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Justice Dept. Seeks to Stop LGBT Ruling

The Trump Administration fired two shots across the bow of the LGBT community, aiming to set back Obama-era rulings that protected soldiers and workers.

The same day Trump announced that the U.S. military would not allow transgender people in the armed forces, the Justice Department told a federal court that anti-discrimination laws should not protect people at work based on their sexual orientation.

In Zarda v. Altitude Express, Inc., the Justice Department says that Title VII of the Civil Rights Act protects workers based on their sex -- not their sexual orientation.

Foot Locker Loses Appeal of $180 Million Verdict for ERISA Violations

Foot Locker stepped on its employees, but didn't expect them to kick back.

In Osberg v. Foot Locker, Inc., the plaintiffs won a $180 million judgment against the company for misleading them about their pension plan. The company appealed, saying it was an unfair windfall to more than 10,000 employee claims that were time-barred.

The U.S. Second Circuit Court of Appeals rejected the arguments, saying the claims were not barred because the workers could not reasonably determine when they had been wronged.

The Civil Rights Act of 1964 prohibits employment discrimination on the basis of sex. That includes discrimination against employees who fail to conform to gender stereotypes. But the Civil Rights Act offers no explicit protections against discrimination on the basis of sexual orientation and many courts have refused to allow suits alleging discrimination because of anti-gay bias, even if that bias was born out of gender stereotypical views.

But the Second Circuit opened the door to just such a challenge on Monday, ruling that a gay employee who suffered homophobic harassment could pursue a Title VII lawsuit against his employer.

2nd Cir. Adopts NLRB Standard for Bargaining Units

The Second Circuit has adopted the National Labor Relations Board's organizational standards for proposed unions. In applying a two-part test, the court joined other federal jurisdictions to evaluate whether proposed collective bargaining units consist of employees who share a "community of interests" and do not "arbitrarily exclude other employees." The panel reached its decision in Constellation Brands v. National Labor Relations Board, a contest over the organization of a winery's operations department.

"We hold the Specialty Healthcare framework to be valid, as our sister circuits have, and to be consistent with this Court's precedent," the court said. While upholding the NLRB's framework, however, the court concluded the Board did not properly apply the standard.

When the Baltimore Orioles go into overtime, the workers in Camden Yards don't exactly celebrate. That's because the men and women who sell you your peanuts and crackerjacks don't get paid overtime.

Those workers sued in 2011, alleging that the lack of overtime ran afoul of federal labor laws. But the Second Circuit disagreed last Monday, ruling that the concession workers were exempt from overtime protection.

A company can be held responsible for the retaliatory actions taken by one co-worker against another, even when those workers are just low-level employees, the Second Circuit ruled on Monday.

The decision makes it easier for employers to be held liable under a "cat's paw" theory of liability. "A what?" you ask. A cat's paw. That is, the sort of obscure theory of liability coined by Seventh Circuit Judge Richard Posner and relating to an ancient Aesop fable. The gist: as a cat paws one toy, causing it to hit another, so to can employers be held responsible when one employee manipulates them into taking discriminatory or retaliatory action against another.

Lehman Brothers Dodges Another ERISA Challenge in 2nd Cir.

Current and former employees of Lehman Brothers came away disappointed again in their legal battle that first began when the recession started back in 2008. According to the Second Circuit, application of Amgen Inc. v Harris means that the plaintiffs failed to prove that an SEC ban on short selling constituted "special circumstances."

This ruling marks the first time a federal circuit court has applied the 2016 SCOTUS case of Amgen to a pending ERISA case.

2nd Circuit Revives ADA Case, Treats Student Like Employee

The Second Circuit revived a discrimination case that was originally brought in August of 2014 in which the former student accused his medical school of expelling him based on discrimination.

The University at Buffalo School of Medicine and Biomedical Sciences (UBMED) dismissed Dean from the M.D. program after he failed to appear for his third administration of Step 1 of the United States medical Licensing Examination. In Dean's original suit, he alleged UBMED's dismissal of him from the school was based on disability and race; he pled violations of Title II of the Americans with Disabilities Act, the Rehabilitation Act, 42 U.S.C. sec. 1981, and 42 U.S.C. sec. 1983.

This case is notable because it marks possibly the first time the 2nd Circuit has been asked to analyze the ADA in the context of education discrimination. In doing so, the Court clarified the permissible use of the ADA as applied to former students.

The Second Circuit greatly expanded the right to bring retaliation suits against government employees last Thursday. In a unanimous three-judge ruling, the court found that claims of illegal retaliation based on a complaint of discrimination are allowed under 42 U.S.C. sec. 1983, which makes government employees liable for violating constitutional rights under the color of law.

The ruling represents a break from 19 years of precedent which largely found retaliation to be outside sec. 1983's scope.

Every first year law student is familiar with the pleading requirements established by Iqbal v. Ashcroft. Under Iqbal, a complaint must make facially plausible factual allegations that the defendant is liable for misconduct. For some, Iqbal is a betrayal of permissive pleading requirements; for others, it is a necessary protection against meritless litigation.

That holding has been in tension with previous Supreme Court rulings on employment discrimination. Under those precedents, only minimal evidence "suggesting an inference" of discrimination is needed in pleadings. The Second Circuit attempted to reconcile those precedents, holding that Iqbal applies to employment discrimination complaints but does not affect the benefits of the doubt given to plaintiffs by other precedent.