Supreme Court considering whether gay, transgender workers are protected by federal law

[mahatmakanejeeves]

Source: Washington Post

Courts & Law
Supreme Court considering whether gay, transgender workers are protected by federal law

By Robert Barnes and Ann E. Marimow
Oct. 8, 2019 at 12:05 p.m. EDT

The Supreme Court began considering Tuesday whether federal discrimination laws protect gay and transgender workers in one of its most consequential issues of the term. ... The issue for the court is the reach of Title VII of the Civil Rights Act of 1964, which, besides protecting against workplace discrimination because of race, religion and other characteristics, also prohibits discrimination "because of sex."

[Supreme Court considers if gay, transgender workers covered by federal law]
https://www.washingtonpost.com/politics/courts_law/supreme-court-term-to-begin-with-blockbuster-question-is-it-legal-to-fire-someone-for-being-gay-or-transgender/2019/10/03/b3b08a46-e15d-11e9-b199-f638bf2c340f_story.html

The court combined two cases to consider whether gay workers are covered. Gerald Bostock claims he was fired from his job as a social worker in Clayton County, Ga., after he became more open about being gay, including joining a gay softball league. Donald Zarda said he was fired as a skydiving instructor after joking with a female client to whom he was strapped for a tandem dive that he was gay. (Zarda died in 2014.)

Attorney Pamela S. Karlan, representing the two gay employees, told the court that firing a man for marrying another man, but not a woman for marrying a man, was clearly sex discrimination and covered by the law.

But Jeffrey M. Harris, the lawyer for the employers, distinguished between sex and sexual orientation, which he said are independent and distinct characteristics. ... "That is just as true today as it was in 1964" when Congress passed the law, which he said did not include protections for gay people.

Justice Samuel Alito suggested that the court would be "acting exactly like a legislature" if it interpreted the law to prohibit discrimination on the basis of sexual orientation.

{snip}

The sexual orientation cases are Bostock v. Clayton County, Ga. and Altitude Express v. Zarda. The other case is R.G. & G.R. Harris Funeral Homes v. EEOC.

Robert Barnes has been a Washington Post reporter and editor since 1987. He joined The Post to cover Maryland politics, and he has served in various editing positions, including metropolitan editor and national political editor. He has covered the Supreme Court since November 2006. Follow https://twitter.com/@scotusreporter

Ann Marimow covers legal affairs for The Washington Post. She joined The Post in 2005 and has covered state government and politics in California, New Hampshire and Maryland. Follow https://twitter.com/@amarimow

Read more: https://www.washingtonpost.com/politics/courts_law/supreme-court-will-consider-whether-gay-transgender-workers-are-protected-by-federal-law/2019/10/07/b0c4b198-e966-11e9-85c0-85a098e47b37_story.html

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Supreme Court today takes on one of biggest issues of the term—whether LGBTQ workers are protected by federal law. Watch here for updates from morning oral arguments

Link to tweet

[LakeArenal]

1. Argument for SC term limits

Most of them are Stone Age in their cultural views.

[qazplm135]

2. The five conservatives will hide behind

saying it's not our job it's the legislatures job to protect homosexuals.

[mahatmakanejeeves]

3. SCOTUSblog: Tuesday round-up

Edith Roberts Editor

Posted Tue, October 8th, 2019 7:07 am

Tuesday round-up

Today the justices will hear oral argument in a trio of high-profile employment-discrimination cases. The first two cases, Bostock v. Clayton County, Georgia and Altitude Express, Inc. v. Zarda, are consolidated for one hour of oral argument and ask whether Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination “because of … sex,” covers discrimination based on sexual orientation. This morning’s second argument is in R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, in which the court will decide whether Title VII bars discrimination against transgender people based either on their status as transgender or on sex stereotyping. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is counsel on an amicus brief in support of respondent Stephens in Harris.] Amy Howe previewed both cases for this blog. Subscript Law has a graphic explainer. Zora Franicevic and Soo Min Ko preview Bostock for Cornell Law School’s Legal Information Institute. Cornell’s preview of Harris comes from Julia Canzoneri and Robert Reese Oñate.

{snip}

We rely on our readers to send us links for our round-up. If you have or know of a recent (published in the last two or three days) article, post, podcast or op-ed relating to the Supreme Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com. Thank you!

Posted in Round-up

Recommended Citation: Edith Roberts, Tuesday round-up, SCOTUSblog (Oct. 8, 2019, 7:07 AM), https://www.scotusblog.com/2019/10/tuesday-round-up-499/

[bucolic_frolic]

4. Will they consider law, or common sense, and

after they choose bigotry, what will they do about the new wave of career climbers creating opportune job openings by fingerpointing, "Not straight!"?

[mahatmakanejeeves]

5. I believe they'll consider the law. It's traditionally what Supreme Court justices do. NT

[bucolic_frolic]

6. Law is a flexible entity, as any loose constructionist legislating from the bench knows

[JudyM]

9. DUzy. This is truly a classic.

[SpankMe]

7. The legislature should fix this ASAP

They could add a single line to the law and make this go away forever.

The new Democratic tactic in the world of a 5-4 court is to solve as much legislatively as possible.

We have to keep the house and take the senate and WH in 2020, then use the following 2 years to ram-rod everything we can. Then, when we lose one of those chambers next time around, stonewall any reversals that the Evil Empire would try to implement.

[mahatmakanejeeves]

8. Gorsuch Pegged As Possible Swing Vote After SCOTUS Hears Three LGBT Employment Discrimination Cases

Gorsuch Pegged As Possible Swing Vote After SCOTUS Hears Three LGBT Employment Discrimination Cases
October 8, 2019

Reuters reports:

U.S. Supreme Court justices on Tuesday appeared divided over whether a landmark decades-old federal law prohibiting sex discrimination in the workplace protects gay and lesbian employees as they heard arguments in one of the biggest cases of their current term.

Liberal justices signaled sympathy toward arguments that gay workers are covered under Title VII of the Civil Rights Act of 1964, which forbids employers from discriminating against employees on the basis of sex as well as race, color, national origin and religion.

Some conservative justices expressed reservations toward extending protection to gay employees. However, one of them, Justice Neil Gorsuch, asked questions of both sides indicating potential sympathy for the workers. When analyzing whether a person was fired on the basis of sexual orientation, Gorsuch said sex seemed to be a “contributing cause.”

Bloomberg reports:

In separate cases, the court is considering whether the main federal job-bias law, known as Title VII, outlaws LGBT discrimination. The key question is whether employer decisions based on sexual orientation and gender identity qualify as discrimination because of sex, which Title VII explicitly prohibits.

Gorsuch, a Donald Trump appointee who focuses heavily on the words of disputed statutes, said that sex was at least a “contributing cause” to a decision to fire someone because of sexual orientation.

His comments came during the session’s first hour, which focused on sexual orientation. A second hour is centering on gender identity. Another conservative justice, Samuel Alito, was skeptical of the gay workers’ claims, telling their lawyer at one point that “your whole argument collapses.”

Via press release from Lambda Legal:

“It was quite a day. After hearing the Supreme Court justices’ questions today, we are hopeful and there are many reasons to be optimistic,” said Gregory Nevins, Senior Counsel and Employment Fairness Project Director for Lambda Legal. “If the Court simply applies the law as written, LGBTQ workers win. The text of Title VII is as clear as day: if an employer refuses to hire, dismisses, or mistreats an employee ‘because of’ that employee’s sex, they are in violation of the law.

In two cases, Altitude Express v. Zarda and Bostock v. Clayton County, the Court is looking at whether Title VII ban of sex discrimination covers claims of sexual orientation discrimination. And in R.G. & G.R. Harris Funeral Homes v. EEOC, the Court is considering whether Title VII’s sex discrimination provision protects transgender workers. A growing number of courts have agreed that Title VII does indeed, prohibit discrimination on the basis of sexual orientation and gender identity. But if the Supreme Court rules against the employees, it will leave vulnerable many LGBTQ workers who don’t have local or state-level protections.

“A lot is at stake here. The Court effectively could take away rights from LGBTQ workers that have been established by multiple federal courts, confirmed by the EEOC, and accepted by the overwhelming majority of American people,” added Nevins. “We need the Court to clarify once and for all that discrimination against LGBTQ workers is unlawful sex discrimination so that people everywhere can bring their whole selves to work and not be forced to hide. If they just follow the text of the law that should be fairly easy.”

Holy shit.

Gorsuch looks like the swing vote in the LGBTQ discrimination cases.

Link to tweet

After Title VII arguments, Justice Gorsuch think the textual arguments are a close thing, but he's worried about court going beyond its role and the "massive social upheaval" that could result from a ruling in favor of plaintiffs

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During second argument, much discussion of bathrooms and Title IX which is not the issue before the court. Liberal justices skeptical of the "parade of horribles" presented by the employers saying that Title VII should not protect LGBT people

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Reposting w/out typo: After Title VII arguments, Justice Gorsuch seems to think the textual arguments are a close thing, but he's worried about court going beyond its role and the "massive social upheaval" that could result from a ruling in favor of plaintiffs

Link to tweet

{snip}

[mahatmakanejeeves]

10. Trump nominees could play pivotal role as SCOTUS decides on protections for gay, transgender workers

This looks like an update of the original article.

Courts & Law
Trump nominees could play pivotal role as Supreme Court decides on protections for gay, transgender workers

By Robert Barnes and Ann E. Marimow
Oct. 8, 2019 at 1:10 p.m. EDT

The Supreme Court appeared divided Tuesday about whether federal discrimination laws protect gay and transgender workers, and President Trump’s appointments to the court could play the pivotal roles in deciding the outcome.

The issue, one of the most significant facing the court this term, concerns the reach of Title VII of the Civil Rights Act of 1964, which, besides protecting against workplace discrimination because of race, religion and other characteristics, also prohibits discrimination “because of sex.” The court has since interpreted that to include discriminating on the basis of sex stereotypes.

[Supreme Court considers if gay, transgender workers covered by federal law]

Lawyers for the gay and transgender individuals in the cases seemed to pitch their arguments at Justice Neil M. Gorsuch, who advocates a close reading of the text of the statute. During the sexual orientation arguments, he said sex seemed to be at least a “contributing cause” to the firings. ... But during arguments in the transgender case, he asked “when a case is really close,” whether courts should find that decisions that might cause “massive social upheaval” should be left to more explicit findings of the legislative branch. ... Justice Brett M. Kavanaugh, the court’s newest member, kept a low profile during the two hours of argument, asking few questions.

There seemed little doubt that the court’s four liberal members would find that Title VII covered gay and transgender workers. But one of the court’s five conservatives would have to join them to form a majority.

{snip}

The sexual orientation cases are Bostock v. Clayton County, Ga. and Altitude Express v. Zarda. The other case is R.G. & G.R. Harris Funeral Homes v. EEOC.

Robert Barnes has been a Washington Post reporter and editor since 1987. He joined The Post to cover Maryland politics, and he has served in various editing positions, including metropolitan editor and national political editor. He has covered the Supreme Court since November 2006. Follow https://twitter.com/scotusreporter

Ann Marimow covers legal affairs for The Washington Post. She joined The Post in 2005 and has covered state government and politics in California, New Hampshire and Maryland. Follow https://twitter.com/amarimow

[Bernardo de La Paz]

11. Daniel Zarda died in a base jumping accident in 5 yrs ago. I don't know the details of the accident

As far as I can tell, it happened in Switzerland, October 2014. Here is a biographical / news story link on him and his case:

https://www.nbcnews.com/feature/nbc-out/donald-zarda-man-center-major-gay-rights-case-never-got-n852846

[mahatmakanejeeves]

12. SCOTUSblog: Argument analysis: Justices divided on federal protections for LGBT employees (UPDATED)

Amy Howe Independent Contractor and Reporter

Posted Tue, October 8th, 2019 2:14 pm

Argument analysis: Justices divided on federal protections for LGBT employees (UPDATED)

Editor’s note: This post has been updated to include discussions of exchanges between Chief Justice John Roberts and advocate Pamela Karlan in Bostock v. Clayton County, and between Justices Neil Gorsuch and Samuel Alito and advocate David Cole in Harris Funeral Homes v. EEOC.

Title VII of the Civil Rights Act of 1964 bars employment discrimination “because of … sex.” This morning, in a packed courtroom, the Supreme Court heard oral argument on whether Title VII protects gay, lesbian and transgender employees. Because fewer than half of the 50 states specifically bar discrimination based on sexual orientation or gender identity, the court’s ruling could be significant. And after over two hours of debate, it was not clear how the justices are likely to rule. The outcome of the two cases could hinge on Justice Neil Gorsuch, who at times appeared sympathetic to the plaintiffs’ argument but also expressed concern about the “massive social upheaval” that he believed would follow from a ruling for them.

The morning was divided into two arguments, involving closely related – but not identical – issues: a pair of cases, argued together, involving whether Title VII bans discrimination based on sexual orientation, followed by a third case in which the justices are considering whether the law prohibits discrimination based on transgender status.



Pamela S. Karlan (Art Lien)

First up this morning was Stanford law professor Pamela Karlan, arguing on behalf of two men who contend that they were fired from their jobs because they were gay. Donald Zarda (who died in 2014 in a base-jumping accident in Switzerland) had been working as an instructor for a skydiving company now known as Altitude Express, while Gerald Bostock had worked as a child-welfare-services coordinator in Clayton County, Georgia.

{snip}



Jeffrey M. Harris (Art Lien)

Arguing on behalf of the employers, attorney Jeffrey Harris had to grapple with questions from Gorsuch and some of the court’s more liberal justices about the text of Title VII. Justice Elena Kagan led the way, telling Harris that the test to determine whether there is discrimination under Title VII is whether the same thing would have happened if the employee were a different sex. That test, she suggested to Harris, comes out against the employers: Although Bostock and Zarda were fired for being gay – that is, for being men who were attracted to other men – they would not have been fired if they were women who were attracted to men.

Gorsuch pushed back against Harris’ efforts to distinguish between sex and sexual orientation, pointing to the fact that Title VII only requires sex to be a cause. If Bostock and Zarda were men who liked other men, Gorsuch asked Harris, why wouldn’t that be enough to bring Title VII into play?

Gorsuch echoed that thought during the first 10 minutes that U.S. Solicitor General Noel Francisco spent at the lectern today, arguing on behalf of the federal government as a “friend of the court” supporting the employers in this case. When Francisco argued that there is a difference between sex and sexual orientation, Gorsuch responded that at least one contributing cause of the plaintiffs’ firings does appear to be sex.

{snip}

This piece was originally published at Howe on the Court.

Posted in Bostock v. Clayton County, Georgia, Altitude Express Inc. v. Zarda, R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, Featured, Merits Cases

Recommended Citation: Amy Howe, Argument analysis: Justices divided on federal protections for LGBT employees (UPDATED), SCOTUSblog (Oct. 8, 2019, 2:14 PM), https://www.scotusblog.com/2019/10/argument-analysis-justices-divided-on-federal-protections-for-lgbt-employees/

[Sophia_Of_PlanetX]

13. I'm prepared for a 5-4 loss, which to be honest, I think is the most likely outcome for all cases.

However, I’m happy to live in one of the most LGBT-friendly states in the US. Others will not be so lucky.