By Anthony J. Oncidi
Anthony J. Oncidi is a partner and the Chair of the Labor and Employment Department of Proskauer Rose LLP in Los Angeles, where he exclusively represents employers and management in all areas of employment and labor law. His telephone number is (310) 284-5690 and his email address is aoncidi@ proskauer.com. (Tony has authored this column without interruption for every issue of this publication since 1990.)
Bostock v. Clayton County, 590 U.S. ___, 140 S. Ct. 1731 (2020)
The question for the United States Supreme Court in this (and two companion cases) was whether Title VII of the Civil Rights Act of 1964 is violated by an employer that terminates an employee merely for being gay or transgender. In a 6-3 opinion written by President Trump's first appointee to the Court (Justice Neil Gorsuch), the Court determined that Title VII does prohibit such discrimination in that it is "because of . . . sex." The Court came to this conclusion over spirited dissenting opinions from Justices Thomas, Alito, and Kavanaugh, who focused on congressional intent in 1964, which everyone concedes did not include such protections. The majority noted, however, that ". . . the limits of the drafters' imagination supply no reason to ignore the law's demands." As a result of this opinion, all employers subject to Title VII (including those doing business in states and municipalities that provided no protection against gay and transgender discrimination in the workplace) now must abide by the requirements of federal law with respect to such employees. Notwithstanding his dissent, Justice Kavanaugh noted that it was "appropriate to acknowledge the important victory achieved today by gay and lesbian Americans . . . [who] can take pride in today's result."
IMDb.com Inc. v. Becerra, 962 F.3d 1111 (9th Cir. 2020)
The Ninth Circuit has affirmed the district court's grant of summary judgment in favor of IMDb.com, a website that lists, among other things, the actual ages of actors and actresses. At issue was whether a 2016 California law (Assembly Bill 1687), which prohibits commercial online services from publishing actors' ages without their consent, is constitutional. The law was undoubtedly the best thing to happen to Hollywood since the invention of BOTOX. The statute required database sites like IMDb to remove an actor's age if requested, with the stated goal of preventing age discrimination in casting. In the lawsuit, IMDb argued successfully that the law violated the First Amendment by "chill[ing] free speech and undermin[ing] public access to factual information" without actually addressing age discrimination.
Ward v. United Airlines, Inc., 9 Cal. 5th 732 (2020)
Plaintiffs are pilots and flight attendants for United Airlines, which is based outside California. Although they reside in California, they perform most of their work in airspace outside of California's jurisdiction. The employees are not paid according to California wage law, but pursuant to the terms of a collective bargaining agreement entered into under federal labor law. The question posed in this case to the California Supreme Court by the Ninth Circuit is whether the airline must provide such employees with California-compliant wage statements pursuant to Labor Code section 226(a). The California Supreme Court answered the Ninth Circuit's questions as follows: (1) The Railway Labor Act exemption in Wage Order No. 9 does not bar a wage statement claim brought under section 226 by an employee who is covered by a collective...
