Zarda is Out: En Banc Second Circuit Holds Sexual Orientation Discrimination is Protected by Title VII

This is the decision that so many have been waiting for. In a historic ruling in Zarda v Altitude Express, the Second Circuit today overruled its' prior precedent in Simonton v. Runyon, and held that sexual orientation discrimination is discrimination because of sex that finds protection under Title VII. The comprehensive opinion the majority of the Second... Continue Reading →

Expressions Hair Design Update: The Second Circuit Certifies Interpretation Question to the Court of Appeals

You've bought things with a credit card before, right? Me too. Have you ever thought that you might be charged a different price for what you're buying because you're not paying in cash? Me neither, and that seems to be what New York General Business Law § 518 tries to prevent.  It provides: No seller in any sales... Continue Reading →

En Banc Second Circuit Hears Arguments Whether Sexual Orientation Discrimination is Discrimination Because of Sex Under Title VII

The full Second Circuit yesterday heard arguments in Zarda v Altitude Express, which involves the hot button legal question whether Title VII offers protection for sexual orientation discrimination under the clause prohibiting discrimination "because . . . of sex." In a nearly two-hour argument, with three attorneys arguing on each side, the Court was fairly active... Continue Reading →

U.S. Department of Justice Contradicts EEOC, Argues that Title VII Does Not Protect Against Sexual Orientation Discrimination

In Zarda v Altitude Express, Inc., the Second Circuit, sitting en banc, is faced with the question of whether to overrule its prior precedent and hold that Title VII protects against sexual orientation discrimination.  One month ago, the EEOC filed an amicus brief urging the Court to overrule its prior precedent in Simonton v Runyan, and... Continue Reading →

Chevron Strikes Again: Second Circuit Holds FMLA Retaliation Plaintiffs Need Only Show Exercise of Rights was Motivating Factor, Not But For Cause

The Family Medical Leave Act provides job protection for workers who need time off for a serious health condition or to care for family members who are suffering from a qualifying condition.  Because of its broad protections, the FMLA has also engendered a substantial amount of litigation.  The claims can take two different shapes: FMLA... Continue Reading →

Expressions Hair Design Update: State Asks Second Circuit to Certify Interpretation of General Business Law § 518 to the Court of Appeals

Seven weeks ago, the Second Circuit asked the parties in Expressions Hair Design v Schneiderman to submit further briefing on whether it should certify to the Court of Appeals the question of how General Business Law § 518, New York's credit card surcharge law, should be interpreted, whether section 518 is a valid commercial disclosure, and whether... Continue Reading →

EEOC Argues Sexual Orientation Discrimination is Protected by Title VII, Second Circuit Should Overrule Simonton En Banc

In Zarda v Altitude Express, Inc., the Second Circuit, sitting en banc, is faced with the question of whether to overrule its prior precedent and hold that Title VII protects against sexual orientation discrimination.  In Simonton v Runyan, the Court previously held that sexual orientation discrimination is not protected under Title VII's protection against discrimination "because... Continue Reading →

Second Circuit Certifies Questions to Court of Appeals Concerning Damages, Interest in Misappropriation of Trade Secrets Cases

Manufacturing plastic security seals is apparently big business.  You know, those seals that are nearly impossible to get off a bottle without a knife but give you a measure of comfort that nobody tampered with your goods before you opened them.  Well, when your company makes those plastic security seals, and three employees steal your... Continue Reading →

Second Circuit Liberalizes Article III Standing for Class Action Against Whole Foods

You walk into Whole Foods and see organic this, grass fed that, and cage free, free range the other.  What don't you see? A large sign that says: "Buy some prepackaged tabouli. We have overweighted it and will charge you more than you're actually going to get.  You're welcome."  That's what the plaintiff in John... Continue Reading →

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