Published in NH Bar News (4/15/2020)
As it has done since 1917, the United States Supreme Court opened its 2019-2020 Term on the first Monday in October. But this term has proven to be anything but business as usual.
Not long after the start of its current term, Chief Justice John Roberts presided over the Senate’s impeachment trial, which lasted almost three weeks from mid-January to early February 2020. Shortly thereafter on March 16, the Court closed its doors to the public and postponed oral arguments through April 1 due to the coronavirus global-pandemic. In its press release on the public closure, the Court explained that this postponement of proceedings for public health concerns is not its first. The Court also postponed proceedings in October 1918 in response to the Spanish flu epidemic and in August 1793 and August 1798 in response to the yellow fever outbreaks. In issuing its current order, however, the Court advised that internal operations would continue (some justices participating in conferences remotely by telephone) and that it was not extending any current deadlines.
How the ever-changing COVID-19 restrictions and increasing number of state lockdowns will impact the Court’s 2019-2020 Term is still too soon to determine. In the meantime, we all await decisions from some of the employment cases pending at the Court, some of which are included below.
Title VII - Transgender & Sexual Orientation Protections
One of the most anticipated decisions in the employment area will come from a trio of cases that will address the scope of the term “sex” under Title VII. Oral argument was held in these cases on the second day of the term, October 8, 2019.
The Court will answer in R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, et al. (No. 18-107) whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In the other two cases, Altitude Express, Inc. et al., v. Zarda (No. 17-1623) and Bostock v. Clayton County, Georgia (no. 17-1618), the Court will determine whether discrimination based on an individual’s sexual orientation is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1).
The arguments by the parties generally concern the interpretation of the term “sex” as used in Title VII and the Court’s decisions that have followed, including the sex-stereotype protections found in Price Waterhouse. Essentially, the Court will consider whether the term “sex” only means the status of male or female based on reproductive biology or whether the term extends to cover new applications, even when Congress may not have envisioned them at the time of enactment in 1964.
New Hampshire’s Law Against Discrimination, RSA 354-A, protects employees from discrimination based on both gender identity and sexual orientation. Those protections are the result of specific amendments adding these groups to the protected categories enumerated in the law. The State of New Hampshire Attorney General’s office did not submit or join in any briefs filed on the question before the Court in this trio of cases, noting it did not have time to review the filing before the filing deadline. Instead, it filed a letter of support of the amicus brief filed by the States of Illinois, New York, California, et al., arguing in favor of providing protections for transgender and sexual orientation under Title VII. (February 20, 2020 letter from New Hampshire Attorney General’s Office).
ADEA Standard for Federal Employees
The Court heard oral argument on January 15, 2020 in Babb v. Robert Wilkie, Secretary of Veteran Affairs (No. 18-882) on whether the federal sector provision of the Age Discrimination in Employment Act requires a public-employee plaintiff to prove that age was a but-for cause of the challenged personnel action. The ADEA requires that federal agencies’ “personnel actions affecting employees…who are at least 40 years of age…shall be made free from any discrimination based on age.” Babb argues that this language creates liability for age discrimination any time the federal government considers age rather than needing to prove but-for causation. As many of you will recall, in University of Texas Southwestern Medical Center v. Nassar, 570 U.S. 338 (2013) and Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009), the Court determined the statutory language “because” in 42 U.S.C. § 2000e-3(a), and “because of” in 29 U.S.C. §623(a)(1) required a private-sector plaintiff to prove but-for causation.
Deferred Action for Childhood Arrivals (DACA)
Another highly anticipated decision concerns the DACA program from the Obama administration in 2012. Oral argument was held on November 12, 2019 on another trio of consolidated cases – Department of Homeland Security v. Regents of the University of California (No. 18-587), Trump v. NAACP (No. 18-588), and Wolf v. Vidal (No. 18-589). These cases impact the workplace because under the DACA program, if a person is qualified, that person is eligible for temporary legal status and a work permit, renewable every two years. The questions presented in those cases include (1) whether the Department of Homeland Security’s decision to wind down the DACA policy is judicially reviewable and (2) whether DHS’ decision to wind down the DACA policy is lawful.
In the consolidated cases of St. James School v. Biel (No. 19-348) and Our Lady of Guadalupe School v. Morrissey-Berru (No. 19-267), the Court will consider whether the First Amendment Religion Clauses prevent civil courts from adjudicating employment discrimination claims brought by an employee against the employee’s religious employer, where the employee carried out important religious functions. The First Amendment Religion Clauses prohibit governmental interference with ministerial employees of a religious group. At issue is whether important religious functions alone are sufficient for application of the “the ministerial exception” to bar a discrimination suit or is something more needed such as a formal title or extensive training. The oral argument that was scheduled for April 1, 2020 has been postponed.
With the Court still operating during these COVID-19 restrictions in place (albeit remotely for some justices), we hope to see decisions on those employment cases above where oral argument has already been held.
Jennifer L. Parent chairs the Litigation Department at McLane Middleton, Professional Association and is a member of the firm’s Employment Law Practice Group. She can be reached at (603) 628-1360 or [email protected].