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U.S. Supreme Court observers are sharply divided on the likely outcome of three closely watched sexual orientation and gender identity discrimination cases that the high court will consider during public hearings Tuesday.
Some believe the court will rule Title VII of the Civil Rights Act of 1964 covers all three plaintiffs, some believe it will not, and at least one observer predicts a split decision among the three cases.
But it may be some time before they will learn who is right, because it could be spring, and possibly June, before the high court issues its opinions, they say.
Melissa Zarda et al. v. Altitude Express and Gerald Lynn Bostock v. Clayton County will be heard together.
In the Zarda ruling, the 2nd U.S. Circuit Court of Appeals in New York decided in favor of Donald Zarda, a now-deceased gay skydiver who had sued his former employer, Calverton, New York-based Altitude Express, alleging he was fired from his job as a skydiving instructor because of his sexual orientation. Mr. Zarda’s sister is pursuing the litigation.
In the Bostock case, the 11th Circuit in Atlanta upheld a lower court decision and ruled against Mr. Bostock, a gay man who contended he was fired as a child welfare services coordinator for the Clayton County, Georgia, juvenile court system because of his systemic sexual orientation.
R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission will get a separate hearing. In that case, the 6th Circuit in Cincinnati ruled in favor of a transgender worker who was fired when she told her funeral home employer she was undergoing a gender transition from male to female.
“My fear is that they’re going to rule that Title VII does not include sexual orientation and transgender status,” in either 6-3 or 5-4 rulings, said J. Randall Coffey, a partner with Fisher & Phillips LLP in Kansas City, Missouri, who represents management in employment and labor matters. Precedents in previous cases are “going to drive the interpretation of Title VII,” he said.
He added, “I think it’s going to be fascinating to see how the court ends up reaching its result, and exactly what the scope of the debate is between whoever’s in the majority and whoever’s in the minority.”
Paul Starkman, a member of law firm Clark Hill PLC in Chicago, who represents employers in his firm’s labor and employment practice group, said if he were to choose, he believes the court will decide that sexual orientation and gender identity are not included in Title VII “because they are not explicitly set forth there.”
“My prognosis is that the conservative view will hold, and the conservatives will make a textual analysis
is of the statute and say that because it’s not in there explicitly, it’s not meant to protect those groups,” he said.
Jeffrey D. Polsky, a partner with Fox Rothschild LLP in San Francisco, who is co-chair of the firm’s labor and employment department and represents employers, said, “I am a pessimist by nature, and I’m afraid that the court is going to drift further and further to the right and thereby rule that Title VII does not protect the plaintiffs.”
However, Gregory Nevins, senior counsel and director of Lambda Legal’s employment fairness project in Atlanta, said he believes the court will rule in favor of the plaintiffs in these cases.
“It has been an absolute, unquestioned trajectory of the court over the past few decades to interpret statutes according to the words in the statute” and not question Congress’ intent, which “used to play a big part in statutory interpretation,” Mr. Nevins said.
“But now it’s a focus on the words of the statute, and here it’s plain, to me at least, that you’re firing someone because of their sex. If you’re perfectly happy about Andrew coming to work,” and it is no longer acceptable when he becomes Amy, or because a man dates other men, it is because of their sex. “It’s just that simple,” Mr. Nevins said.
He also said, “I think, especially in these times, when things are so hyperpartisan and courts could run the risk of going down that path,” that the Supreme Court may issue a counterintuitive ruling in favor of extending Title VII’s protection “that would improve the court’s reputation.”
Myrna L. Maysonet, a partner and chief diversity officer with Greenspoon Marder LLP in Orlando, Florida, who defends corporations in her firm’s labor and employment and class action defense practice group, said she predicts the court will expand
ed Title VII’s protection based on sexual orientation and transgender status.
That would be the “right decision” because both fall into the sex category under Title VII, said Ms. Maysonet, who said she is gay.
Vincent M. Rizzo, an associate with Hinshaw & Culbertson LLP in Chicago who represents governmental entities and public employees, said he believes the court will decide in favor of Title VII protection, although the ruling will ultimately depend on whether Justices Brett Kavanaugh and Neil Gorsuch and Chief Justice John Roberts “will obey the text of Title VII as opposed to the legislative intent” when it was enacted,” said Mr. Rizzo, who said he is gay.
“It could be a split decision,” said Mark T. Phillis, a shareholder with Littler Mendelson P.C. in Pittsburgh, who represents employers. “We have two arguments; one is sexual orientation and one is gender identity,” he said.
“I expect to the extent the court follows its prior precedent on sexual stereotyping, there may be a greater likelihood” the court will rule that the transgender individual in the Harris case is “not living up to a sexual stereotype and that would be covered by Title VII, whereas sexual orientation may not be.”
A federal appeals court has reinstated a discrimination lawsuit filed by a lesbian former police officer, who charged the Santa Ana, California, police department treated her differently because of her gender and sexual orientation when it placed her on administrative leave pending completion of investigation of an anonymous complaint investigation.