By James J. Barney
Associate Professor of Legal Studies, School of Security and Global Studies, American Public University
Note: The opinions and comments stated in the following article and the views expressed by any contributor to Online Career Tips, do not represent the views of American Public University, American Public University System, its management or employees. This blog article, written by a licensed lawyer, is intended solely for educational purposes, not to provide any legal advice or to solicit clients in any U.S. or foreign jurisdiction. This article should not be used as a substitute for competent legal advice from a licensed professional attorney in your state or locality.
Nearly every action that human resources and management professionals take potentially involves employment law issues. These issues range from hiring a job candidate, disciplining or firing an employee, to employee benefits.
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In addition to continuing their formal education, HR and management students – as well as working professionals – should get in the habit of regularly monitoring employment law cases and developments because of the continuously changing nature of the law.
Human resources and management students and professionals should:
- Join professional organizations such as the Society for Human Resource Management (SHRM)
- Attend employment law seminars like those offered by the American Bar Association
- Subscribe to employment law newsletters
- Monitor reliable blogs and websites that provide updates on employment law issues
For example, Workplace Prof Blog provides excellent coverage of current developments in the field of employment law that all HR and management professionals and students should review weekly.
US Supreme Court Decided Several Employment Law Cases in the 2018-2019 Term
While legal commentators have described the 2018-2019 Supreme Court term that ended in June as one of the most uneventful terms in recent memory, the Court did issue a handful of decisions that potentially affect HR and management professionals.
In Fort Bend County v. Davis, the Supreme Court addressed a technical legal issue: Is a plaintiff’s failure to exhaust all administrative remedies before the Equal Employment Opportunity Commission (EEOC) a jurisdictional bar that prevents the plaintiff from bringing a Civil Rights Act of 1964 Title VII claim? Title VII prohibits discrimination based on race, sex, color, national origin and religion.
Attorneys for Fort Bend County, Texas, argued that federal courts lack subject matter jurisdiction to decide Title VII claims that have not been fully exhausted. Subject matter jurisdiction is the ability of a court to hear a particular type of claim.
Because subject matter jurisdiction is not waivable, Fort Bend County argued that it was able to raise this issue for the first time on appeal. In contrast, attorneys for Lois Davis, a county IT supervisor, acknowledged the statutory requirement for Title VII plaintiffs to exhaust their administrative remedies before commencing a lawsuit. However, Davis argued that Title VII defendants could waive this requirement.
In a 9 to 0 decision, Justice Ruth Bader Ginsburg acknowledged that Title VII plaintiffs are required to exhaust their administrative remedies before filing a Title VII lawsuit. However, the Court also held that Davis’s failure to exhaust her administrative remedies before filing her lawsuit did not bar federal courts from hearing her Title VII claims.
According to the Supreme Court ruling, Fort Bend County waived the defect in Davis’s lawsuit (her failure to exhaust her administrative remedies) by not raising this argument at the earliest stages of the litigation. The National Law Review noted that by issuing this decision that the Supreme Court provided much-needed clarity regarding the impact of the plaintiff’s failure to exhaust all administrative remedies.
The second case, Lamps Plus, Inc. v. Varela, dealt with the interpretation of arbitration clauses contained in employment contracts. The case also explored the wording required in the arbitration clauses of employment contracts to subject class actions to arbitration.
Frank Varela brought a class action suit against his employer, Lamps Plus, Inc., alleging that the company negligently disclosed employee information when it was the victim of a phishing scheme. Varela sought to bring a class action against his employer via arbitration, citing the arbitration clause in his employment contract. In contrast, Lamps Plus, Inc. argued that the arbitration clause did not expressly address class actions and as such, class actions were not subject to arbitration.
According to Findlaw.com, “A ‘class action’ lawsuit is one in which a group of people with the same or similar injuries caused by the same product or action sue the defendant as a group.”
In a 5-4 decision written by Chief Justice John Roberts with Justice Brent Kavanaugh, the Court held that Varela could not bring a class action claim against Lamps Plus, Inc., via arbitration because the arbitration clause contained in Varela’s employment contract did not explicitly state that class action claims are subject to arbitration.
Thus, the Supreme Court held that arbitration clauses contained in employment contracts must clearly state that class action claims are subject to arbitration; otherwise, an employee or former employee like Varela cannot bring a class action claim via an arbitration proceeding.
Writing in the SCOTUS Blog, Charlotte Garden identified Lamps Plus, Inc. v. Varela as a decision heavily favorable to business interests because the Supreme Court interpreted ambiguity in the arbitration clause in question against the plaintiff.
Supreme Court Writ Eclipses Decided Cases of Sexual Orientation and Gender Identity
The Supreme Court’s decision to grant a writ of certiorari – by which a higher court reviews a decision of a lower court – in three cases dealing with sexual orientation and gender identity discrimination eclipses two cases decided during the 2018-2019 term.
The decision is one of the most anticipated rulings of the next term because these three cases will finally resolve several Circuit splits regarding whether the “because of sex” language in Title VII prohibits discrimination based on sexual orientation and gender identity.
A decision in the three cases will determine whether Title VII’s “because of sex” clause prohibits discrimination based on gender identity and sexual orientation. The Supreme Court will hear the appeal in the “because of sex” clauses this fall and issue a decision in the cases in 2020.
Is Obesity a Disability Under the ADA?
In addition to these Supreme Court decisions, an interesting Circuit split has emerged regarding whether obesity is a disability under the Americans with Disabilities Act (ADA). A Circuit split occurs when two or more Circuit Courts reach differing interpretations of a legal issue. HR and managers will want to pay close attention to the decision because of the many causes and perceptions of obesity in the workplace.
For example, the Seventh Circuit Court of Appeals recently held that obesity not caused by a diagnosed medical or mental condition is not a disability under the ADA. However, other Circuits have reached different interpretations. The split among Circuits on this issue potentially sets up a future Supreme Court case.
Keeping Abreast of the Employment Law Mitigates Litigation Risk
It is essential for HR and management professionals to keep abreast of the law because their number one responsibility is to minimize their company’s exposure to the risk of being sued. Mitigation of litigation is possible only if HR and management professionals and students understand the complexity of the legal landscape, including any recent developments and changes to employment law that could affect their work.
Seeking Legal Advice Is Often the Most Prudent Course of Action
HR and management students and professionals must also remain mindful of the fact that they are not lawyers. Keeping abreast of changes in employment law is no substitute for the competent legal advice of a skilled and licensed attorney.
Almost all large organizations and companies have in-house counsel to provide legal advice and guidance. Thus, HR and management students or professionals must be cognizant of when they require the intervention of a licensed attorney. They should not be afraid to reach out to legal counsel when the need arises.
About the Author
James Barney is an Associate Professor of Legal Studies in the School of Security and Global Studies. In addition to possessing a J.D., James has several master’s degrees, including in American foreign policy. He is currently completing his Ph.D. in History. James serves as one of the faculty advisors of the Phi Alpha Delta law fraternity as well as the Model United Nations Club and acts as the pre-law advisor at APU. Currently, he is working on a year-long research project that focuses on Justice Bret Kavanaugh’s impact on the Supreme Court.
James is licensed to practice law in New York, New Jersey, Alabama and the District of Columbia. Over the past several years, he has served in various roles at debating and moot trial competitions in New York and Washington, D.C. In 2019, James will co-coach the APUS mock trial team at Phi Alpha Delta’s annual mock trial competition in Arlington, Virginia, and will also serve as one of the faculty advisors for the school’s Model UN delegation to the National Model United Nations-Washington, D.C., conference.
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