Stanford Law Professor Pamela Karlan defended an interpretation of federal law that forbids job discrimination on the basis of sexual orientation before the U.S. Supreme Court on Tuesday morning. In her ninth appearance before the court, Karlan argued on behalf of plaintiffs Gerald Bostock and Donald Zarda, who both claim they were fired from their jobs because they are gay.
Karlan’s oral argument was the first of the court’s new term. The case is a consolidation of two, Bostock v. Clayton County, Georgia and Altitude Express Inc. v. Zarda, both of which address the fundamental question as to whether Title VII’s prohibition of discrimination based on a person’s sex also includes sexual orientation. Following Karlan’s argument, the Court heard the case of R.G. Funeral Homes v. Equal Employment Opportunity Commission, which considers whether Title VII includes employment protections for transgender individuals.
“When an employer fires a male employee for dating men but does not fire female employees who date men, he violates Title VII,” opened Karlan. “The employer has discriminated against the man because it treats that man worse than women who want to do the same thing. And that discrimination is because of sex.”
With that argument, Karlan contended that the statute does not need to be updated by the legislature to include sexual orientation, but rather that it should be read and applied exactly as written. This reasoning is part of the plantiffs’ central argument that discrimination on the basis of sexual orientation cannot occur without a consideration of sex.
“I think you should read the words exactly as they were understood then, which is ‘men’ and ‘women,’” Karlan said. “Title VII was intended to make sure that men were not disadvantaged relative to women and women were not disadvantaged relative to men.”
The employers maintain that accepting this argument would effectively result in rewriting Title VII. They are not arguing that LGBTQ+ individuals do not deserve employment protections, but rather that this constitutes a legislative decision that falls outside of the court’s jurisdiction and should instead be left to Congress.
When asked by Justice Ruth Bader Ginsburg about how she would reply to the criticism that Congress was not considering sexual orientation when writing the Civil Rights Act in 1964, Karlan argued that the “Court has recognized again and again forms of sex discrimination that were not in Congress’s contemplation in 1964.”
Gerald Bostock worked as a child-welfare-services coordinator for Clayton County, Georgia, where he headed a program that recruited volunteers to support abused and neglected children in the juvenile court system. He claims that he was fired after joining a gay softball league, though the county maintains that it fired Bostock following an audit of the volunteer program.
“Within months of [my joining a gay softball league] the negative comments started surfacing about my sexual orientation … and weeks later, I’m fired,” Bostock recalled.
Donald Zarda was a sky-diving instructor who believed he was fired after he told a female customer to whom he was closely strapped for a tandem jump not to worry because he was gay. Zarda has since passed away, but the court will still consider his case alongside Bostock’s.
“We’re in the situation now where in too many parts of the country, a gay or lesbian individual can marry their partner on Sunday, legally, and be fired for their sexual orientation on Monday,” said Thomas Mew, one of Bostock’s lawyers.
While some states do protect against discrimination on the basis of sexual orientation, this case intends to establish a federal standard. Mew described how inconsistent lower court decisions on Title VII have prevented a uniform standard of protection from being established.
Karlan is no stranger to the American court system. She previously clerked for Judge Abraham D. Sofaer of the U.S. District Court for the Southern District of New York and for U.S. Supreme Court Justice Harry A. Blackmun.
This fall, Professor Karlan is also teaching the undergraduate Thinking Matters course, “Justice and the University,” alongside her work at the Law School. Students in the course saw Karlan prepare for her argument in a staged moot court last week.
“I found Professor Karlan’s logic and reasoning really interesting, and the way that she refuted claims was incredible to watch” said Esteban Cambronero Saba ’23.
Saba’s classmate Campbell Jenkins echoed a similar sentiment, saying that he admired Karlan’s “gift of being able to present extremely complicated and nuanced ideas into digestible packages for a broader audience.”
Before the case arrived at the Supreme Court, the U.S. Court of Appeals for the 11th Circuit ruled in favor of Clayton County. When the court for the 2nd Circuit ruled in favor of Zarda, Bostock’s lawyers petitioned the court to look at Zarda’s case. The two cases were subsequently combined.
“We know from history that cases are more likely to be accepted by the [Supreme] Court when there is a split among the circuits,” Mew explained.
Karlan joined the Zarda team when the case was being appealed. Bostock and Zarda’s legal teams began working together when the Supreme Court decided to consolidate the cases.
Karlan and her fellow attorneys know that they need to flip at least one of the court’s five conservative seats in order to gain a majority vote. All eyes will likely be on Chief Justice John Roberts, commonly regarded as the court’s ideological center. Justices Brett Kavanaugh and Neil Gorsuch, both recent Trump appointees, will also be closely watched. The Trump administration recently stated that the court should determine discrimination based on sex does not include sexual orientation.
The case has taken on a life of its own in popular media, with several LGBTQ+ celebrities speaking out about its national implications. Laverne Cox, star of Netflix’s Orange is the New Black, wore a purse in reference to the case at the 2019 Emmy Awards.
The court’s opinion is anticipated to be released in the summer or spring of 2020, rendering the case a potential point of relevance in the upcoming presidential election.
While today’s case is extremely personal to him, Bostock recognizes that its implications extend far beyond Clayton County.
“Though I didn’t ask for this, somebody needed to face this issue head on, and right now I’ll be the one to do it, because I don’t want anyone else to have to experience what I have over the course of the last six years of my life,” he said.