Because of Sex? Title VII, Discrimination and the LGBTQ Community on the SCOTUS Docket

Streams live on Tuesday, November 19, 2019 at 12:00pm EST

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Course Information

Time 60 Minutes
Difficulty Intermediate

Course Description

For many decades federal courts consistently held that Title VII’s prohibition of discrimination “because of sex” did not cover discrimination on the basis of sexual orientation. These interpretations often relied on the limited legislative history regarding the inclusion of “sex” in Title VII, or Congress’s subsequent failure to amend Title VII to explicitly prohibit sexual orientation discrimination. Lower courts long felt constrained by this precedent, but over the last twenty years, federal courts have begun to revisit the question. Some courts used a “sex stereotyping” analysis to broaden the protection of Title VII, while other courts and the EEOC moved in the direction of simply interpreting the term “sex” to include sexual orientation. These interpretations seemed to gain momentum in 2015, when the Supreme Court recognized the fundamental right to marry for same-sex couples in Obergefell v. Hodges.

More recently, the Second and Seventh Circuit Courts of Appeal have adopted the more expansive definition of “sex” advocated by the EEOC, while the Eleventh Circuit Court of Appeals has rejected this approach. The Sixth Circuit, in a case involving transgender discrimination, has also signaled its willingness to adopt a more expansive view of the term “sex.” The U.S. Supreme Court has granted cert to the Second, Sixth, and Eleventh Circuit decisions, and is expected hear an argument in the Fall of 2019. What the Supreme Court will do is uncertain, at best. Some legal observers believe that federal law is on the verge of “catching up” to the law in dozens of states, which explicitly recognizes the rights of LGBTQ people to protection from employment discrimination, but other observers are far less clear. 

This program, taught by Geoffrey Mort, Of Counsel at Kraus & Zuchlewski, Con Edison Associate General Counsel Christopher A. D’Angelo, and Ria Tabacco Mar from the ACLU’s LGBT & HIV Project, will cover the various state and federal approaches, how to litigate these kinds of claims, and predictions for the future.

Learning Objectives:

  1. Address the current landscape of federal case law regarding employment discrimination on the basis of sexual orientation
  2. Examine the rationales for, and responses to, decisions finding that Title VII affords no protection to lesbians and gay men in employment
  3. Survey state statutes that prohibit sexual orientation discrimination
  4. Review the Second, Sixth, Seventh, and Eleventh Circuit cases that may change the direction of federal law regarding sexual orientation discrimination
  5. Assess the future safeguards against sexual orientation discrimination, if any
  6. Apply “best practices” for employers in a rapidly changing legal environment
  7. Discuss claims of sexual orientation discrimination in some state courts and probably in at least some federal circuit courts, including best practices during intake

Credit Information

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Christopher D'Angelo

Consolidated Edison Co. of New York

Mr. D’Angelo manages the Labor, Employment, Benefits and Workers Compensation Group as Associate General Counsel at Con Edison in New York City.  He has spent the bulk of his career as a management-side labor and employment lawyer since 1985, with large firm and small firm experience. His work experience includes a heavy focus on compliance, advising clients in all facets of this practice area (i.e. federal, state and local discrimination laws, FLSA, FMLA, NLRA, WARN, EPPA, employment contracts, executive compensation, restrictive covenants, severance agreements, reductions in force, whistleblower laws, collective bargaining negotiations), in a variety of factual situations from pre-employment through discipline and/or discharge.  Twenty years ago, Mr. D’Angelo collaborated with a partner on the creation of a workplace EEO and harassment training presentation which is regularly updated; the presentation has been given, either alone or with a co-presenter, to numerous clients on a regular basis over the last twenty years.  

Mr. D’Angelo is also a seasoned litigator, having represented clients in state and federal court, and before state and federal administrative agencies, in hundreds of discrimination cases.  He has been first or second chair at approximately 25 bench trials or administrative hearings and one jury trial, and first chair at over 100 labor arbitrations. Having an active litigation practice has helped immeasurably in developing the necessary insight and analytical skill to successfully advise clients on compliance issues.  

Mr. D’Angelo is active on the Volunteer Mediation Panel for the Southern District of New York and the Eastern District of New York, and speaks and writes regularly on employment law issues.  He is active in leadership roles in professional associations and not-for-profit organizations, having recently been inducted as a fellow in to the College of Labor and Employment Lawyers, and selected as Chair of the Labor and Employment Law Section of the New York State Bar Association, with a term to begin in June 2020.

Ria Tabacco Mar

American Civil Liberties Union (ACLU)

Ria Tabacco Mar is a staff attorney with the national ACLU’s Lesbian Gay Bisexual Transgender & HIV Project. Her litigation docket covers a wide range of issues affecting the equal rights of LGBT people, including employment discrimination and the use of religion to discriminate. In 2016, Ria was named one of the “Best LGBT Lawyers Under 40” by the National LGBT Bar Association.

Prior to joining the ACLU, Ria served as Assistant Counsel at the NAACP Legal Defense & Educational Fund (LDF), where she participated regularly as amicus curiae on cases involving marriage equality and was a member of the Board of Directors of the New York Civil Liberties Union. Ria served as a law clerk to Judge Victor Marrero of the U.S. District Court for the Southern District of New York and to Judge Julia Smith Gibbons of the U.S. Court of Appeals for the Sixth Circuit. She also worked as a litigation associate at Cravath, Swaine & Moore LLP. Ria graduated from New York University School of Law and Harvard College.

Geoffrey A. Mort

Kraus & Zuchlewski LLP

Geoffrey Mort has extensive experience in federal court litigation of employment discrimination lawsuits. He previously served as an Assistant Circuit Executive for the U.S. Second Circuit Courts and as a litigator in the New York City Corporation Counsel’s office. He has litigated cases in both federal and state court and before a number of government administrative agencies, and has handled arbitrations at the New York Stock Exchange and American Arbitration Association.

Mr. Mort is active in the New York State Bar Association’s Section on Labor and Employment Law, where he is co-chair of the Workplace Rights and Responsibilities Committee and the State Bar Association's Cannabis Law Committee. He also belongs to the Association of the Bar of the City of New York, where he has served on several committees, and the American Bar Association.

Mr. Mort is a frequent speaker at bar association conferences on a wide range of topics related to employment law. He is also a regular contributor to the New York Law Journal’s “Outside Counsel” column and to the Labor and Employment Law Journal.

Mr. Mort graduated from the University of Denver, is a member of Phi Beta Kappa, and received his law degree from Brooklyn Law School, at which he was Commentaries Editor of the Law Review. In 2014, Mr. Mort was elected as a fellow of The College of Labor and Employment Lawyers.