Littler Lightbulb ' December Employment Appellate Roundup

• Jurisdiction: United States,Federal
• Law Firm: Littler Mendelson
• Subject Matter: Employment and HR, Discrimination, Disability & Sexual Harassment, Employment Litigation/ Tribunals
• Author: Mr Mark Flores
• Published date: 02 January 2023

This Littler Lightbulb highlights some of the more significant employment law developments at the U.S. Supreme Court and federal courts of appeal in the last month.

• At the Supreme Court. On December 5, 2022, the Court heard oral argument in 303 Creative v. Elenis. Though not an employment law case, the decision may nevertheless impact employers as it pits free speech rights in the workplace against state anti-discrimination laws. At issue is whether the owner of a Colorado website design business, who opposes same-sex marriage may post a message on the company's website stating that she will not design websites for same-sex weddings.
  
  303 Creative asserted that its wedding websites are "pure speech" and, therefore, entitled to Constitutional First Amendment protection. The owner of 303 Creative argued that the Public Accommodation clause of Colorado's Anti-discrimination Act forces "her to create and promote a message she disagrees with, violating the fundamental rule 'that a speaker has the authority to choose the content of [her] own message."
  
  In opposition, Colorado argued that the Public Accommodation Clause of its Anti-Discrimination Act, "does not prohibit or compel the speech of any business," but rather "regulates sales and not the products or services sold."
  
  Although the case addresses the First Amendment rights of businesses, the decision could determine the reach of state anti-discrimination laws when they potentially clash with an individual's religious objections.

• Exemption of Delivery Drivers from Arbitration. Whether delivery drivers are exempt from arbitration continues to be a hot issue. In Immediato v. Postmates, Inc., No 22-1015 (1st Cir. Nov. 29, 2022), couriers who delivered take-out meals from local restaurants as well as food and sundries from local grocery stores argued they were exempt from the Federal Arbitration Act (FAA), despite having signed a mutual arbitration provision requiring disputes to be resolved by arbitration governed by the rules of the FAA. The couriers claimed they fell within the exemption under the FAA for "workers engaged in foreign or interstate commerce." The U.S. District Court for the District of Massachusetts held that the exemption did not apply to them and issued an order compelling arbitration. On appeal, the First Circuit affirmed the decision of the district court. Distinguishing cases that involved the final leg of interstate movement of goods the court held that although the items the couriers delivered may have travelled across state borders once, their interstate journey terminated when the goods arrived at the local restaurants and retailers to which they were shipped. In this...