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Caroline practices in the areas of commercial litigation, class action defense, ERISA litigation, telecommunications law and drone law. She serves as co-chair of the firm’s Unmanned and Autonomous Systems (drones and driverless vehicles) Practice Group.

On Aug. 21, 2020, Chief Judge Algenon Marbley of the United States District Court for the Southern District of Ohio ordered the U.S. Citizenship and Immigration Service (USCIS) to permit thousands of foreign nationals to work in the U.S. before they receive printed Employment Authorization Documents (EADs). These workers had already been approved to work by USCIS, but they had not received the EADs they must provide to their employers. Although these cards are usually issued within a few days of approval of an application for employment authorization, USCIS had slowed down its production of them earlier this year.

Continue Reading Immigration settlement allows thousands of foreign workers to get back to work

Employers cannot discriminate against employees based on their transgender or transitioning status, despite (at least in some cases) the employer’s sincere religious objections. Those are the key takeaways of the 6th Circuit’s landmark decision in EEOC v. R.G. & G.R. Employers who are subject to Title VII, particularly those in the 6th Circuit (i.e., Kentucky, Michigan, Ohio and Tennessee), should review their policies to ensure that they comply with this decision.

In EEOC v. R.G., the Equal Employment Opportunity Commission (EEOC) filed suit under Title VII after a Michigan funeral director, Aimee Stephens, was fired because of her intent to transition from male to female. The owner of the funeral home, Thomas Rost, is a lifelong Christian who believes that employing a transgender funeral director will make him complicit “in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift.” Rost also believes that employing a transgender funeral director will distract his clients and interfere with their healing process, will interfere with his calling to serve God by ministering to grieving people, and will pressure him to leave the funeral industry and end his ministry.


Continue Reading Sixth Circuit holds that Title VII prohibits discrimination based on transgender and transitioning status notwithstanding the employer’s religious objections

In a landmark decision, the 2nd Circuit Court of Appeals in Zarda v. Altitude Express, Inc., en banc, became the second federal appellate court to hold that Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e-2(a)), which makes it unlawful for employers to discriminate on the basis of sex, also prohibits discrimination on the basis of a person’s sexual orientation. It appears that the defendant does not intend to seek Supreme Court review. Therefore, employers subject to Title VII, particularly those in the Second Circuit (i.e., Connecticut, New York and Vermont), should know about this opinion and consider how and whether it may apply to them.

Continue Reading Second Circuit holds that Title VII prohibits sexual orientation discrimination

Never underestimate the power of a pro se litigant. That’s one lesson to take away from the Seventh Circuit’s en banc opinion in Hively v. Ivy Tech Community College, which is the first appellate decision to hold that Title VII bars employment discrimination on the basis of a person’s sexual orientation. Because Ivy Tech has stated that it does not plan to seek Supreme Court review (despite a Circuit split on the issue), employers subject to Title VII, particularly in Illinois, Wisconsin and Indiana, should know about this opinion and consider how and whether it may apply to them.

Surprisingly, this momentous decision resulted not from a national impact-litigation strategy but rather from the humble efforts of one pro se litigant. Math teacher Kimberly Hively filed a form complaint in federal court that alleged she was denied full-time teaching positions and promotions based on her sexual orientation, and sought damages based on Title VII and 42 U.S.C. § 1981. Ivy Tech Community College moved to dismiss and the Northern District of Indiana granted the motion. Undeterred, Ms. Hively retained advocacy group Lambda Legal to prosecute an appeal. Although she initially lost in a now-vacated opinion filed by a Seventh Circuit panel, Ms. Hively successfully sought reconsideration by the en banc Seventh Circuit with the support of amici EEOC and five Members of Congress, among others. The full Court voted 8-3 in favor of Ms. Hively and issued four opinions.


Continue Reading Pro se litigant sets off Title VII avalanche: Seventh Circuit holds that Title VII prohibits sexual orientation discrimination

On November 5, 2013, the Sixth Circuit Court of Appeals and Ohio Supreme Court handed down a pair of class action decisions that are major wins for companies and employers. The Sixth Circuit held that courts, not arbitrators, must decide whether an arbitration clause permits classwide arbitrations—and that an arbitration clause that is silent on the issue bars classwide arbitrations. The Ohio Supreme Court followed recent decisions from the United States Supreme Court and held that trial courts must conduct a rigorous analysis when ruling on class certification, including resolution of factual disputes, factual findings and an examination of the merits where necessary. Both decisions addressed issues that have been vigorously debated by parties and lower courts, and they unambiguously did so in favor of class action defendants.

The Sixth Circuit held that courts, not arbitrators, must decide the “gateway” issue of whether an arbitration clause permits classwide arbitration—and that clauses that are silent on the issue do not permit classwide arbitrations.

In Reed Elsevier, Inc. v. Crockett, No. 12-3574, (6th Cir. Nov. 5, 2013), the plaintiff was a Texas attorney who alleged that his firm was being charged steep fees for using research databases outside of its LexisNexis Subscription Plan without any displayed warning. The parties’ contract contained an arbitration clause that was silent on the issue of classwide arbitration. Crockett filed a classwide arbitration demand for $500 million on behalf of two putative classes, and LexisNexis asked a federal district court to declare that the arbitration clause did not authorize classwide arbitration. The district court awarded judgment to LexisNexis.
Continue Reading The Sixth Circuit And Ohio Supreme Court Hand Two Major Class Action Wins To Defendants

On Tuesday, the U.S. Supreme Court heard oral argument on Wal-Mart’s appeal of the Ninth Circuit’s en banc decision upholding the certification of a class action gender discrimination lawsuit in Dukes v. Wal-Mart Stores, Inc. As noted by a number of commentators (among them The Wall Street Journal, Forbes, The Christian Science Monitor, and CNN), the tone of the Court’s questioning indicates that the Court is likely to rule in Wal-Mart’s favor.

This appeal stemmed from a federal court’s certification of a nationwide class of female employees of Wal-Mart who were allegedly subjected to discriminatory pay and promotion policies. The class seeks injunctive relief and money damages (back pay) for all women employed since December 1998 in positions ranging from entry-level hourly employees to salaried managers. The class certified in 2004 included 1.5 million women; it currently is estimated to include 3 million women. The district court and Ninth Circuit certified the class after concluding that statistics and sociological expert testimony could allow Plaintiffs to show that Wal-Mart’s culture, when combined with its decentralized decision-making structure, resulted in discrimination against Wal-Mart’s female employees. Those courts approved class certification despite (1) Wal-Mart’s written policy of anti-discrimination, (2) evidence that there was no gender-based pay disparity at 90% of Wal-Mart’s stores, (3) an admission by plaintiff’s expert that he could not say whether discrimination was happening .05% or 95% of the time, and (4) a class that included at least 544 female store managers who would have been both victim and discriminator, under the plaintiffs’ theory.


Continue Reading A Skeptical U.S. Supreme Court Vigorously Questions Certification of a Mammoth Sex-Discrimination Class Action Lawsuit

In an unusual procedural move, a Ninth Circuit panel issued a revised opinion and rejected—for the second time—Wal-Mart’s request to overrule a lower court decision granting class action status to a lawsuit by six women representing a class of more than 1.5 million female workers. Dukes v. Wal-Mart, Inc., Case Nos. 04-16688 and 04-16720, 2007 U.S. App. LEXIS 28551 (9th Cir. Dec. 11, 2007). The class includes all female workers—from part-time, entry-level hourly employees to full-time, salaried managers—at Wal-Mart stores from December 1998 to the present “who have been or may be subjected to Wal-Mart’s challenged pay and management track promotions, policies and practices.” The lawsuit alleges that female employees were paid less than men and given fewer promotions. If the case proceeds, it will be the largest sex discrimination case in U.S. history. The revised opinion addresses some of the criticisms directed toward the earlier opinion and changes some of the reasoning, though not the result, of the court’s earlier decision.
Continue Reading Ninth Circuit Panel Again Upholds Granting of Class Action Status to Wal-Mart Female Workers; Wal-Mart Again Petitions For En Banc Review