Three lessons for employers from Lizzo’s employment litigation

Last year, several media outlets reported about a lawsuit that a clothing designer who worked for Lizzo and her touring company had asserted against them and another individual. That lawsuit included several claims under state law for discrimination, retaliation, and assault, among others.

On paper, it didn’t sound good for the defendants.

Lesson No. 1 – Claims are just that: claims.

Earlier this year, the defendants filed something called a demurrer or, in plain English, they argued that even if the factual allegations pled in the plaintiff’s complaint were true, they did not amount to a violation of California law. Specifically, the defendants argued that the plaintiff’s pleading was insufficient because her claims were based on work performed and conduct that allegedly occurred in Europe, to which California’s anti-discrimination law and labor code do not apply.

The court agreed but allowed the plaintiff to amend her complaint. The plaintiff did just that, ditching her state law claims in favor of federal ones, including a new assertion that the defendants failed to pay her overtime in violation of the Fair Labor Standards Act.

And that brings us to Lesson No. 2.

Lesson No. 2 – The FLSA does not apply to work performed overseas.

The FLSA’s overtime provisions do not apply to any employee whose services during the workweek are performed in a workplace within a foreign country. In her amended complaint, the plaintiff pled facts suggesting that she only worked in Europe while on tour with Lizzo. Indeed, she did not indicate that any portion of Lizzo’s tour she worked was in the US, let alone identify any work she performed there.

Although the plaintiff did indicate that she performed from work in the US before the tour began, the amended complaint contained no facts indicating that she worked more than 40 hours in any workweek. Therefore, she has no viable FLSA claim for overtime.

Lesson No. 3 – Neither Title VII nor the ADA support individual liability.

I come across this scenario often. A plaintiff asserts claims against her former employer for discrimination or retaliation and tacks on these same claims against the decisionmakers or harassers. Some state and local laws will support individual liability, but Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act do not.

As the Ninth Circuit Court of Appeals previously noted, “Congress did not intend to impose individual liability on employees” under Title VII. Further, “because Title I of the ADA adopts a definition of ’employer’ and a remedial scheme that is identical to Title VII,” there is no individual liability under the ADA either. Consequently, the court dismissed the federal discrimination and retaliation claims against Lizzo and the other individual defendant.