch represents a victory for the EEOC as it has been championing this theory in the federal courts for years. Employers should expect the EEOC will be increasingly vigilant in terms of enforcing this new federal workplace protection for the foreseeable future.

Case Backgrounds

The Supreme Court’s ruling decided three cases that raise similar issues – Altitude Express v. Zarda, No. 17-1623; Bostock v. Clayton County, Georgia, No. 17-1618; and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission et al., No. 18-107.

As we previously discussed here, in Zarda, the plaintiff, was a sky-diving instructor who told a client that he was gay so she would feel more comfortable being strapped to him for a tandem jump. Following the plaintiff’s termination after the client’s boyfriend complained, the plaintiff filed a lawsuit alleging his employment was terminated because of his sexual orientation, which constituted sex stereotyping in violation of Title VII. The district court granted summary judgment dismissing his Title VII claim, and the Second Circuit affirmed, relying on precedent that a sex stereotyping claim cannot be predicated on sexual orientation. The plaintiff successfully petitioned for rehearing en banc. A divided Second Circuit overturned the panel decision and its own circuit precedent, holding that Title VII’s prohibition against discrimination on the basis of sex necessarily prohibits discrimination based on sexual orientation.

The Eleventh Circuit decided a similar case in Bostock, where the plaintiff alleged that he was fired because he is gay, despite having a long history of positive performance. The Eleventh Circuit ultimately reaffirmed that circuit’s precedent holding sexual orientation is not protected by Title VII’s prohibition against discrimination on the basis of sex.

The third case before the Supreme Court was R.G. & G.R. Funeral Homes v. EEOC, which we previously blogged about here. This lawsuit was one of the first cases brought by the EEOC alleging this theory of sex discrimination. After the plaintiff disclosed to her employer in 2013 that she would transition to dressing as a woman and planned to have sex-reassignment surgery, her employer offered her a severance agreement and terminated her. The district court granted summary judgment in favor of the employer, but the Sixth Circuit reversed, holding that gender identity discrimination fell squarely within Title VII’s prohibition against discrimination on the basis of sex and sexual stereotyping.

The Supreme Court’s Decision

The U.S. Supreme Court determined that Title VII of the Civil Rights Act of 1964 prohibits employment discrimination against LGBT individuals in the workplace. The Supreme Court held that “[a]n employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” Id. at *2. Further, it noted that although, “[t]hose who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result . . . the limits of the drafters’ imagination supply no reason to ignore the law’s demands.” Id.

After noting that “[f]ew facts are needed to appreciate the legal question we face,” the Supreme Court explained that, “[e]ach of the three cases before us started the same way: An employer fired a long-time employee shortly after the employee revealed that he or she is homosexual or transgender — and allegedly for no reason other than the employee’s homosexuality or transgender status.” Id. at 2. The Supreme Court reasoned that because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII.

In two lengthy dissenting opinions, Justices Alito, Thomas, and Kavanaugh opined that the majority’s decision was “preposterous,” because, “even as understood today, the concept of discrimination because of ‘sex’ is different from discrimination because of ‘sexual orientation’ or ‘gender identity.’” Dissent at 3. In criticism of the majority’s approach, Justice Alito’s dissent held that its “opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that [the late] Justice Scalia excoriated –– the theory that courts should ‘update’ old statutes so that they better reflect the current values of society.” Id.

Implications For Employers

This decision is a significant win for the EEOC and a game-changer for employers. The EEOC championed this legal theory for almost ten years, relying on its own quasi-judicial and rule-making powers to set precedent and its considerable enforcement powers to push this theory in the federal courts. The EEOC won many of those cases — but not all of them. Today’s ruling is a final vindication for the EEOC and a powerful testament to the law-shaping powers of a determined federal agency.

This decision will likely garner considerable media attention, and it would not be surprising if this leads to a significant uptick in EEOC charges brought by LGBTQ employees. We would also expect the EEOC will continue actively processing claims by LGBTQ employees as “sex” discrimination claims, with a new SCOTUS ruling in Bostock that supports the agency’s interpretation of Title VII once a claim hits the federal courts. We also foresee more attention in the workplace to LGBTQ employee issues. Now may be a good time for employers to review policies and practices to ensure they are legally sound following the Bostock decision.

By: Gerald L. Maatman, Jr., Christopher DeGroff, Matthew J. Gagnon, and Alex S. Oxyer

Seyfarth Synopsis:  On June 11, 2020, the EEOC updated its Technical Assistance Q&A webpage to address several new questions submitted by employers and their counsel regarding the application of the Americans With Disabilities Act (“ADA”), the Rehabilitation Act, and other EEO-related laws to employees returning to work after the lifting of the COVID-19 shelter-in-place orders. The Commission’s latest guidance addresses issues such as reasonable accommodations for employees returning to work, accommodating employees more “at-risk” of the coronavirus, discrimination issues related to providing flexible schedules or telework options, and dealing with pandemic-related harassment. The EEOC’s latest guidance is a critical read for all employers returning employees to the workplace and providing alternative work arrangements.  

Latest EEOC COVID-19 Guidance On Reasonable Accommodations

One of the primary focuses of the Commission’s new guidance is the accommodation of employees with various COVID-19 concerns after they have returned to work. One new question addressed by the EEOC is whether an employee is entitled to a reasonable accommodation to avoid exposing one of their family members who is more at risk of the coronavirus. The new guidance informs employers that they do not need to provide accommodations to employees relative to their family member’s at-risk status under the ADA.

The Commission also advises employers that they may issue general advisories to their employees informing them of who to contact in the organization to request accommodations or other flexibilities in working arrangements. Further, the new guidance cautions employers that employees who need alternate screening measures due to a medical condition could be protected by the ADA, and employers should engage in the interactive process to identify a suitable accommodation for such employees.

Accommodations For Employees More At Risk Of COVID-19

The Commission’s newest guidance also addresses questions regarding accommodating employees who are more at risk of the virus, including employees over 65 or pregnant employees. The EEOC advises employers that they cannot exclude at-risk employees from the workplace or other work-related activities involuntarily, as such exclusion could run afoul of the Age Discrimination in Employment Act (“ADEA”), the ADA, or the Pregnancy Discrimination Act (“PDA”). Further, accommodations requested by more at-risk employees should be handled in accordance with the ADA or analyzed pursuant to the PDA to ensure that employees protected by such laws are not being treated disparately compared to other employees in the workplace.

Pandemic-Related Harassment And Discrimination

The EEOC’s guidance further addresses issues related to harassment in the workplace or via email for teleworking employees. The Commission cautions employers to be alert for pandemic-related harassment, particularly harassment of Asian employees. The EEOC recommends that employers train their managers and executive staff to recognize and address such harassment, even harassment from third parties coming into the workplace. Further, employers should consider issuing a statement reminding employees that harassment is not tolerated in the workplace. Additionally, the EEOC’s guidance advises employers that harassment conducted over email or video by employees who are teleworking should be addressed in the same way as harassment occurring in the workplace.

Finally, the Commission’s latest warns employers to keep an eye on any disparate treatment of employees in granting flexible work schedules or telework arrangements, advising that employers should not grant such benefits on the basis of any protected status, including gender.

Implications For Employers

The EEOC’s new guidance is the latest installment in the EEOC’s ongoing effort to provide clarity for employers on the application of the ADA, the Rehabilitation Act, and other EEO laws to COVID-19-related issues. The Commission’s additions to its Q&A page address a multitude of questions submitted to the EEOC by employers and employment counsel, including several questions submitted by Seyfarth Shaw. Employers dealing with these issues should carefully read the newest guidance as well as details on the EEOC’s other recent changes, all of which have been tracked here.

By Gerald L. Maatman and Jennifer A. Riley

Seyfarth Synopsis: As businesses chart their paths through the difficulties of reopening their operations in the wake of the COVID-19 pandemic, another risk looms – the danger of being the target of a class action lawsuit.  That trend is in its formative stage already, and members of the plaintiffs’ class action bar have made clear that they envision a target-rich environment for lawsuits on behalf of workers and consumers.  The foreseeable future presents unprecedented challenges for business executives and corporate counsel.

In this post, we outline a playbook that can serve as a class action survival guide for corporations and their decision-makers.  Extensive compliance efforts, well-crafted planning activities, and careful administration of corporate protocols are key to creating a risk management program that gets ahead of post-COVID-19 class action exposures.

Key Risks In The Post-COVID-19 Business Environment

As the pandemic took hold, members of the plaintiffs’ bar retooled their class action theories to match the landscape.  They targeted companies over layoffs, continued work requirements, and allegedly inadequate leave or benefits policies.  As companies move to reopen and rehire, they should anticipate similar adaptation, as the plaintiffs’ bar pivots to address legal risks in the next phase of COVID-19.

In particular, we anticipate a surge of activity on the discrimination, health & safety, and wage & hour fronts.  Those workers left out of mass re-hirings have the potential to assert claims of workplace bias based on their prospective employers’ failure to include them.  Those included in return to work plans have the potential to assert ADA claims for failure to accommodate and public nuisance or breach of duty claims for their employers’ alleged failure to protect them from COVID-19 infections.  Those required to undergo temperature screenings or required to wait during work station cleanings are apt to claim that their employers improperly failed to compensate them for such time.

Members of the Plaintiffs’ class action bar have begun testing these theories, and courts have begun to start weaving a patchwork of answers to questions such as whether a non-symptomatic plaintiff can represent or participate in a class that includes individuals who experienced symptoms and whether employers who allegedly failed to follow health & safety guidance are subject to claims for public nuisance or breach of duty. Employers can expect a dizzying array of legal rulings on these novel issues in the coming months.

Compliance Activities – Where To Focus Efforts

With this smorgasbord of potential claims and risks, how can a company best navigate these issues?  In our view, now is a good time to revisit the policies and procedures that govern your workplace and to develop clear protocols to address COVID-19 issues.  On the policy front, employers should reevaluate the terms and conditions of employment, including whether or how to adopt workplace arbitration programs with class action waivers, revisit their job descriptions, and review their complaint or grievance processes to ensure that they have delineated a clear path for raising and addressing employee concerns.

Relative to developing protocols, employees should respond to the pandemic pro-actively by anticipating issues and adopting thoughtful protocols before problems arise.  In other words, rather than wait for a worker to complain that a co-worker is coughing and may be a potential source of the coronavirus, or for the same worker to demand paid leave in response to safety concerns, employers should develop protocols that anticipate these issues and provide practical guidelines and clear rules that managers can implement and workers can understand.  Advance planning can help employers ensure that they take a thoughtful approach across their organization and across all components of their workforce.  Haphazard, one-off decision-making is typically a recipe for legal problems, whereas sound protocols and structured decision-making often builds a solid framework for better outcomes and legally defensible positions.

Planning Activities – Key Decisions To Reduce Or Eliminate Class Actions

A company’s protocols should take into account the nature of its business and workforce.  A fear of reporting to work, for example, is a significant issue that many employers are apt to encounter.  When workers are scared to report to work due to safety concerns, employers should begin by understanding the reason and whether the worker is scared because of a disability.  If so, the employer should utilize an individualized interactive process appropriate to the employee’s circumstances.  The answer might turn on whether the employee can perform the essential functions of his or her job from home and, if so, whether beginning or continuing a work from home arrangement may be a reasonable accommodation.

For employees for whom work from home is not an option, employees should take care to develop protocols that comply with and implement guidance issued by agencies such as the CDC, OSHA, and the EEOC. Further, they should provide clear rules for their managers and workers to follow relative to implementing these protocols.

Administration Of Corporate Protocols – Creation Of Positive Evidence To Nip Class Action Exposures In The Bud Before They Spiral Out Of Control

Beyond merely developing protocols, employers need to think pro-actively about tracking and documenting their compliance efforts.  Many employers have developed cleaning protocols, made masks available, and instructed employees to maintain social distancing.  But employers also need to plan ahead so that they are prepared to demonstrate that, if challenged, their cleaning protocols were implemented and followed on a local level, employees were made aware of policies and procedures, and concerns were investigated and remediated.

These problems require application of the fundamentals of sound human resources administration.  In addition to developing guidelines and protocols, employees should document their compliance efforts.  Employers should consider asking employees to acknowledge their receipt and agreement to abide by workplace protocols, should roll out or reinforce a complaint process for employees to raise or report concerns, and should document their cleaning efforts and corrective measures.

Conclusion – A New Corporate Playbook

Class action litigation will continue to evolve to the realities of the pandemic and post-COVID-19 pandemic workforce.  Employers can augment their defenses to litigation to get ahead of the curve through thoughtful planning, execution, and documentation.

By Gerald L. Maatman, Jr., Alex S. Oxyer, and Paul M. Waldera

Seyfarth Synopsis: In McKenzie Law Firm, P.A., et al. v. Ruby Receptionists, Inc., 18-CV-1921, 2020 U.S. Dist. LEXIS 94299 (D. Or. May 29, 2020), the U.S. District Court for the District of Oregon lessened the standard for plaintiffs to obtain an order limiting the ability of defense counsel to communicate with absent class members, even when there is an existing business relationship between the defendant and the class members. This case is a must-read for employers facing class action litigation.

Case Background

In McKenzie, the plaintiffs brought class claims for breach of contract, unjust enrichment, and other contractual claims based on the defendant’s allegedly misleading billing practices in providing virtual reception services.  Three days after the Court certified a class of defendant’s customers, the class counsel advised defense counsel that they may not contact absent class members either directly or through third parties.  Class counsel argued that they fully represented all absent class members and asked defense counsel to agree not to contact any of them.

Defense counsel disagreed and argued class counsel only had a limited representation of the absent class members, and, accordingly, defense counsel could still contact them.  Defense counsel also disagreed that the defendant itself could not have communications with class members regarding the claims, defenses, or subject matter of this litigation.  As the defendant had a contractual relationship with many of the class members, defense counsel argued that the defendant had the legal right to communicate with absent class members.

Class counsel thereafter filed a motion requesting that the Court limit defense counsel’s ex parte contact with class members without prior approval of the Court.

The Court’s Decision

After beginning with an analysis of the Rules of Professional Conduct prohibiting attorneys from communicating with represented parties and the standards under Rule 23 of limiting contact between parties in class litigation, the Court focused on whether the evidence in the case revealed that “a threatened communication” between defense counsel or the defendant and a class member was more than just “a theoretical possibility,” such that the Court should exercise its ability to limit communication with class members.  The Court found defense counsel’s representation to the plaintiff’s counsel that they disagreed that they needed to cease and desist from contacting class members constituted circumstantial evidence of a threatened communication.  In reaching its conclusion, the Court analogized the situation to a property dispute:  “[I]f a property owner asks a person not to enter the owner’s property and the person responds by saying that the person has the legal right to enter the owner’s property without permission, that reasonably may be interpreted as a threat to trespass.”  McKenzie, 2020 U.S. Dist. LEXIS 94299 at *11. Thus, in the Court’s view, defense counsel’s actions could reasonably be interpreted as a threat to communicate with absent class members.

The Court also examined the defendant’s own actions to ascertain whether there was threatened communication with absent class members.  The Court acknowledged that the defendant had the legal right to contact class members, even about the pending litigation.  However, the Court cautioned that the defendant could normally communicate with class members “provided that there is no participation, advice, or assistance of any kind by Defense Counsel.” Id. at *12.  Further, the Court held that defense counsel’s argument that its client should be able to communicate with the class members about the litigation, taken in the context of the lawsuit, was further evidence of a threat to communicate with the class members.  Notably, during class certification briefing, the defendant sought and filed a dozen declarations opposing class certification from putative class members, showing a history of communicating with absent class members with the assistance of its counsel.

After concluding that there was more than a theoretical possibility that defense counsel and the defendant threatened to communicate with class members, the Court analyzed whether the defendant’s communications (with or without any assistance from counsel) to absent class members created a risk of abuse such that they should be limited, even if they normally would have been allowed.  The Court highlighted how unilateral communications with absent class members, without the opportunity for class counsel to respond, could irreparably damage the case.  This was especially a concern where the defendant and the class were “involved in an ongoing business relationship.”  Id.  While many absent class members were lawyers with a basic legal knowledge, many of those lawyers did not have expertise in the relevant area of law.  Other absent class members had no legal training and were particularly susceptible to undue influence from the defendant.  Based on the defendant’s previous attempts to communicate with absent class members to oppose class certification, the Court held there was a realistic risk of abuse that could warrant an order prohibiting class member contact.

Against this record, the Court balanced the risks of “unsupervised, unilateral communications” to the class members with the legitimate need for the defendant to communicate with its customers.  Ultimately, the Court issued a specifically tailored order that prohibited defense counsel from communicating with any class member and prohibited the defendant from initiating any communication with any class member regarding or referring to the lawsuit without prior approval from the Court or class counsel. However, the Court held that if a client class member contacted the defendant, it could only respond by stating that it may not discuss this lawsuit or anything about it.

Implications For Employers

One of the trickiest issues for employers to handle when facing employment litigation is how to communicate with their employees, without risking further claims.  Employers must always be aware of what they are communicating to their employees, especially when those employees are or may be class members in threatened or ongoing litigation.  Courts have been wary of communications sent to represented parties by the opposing side, particularly when there is an ongoing relationship between class members and the defendant.  The ruling in the McKenzie case shows that even threatened communications, without any follow up, are enough to warrant an order limiting all communications by employers themselves, hampering an employer’s ability to later fight the case with declarations and other support from would-be class members.  When faced with class or collective employment litigation, employers should put together a comprehensive response plan with their counsel so that they do not run afoul of the limitations on communications with represented parties or create a risk of abuse.  Armed with a proactive plan, employers can avoid many of the pitfalls presented in this case and prevent a communication order from the Court limiting their ability to speak to their own employees.

By: Gerald L. Maatman, Jr., Christopher DeGroff, Matthew J. Gagnon, and Alex S. Oxyer

Seyfarth Synopsis:  On June 5, 2020, the EEOC rolled out a new webpage specifically addressing its procedures for instituting Commissioner charges and directed investigations. The webpage provides much-needed insight into these important tools in the EEOC’s arsenal and is a must-read for any employer engaged in litigation with the Commission.

Commissioner Charges

In addition to charges filed by individuals, the EEOC can investigate possible discrimination under Title VII, the ADA, and GINA using “Commissioner charges.” Traditionally, such charges are high-impact litigation situations with the potential to involve large numbers of claimants and seven figure settlement demands. According to the EEOC’s new webpage, Commissioner charges generally are brought about one of three ways: (1) an EEOC field office learns about possible discrimination in a workplace where no individual has filed a charge; (2) a field office learns about one or more new allegations of discrimination while investigating an existing charge; or (3) a Commissioner learns about discrimination in a workplace and asks a field office to investigate the allegations. The new webpage includes significant background information regarding the EEOC’s procedures in investigating and conciliating Commissioner charges, as well as FAQs for employers and employees alike. Notably, the EEOC also includes statistics regarding the number of Commissioner charges filed over the past five years, which reveal that the number of Commissioner charges has dropped from a high of 17 charges in 2017 to 9 charges filed in 2019.

Directed Investigations

The EEOC also has the authority to investigate, on its own initiative, possible age discrimination under the ADEA and pay discrimination based on sex under the Equal Pay Act, even where no charge has been filed. These “directed investigations” can be initiated by District Directors without approval from an EEOC Commissioner. The Commission’s new guidance includes helpful background on the EEOC’s available tools and powers during such an investigation, as well as additional FAQs and statistics on investigations commenced over the past five years. According to the website, the number of directed investigations initiated by the Commission has dropped from 230 investigations in 2016 to 55 investigations in 2019.

Implications For Employers

The goal of the new webpage is to make the EEOC’s processes “fully transparent and useful to the public.” The information provided on the new webpage is a much-needed insight into additional tools at the EEOC’s disposal and will be a helpful guide for employers responding to a Commissioner charge or directed investigation.

This new guidance is the latest in a number of changes at the EEOC and is consistent with the EEOC’s push for greater transparency. We have been tracking the latest changes at the EEOC here.

By: Gerald L. Maatman, Jr., Michael L. DeMarino, and Andrew Welker

Seyfarth Synopsis: On April 30, 2020, the California Superior Court granted class certification against Oracle America Inc., allowing former employees to represent a class of over 4,100 women for claims of alleged discrimination in violation of California’s Equal Pay Act.  Following the Superior Court’s class certification decision, Oracle filed a writ of mandate with the California Court of Appel for review of the lower court’s ruling.  However, on June 2, 2020, the Court of Appeal denied Oracle’s petition, allowing the case to move forward as a class action.

This case is reminder for employers that even in the wake of Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), there is still a potential that employment discrimination claims will be certified, particularly in California. Employers should not underestimate the uphill battle of overturning such a ruling through a writ of mandate, which is highly discretionary and sparingly granted on appellate review.

Background And Analysis

In Jewett, et al. v. Oracle America Inc., No. 17-02669 (Cal. Super. Ct., San Mateo Cty.), former Oracle employees filed a class action suit in the Superior Court of the State of California, County of San Mateo, alleging that the company underpaid women for doing the same work as their male peers in violation of the California Equal Pay Act. That statute requires workers to be paid the same for “substantially similar work.”

In support of their bid for class certification, Plaintiffs relied on expert reports by an economist and statistician that used a regression analysis to show that women made roughly $13,000 less annually than men with the same job code.  Plaintiffs contended that that this pay disparity arose from Oracle’s use of prior salary at jobs before Oracle to set starting salaries for its workers, a practice the California legislature has found perpetuates historical pay discrimination.  Plaintiffs also relied on an industrial organizational psychologist’s report, which concluded that at Oracle women with the same job codes as men perform the same or substantially similar work.

Ultimately, the Superior Court granted class certification and rejected Oracle’s contention that the skills, effort, and responsibilities vary within each of Oracle’s job codes to such an extent that individualized inquiries are necessary to determine the nature of each person’s work.  The Superior Court explained that the question was not whether Oracle’s job codes categorize jobs on the basis of substantially similar or equal skills, effort, and responsibility, but whether Plaintiffs offered substantial common evidence that they do so.  The Superior Court concluded that Plaintiffs’ expert evidence did just that.

Appeal Prospects

Following the trial court’s decision, Oracle filed a petition for a writ of mandate or a writ of prohibition seeking to reverse the class certification decision with the Court of Appeal.  Such writs are rarely granted remedies by which appeals courts can set aside trial court rulings before the proceedings at the lower court have concluded.

Upon review, the Court of Appeal denied Oracle’s petition, finding that it did “not persuasively demonstrate that petitioner lacks other adequate remedies at law and that petitioner will suffer irreparable harm absent writ review.”  See Oracle America Inc. v. Superior Court of San Mateo County, No. A160205 (Cal. App. 1st Dist. June 2, 2020).  This outcome is not surprising given the Court of Appeal’s traditional reluctance to grant such writs.

The denial of Oracle’s petition moves the case one step closer to trial.

Implication For Employers

This ruling in the Oracle case is a reminder of the high hurdles that employers face when appealing a decision granting class certification in California state court.  Before litigating class certification issues, employers are well served to explore any potential basis to remove the litigation to federal court.  This case is also a reminder of the fundamental role that statistical analysis and expert testimony play at the class certification stage in terms of providing plaintiffs with common evidence.  Employers defending against discrimination class action claims would be wise to retain and consult with experts early to develop a plan to defeat class certification and gather the appropriate evidence to do so.