HECHT PARTNERS LLP ANALYZES THE SUPREME COURT RULING THAT LGBTQ PEOPLE ARE PROTECTED FROM JOB DISCRIMINATION

Have you ever wondered what it is like to be a fly on the wall at a law firm?

In the current COVID-19 era, that—at least in the case of most firms—is an unattainable quest as lawyers work from home.

Attorneys at Hecht Partners LLP—an award-winning firm founded in the midst of the unprecedented worldwide pandemic, and which prides itself on its entrepreneurial spirit and advancing its practice through the use of next-generation technologies—engaged in a discussion about the Monday, June 15 landmark decision at the United States Supreme Court that civil rights law protects gay, lesbian and transgender people from discrimination in employment.

In what has been described as a resounding victory for LGBTQ rights from a conservative court, the Supreme Court ruled that workers cannot be fired for being gay or transgender. In a 6-3 opinion authored by Neil Gorsuch, the court found employers cannot fire employees based on their sexual orientation or gender identity under Title VII of the Civil Rights Act of 1964.

“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex,” Justice Gorsuch wrote for the court. “Sex plays a necessary and undisguisable role in the decision; exactly what Title VII forbids.”

Labeling the opinion as “getting the right and just result,” Conor B. McDonough, Ph.D, a Boston-based Partner at Hecht Partners LLP opened up the discussion, along with Theo Bruening, Counsel at Hecht, who brought significant experience litigating discrimination and retaliation lawsuits under Title VII to the analysis.

Here, attorneys at Hecht Partners LLP discuss the ruling—proving you do not need mahogany desks or expansive law libraries to engage in an insightful discussion about law:

Conor B. McDonough, Ph.D. [Partner]: If I had an initial thematic take, it would be that it is interesting that the Court appears to apply a textual analysis, but does so in the context of Congress’s decades-long failure to act to protect the interests of LGBTQ citizens, and thus it makes something of an end-run around Congress’s failures to act. Kavanaugh obviously takes issue with this approach, but I think “it’s a feature, not a bug.” The Court seemed to do this by using the text of the statute (and certain amendments) and prevailing definitions at the time it was originally enacted, to achieve what is a just and proper outcome (that was almost certainly not contemplated by the legislators when the law was originally enacted) via the “written word.” As the Court notes, “the written word is the law, and all persons are entitled to its benefit.” That is such a compelling statement, in both its clarity and the force of the fundamental truth it expresses.

Shira Feldman [Counsel]: That sounds like Justice Kennedy. Of course, Gorsuch was his law clerk.

Theo Bruening [Counsel]: A layperson reading this opinion may infer that it is now de facto illegal to fire a trans or gay person. That is only true if the plaintiff can prove that the employer terminated him in whole or in part because of his being trans or gay. In the vast majority of discrimination cases, the main issue is proving that discriminatory intent by the employer. This case, however, is rare in that the intent is admitted; the question is only posed whether the employee was a member of a protected class, i.e. whether being gay or trans is part of “sex” under Title VII. In all discrimination cases, an employee (1) claims that he was discriminated against on the basis of his belonging to a protected class, such as sex, race, religion, etc. The burden then (2) shifts under the McDonnell Douglas standard to the employer to provide non-pretextual and Title VII-neutral reasons for the adverse employment action; then (3) the burden is back on the employee to rebut those reasons. This is where the battle is fought in almost all employment discrimination litigation. The case broadened the applicable protected classes in step (1) and remedied a circuit split. 

The court’s handling of intent is a useful guide for employers. Judge Gorsuch lays out a test (at 18) asking whether it would be possible to explain the words “homosexual” or “transgender” without reference to sex, man or woman in the context of an employment questionnaire. This is an excellent test for determining whether a work procedure that treats employees differently from one another would fall foul of Title VII – can it be explained without reference to a protected class? The Second Circuit last year had a case where this test would have been handy. A male coach was fired from a university following accusations of sexual misconduct by a female student without any meaningful investigation having been undertaken contrary to the university handbook; an action that the university allegedly took out of fear of a social media fallout in light of the #MeToo movement. It would likely not have taken the same steps if the coach had been female and the accuser male as the likely social media outrage would have been much more diffused. While the university’s concern may not have been about the employee’s sex but about its reputation, the action was nevertheless discriminatory. You don’t have to be sexist to engage in sex discrimination. Judge Gorsuch’s test applies here too – the discrepancy cannot be explained without reference to the concepts of sex, man or woman, and thus it falls under Title VII. (The case was Menaker v. Hofstra, 935 F.3d 20 (2d Cir. 2019))

Conor B. McDonough, Ph.D. [Partner]: In their dissents, Alito and Thomas offer what strike me as extremely troubling views from a policy perspective. Their complaints that this decision will have ripple effects that might (gasp!) also prevent discrimination against American citizens in other contexts would be hysterical if it weren’t so appalling. I still cannot fathom this bizarre fixation on the bathrooms.

Kavanaugh’s statement that “judges interpret the law as written, not as they might wish it were written” strikes me as completely wrong. An accurate formulation would be: “Judges interpret the law as they interpret it to be written.” Every judge who has ever interpreted any text has, by necessity as a member of the human race, done so under the influence of their own inherent views/biases. We are not a species that can do otherwise. The key is for judges to be mindful of those inherent biases to the extent they can be, and wrestle with the challenge of when to keep them at bay in their analysis and their rulings. 

Minyao Wang [Counsel]: Justice Alito penned an unusual dissent.  

Conor B. McDonough, Ph.D. [Partner]: The dissents predictably trot out the argument that it is up to Congress to make the laws, and not the Court. While that may be technically accurate, it is not (nor has it ever been) universally true or applicable.  

One idea that arises out of this decision is when does it become the charge of Courts to fix what is broken, when lawmakers continuously fail (in many instances intentionally, out of clear animus and/or basic ignorance) to do justice. 

Janine F. Cohen [Partner]: Alito’s logic seems backward to me. He appears to be arguing that the drafters could not have meant for the statute to prohibit discrimination based on sexual orientation, because discrimination based on sexual orientation was so prevalent at the time. 

Theo Bruening [Counsel]: Alito’s dissent (at 11, for example) misses the point of the arguments made by Gorsuch – it’s not about the employer knowing the sex of the affected employee, it’s about the employee’s sex having an impact on the employer’s decision. Some other observations: Alito’s dissent plays all the old hits, for example, legislating from the bench—arguing that because Congress has not successfully amended Title VII to include trans and gay people, Title VII never did so. It’s a non sequitur. The appeal to textualism. The appeal to dictionaries. The appeal to tradition (“It’s never been viewed this way until now, therefore it cannot be viewed this way.”). The appeal to the military discriminating against gays, ignoring the fact that the military isn’t even bound by the constitution. The intentional misunderstanding of the arguments made by the majority. The confusion “based on sex” with “related to sex”; i.e. equating sexual orientation to astrology (at 15). The floodgates based on hypotheticals.

There’s a necessary corollary to this case. In addition to gay, lesbian or trans persons now forming part of the protected class of “sex” under Title VII, then so must hetero and cis persons. Look out for the employment case in which someone complains of not being hired for being heterosexual or cis and expect the same raised eyebrows that occurred when white men found support in Title VII.

Conor B. McDonough, Ph.D. [Partner]: Theo, speaking of Alito’s and Kavanaugh’s references to textualism, their critiques of the Court’s decision reveal (to my mind) the analytical frailty that inheres in the insistence on only using a textualist approach. Kavanaugh’s dissent offers a take on textualism as distinct from “literalism,” but even if one accepts that distinction, when does one know when the two differ in practice?

Richard Posner wrote a very compelling critique of textualism in a review of Scalia and Bryan Garner’s 2012 book “interpretation of legal texts,” in which Posner highlights numerous hypocrisies inherent in a dogmatic adherence to textualism, chief among those hypocrisies: that one ends up not being a textualist at all. 

Theo Bruening [Counsel]: Conor: Agreed. Did I mention that I’m not a fan of textualism? Also, it was great that Gorsuch cited Scalia, who must be spinning in his grave.

Conor B. McDonough, Ph.D. [Partner]: I not a fan of textualism exclusively, but there are probably some cases whose contours or particulars lend themselves to a textualist approach. I find it silly, however, to rigidly adhere to textualism and only textualism, when the particulars of the given case are not a good fit for that approach. Additionally, the decision in Bostock also seems to present a challenge to the credibility of the Trump Administration’s justifications for numerous changes to administrative agency rules, that have had the effect of removing protections from discrimination against LGBTQ citizens. Certain of those stated justifications have included an argument that statutory protections against discrimination do not explicitly refer to the legal status of transgender citizens.

Shira Feldman [Counsel]: I think the implications for the Trump administration’s rule change, as Conor suggested, are particularly important. For example, look at this tweet from Chase Strangio at the ACLU:

 “The HHS rule is based on an interpretation of sex under federal law. The courts decide not Trump. Today the highest court just decided.” –https://twitter.com/chasestrangio/status/1272542891748065281

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https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf