Carter DeLorme, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Nashville and Washington, DC, offices, was quoted in Law360 Employment Authority, in “4 Cases to Watch as New Supreme Court Term Kicks Off,” by Anne Cullen. (Read the full version – subscription required.)
Following is an excerpt:
With the U.S. Supreme Court poised to start a fresh term, employment discrimination experts said they're keeping a close eye on two accepted cases and two pending petitions that address issues including the boundaries of Title VII's protections, religious rights and court deference to federal agencies.
Here is a look at four cases management-side employment attorneys will be watching as the high court gets into gear. …
Davis v. Legal Services Alabama
Another similar legal firefight employment lawyers are keeping an eye on addresses whether a paid suspension could be the kind of workplace decision that could trigger Title VII protections.
In Davis v. Legal Services Alabama, which the high court has not yet decided whether it will take up, Black former congressional representative Artur Davis has alleged that the nonprofit legal aid firm violated Title VII's ban on race discrimination when it suspended him with pay from his job as executive director.
Davis, who also kicked off his lawsuit in 2018, was suspended while staff complaints against him were investigated, but he said white, high-ranking employees under scrutiny for alleged misconduct faced less harsh penalties.
Similar to the trajectory of Muldrow's case, both a trial court and later the Eleventh Circuit concluded that a paid suspension did not constitute an "adverse employment action" that could give rise to Title VII discrimination claims.
Davis, who, like Muldrow, is being represented by the Georgetown Law appellate clinic, has called on the high court to declare that being forced onto paid leave does implicate a job's terms and conditions, and therefore could violate Title VII if bias was behind the decision. His legal battle has also won the backing of the federal government.
Epstein Becker Green member M. Carter DeLorme, who advises employers, said if Davis gets his way, it could harbor an even more significant change for employers and their lawyers than a win for Muldrow.
"If a court makes a decision in Davis that being placed on paid administrative is a significant employment disadvantage, that would be a very important decision to the management bar," DeLorme said.
DeLorme said a suspension with pay is a common lever businesses pull when they need to conduct an investigation, but if this decision could implicate Title VII, they may need to rethink their game plans.
"Placing an employee on paid administrative leave has historically been a very important tool for management when gathering facts to resolve issues," DeLorme said. "If we are now taking the position that being placed on paid leave is going to constitute a significant employment disadvantage or adverse employment action, employers are going to have to reassess how they address many of the workplace issues that they face."