“Like sands through the hourglass,” so is the ever-evolving world of labor and employment law.  2019 is starting out with some major cases before the High Court that can have a significant impact on the workforce.  Let’s about some of these issues.

  1. Equal Pay.

Equal Pay took a front seat in 2018.  Today, SCOTUS will discuss whether it will hear Yovino v. Rizo.  The issue in this case is whether the Equal Pay Act permits employers to pay men and women different wages for the same work “where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.”  As an interesting aside, the case also deals with whether a deceased judge may continue to “participate” in the determination of a case after his or her death (gasp).

The Ninth Circuit held “any factor other than sex” is limited to legitimate, job-related factors, such as a prospective employee’s experience, educational background, ability, or prior performance.  Relying on prior salary is not sufficient and does not create an affirmative defense.

  1. LGBT Discrimination

Also on the Court’s schedule for today is a trilogy of cases involving whether Title VII’s reach and asks whether the prohibition against sex-based discrimination extends to sexual orientation and gender identity.

In one case, a now-deceased ski instructor accused his employer of firing him after telling a client he was gay.  In another case, an employee alleges he was fired because of his sexual orientation. In the first case, the Second Circuit scrapped precedent and affirmatively held that Title VII extends to sexual orientation.  The Eleventh Circuit disagreed in the latter case.

The gender-based case, R.G. & G.R. Harris Funeral Homes, involves a transgender employee who argues she was terminated from her employment based on her gender identity.  In this case, the Sixth Circuit held “discrimination against employees “either because of their failure to conform to sex stereotypes or their transgender status, is illegal under Title VII.”

These cases create a significant circuit split.  For me, the split signals an issue that needs SCOTUS’s attention.  Thus, I anticipate the court will take these cases.  Of course, I admit I have been wrong before (*ahem* seldom, of course).  We will just have to stay tuned.

  1. Arbitration Agreements

SCOTUS should be announcing its decision in Lamps Plus, Inc. v. Varela soon.  The issue in Lamps Plus asks whether the Federal Arbitration Act precludes using state law principles of contract interpretation to understand commonly used language in a standard form arbitration agreement as authorizing class arbitration. The High Court heard oral arguments in the case last October.

Lamps Plus would address a question left open in Stolt-Nielsen, which held class arbitration is blocked when there’s no “contractual basis for concluding” that the parties to an arbitration agreement agreed to it. That case didn’t address whether courts can infer that such a contractual basis exists in situations like Varela’s where an agreement doesn’t explicitly block class arbitration.

This decision is important because it could impact arbitration agreements currently used by employers throughout the country.

About the Author: Alejandro Pérez is a partner at Jaburg Wilk. Fully bilingual, Alejandro assists employers of all sizes with labor and employment law issues. In addition to representing clients in litigation, Alejandro provides advice and counsel on HR decisions; conducts sensitive workplace investigations; drafts and reviews employment policies, handbooks, and agreements; and trains workforces on a variety of aspects of employment law.

This blog is provided for educational and informational purposes only.  To speak with an attorney, please contact our office at 602.248.1000 or email info@jaburgwilk.com