Federal District Court Blocks Enforcement of Florida’s Discriminatory “Pronoun Ban” on First Amendment Grounds

On April 9, 2024, Chief Judge Mark Walker of the Northern District of Florida issued a preliminary injunction blocking enforcement of a Florida law that prohibits teachers and other school personnel from “provid[ing]” any students with titles and pronouns like “Ms.” and “she/her” if those titles do not “correspond” to Florida’s definition of sex. Under that law, 10th-grade algebra teacher Katie Wood, a transgender woman, had been prevented from going by “Ms. Wood” and from using “she/her” pronouns in her classrooms; another teacher, AV Schwandes, was terminated for using the nonbinary title “Mx.” and “they/them” pronouns in theirs. Altshuler Berzon LLP, together with the Southern Poverty Law Center and Southern Legal Council, filed a lawsuit challenging the law for, among other things, violating the First Amendment, and sought preliminary injunctive relief. Holding that Ms. Wood was substantially likely to prevail on her First Amendment claim because it amounts to a restriction on personal speech with “no meaningful justification,” Judge Walker enjoined Ms. Wood’s school board, the Commissioner of the Florida Department of Education, and various other state officials from enforcing the challenged law against Ms. Wood. For now, Judge Walker has made clear that Ms. Wood is free to “vindicate[] her identity, her dignity, and her humanity” through the use of her preferred pronouns and titles; Florida may not, “by silencing her, force[] her to an inhabit an identity that is not her own.”

Los Angeles Superior Court Confirms that Proposed Class Action Lawsuit Challenging USC’s Deception of Students in its Online Master of Social Work Program Will Go Forward

On April 2, 2024, the Los Angeles Superior Court issued a decision in Luna v. University of Southern California largely denying the University of Southern California’s (USC) attempts to dismiss Plaintiffs’ claims and narrow the case.  The court confirmed that all of the plaintiffs can proceed with their claims that USC misrepresents to students that its online Master of Social Work (MSW) program is exactly the “same” as USC’s long-standing and well-respected on-campus MSW program, when in reality USC outsourced the online program to a for-profit partner and provided different content and services.  The misrepresentation claims now proceed to discovery and class certification.  The court also allowed Plaintiffs to plead additional facts to support their assertion that USC racially targeted prospective students for hard sell techniques in violation of California’s Unruh Civil Rights Act.

The court’s decision is available here, and further information about the case is available on the website for co-counsel The Project on Predatory Student Lending here.

Federal District Court Rejects Trucking Companies’ Challenge to Assembly Bill 5’s Worker Misclassification Test

On March 15, 2024, the U.S. District Court of the Southern District of California issued a final decision in California Trucking Association v. Bonta, rejecting claims by the trucking industry that Assembly Bill 5’s (“AB 5”) “ABC” test for employment status is preempted by the Federal Aviation Administration Authorization Act (“FAAAA”), a federal statute that deregulated the trucking industry, or that it violates the Dormant Commerce Clause or Equal Protection Clause of the U.S. Constitution.  Under the “ABC” test, a worker is presumed to be an employee unless the employer can establish all three of the following requirements: (A) the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact; (B) the worker performs work that is outside the usual course of the hiring entity’s business; and (C) the worker is customarily engaged in an independently established trade, occupation, or business.

The same federal district court had issued a preliminary injunction against the application of AB 5 in the trucking industry before the law took effect, but that decision was overturned by the Ninth Circuit in 2021.  Since then, AB 5 has been in effect, and the district court’s decision makes clear that the State is permitted to use the “ABC” test, in its entirety, to combat misclassification in the trucking industry.  Evidence presented in the case showed that driver compensation in the trucking industry has fallen steadily for decades as misclassification practices became dominant, and many misclassified drivers end up earning less than the minimum wage (causing high turnover in the industry and safety concerns).

Altshuler Berzon LLP represents the International Brotherhood of Teamsters, which intervened in the case on the side of the State to defend AB 5.  The district court’s decision can be found here.

P. Casey Pitts Sworn in as United States District Judge for the Northern District of California

Altshuler Berzon LLP congratulates Judge P. Casey Pitts on becoming a judge on the United States District Court for the Northern District of California. Casey joined the firm as a lawyer in 2009, becoming a partner in 2017. Prior to that, he worked at the firm as a paralegal (2003-05) and summer associate (2007). Casey was a brilliant, generous, and creative partner. While we will miss him, we are certain he will be a great addition to the federal bench. The firm is very proud that Casey is the fourth former Altshuler Berzon LLP attorney to serve as a federal court of appeals or federal district court judge.

Read the news release from the Office of the Circuit Executive of the United States Courts for the Ninth Circuit here.

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.