Two partners of our firm, Ed Buckley and Thomas Mew, joined with attorneys from other firms to file a writ of certiorari asking the U.S. Supreme Court to overturn a decision of the U.S. Court of Appeals for the Fourth Circuit in the case of Lemon v. Myers Bigel.
The petition asks the nation’s highest court to examine whether the Fourth Circuit’s application of a Supreme Court case addressing whether members of a professional corporation were “employees” for meeting the minimum number of employees under the American With Disabilities Act was correct in determining Lemon’s ability to bring a claim for discrimination and retaliation under Title VII.
“We believe that the Court of Appeals misapplied the Clackamas Gastroenterology Assocs. P.C. v. Wells case and that the just purpose of Title VII is to eliminate discrimination in the workplace,” Ed Buckley, Buckley Bala Wilson Mew’s Managing Partner, told Law360. “As we say in our writ, this misapplication is perpetuating discrimination and undermining the purpose and intent of Title VII. We hope the U.S. Supreme Court will right this wrong.”
Shawna Cannon Lemon, a former equity member at the Raleigh, N.C., law firm of Myers Bigel, asserted claims of sex and race discrimination and retaliation by the firm and certain individual attorneys there after she made statements to an outside attorney who was investigating gender discrimination at the firm.
Lemon alleges her requests for short-term leave, which routinely were granted to the firm’s white attorneys, were turned down and the firm’s management committee began discussing other discriminatory and retaliatory actions against her, including possible termination. This created a stressful and humiliating workplace environment that led Lemon to resign, her claim says.
Secondly, the petition seeks review on the question of whether the Fourth Circuit properly applied the “but for” causation standard in evaluating whether Lemon stated a claim under Section 1981. The petition contends that the Fourth Circuit misapplied the standard in light of the Supreme Court’s decision in Bostock v. Clayton County, Georgia.
The Bostock decision affirmed that Title VII covers LGBTQ+ employees against discrimination and also clarified the “but for” causation standard. Buckley Bala Wilson Mew represented Gerald Bostock in that landmark case. “But-for” causation means that the employer would not have taken the discriminatory action but-for the individual’s protected trait. Bostock clarified that the protected trait need only be “one
but-for cause” of the challenged employment decision.
Buckley Bala Wilson Mew’s attorneys Buckley and Mew joined the law firms of Nelson Mullins Riley & Scarborough LLP, Samuels Yoelin Kantor LLP, and Bailey & Dixon in the petition for writ of certiorari.
If you are an individual with employment law concerns, please call (404) 471-3725 to connect with our leading employment attorneys. To read the Law360 article, click here.