Supreme Court Receives Flood of Briefs Supporting LGBT Workplace Protections In Advance of October 8 Oral Argument

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By Arthur S. Leonard. This article will appear in the August edition of LGBT Bar NY’s LGBT Law Notes, the most comprehensive monthly publication of LGBT legal Developments here and abroad. Subscribe:

July 3, 2019, was the deadline for amicus briefs filed in support of the gay employees in the cases of Altitude Express v. Estate of Donald Zarda, No. 17–163, and Bostock v. Clayton County, Georgia, No. 17–1618, pending before the Supreme Court on the question whether Title VII forbids sexual orientation discrimination in employment. These two cases have been consolidated for argument before the Court, with 30 minutes allocated for counsel for the gay employees (plaintiffs below) and 30 minutes allocated for the employers (defendants below). Oral argument will take place on October 8, the second argument date of the Court’s October 2019 Term.

The docket notes the filing on July 26 of a joint motion by Bostock and Zarda asking that the 30 minutes allocated for argument on behalf of the Employees be divided for ten minutes to counsel for Bostock (Brian J. Sutherland, the Atlanta attorney who has represented Gerald Lynn Bostock throughout his lawsuit), and twenty minutes to counsel for the Estate of Zarda (Professor Pamela J. Karlen of Stanford Law School’s Supreme Court Litigation Clinic, who was asked to present Zarda’s case by Gregory Antollino, who represented Donald Zarda and then his Estate at the district and court of appeals levels). The Motion asks that rebuttal time be allocated to Professor Karlen.

The Joint Motion explains that the two cases came up to the Court with different postures, and there are some differences in the arguments they intend to present to the Court, justifying dividing up the time rather than requiring that one advocate speak for both parties. In Bostock, the 11th Circuit ruled in favor of the employer and dismissed the case. In Zarda, the en banc 2nd Circuit rejected the employer’s defense that Title VII does not apply to sexual orientation claims, and remanded for trial. The motion explains that Bostock intends to argue that several amendments to Title VII support the argument that Congressional intent as of 1964 is not the fixed time for interpreting the statute, as the subsequent amendments reflect congressional intent to embrace a broad reading of “discrimination because of sex” reflected in intervening Supreme Court decisions. Zarda intends to focus on the various interpretive theories that the 2nd Circuit below and the EEOC (in 2015) advanced to support coverage of sexual orientation.

The Clerk of the. Court posted a notice on the docket that as the cases had been consolidated for argument, all of the amicus briefs filed in one or both of them would be listed under the Bostock docket entry, 17–1618. The Supreme Court’s docket reflects the filing of 42 amicus briefs in support of the employees in these two cases as of July 26, most addressing both cases and some also addressing the gender identity case that will also be argued that day, R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission (Aimee Stephens, Intervenor-Plaintiff), No. 18–107. Those seeking to file amicus briefs in support of the employers, Clayton County (Georgia) and Altitude Express, have a deadline in August.

The Harris Funeral Homes case, concerning whether Title VII applies to gender identity discrimination claims, presents an unusual tripartite situation. Because of the change from the Obama Administration to the Trump Administration, the government has changed sides in the case. In the 6th Circuit, the EEOC won a ruling on behalf of employee Aimee Stephens that transgender individuals are protected from discrimination because of their gender identity under Title VII as a form of sex discrimination. The employer petitioned the Supreme Court for review, and after the change of administration, the Solicitor General informed the Court that the government would support the Funeral Home’s position that Title VII does not apply to this case, thus leaving Intervenor Stephens, represented by the American Civil Liberties Union’s LGBT Rights Project, as the de facto sole real Respondent. The Court, flipping the usual order of things, directed that Stephens file her principal brief by June 26, and gave the Funeral Home and the Solicitor General until August 16 to file their principal briefs in response, even though usually it would be the Petitioner who files the first principal brief. Even though the EEOC won below, the Court is, in effect, treating the Funeral Home and the Solicitor General as if they are respondents to a petition filed by Stephens!

The signatories on Stephens’ principal brief are all ACLU staff attorneys, with John A. Knight designated as counsel of record. Amicus briefs supporting Stephens (and the EEOC’s original position in the case) were filed early in July, with the docket reflecting the filing of 48 briefs, but many of them were cross-filed in the sexual orientation cases. Counting the two lists of amicus briefs together, more than 50 amicus briefs were filed altogether in support of finding Title VII coverage for sexual orientation and/or gender identity discrimination claims, with over 2,000 signers. Amicus briefs from those supporting the employer and the Trump Administration’s position are due later in August.

The organization and filing of amicus briefs in support of the LGBTQ parties were coordinated jointly by the ACLU, Freedom for All Amerians, and other LGBTQ-rights legal organizations. On July 3, Freedom for All Americans released a summary on the signers of the briefs. They include more than 200 businesses, more than 90 mayors, more than 35 Republican current and former elected officials and party advocates, more than 40 major civil rights organizations, thirty prominent women CEOs of businesses, more than 750 clergy, religious leaders and religious organizations, more than 150 current members of Congress, a group of Chambers of Commerce and small business associations, and major professional associations, including the American Bar Association, the American Medical Association and more than a dozen other professional health care associations, and both the National Education Association (representing teachers) and the National School Boards Association (representing those who employ the teachers). There were also several different scholar briefs, organized by fields of expertise. And, of course, there was a brief on behalf of the National LGBT Bar Association and several state and LGBTQ legal professional associations, including the LGBT Bar Association of Great New York.

Those who are curious and have lots of time to spend can find all of the briefs filed in the three cases so far on the Supreme Court’s very user-friendly website. Go to the Docket Search tab and put the name of one of the parties of the case into the search box, which will bring up links to cases having that name in their heading. Click on the docket page for the case and scroll down to find links to all the documents filed in each case, all of which can be downloaded as pdf files. Anybody who wants a thorough grounding in the issues raised by these cases should find all the information they need in this flood of amicus briefs. And anybody who wants to be well briefed on what the “other side” is arguing can go back to supremecourt.gov at the end of August and take a look at the commensurate flood of amicus briefs that are sure to be filed. Happy Reading for the Summer!

Executive Director, LeGaL @lgbtbarny. Attorney promoting justice in & through the legal profession for the #LGBT community. 40 Best LGBT Lawyers Under 40.

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