News & Commentary

November 15, 2023

Linh Tang

Linh is a student at Harvard Law School.

The teachers’ strike at Portland public schools, the first-ever of its kind in Oregon, continues into its ninth day, making it the longest teachers strike among recent ones in Seattle, Los Angeles, and Vancouver, Wash. Around 45,000 students have been out of class since November 1, when the Portland Association of Teachers (PAT) called a strike to negotiate with the Portland school district for pay increases, improvements to school facilities, and increase in mental health specialists for students, especially those with learning disabilities and special needs. If teachers do not return to work by tomorrow, they will become ineligible for the district-provided health insurance. However, the PAT announced that the Oregon Education Association is willing to pay for the cost of enrolling all of its teachers in the federal COBRA program. PAT’s bargaining teams have been continually meeting with the district since the beginning of the strike, hoping for an imminent resolution. 

Yesterday, the Eleventh Circuit heard oral arguments on whether a Georgia county health plan’s refusal to pay for a sheriff deputy’s gender-affirming surgery violates Title VII of the 1964 Civil Rights Act. The judge below approved a $60,000 jury award in favor of the deputy, relying on the Supreme Court’s landmark 2020 decision Bostock v. Clayton County, where the Court extended Title VII’s prohibition of sex discrimination to discrimination based on sexual orientation and gender identity. During oral arguments yesterday, the Ninth Circuit questioned whether extending Bostock to local health plans would limit employee health plans’ ability to exclude certain treatments. The Anti-Defamation League, the National Women’s Law Center, and the Department of Justice all filed amicus briefs in support of the deputy’s anti-discrimination claims. 

The Fifth Circuit ruled yesterday that Tesla’s ban on employees wearing union shirts does not violate federal labor law. Writing for a three-judge panel, Judge Jerry Smith concluded that Tesla’s uniform policy advances a legitimate employer interest and does not discriminate against union communication or impact workers’ time outside work. According to the appeals court, the NLRB applied an “‘irrational” rule that treats any restriction on union apparel as an unlawful infringement of workers’ rights under long-standing Supreme Court decision in Republic Aviation, which fails to consider employer interests. This Fifth Circuit decision could create problems for federal enforcement of previous NLRB decisions outlawing company restrictions on employees’ right to wear union buttons and other symbols at work. The ruling is binding in the Fifth Circuit, which covers Texas, Louisiana, and Mississippi.

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