(Reuters) - Last fall, when the U.S. Supreme Court was considering a petition presenting the question of whether Title VII of the Civil Rights Act prohibits workplace discrimination against gay and lesbian employees, gay rights supporters exhorted the justices to take the case. The Supreme Court received amicus briefs from a coalition of gay and lesbian advocacy groups, a band of legal scholars, 76 pro-equality businesses and 18 states, all of them calling on the Supreme Court to resolve a split between the 7th and 11th U.S. Circuit Courts of Appeal and grant review of Jameka Evans’ claim that she was forced out of her job as a security guard at Georgia Regional Hospital because she is a lesbian.
“This court should resolve this question now,” the states wrote in their amicus brief (2017 WL 4641769) in Evans. “The states and their residents are already suffering harm from the absence of federal-law protections for lesbian, gay and bisexual individuals in the circuits (including the 11th Circuit) that do not recognize sexual-orientation discrimination as a basis for Title VII liability. Further percolation is not likely to shed additional light on the question, given the square and fully articulated conflict between the 7th and 11th Circuits. And delay will exacerbate the harms that the states and their residents will continue to face in the absence of intervention by this court.”
Last December, the justices declined to take the Evans case, which had some unusual procedural complications. The circuit split on the scope of Title VII’s prohibition on workplace sex discrimination, meanwhile, deepened. In February, the en banc 2nd Circuit, in Zarda v. Altitude Express (883 F.3d 100), sided with the 7th Circuit, holding that Title VII’s bar on sex discrimination encompasses discrimination on the basis of sexual orientation. In May, the 11th Circuit doubled down on its conclusion that the law doesn’t cover anti-gay and lesbian discrimination in the workplace in Bostock v. Clayton County Board of Commissioners (2018 WL 2149179).
On June 1, both the employee in the 11th Circuit case, Gerald Bostock, and the employer that lost at the 2nd Circuit, Altitude Express, filed petitions asking the Supreme Court to resolve the split and decide for once and for all if gay and lesbian employees can sue under Title VII for workplace discrimination rooted in their sexual orientation.
This week, Georgia’s Clayton County and executors for former Altitude Express employee Donald Zarda filed briefs opposing Supreme Court review. Both opposition briefs argued that the justices should give the lower courts more time to consider the issue in light of the recent changes-of-heart at the 2nd and 7th Circuits. (The Zarda brief also argues that his case is a poor vehicle for the Title VII issue because Altitude Express has apparently dissolved as a corporation.)
Notably absent from the Supreme Court dockets of both the Bostock and Zarda cases are amicus briefs from the proponents of gay and lesbian rights who were eager for the justices to take the Evans case. No amicus is backing former Clayton County employee Bostock in his bid for Supreme Court review. And the only amicus filing so far in the Zarda case is from conservative groups disputing the 2nd Circuit’s expansive view of the definition of discrimination on the basis of sex. I suppose it’s still possible for amici to submit briefs opposing the Altitude Express petition for certiorari in the Zarda case, but it’s unusual for friends of the court to file certiorari opposition briefs.
Ten months ago, in other words, equal rights advocates were eager for the Supreme Court to decide the Title VII issue. Now they don’t seem to be. Why not?
I asked that question in an email to lawyers who represented amici in the Evans case last fall: Alan Schoenfeld of Wilmer Cutler Pickering Hale & Dorr, who was counsel of record for the coalition of equal rights groups; Todd Anten and Kathleen Sullivan of Quinn Emanuel Urquhart & Sullivan, who represented 76 pro-equality businesses; and Thomas Schmidt of Hogan Lovells, counsel for the academics pushing for Supreme Court review. Schoenfeld and the Quinn Emanuel lawyers declined to comment. Schmidt didn’t respond to my email. Schoenfeld said he was referring my inquiry to Mary Bonauto of GLBTQ Legal Advocates & Defenders but I didn’t hear back from her.
There is, of course, one crucial difference between now and last fall at the U.S. Supreme Court: Justice Anthony Kennedy, a staunch defender of same-sex marriage, won’t be on the court when and if the justices take up the Title VII issue. And President Trump’s nominee, Judge Brett Kavanaugh of the D.C. Circuit, might be sitting in Justice Kennedy’s chair. It’s not much of a stretch of reasoning to assume that equal rights advocates were more excited about the prospect of Justice Kennedy joining the four liberal justices to extend workplace protection to gay and lesbian employees than they are of the possibility that a Justice Kavanaugh will side with the court’s conservative wing to shut gays and lesbians out of Title VII rights.
Whether that faith in Justice Kennedy was misplaced is an interesting question. Kennedy dissented from the Supreme Court’s 1989 ruling in Hopkins v. Price Waterhouse (109 S.Ct. 1775), which held that sex stereotyping amounts to sex discrimination under Title VII. The Hopkins decision has been at the heart of the 2nd and 7th Circuit rulings that Title VII encompasses discrimination on the basis of sexual orientation. Presumably the advocates urging the Supreme Court to take the Evans case last fall were confident Justice Kennedy has changed his mind in the decades since the Hopkins case.
The Supreme Court is due to conference on the Bostock petition next month when it returns from its summer break. The docket does not yet show a conference date in the Zarda case.
The views expressed in this article are not those of Reuters News.