EPL Perspectives on Coronavirus

As part of our continuing series of PL Perspectives on Coronavirus, we’re focusing in on EPL business lines. We have three EPL experts discussing the possible effects of COVID-19 from underwriting, risk management, and legal perspectives. Thank you to the speakers for their time and expertise!

Listen here to the EPL Perspectives on Coronavirus discussion:

Herman.SarahSarah Goldstein, Managing Partner & Partner in Employment Litigation practice at O’Hagan Meyer

Sarah represents organizations of all sizes in employment-related matters and advises companies on proactive compliance with employment and wage and hour laws. Sarah is an experienced trial lawyer in both the Federal and California Superior Courts, with a focus on harassment, whistle-blower, wrongful termination, retaliation, discrimination, PAGA and wage and hour matters.

Her litigation practice includes defending employment actions under the Fair Employment and Housing Act including gender, pregnancy, race, ancestry, color, religion, age, national origin, sexual orientation, disability, wrongful termination claims, whistleblower claims, wage and hour claims, and retaliation matters. Sarah also represents employers in administrative actions before the U.S. Equal Employment Opportunity Commission, U.S. Department of Labor and the Department of Fair Employment and Housing.

In 1998, Sarah received the Wiley W. Manuel Award for Pro Bono Legal Services. An active member of the Professional Liability Underwriting Society (PLUS), Sarah currently serves on the Board of Trustees and is the current board liaison to the Diversity and Inclusion Committee.  She chaired the Women’s Leadership Network event in Los Angeles in September 2012 and from 2009 to 2011, she served as Southern California Chapter Chairperson.

sgnilek-matt-webMatthew Sgnilek, Partner in the Employment practice at O’Hagan Meyer

Matthew represents employers in a variety of employment cases and administrative actions, including claims for civil rights violations, harassment, discrimination, retaliation, wrongful termination,  American Disabilities Act (ADA) violations, unfair business practices, misappropriation of trade secrets, as well as Private Attorney General’s Act (PAGA), individual and class action wage & hour  disputes. Matt represents employers in both state and federal courts, in arbitration, and before state and federal agencies, such as the Equal Employment Opportunity Commission, the California Department of Fair Employment and Housing, the California Unemployment Insurance Appeals Board, Workers’ Compensation Appeals Board and the Division of Labor Standards Enforcement. Matt conducts employee classification audits, payroll audits, HR best practices audits, and workplace investigations.  Matt also provides preventive counseling to his clients and works with them to ensure compliant HR policies and documents are in place..  Matt is a frequent speaker providing seminars and workshops on employment issues, including Sexual Harassment and Discrimination Training to executives, supervisors, managers and human resources professionals.

Kelly ThoerigKelly Thoerig, Managing Director, Employment Practices Liability Coverage Leader at Marsh

Kelly is Marsh’s U.S. Employment Practices Liability and Wage and Hour Coverage Leader and is primarily responsible for manuscripting EPL and W&H policies, leading policy and insurer new product reviews, and drafting endorsements. In addition, Kelly is a claims advocate for Marsh’s FINPRO practice, specializing in complex coverage and claims issues concerning EPL, W&H, D&O, professional liability, crime, and cyber insurance, where she calls upon her prior law firm experience representing insurance carriers in coverage disputes. Kelly frequently presents at industry seminars nationwide on various insurance coverage topics.

Sex Stereotyping Discrimination Claims in the Second Circuit on Hold

In Lorber v. Lew, 2017 U.S. Dist. LEXIS 21189, *14-15 (S.D.N.Y. Feb. 13, 2017), plaintiff — an openly gay IRS employee — filed suit against the former Secretary of the Treasury alleging discrimination and retaliation in violation of Title VII based on his gender.  Among other things, plaintiff alleged that he had been passed over for promotions, excluded from meetings, and given poor performance reviews for discriminatory and retaliatory reasons.  Although the Court granted the defendants’ motion to dismiss plaintiff’s hostile work environment claim, the court refused to dismiss plaintiff’s claim for discrimination under Title VII for nonconformity with male sex stereotypes.

Significantly, although plaintiff admitted (in response to the defendants’ motion to dismiss) that rulings from the Second Circuit Court of Appeals foreclose Title VII claims based exclusively on sexual orientation discrimination, the court in Lorber noted that “the Second Circuit has recently held oral argument in two cases that present the issue of whether Title VII protects against sexual orientation discrimination. See Zarda v. Altitude Express, No. 15-3775 (2d Cir. argued Jan. 5, 2017); Christiansen v. Omnicom Group, Inc., et al., No. 16-748 (2d Cir. argued Jan. 20, 2017).”  Thus, the court stayed adjudication of the plaintiff’s sex stereotyping claim pending the Second Circuit’s rulings.

While timing may not be “everything,” it certainly can make a huge difference for the parties.  In Lorber, plaintiff’s Title VII claim survived solely on the fact that the determinative legal issues are expected to be resolved shortly by the Second Circuit.