Employment

• University of Texas Southwestern Medical Center v. Nassar (S. Ct.) – Amicus
  • Gross v. FBL Financial Group, Inc., 557 U.S. 167 (2009), does not preclude mixed-motive retaliation claims under Title VII because the statute's "motivating factor" provision, 42 U.S.C. 2000e-2(m), added to Title VII by the Civil Rights Act of 1991, authorizes such claims
  
  

  Document	Date
  Brief as Amicus	04/10/13

• United States v. New Jersey (3d Cir.) - Appellee
  • The district court did not abuse its discretion in denying the motion for intervention
  • The court of appeals does not have jurisdiction to hear a challenge by nonparties to the district court's approval of the consent decree
  
   

  Document	Date
  Brief as Appellee	01/23/13

• Vance v. Ball State University (S. Ct. ) – Amicus
  • The Court should adopt the EEOC's broader standards for supervisory status but that, on the current record, Vance does not meet even those standards for showing the harasser was her supervisor
  • The court of appeals erred in holding that an employee must have the authority to take tangible employment actions to qualify as a supervisor for purposes of vicarious employer liability under Title VII
  • The circuits disagree on the proper understanding of supervisor status under Faragher and Ellerth
  • This case is not a suitable vehicle for resolving the disagreement
  
  

  Document	Date
  Brief as Amicus (merits)	09/05/12
  Brief as Amicus in Response to Court's Invitation	05/24/12

• United States and Vulcan Society v. City of New York (2d Cir.) – Appellee
  • This appeal does not implicate an earlier ruling in which the district court held that the City's use of the same two examinations had a disparate impact on African-American and Hispanic applicants in violation of Title VII, or the relief requested by the United States to remedy the City's disparate impact discrimination
  • The City's invitation to reassign this case to a different district court judge on remand should be rejected
  • The City's claim is not properly preserved for appeal
  • The City's allegations are inadequate to demonstrate that Judge Garaufus was anything other than fair, objective, and impartial
  • Reassignment could unfairly delay the award of relief to victims of the City's disparate impact discrimination, waste judicial resources, and needlessly postpone the City's use of a lawful, nondiscriminatory selection procedure to hire entry-level firefighters
   

  Document	Date
  Court of Appeals Decision, 2013 WL 1955782	05/14/13
  Brief as Appellee	04/06/12

• Mary Jo C. v. New York State and Local Retirement System (2d Cir.) – Amicus/Intervenor
  • Title II's abrogation of sovereign immunity is valid as applied to the class of cases involving the receipt of public benefits
  • A state law that precludes a public entity from making a reasonable accommodation is preempted
   

  Document	Date
  Court of Appeals Decision, 707 F.3d 144	01/30/13
  Supplemental Brief as Intervenor	01/11/12
  Brief as Amicus and Intervenor	08/29/11

• Hosanna-Tabor v. EEOC (S. Ct.) – Respondent
  • None of the constitutional provisions from which a ministerial exception may derive - the Free Exercise Clause, the Establishment Clause and the freedom of association - precludes the application of the anti-retaliation provisions of the ADA in this case
   

  Document	Date
  Supreme Court Decision, 132 S. Ct. 694	01/11/12
  Brief for the Federal Respondent	08/02/11

• United States v. Alabama Department of Mental Health and Mental Retardation (11th Cir.) – Appellee
  • The district court correctly held that the Eleventh Amendment does not bar a suit against a State to enforce USERRA when the United States is a plaintiff
  • The court correctly held that ADMH violated USERRA when it failed to rehire the employee upon his return from active duty service, and the employee was entitled to the court's award of back pay
  • ADMH failed to show a likelihood of success on the merits because its version of the evidence conflicts with the factual findings of the district court
  • ADMH will suffer no irreparable injury by complying with USERRA
  • ADMH personnel and current and future servicemembers will suffer injury with a grant of the stay, and the public interest weighs against the grant of a stay of injunctive relief
  
  

  Document	Date
  Court of Appeals Decision, reported at 673 F.3d 1320	03/16/12
  Supplemental Letter Brief	12/05/11
  Brief as Appellee	05/09/11
  Opposition to Motion to Stay Injunctive Relief Pending Appeal	02/16/11

• Midwest Fence Corp. v. USDOT (N.D. Ill.) -- Defendant
  • There remains ample evidence supporting a compelling interest for race- and gender-conscious programs that fund highway construction projects
  • Regulations satisfy narrow tailoring because, inter alia, the federal and state goals are aspirational, state goals are individualized and based on DBE availability and capacity, and race- and gender-neutral efforts are utilized to the greatest extent possible to achieve DBE goals
  • Plaintiff failed to allege irreparable harm or the absence of legal remedies to warrant injunctive relief
  
  

  Document	Date
  Opposition to Motion for Temporary Restraining Order	09/09/10

• Johnson v. Board of Trustees of Boundary County School District No. 101 & Don Bartling (9th Cir.) – Amicus
  • The district court’s decision was erroneous because (1) it contravenes the plain meaning and intent of the ADA and the EEOC’s interpretive guidance; and (2) based on this record, the court should have found that the school district had a duty to provide the teacher with a reasonable accommodation
  
   

  Document	Date
  Court of Appeals Decision, reported at 666 F.3d 561	12/08/11
  Brief as Amicus	07/28/10

• Chamber of Commerce v. Whiting (Chamber of Commerce v. Candelaria) (S. Ct. ) – Amicus
  • Federal law preempts both the sanctions provisions of the Arizona statute and its requirement that all employers participate in the federal E-Verify program
  • The Court should grant review to decide whether the employer sanctions provisions of the Arizona statute are preempted by the explicit language of IRCA, but certiorari is not warranted to decide whether mandating participation in E-Verify is preempted
  
  

  Document	Date
  Supreme Court Decision , reported at 131 S.Ct. 1968	05/26/11
  Brief as Amicus	09/08/10
  Certiorari granted, 130 S. Ct. 3498	06/28/10
  Brief as amicus in response to Court’s invitation	05/28/10

• Thompson v. North American Stainless (S. Ct. ) – Amicus
  • Discharging an employee’s fiancé is prohibited retaliation under Title VII
  • Thompson had standing to sue under Title VII, which confers such standing upon any “aggrieved party”
  • Certiorari should be denied as there was no circuit split, and the courts of appeals should further consider the government's argument on this issue in future cases
  
  

  Document	Date
  Supreme Court Decision, reported at 131 S. Ct. 863	01/24/11
  Brief as Amicus	09/10/10
  Certiorari granted, 130 S. Ct. 3542	06/29/10
  Brief as amicus in response to Court’s invitation	05/25/10

• Staub v. Proctor Hospital (S. Ct. ) – Amicus
  • Employer liability under the Uniformed Services Employment and Reemployment Rights Act of 1984 (USERRA), 38 U.S.C. 4301 et seq.
  • The Seventh Circuit disregarded the text of USERRA, which provides for liability where a person’s military status is a motivating factor in the employer’s action, by requiring a subordinate employee’s discriminatory animus to exert “singular influence” over the ultimate decisionmaker (making the decisionmaker the dupe or cat’s paw of the employee with the discriminatory animus) in order to warrant liability
  • The decision of the court of appeals conflicts with the decisions of all but one of the eleven other courts of appeals to have addressed this issue
  
  

  Document	Date
  Supreme Court Decision, reported at 131 S. Ct. 1186	03/01/11
  Brief as Amicus	07/09/10
  Certiorari granted, 130 S. Ct. 2089	04/19/10
  Brief as amicus in response to Court’s invitation	03/16/10

• United States v. New Jersey (3d Cir.) – Appellee
  • The district court did not err in denying intervention
  
  

  Document	Date
  Court of Appeals Decision, 373 F. App'x 216 (unpublished)	04/01/10
  Brief as Appellee [PDF]	11/18/09

• Lewis v. City of Chicago (S. Ct. ) – Amicus
  • A claim of disparate impact discrimination based on an employer's use of an invalid employment examination accrues when the examination is scored and the results announced, as well as each time the employer uses those results to hire job applicants in a manner that adversely affects members of a protected group
  • Review is warranted because the Seventh Circuit’s holding that such a claim of disparate impact discrimination accrues only when the examination is scored and the results announced is inconsistent with the text of Title VII, unsupported by the Supreme Court’s precedent, and conflicts with decisions of other courts of appeals
  
  

  Document	Date
  Supreme Court decision, 130 S. Ct. 2191	05/24/10
  Brief as Amicus	11/30/09
  Certiorari granted, 130 S. Ct. 47	09/30/09
  Brief as amicus in response to Court’s invitation	08/21/09

• Harris v. Mayor & City Council of Baltimore (4th Cir.) -- Amicus
  • District court erred in granting summary judgment to the defendants on the grounds that (1) plaintiff had not established that the harassment occurred because of her sex; and (2) the harassment was not sufficiently severe or pervasive to be actionable
  
  

  Document	Date
  Court of Appeals Decision , 429 F. App'x 195	05/06/11
  Brief as Amicus [PDF]	06/10/09

• United States v. New York City Board of Education (2d Cir.) -- Appellee/Cross-Appellant
  • District court erred in placing the burden on the United States to show that certain beneficiaries were qualified for positions; in finding that one beneficiary was not a victim of discrimination; and in finding that the United States had not established a prima facie case of recruitment discrimination
  • Certain non-victims should not be stripped of all seniority accrued from their awards of permanent status as part of the agreement; victims of discrimination should not receive seniority that exceeds make-whole relief; and retroactive seniority awards to certain non-victims are unconstitutional
  
  

  Document	Date
  Court of Appeals Decision , reported at 650 F.3d 65	05/05/11
  Brief as Appellee/Cross-Appellant [PDF]	04/13/09
  Reply Brief [PDF]	07/31/09

• Ricci v. DeStefano (S. Ct. ) – Amicus
  • A decision not to certify exam results does not violate Title VII’s prohibition against “race norming” and other race-based alterations of test scores
  • Urged the Supreme Court to vacate the court of appeals’ decision and remand for further consideration of petitioners’ claim that the City’s professed desire to comply with Title VII’s disparate-impact provisions was a pretext for unlawful intentional discrimination
  
  

  Document	Date
  Supreme Court decision, 129 S. Ct. 2658	06/29/09
  Brief as Amicus	02/26/09

• Gross v. FBL Financial Services (S. Ct. ) – Amicus
  • A direct evidence requirement is not supported by the ADEA’s text
  • The reasoning of Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), which held that a plaintiff does not need to provide direct evidence of discrimination in order to obtain a mixed-motive instruction under Title VII, 42 U.S.C. 2000e-2(m), applies to claims brought under other anti-discrimination statutes as well, including the ADEA
  
  

  Document	Date
  Supreme Court decision, 129 S. Ct. 2343	06/18/09
  Brief as Amicus	02/02/09

• Antonelli v. New Jersey (3d Cir.) -- Appellee
  • This court does not have jurisdiction over FMBA's purported appeal
  • The district court correctly dismissed all of plaintiffs' claims against the State, and plaintiffs' claims against state officials for retrospective relief
  • The district court correctly awarded defendants summary judgment as to plaintiffs' claims pursuant to the consent orders and the July 1999 order entered in United States v. New Jersey
  • The district court correctly awarded defendants summary judgment as to plaintiffs' equal protection claims
  • The district court correctly awarded defendants summary judgment as to plaintiffs' procedural due process claims
  • The district court correctly awarded defendants summary judgment as to individual plaintiffs' claims pursuant to the Uniform Guidelines on Employee Selection Procedures
  
   

  Document	Date
  Brief as Appellee [Under Seal]	01/05/05
  Court of Appeals Decision [PDF], reported at 419 F.3d 267	08/17/05

• Baker v. The Home Depot (2d Cir.) -- Amicus
  • The district court erred in ruling that Home Depot’s offer to schedule Baker to work later on Sundays was a reasonable accommodation
  
   

  Document	Date
  Brief as Amicus [PDF]	06/15/05
  Court of Appeals Decision [PDF], reported at 445 F.3d 541	04/19/06

• United States v. Nassau County (2d Cir.) -- Appellee
  • The beneficiaries failed to show that they are entitled to any additional benefits under the Consent Decree, and, in any event, their claims are untimely
  • The district court did not abuse its discretion by barring the beneficiaries' claims under the doctrine of Laches
  • The district court did not abuse its discretion by precluding further discovery
  • The district court did not err in denying Margaret Cavanagh's application to consolidate her claims with the claims of the beneficiaries
  
   

  Document	Date
  Brief as Appellee [PDF]	06/27/03
  Court of Appeals Decision [PDF], reported at 352 F.3d 60	12/10/03
  Brief as Appellee [PDF]	02/09/05
  Court of Appeals Decision [PDF] (unpublished), available at 175 Fed. Appx. 405	03/30/06

• Endres v. Indiana State Police Department & Holmes v. Marion County (7th Cir.) -- Intervenor
  • Whether, in extending the reach of Title VII to cover state employers, Congress validly abrogated States’ Eleventh Amendment immunity to suits for damages by private parties
  
   

  Document	Date
  Brief as Intervenor [PDF]	07/29/02
  Court of Appeals Decision [PDF], reported at 334 F.3d 618	06/27/03
  Petition for Rehearing as Intervenor [PDF]	08/08/03

• Wilkes v. Wyoming Dep't of Employment (10th Cir.) -- Intervenor
  • No Eleventh Amendment immunity to Title VII actions charging illegal discrimination on the basis of sex
  
   

  Document	Date
  Brief as Intervenor [PDF]	05/20/02
  Court of Appeals Decision [HTML], reported at 314 F.3d 501	12/23/02

• Vadie v. Miss. State Univ. (5th Cir.) -- Intervenor
  • University is precluded from asserting an Eleventh Amendment immunity defense by law of the case
  • No Eleventh Amendment immunity to Title VII actions charging illegal retaliation for making Title VII complaint
  
   

  Document	Date
  Brief as Intervenor [PDF]	04/01/02
  Court of Appeals decision, reported at 218 F.3d 365	06/25/02

• Nanda v. Univ. of Illinois (7th Cir.) -- Intervenor
  • No Eleventh Amendment immunity to Title VII actions
  
   

  Document	Date
  Brief as Intervenor [PDF]	12/13/01
  Court of Appeals Decision [PDF], reported at 303 F.3d 817	09/17/02

• United States v. Jefferson County (11th Cir.) -- Appellee
  • Court of Appeals lacked jurisdiction over appeal of order interpretting consent decree provision
  • District court properly placed burden on intervenors to establish that job selection criteria had a racially adverse impact
  • District court did not clearly error in evaluating impact of job selection criteria by examining statistical evidence
  
   

  Document	Date
  Brief as Appellee [PDF]	10/30/01
  Appeal dismissed, unpublished	01/07/02

• Culver v. City of Milwaukee (7th Cir.) -- Appellee
  • District court properly refused to grant class certification to plaintiff seeking to challenge hiring practices under consent decree between the United States and the City to address discrimination in the employment practices of  the Milwaukee police department
  • Judge did not err in refusing to recuse himself from the case
  • There were no grounds for consolidating this case with the United States' case against the police department
  
   

  Document	Date
  Brief as Appellee [HTML] [PDF]	06/18/01
  Court of Appeals decision [HTML], reported at 277 F.3d 908	01/15/02

• United States v. Jefferson County (11th Cir.) -- Appellee
  • Court of Appeals lacks jurisdiction because the appeal is untimely
  • District court did not abuse its discretion in refusing to modify employement consent decree to require the City to statistically validate an employment test that has not been shown to have a discriminatory purpose or effect.
  
   

  Document	Date
  Brief as Appellee [HTML] [PDF]	05/20/01
  Court of Appeals decision, unpublished	05/06/02

• Carrabus v. Schneider (2d Cir.) -- Appellee
  • Plaintiffs failed to state a valid claim under Title VII, the Constitution or state law in their challenge to a police department entrance examination developed pursuant to consent decree between the United States and the police department to eliminate prior racial and gender discrimination
  • Plaintiffs may not rely on state law to prevent implementation of a consent decree designed to remedy violations of federal law
  
   

  Document	Date
  Brief as Appellee [HTML] [PDF]	04/02/01
  Court of Appeals decision, unpublished	06/20/01

• Lunnie v. University of Arkansas (8th Cir.) -- Intervenor
  • Title VII's prohibitions on race discrimination and retaliation are valid exercises of Congress' power to enforce the Fourteenth Amendment
  • No Eleventh Amendment immunity to Title VII actions
  
   

  Document	Date
  Brief as Intervenor [HTML] [PDF]	12/29/00
  Court of Appeals decision [PDF], reported at 255 F.3d 615	06/20/01

• Okruhlik v. University of Arkansas (8th Cir.) -- Intervenor
  • Title VII's prohibitions on sex discrimination and retaliation are valid exercises of Congress' power to enforce the Fourteenth Amendment
  • No Eleventh Amendment immunity to Title VII actions
  
   

  Document	Date
  Brief as Intervenor [HTML] [PDF]	12/06/00
  Court of Appeals decision [PDF], reported at 255 F.3d 615	06/20/01

• Holland v. New Jersey Dep't of Corrections (3d Cir.) -- Appellee/cross-appellant
  • District court did not abuse its discretion in modifying consent decree regarding racial harrassment of employees in the state prison system to extend the termination date, given the defendants' substantial noncompliance with the terms of the decree during the life of the decree
  • District court abused its discretion in extending the decree only ten months in light of four-year pattern of noncompliance
  
   

  Document	Date
  Brief as Appellee/Cross-Appellant [HTML]  [PDF]	10/16/00
  Court of Appeals decision [HTML], reported at 246 F.3d 267	04/04/01

• Siler-Khodr v. University of Texas Health Science Center (5th Cir.) -- Intervenor
  • Equal Pay Act is valid exercise of Congress' power to enforce the Fourteenth Amendment
  • No Eleventh Amendment immunity to Equal Pay Act actions
  
   

  Document	Date
  Brief as Intervenor [HTML] [PDF]	09/15/00
  Court of Appeals decision [PDF] , reported at 261 F.3d 542	08/24/01
  Response to Petition for Rehearing En Banc [HTML] [PDF]	10/19/01
  Petition for Rehearing En Banc denied	05/16/02

• Pawlowski v. Regents of the University of Colorado (10th Cir.) -- Intervenor
  • Equal Pay Act is valid exercise of Congress' power to enforce the Fourteenth Amendment
  • No Eleventh Amendment immunity to Equal Pay Act actions
  
   

  Document	Date
  Brief as Intervenor [HTML] [PDF]	06/15/00
  Appeal dismissed, unpublished	08/22/00

• Association of Mexican American Educators v. California (9th Cir.) -- Amicus
  • Title VII prohibits action by an employer directed not only at its own employees and applicants, but also activity that interferes with another's employer-employee relationship on grounds prohibited by Title VII
  • If a recipient of federal financial assistance is a public agency, all of its programs and activities or operations are subject to Title VI, without regard to the specific purpose of federal assistance
  • Broad definition of "program" in Civil Rights Restoration Act applies to Title VI discriminatory effects regulations
  
   

  Document	Date
  Brief as Amicus [HTML]  [PDF]	06/02/00
  Court of Appeals decision, reported at 231 F.3d 572	10/30/00

• Downing v. Board of Trustees of Univ. of Alabama (11th Cir.) -- Intervenor
  • Title VII's prohibitions on same-sex sexual harassment and retaliation are valid exercises of Congress' power to enforce the Fourteenth Amendment
  • No Eleventh Amendment immunity to Title VII actions
  
   

  Document	Date
  Brief as Intervenor [HTML] [PDF]	05/17/00
  Court of Appeals decision [PDF], reported at 321 F.3d 1017	02/13/03

• Hundertmark v. Watts (11th Cir.) -- Intervenor
  • Equal Pay Act is valid exercise of Congress' power to enforce the Fourteenth Amendment
  • No Eleventh Amendment immunity to Equal Pay Act actions
  
   

  Document	Date
  Brief as Intervenor [HTML] [PDF]	02/22/00
  Court of Appeals decision [HTML], reported at 205 F.3d 1272	03/07/00

• Larry v. Board of Trustees (11th Cir.) -- Intervenor
  • Equal Pay Act is valid exercise of Congress' power to enforce the Fourteenth Amendment
  • No Eleventh Amendment immunity to Equal Pay Act actions
  
   

  Document	Date
  Brief as Intervenor [HTML] [PDF]	10/23/98
  Reply Brief [HTML]  [PDF]	12/21/98
  Supplemental Brief [HTML]  [PDF]	08/02/99
  Court of Appeals decision, unpublished	03/22/00

• Varner v. Illinois State University (7th Cir.) -- Intervenor
  • Equal Pay Act is valid exercise of Congress' power to enforce the Fourteenth Amendment
  • Title VII's prohibition on policies with unjustified disparate impact on the basis of sex is valid exercise of Congress' power to enforce the Fourteenth Amendment
  • No Eleventh Amendment immunity to Equal Pay Act or Title VII actions
  
   

  Document	Date
  Brief as Intervenor	12/02/97
  Court of Appeals decision, reported at 150 F.3d 706	07/21/98
  Opposition to Petition for Certiorari [HTML]  [PDF]	04/16/99
  Supreme Court remand order, reported at 528 U.S. 1110	01/18/00
  Supplemental Brief [HTML] [PDF]	04/03/00
  Court of Appeals decision [HTML], reported at 226 F.3d 927	09/06/00
  Opposition to Petition for Certiorari [HTML]  [PDF]	05/14/01
  Petition for Certiorari denied, reported at 533 U.S. 902	06/11/01

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