November 22, 20219
The Fourth Panel: How Many Sexes can Stand Under Title VII’s Umbrella
BY: Chris Fortier
The United States Supreme Court just heard arguments in three employment cases next session: Bostock v. Clayton County, Zarda v. Altitude Express Inc., and EEOC v. R.G. & G.R. The cases range from a civil suit brought by an employee against a governmental body, an employee suing a private company employer, and a regulatory body bringing an action against a closely held business. The Court will determine the extent to which Title VII’s protections against sexual discrimination extend to protect against sexual orientation discrimination, associational discrimination, and gender stereotyping.
This panel was moderated by the Honorable Joanne F. Alper, Retired Judge, Circuit Court of Arlington County, and featured Carla D. Brown, Esq. of Charlson Bredehoft Cohen & Brown, Prof. Joseph J. Martins, Esq. of Liberty University Law School, and James Hammerschmidt, Esq. of Paley Rothman.
Each panelist provided factual background on each of the cases. When asked what case each would advocate, each chose their own. Mr. Hammerschmidt chose the Zarda case as the question is what does sex mean under Title VII? Ms. Bowen chose the Bostock case as Mr. Bostock was doing a great job locally, regionally, and nationally, and that the action of County embarrassed him with the audit and the news coverage of his firing. Professor Martins chose the EEOC case as the questions arose in the case were better suited for Congress to solve that the Courts. They speculated to the reason of the Supreme Court hearing all the cases together, thinking that they make an aggressive move on the issue.
Mr. Hammerschmidt pointed to the PriceWaterhouse decision of 1989, where sex discrimination was found when the only woman in the company who was up for partnership was denied. In the decision, the Court created an analysis to review these decisions. After the plaintiff shows that discrimination took place, a defendant would have to show that if the same decision would have been made if discrimination was not part of the process. The decision also added “stereotypes based on sex” to the definition of sex in the statute.
The theme that emerged from audience questions was that to only ask questions of applicants that are directly relevant to the job advertised. For example, questions about sexual orientation, though not illegal in Virginia, are highly discouraged, as they do not have a direct nexus to the job advertised. Questions that invite answers on personal lives, such as “tell me about your family (or upbringing),” are risky as it could be seen as inviting an answer that could lead to discrimination.