by Hannah Catchings, Senior Associate

I. Introduction

In August 2016, catastrophic flooding inundated much of southern Louisiana, resulting in 10 deaths[1] and economic damage estimates upwards of $8.7 billion.[2] East Baton Rouge and Livingston parishes bore the brunt of that damage.[3] Among the myriad properties that sustained extensive flood damage was Juban Crossing, a 471-acre mixed-use development located in Livingston Parish.[4] Juban Crossing opened in 2015 and is owned by Creekstone/Juban I, LLC (“Creekstone”), a single asset limited liability company incorporated in Delaware.[4] Following the flood, Creekstone’s insurer, XL Insurance America, a Delaware corporation, paid out $5 million pursuant to the company’s insurance policy; however, Creekstone subsequently filed suit in Livingston Parish seeking additional funds from XL Insurance.[6] In response to the suit, XL Insurance filed a declinatory exception of improper venue, a peremptory exception of no cause of action, and a motion to dismiss, arguing that Creekstone’s policy contained a forum selection clause in which the parties agreed to litigate all disagreements in New York.[7] Consequently, the principal issue in the case became whether the forum selection clause was enforceable. The case eventually reached the Louisiana Supreme Court, which held that Louisiana Revised Statutes § 22:868(A)(2) did not prohibit the enforcement of the disputed forum selection clause.[8] This Lagniappe Post argues in favor of Justice Hughes’s dissenting opinion, in which he outlined three reasons why the majority’s approach was problematic, including public policy, party mischaracterization, and the “unsupportable reformation” of the insurance contract.[9]

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February 22, 2020

by Taylor Ashworth, Senior Associate

I. Introduction

Congress enacted Title VII of the Civil Rights Act of 1964 (“Title VII”) to make protected characteristics, including sex, irrelevant to employment decisions.[1] Compliance with Title VII requires employers to evaluate employment applicants on their merits rather than their sex.[2] In Price Waterhouse v. Hopkins, the United States Supreme Court established that employment discrimination based on an individual’s non-conformance to sex-based stereotypes violates Title VII.[3]

In Hopkins, the Court found that an employer had denied a female employee a promotion because the employee did not conform to expected female stereotypes due to her apparent masculinity.[4] In its analysis, the Court quoted one of its earlier decisions, stating, “[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.”[5] In accordance with congressional intent, the Supreme Court in Hopkins concluded that the employer violated Title VII.[6]

In addition to discrimination on the basis of sex, circuit courts—via an extension of the Hopkins Court’s reasoning—have extended Title VII to prohibit discrimination based on gender identity.[7] The Supreme Court has never held that discrimination against someone because he or she is transgender constitutes discrimination “on the basis of sex” within the language of Title VII. The high court’s silence on the issue is, however, coming to a close, as the Court is set to deliver the long-awaited answer this Spring in connection with R.G. & G.R. Harris Funeral Homes Inc.

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