March 2018

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating on the bases of race, color, national origin, religion, and sex. Federal circuits are currently split on whether discrimination based on sexual orientation falls within the scope of discrimination based on sex (and therefore within the scope of Title VII’s prohibition). On February 26, 2018, the en banc Second Circuit Court of Appeals found in Zarda v. Altitude Express that Title VII’s prohibition of discrimination based on sex does in fact cover discrimination based on sexual orientation, overturning its own precedent holding from almost twenty years prior. This result signals increased viability for challenges advocating a broader interpretation of Title VII to remedy sexual orientation discrimination, as well as a potential pushback by the Jeff Sessions-helmed Justice Department as these challenges arise.

 

Zarda involved a skydiving instructor (Zarda) who alleged that his employer (Altitude Express) fired him in response to a customer telling them of his sexual orientation. The U.S. District Court for the Eastern District of New York granted summary judgment in favor of Altitude Express on Zarda’s claim, finding that Title VII failed to cover sexual orientation discrimination, and that Zarda failed to establish the type of gender-stereotyping claim covered by the act. The District Court considered itself bound by the Second Circuit’s 17-year-old decision in Simonton v. Runyon, and held that, absent an en banc review by the Second Circuit reversing Simonton, Second Circuit precedent required dismissal. Zarda appealed the summary judgment to the Second Circuit, which granted an en banc review. Writing the majority opinion, Judge Robert Katzmann wrote in the majority opinion that sexual orientation discrimination necessarily involves sex discrimination, as it means discrimination against someone based on their own sex in relation to the sex of those to whom they are sexually attracted. Katzmann noted that although Congress had not sought to address sexual orientation discrimination in Title VII, laws like Title VII “often go beyond the principal evil to cover reasonably comparable evils,” which in this case included sexual orientation discrimination. The Second Circuit thus reversed Simonson, vacated the summary judgment, and remanded the Title VII claim to the District Court.

 

By allowing such a claim to proceed under Title VII, the Second Circuit joined the Seventh Circuit, which found last April that Title VII covers sexual orientation discrimination in its decision in Hively v. Ivy Tech Community College of Indiana. Hively concerned an adjunct professor who alleged that her employer passed her up for full employment because she was openly gay. Hively argued that she faced discriminated for failing to conform to female stereotypes, and because she publicly identified as a lesbian. The Seventh Circuit reversed and remanded the summary judgment in favor of her employer. It found that “discrimination on the basis of sexual orientation is a form of sex discrimination” and that “a person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes.” According to the Seventh Circuit, Title VII encompassed both her gender non-conformity and sexual orientation discrimination allegations.

 

The Eleventh Circuit held otherwise in Evans v. Georgia Regional Hospital, decided on March 10, 2017. The case involved a male-identifying security hospital security guard (Evans) allegedly dismissed from employment for failing to present as a woman. Like the plaintiff in Hively, Evans argued that she suffered discrimination due to her gender non-conformity, which she argued fell within the scope of Title VII’s prohibition of sex discrimination. The Eleventh Circuit agreed that Title VII protected against this type of discrimination, but found that she failed to make a prima facie showing of it. The Eleventh Circuit distinguished discrimination based on gender non-conformity from discrimination based on sexual orientation, and found that Title VII did not address the latter.

 

In Franchina v. City of Providence, decided on January 25, 2018, the First Circuit heard the city’s appeal of a verdict and judgment against it for a female firefighter’s Title VII claim that her employer provided her with a hostile workplace, where she suffered discrimination as both a woman and a lesbian. She proceeded under a “sex-plus” theory, or a gender discrimination claim alleging that an employer classifies employees based on their sex “plus” another characteristic (in this case, sexual orientation). The First Circuit held in denying the city’s challenge that the plaintiff’s claim of sexual orientation discrimination, although not technically redressable under Title VII, did not cause her meritorious sex discrimination claim to fail. In a jurisdiction following Zarda’s reasoning, this “sex-plus” heuristic becomes less meaningful or necessary for the plaintiffs to resort to, where sexual orientation itself becomes a protectable distinction. The difference between two jurisdiction’s analyses in cases like Franchina underscores the stakes in the national push for Circuit reconsideration of narrow judicial applications of Title VII.

 

After these cases, a pronounced Circuit split exists on the scope of Title VII’s coverage. On December 11, 2017, the Supreme Court refused certiorari for the plaintiff’s appeal in Evans, but more appeals to the Court’s jurisdiction on this issue appear imminent. The Second Circuit’s reversal appears to increase the impetus for the Supreme Court to address this question. In the meantime, state legislatures draft their own provisions aimed at remedying the type of discrimination typified by these suits.

In a recent decision, the Rhode Island Supreme Court ruled that when an arbitration award exceeds the insurance policy limits, the Superior Court cannot consider the policy limits, or the insurance policy itself, in a motion to modify the award, unless the insurance company asserted a policy limit defense at the arbitration and provided a copy of the policy to the arbitrator.

 

In Lemerise v. Commerce Ins. Co., the Rhode Island Supreme Court held that trial courts may not supplement the review of a motion to modify an arbitration award pursuant to R.I. General Laws Section 10-3-14 with testimony, other evidence, and even arguments, if those items were not raised during the arbitration.  137 A.3d 692 (R.I. 2016).  This new precedent provides instructions to the trial court when reviewing motions to modify arbitration awards.  Courts are now forbidden to review evidence and arguments that were not presented or raised during the arbitration proceedings, and have been instructed to confirm arbitration awards unless the narrow exceptions outlined in Section 10-3-14 apply.

 

The underlying matter in Lemerise involved a dispute between the plaintiff, Joseph Lemerise, and the defendant, the Commerce Insurance Company.  In August 2011, Mr. Lemerise was struck by an uninsured motorist while crossing a street in Newport, Rhode Island.  Lemerise, 137 A.3d at 697.  Following the accident, Mr. Lemerise filed a claim for coverage under his automobile insurance policy through Commerce.  Id.  The parties unsuccessfully attempted to negotiate appropriate compensation for Mr. Lemerise’s injuries and a suit was subsequently filed in the Newport County Superior Court.  Id.  After filing the suit, the parties agreed to participate in arbitration pursuant to the terms of Mr. Lemerise’s uninsured motorist policy.  Id. at 705.  The arbitrator sought to determine the extent of Mr. Lemerise’s injuries and award sufficient compensation.  Id. at 698.  The arbitrator assessed Mr. Lemerise’s injuries at $150,000 and added prejudgment interest of $47,550, which brought the total award to $197,550.  Id. This total was well above the policy limit of $100,000.  Id.

 

At the conclusion of the arbitration, Mr. Lemerise moved in the superior court to confirm the arbitration award, and Commerce filed a motion seeking modification.  Id. at 698.  While reviewing the motions, the superior court supplemented its review of the issues at hand with a copy of Mr. Lemerise’s insurance policy, as well as testimony from the arbitrator.  Id.  The superior court justice granted Commerce’s motion to modify the award to conform with the insurance policy limit of $100,000.  Id. at 699.  The justice stated that he would not “allow [Mr. Lemerise] to take advantage of some technicality to get more than he bargained for in this case.”  Id.  Mr. Lemerise appealed to the Rhode Island Supreme Court, seeking a reversal of the superior court’s holding and a confirmation of the initial arbitration award.  Id.

 

The sole issue presented before the Supreme Court was whether the trial justice erred in granting the motion to modify the award, when, after supplementing the record with the admission of the insurance policy and the testimony of the arbitrator, he reduced the award to conform to the policy limit of $100,000.  Id. at 700.  Upon review of the lower court’s holding, the Rhode Island Supreme Court expressed concern that litigants might sidestep the binding effect of arbitration awards by moving for modification of the awards.  Id. at 699.  The Court stated that “[p]ublic policy favors the finality of arbitration awards, and such awards enjoy a presumption of finality.” Id.  The Supreme Court further stated that courts reviewing a motion to confirm an arbitration award must limit the scope of their review to the arbitration record.  Id. at 700.

 

In Lemerise, the Court determined that Commerce effectively waived certain defense arguments regarding awards in excess of the insurance policy limits by not raising those defenses in the arbitration proceedings.  Id. at 704.  Particularly, the Court concluded that Commerce waived a policy limit defense by failing to submit a copy of Mr. Lemerise’s insurance policy during the arbitration proceedings.  Id.  In addition, the Court determined that the arbitrator did not err by awarding prejudgment interest.  Id. 700-04. The Court vacated the superior court’s order and remanded the case to the superior court with instructions to confirm the arbitrator’s award of $197,550.  Id. at 704-05.

 

In conclusion, the Rhode Island Supreme Court made clear that a trial court considering a motion to modify an arbitration award pursuant to section 10-3-14 may not expand its review beyond the arbitration record.  Therefore, when an insurance policy limit may be a defense, it is imperative that such arguments, and any supporting evidence, are introduced at the arbitration hearing; otherwise there is no remedy for arbitration awards in excess of the policy.

Recently, a team of attorneys from MG+M successfully obtained a dismissal of all claims against their client, based on the lack of personal jurisdiction.  The case was Howell v. Asbestos Corporation, pending in Los Angeles County Superior Court before the coordinating asbestos judge, the Honorable Steven J. Kleifield.  In his decision dismissing the claims, Judge Kleifield applied the stringent personal jurisdiction standards recently set forth in Bristol-Meyers Squibb Co. v. Superior Court of California 137 S. Ct. 1773 (2017).

 

In Bristol-Meyers, the United States Supreme court examined whether a state court could exercise personal jurisdiction over the claims of non-resident plaintiffs against a non-resident corporate defendant for injuries occurring out of the forum state.  Id. at 1778  Specifically, a group of plaintiffs sued Bristol-Myers Squibb (Bristol) in a California court for injuries sustained after ingesting a drug manufactured and supplied by Bristol.  Many of the plaintiffs were not from California. Bristol was incorporated in Delaware with its principal place of business in New York; however, it did have some connections with California, as it sold its drug within the state.

 

Ultimately, the Court ruled that California courts could not exercise specific personal jurisdiction over Bristol with respect to any plaintiffs who did not reside in California, because any conduct giving rise to the non-resident plaintiffs’ claims occurred outside of California. The Court noted that specific jurisdiction necessitates “an affiliation between the forum and underlying controversy, principally, [an] activity or an occurrence that takes place in the forum state.”  Id. at 1781.  Thus, because the complaint did not allege any acts or occurrences in California that specifically resulted in injury, the Court ruled that California could not exercise personal jurisdiction over the claims against Bristol.

 

In the Howell v. Asbestos Corporation case decided last week, the plaintiffs alleged that Mr. Howell developed malignant epithelial mesothelioma as a result of exposure to various asbestos-containing products. Although the plaintiff did reside in California for a short period of time, the vast majority of the plaintiff’s alleged exposure to asbestos occurred in the state of Texas. On behalf of one of the defendants, attorneys from MG+M argued that California courts lacked personal jurisdiction over our client pursuant to the standard set forth in Bristol-Meyers. Specifically, MG+M attorneys argued the plaintiff’s claims did not relate to any contacts that the defendant had with the state of California. For example, the defendant was not incorporated in California, did not have its principal place of business in California, and had less than 1 percent of employees residing in California, meaning there was no general jurisdiction. Additionally, the plaintiff’s alleged injury from the defendant’s product occurred outside of the state of California, meaning there was no specific jurisdiction. Ultimately, Judge Kleifield applied the Bristol-Meyers standard and held that because the plaintiffs’ claims did not bear a substantial connection to the non-resident defendant’s forum contacts, the exercise of personal jurisdiction was not appropriate.

 

 

The Future of Bristol-Meyers

 

Since the decision in Bristol-Meyers, corporate defendants are raising more personal jurisdiction challenges and achieving greater success. The Bristol-Meyers standard for personal jurisdiction has fundamentally changed the rules governing where corporate defendants can be sued, limiting plaintiffs’ lawyers’ ability to select favorable forums in which to file claims (i.e. forum shopping).  To establish specific jurisdiction, plaintiffs’ lawyers now must plead specific facts that show a connection between their client’s claims and the forum in which they seek adjudication.