By Pamela Wolf, J.D. The Supreme Court’s oral argument calendar for the session beginning March 21, 2016, shows that the Justices will hear from the parties in a case that has been on the radar of labor and employment practitioners for a long time. The petition for cert in CRST Van Expedited, Inc. v. EEOC, granted on December 4, 2015, challenges the reversal of a $4.69 million award of attorneys’ fees and costs against the federal agency. And the cert petition is not even the latest development in a case that began in 2007—10 days after it was granted, the EEOC lost its bid to apply the High Court’s Mach Mining ruling to revive 67 individual claims in the case. The Court will also hear argument in consolidated cases testing the contraceptive mandate of the Patient Protection and Affordable Care Act (ACA) against the Religious Freedom Restoration Act (RFRA). EEOC fee award. The Court will hear argument on March 28 in the EEOC’s hard-fought sexual harassment litigation against CRST Van Expedited. The employer has asked the Supreme Court to roll back the Eighth Circuit’s reversal of a $4.69 million award of attorneys’ fees and costs entered by a federal court in the Northern District of Iowa. The Eighth Circuit’s ruling was the “second major litigation” over attorneys’ fees in the suit that the EEOC originally filed on behalf of 270 female truck drivers who purportedly were sexually harassed. The long-haul trucking company tolerated the harassment in violation of Title VII, according to the EEOC. The Eighth Circuit reversed the lower court’s award despite the fact that CRST had narrowed the litigation down to one claimant. Among other rulings, the appeals court found that the lower court erred in assuming that the EEOC had asserted a pattern-or-practice claim, dismissing that claim, and including that assumed claim as a basis for fees. The lower court also erred in concluding that the dismissal of 67 claims, based on the EEOC’s failure to satisfy pre-suit obligations such as conciliation, was a ruling on the merits. The appeals court also said that the lower court would have to explain on remand why a particular claim is frivolous, unreasonable, and groundless. Impact of Mach Mining? After the Court granted CRST’s petition for cert, the district court ruled unfavorably on the EEOC’s bid for Rule 60 relief from the order dismissing the complaint on behalf of 67 allegedly aggrieved individuals and to set the matter for trial, arguing that Mach Mining, LLC v. EEOC “clarified” the agency’s pre-suit obligations” and was contrary to the dismissal, justifying relief because the Supreme Court decision represented “a change in applicable law.” The district court found that Mach Mining didn’t even apply. The dismissal here, stressed the court, was not based on an inquiry into the sufficiency of EEOC’s investigation or conciliation process, but the fact that no investigation or conciliation occurred at all. And even if Mach Mining were a significant change in the applicable law, that still did not constitute the extraordinary circumstances required for Rule 60(b) relief. In its petition for cert, CRST asserts that the Eighth Circuit reversed the fee award, not because it disagreed as to the unreasonableness of the EEOC’s conduct, but rather because of a circuit rule limiting fee awards to cases that involve rulings on the merits. The Eighth Circuit’s ruling purportedly contradicts the rulings of three other circuits that have awarded fees to defendants because of the EEOC’s failure to satisfy pre-suit obligations. It also cannot be squared with the Supreme Court’s 2006 ruling in Arbaugh v. Y&H Corp and its 1978 holding in Christianburg Garment Co. v. EEOC, and “makes no sense as a matter of statutory policy,” CRST argues. The question posed for the Justices to determine is: “Whether the dismissal of a Title VII case, based on the Equal Employment Opportunity Commission’s total failure to satisfy its pre-suit investigation, reasonable cause, and conciliation obligations can form the basis of a [sic] attorney fee award to the defendant under 42 U.S.C. 2000e-5(k)?” ACA challenges. On March 23, the Justices will hear argument on the consolidated cert petitions brought by seven religious nonprofits that challenge the ACA’s contraceptive mandate. They seek to overturn the requirement that non-profit groups take action to opt out of the mandate, allowing them to benefit from the blanket exclusion granted to churches and other religious institutions. Earlier, in June 2014, the Court held in Burwell v. Hobby Lobby Stores, Inc. that HHS regulations requiring employer-sponsored health plans to include FDA-approved contraceptives among the preventive services covered without cost sharing could not be applied to for-profit corporations with religious objections to some of the contraceptive methods. Don’t make us ask. The nonprofits in the pending petition are pressing the Court for a ruling that would let them be exempt from the requirement to provide contraceptive coverage to which they object without having to undertake the accommodation process, which requires the filing of additional paperwork stating the organizations’ objection to the provision of contraceptives. The accommodation itself, the organizations argue, is a substantial burden on their religious exercise. The seven cases, originating in the Third, Fifth, Tenth, and District of Columbia Circuits, have been consolidated for hearing before the Court: Geneva College v. Burwell; Southern Nazarene University v. Burwell; Little Sisters of the Poor Home for the Aged v. Burwell; East Texas Baptist University v. Burwell; Roman Catholic Archbishop of Washington v. Burwell; Priests for Life v. Burwell; and Zubik v. Burwell. The Court will rule on whether the mandate and the accommodation violate RFRA.
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