Altshuler Berzon LLP files nationwide class action lawsuit against Aetna alleging fertility policies discriminate against LGBTQ people

On April 17, 2023, Altshuler Berzon LLP, together with Liu Peterson-Fisher LLP and the National Women’s Law Center (NWLC), filed a class action lawsuit in the U.S. District Court for the Northern District of California alleging that Aetna’s policies discriminate against LGBTQ people who seek to get pregnant using fertility treatments. The lawsuit alleges that Aetna’s discriminatory infertility policy requires LGBTQ people who wish to become pregnant to pay more and wait longer before accessing the fertility benefits covered by their Aetna health plans, compared to those in heterosexual relationships. Aetna makes fertility treatments readily accessible to plan members in heterosexual relationships who seek them but requires LGBTQ plan members who wish to have children with their partners to submit proof that they have undergone six or 12 cycles (depending on age) of arduous and expensive artificial insemination treatments – among the very fertility treatments for which they seek coverage – before they can access the fertility benefits included in their health plans.

The lawsuit alleges that Aetna’s infertility policy violates Section 1557 of the Affordable Care Act, which prohibits discrimination in health care based on sex, including sexual orientation and gender identity. Plaintiff Mara Berton brings this class action on behalf of others similarly situated, seeking damages for LGBTQ Californians harmed by Aetna’s discriminatory policy, as well as nationwide injunctive relief enjoining Aetna’s discriminatory policy once and for all.

The complaint can be found here, and further information about the case is available here.

California Court of Appeal Holds Tesla Workers Not Required to Arbitrate Classwide Claims for Race Discrimination and Harassment; California Supreme Court Denies Review

On January 4, 2023, the California Court of Appeal rejected Tesla’s attempts to require a putative class of current and former Black workers employed in its Fremont, California manufacturing plant to arbitrate most of their race discrimination and harassment claims. The workers allege that Tesla is liable for years of severe and pervasive racial discrimination and harassment committed against Black workers and contractors by Tesla supervisors, employees, and others under Tesla’s control and direction.

Affirming the trial court in full, the Court of Appeal held that the plaintiffs and class members who were initially hired by a staffing agency to work at the Tesla plant, before becoming direct employees of Tesla, were not required to arbitrate any portion of their claims that arose before they became directly employed by Tesla. The Court also held that Tesla’s arbitration agreement was invalid and unenforceable to the extent it prohibited the plaintiffs and class members from pursing public injunctive relief in any forum, thereby entitling plaintiffs to pursue their claims for public injunctive relief in court. As the Court concluded, the workers’ request for an injunction preventing further discrimination under the Fair Employment and Housing Act was a request for public injunctive relief because such “invidious discrimination harms the public at large, including individuals lacking any direct connection to the workplace involved.” Vaughn v. Tesla, Inc., 87 Cal.App.5th 208, 232 (2023).

The Court of Appeal also rejected Tesla’s argument that the Federal Arbitration Act, as interpreted in Viking River Cruises v. Moriana, 142 S.Ct. 1906 (2022), preempts the California rule prohibiting contractual waivers of the right to seek a public injunction.

On April 12, 2023, the California Supreme Court denied Tesla’s petition for review of the Court of Appeal’s opinion, setting the stage for the workers’ claims to proceed on their merits in Alameda County Superior Court.

Altshuler Berzon LLP served as lead counsel for the plaintiffs on appeal; the plaintiffs are also represented by the Bryan Schwartz Law Group and California Civil Rights Law Group.