Hunton Employment & Labor Perspectives

In an April 24, 2017 decision, the U.S. District Court for the District of Columbia denied a motion to dismiss filed by Bravo! Facility Services, Inc. (“Bravo!”) against a former employee who brought claims under the ADA, District of Columbia Human Rights Act, and the FMLA.  Bravo! asserted that the plaintiff should be barred under the doctrine of judicial estoppel from asserting her claims because she initially failed to disclose her employment discrimination claims in her chapter 7 bankruptcy case filed after her employment terminated.  The plaintiff had moved to reopen her bankruptcy case and amended her asset schedules to disclose the claims before filing suit against Bravo!  In denying Bravo!’s motion, the court distinguished these facts from other situations where a plaintiff fails to disclose a claim prior to filing suit or only after challenged by an adversary.

In a landmark ruling on April 4, 2017, the United States Court of Appeals for the Seventh Circuit, sitting en banc, became the first federal appellate court to officially recognize a discrimination claim under Title VII based solely on the plaintiff’s sexual orientation.  The Court’s decision in Hively v. Ivy Tech Community College of Indiana reflects a groundswell of recent cases questioning whether sexual orientation claims are viable under Title VII.  Although the Seventh Circuit is the only appellate court so far to hold that sexual orientation discrimination is a form of “sex” discrimination under Title VII, recent panel decisions from the Second and Eleventh Circuit Courts of Appeals signal that additional circuit courts might be poised to overrule existing case law to find similar protections.

The United States Supreme Court recently resolved a Circuit Court split on the appropriate standard of review of a District Court’s decision whether to enforce a subpoena issued by the Equal Employment Opportunity Commission (“EEOC”).  In McLane Co., Inc. v. Equal Employment Opportunity Commission, No. 15-1248, 581 U.S. __ (April 3, 2017), the Court held that such a decision should be reviewed only to determine whether the District Court abused its discretion – a deferential standard of review.  This conclusion was fairly uncontroversial.  Indeed, the abuse of discretion standard has long been used for review of decisions whether to enforce administrative subpoenas (such as those issued by the National Labor Relations Board). Historically, however, the Ninth Circuit alone has used a de novo standard of review in these circumstances, while the seven other U.S. Courts of Appeal to have addressed this issue all applied the more deferential standard.  The Ninth Circuit panel itself questioned why de novo review applied, in light of the substantial authority to the contrary, and the Supreme Court took the case to resolve this circuit split.