Goodbye, RBG

The actual Justice GinsburgShe stood, at best, five feet, one inch tall. But as she got older, she looked shorter—age and frailty bending her small frame forward.

Even so, she was larger than life.

Now, if had he known her, Shakespeare surely would have penned these words for her: “Though she be but little, she is fierce.”

Most of you already know who “she” is. “She” is Justice Ruth Bader Ginsburg, and tonight, she died at the age of 87. She was a three-time cancer survivor. But a survivor, she was.

Cornell University had admitted her as an undergraduate, and she started classes mere months after her mother died. She ended up the highest-ranking female student in her class. And, during her first year of law school at Harvard as one of only nine women in a class of 500 men, she, the mother of a toddler, did her own studying and typed up notes for her husband Marty, a second-year law student who was undergoing treatment for testicular cancer. She juggled parenting a small child, pursuing her own rigorous studies, and managing her husband’s studies. When Marty graduated from Harvard Law and moved to New York for work, she followed, transferring to Columbia Law School. And ended up tying for first in her graduating class.

Considering her class rank and her achievements at two renowned law schools, you’d think she’d have no trouble finding a job. But you’d be wrong. As I’ve heard her say, she had three strikes against her: she was Jewish, she was a woman, and she was a mother. Fortunately, then, because no law firm would hire her, she eventually ended up working for the ACLU as a founding member of the ACLU’s Women’s Rights Project. There, she was the architect of the litigation strategy that chipped away at laws that discriminated on the basis of sex. In her view, neither women nor men should be constitutionally bound by societal roles made legal based on what “women” or “men” should be.

Only she never was able to convince the Court that sex discrimination cases should receive strict scrutiny, like other suspect classifications.

Continue ReadingGoodbye, RBG

Bostock v. Clayton County: An Unexpected Victory

A photo of the White House with rainbow lights shown on it[The following is a guest post from Alexa Bradley (L’18).]

The days in which same-sex couples could marry on Sunday and be fired on Monday are no longer.

Gone, too, are the days in which a transgender employee could be fired for giving themselves the gift of living their life as the person they were always meant to be. On June 15, 2020, in Bostock v. Clayton County Board of Commissioners, the United States Supreme Court ruled in a 6-3 decision that Title VII’s prohibition of workplace “sex” discrimination clearly encompasses discrimination based on one’s sexual orientation or transgender status because “homosexuality and transgender status are inextricably bound up with sex.” This long-awaited decision was an unexpected victory for the LGBTQi community, of course, but also for the sanctity of Title VII.

Before I get into the weeds of the Bostock opinion, a little background may be helpful. I’ll first explain Title VII and some of the early Supreme Court case law interpreting “sex.” Then, before I explain the opinion itself, I’ll explain how the circuit courts had interpreted “sex” when it came to claims involving sexual orientation and transgender status. Finally, after explaining the majority opinion, I’ll unravel the dissenting arguments.

 Title VII Background
Title VII was enacted by Congress in 1964 to address the pervasive problems of employment discrimination and to ensure that, among the other enumerated characteristics, an employee’s “sex” was not relevant to their selection, evaluation, or compensation. According to Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986), Congress drafted Title VII in broad terms to “strike at the entire spectrum of disparate treatment between men and women.” Since Title VII’s passage, the Court has been tasked on a number of occasions with clarifying the scope of protection provided by Title VII’s ban on “sex” discrimination.

For example, in 1971, the Court held in Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971) (per curiam), that an employer who hired men with school-aged children but would not hire women with school-aged children had engaged in sex discrimination in violation of Title VII. The Court’s decision in Phillips created the “sex-plus” theory of discrimination. Sex-plus discrimination is found when an employer, explicitly or in effect, classifies an employee on the basis of sex plus another characteristic, such as “women who have children.” So, in Ms. Phillips’s case, her employer discriminated against her because she was (A) a woman, who had (B) school aged children. Thus, her employer’s decision was motivated, in part, by Ms. Phillips’s sex, which violates Title VII.

In 1978, the Court considered in Los Angeles Department of Water & Power v. Manhart, 435 U.S. 702 (1978), whether Title VII permitted an employer to require women to make larger contributions to the pension fund than men. The employer argued that the policy was justified because women are likely to live longer than men, so women would receive more over time from the pension fund. However, recognizing Title VII’s clear focus on the individual rather that a group, the Court rejected the employer’s justification. The Court reasoned that it may be true that women, as a whole, live longer than men, but an individual woman may die as early as a man, and that the individual, therefore, is the proper focus for Title VII. Thus, the Court held that an employer engages in sex discrimination in violation of Title VII when the employer uses generalizations or assumptions about an entire class of employees that results in individual disparate treatment.

In 1986, the Court held in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986), that claims of workplace sexual harassment fall under the umbrella of “sex discrimination” claims contemplated by Title VII, and in 1989, the Court held in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), that discrimination on the basis of an employee’s failure to conform to expectations of gender norms – or sex-stereotyping – constitutes “sex” discrimination in violation of Title VII.

Finally, in 1998, in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), an opinion written by the late Justice Antonin Scalia, the Court found that Title VII’s prohibition on “sex” discrimination applies to cases of workplace harassment between members of the same sex. In so holding, Justice Scalia explained “male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Id. at 79.

In considering the above-cited opinions, one central theme seems to ring through: “sex” must be interpreted broadly.

This theme becomes unavoidably clear when considered with Congress’ abrupt response to the Court’s holding in General Electric Co. v. Gilbert. 429 U.S. 125 (1976).  In Gilbert, the Court found that a company plan that provided nonoccupational sickness and accident benefits to all employees but did not provide such benefits for any absence due to pregnancy did not constitute sex discrimination. In response, Congress passed the Pregnancy Discrimination Act of 1978, which explicitly overturned Gilbert and expanded Title VII’s definition of “sex” to cover “pregnancy, childbirth, and related medical conditions.” 42 U.S.C. § 2000e(k). Congress’ swift action to overturn Gilbert sent a clear message to the Court – the protected characteristics enumerated in Title VII are to be afforded broad interpretations.

How We Got Here
This is the landscape of Supreme Court decisions against which Bostock must be understood.

Continue ReadingBostock v. Clayton County: An Unexpected Victory

Public Views of the U.S. Supreme Court: A Marquette Law School Poll and Conference

US Supreme Court

On October 21, the Marquette Law School Poll will release the results of a nationwide survey of public opinion about the Supreme Court of the United States. How much do citizens know about the Court? How informed are they about the Constitution? What, if anything, do they think of the justices? With respect to recent decisions of the Court, how much of the public supports or opposes the Court’s rulings? How much is opinion of the Court and its decisions based in partisan or ideological affiliations of voters? Do opinions of the Court influence presidential-vote choices? Does the public see the Court as legitimate? The Marquette Law School Poll Director, Professor Charles Franklin, will present the results of a unique national survey devoted entirely to knowledge and opinion of the U.S. Supreme Court.

We will then present three panels of reaction or reflection about the survey or the general topics that it implicates. Panelists will include the following:

  • from the bench and bar, Judge Diane S. Sykes of the U.S. Court of Appeals for the Seventh Circuit; Peter D. Keisler, co-leader of Supreme Court and Appellate practice, Sidley Austin, Washington D.C.; and Thomas L. Shriner, Jr., partner in Foley & Lardner and adjunct professor of law at Marquette University
  • from the academy, Professor Lawrence Baum (political science), The Ohio State University, and author (with Neal Devins) of The Company They Keep: How Partisan Divisions Came to the Supreme Court (Oxford 2019), and Tara Leigh Grove (law), William & Mary, author of The Supreme Court’s Legitimacy Dilemma, 132 Harv. L. Rev. 2240 (2019)
  • from the press with deep experience with respect to the Court, Robert Barnes (Washington Post) and Carl Hulse (New York Times and author of Confirmation Bias: Inside Washington’s War over the Supreme Court, From Scalia’s Death to Justice Kavanaugh (Harper & Collins 2019))

Other participants will include my Marquette colleagues, Chad M. Oldfather, professor of law, and Mike Gousha, distinguished fellow in law and public policy. We regard this survey as an opportunity to offer not just opinion from the public but also a variety of explanations to the public about how the judiciary, or the Supreme Court in particular, comes to decisions.

Since its establishment almost eight years ago, the Marquette Law School Poll has developed a substantial national reputation. This latest survey, too, will be a public good, and it should be of considerable lasting interest.

Please join us at Marquette Law School, in Eckstein Hall’s Lubar Center, for the conference (Monday, October 21, 8 a.m.–1:30 p.m.). Registration is required and available here. Questions may be directed to Rita Aleman, program manager of the Law School’s Lubar Center for Public Policy Research and Civic Education.

Continue ReadingPublic Views of the U.S. Supreme Court: A Marquette Law School Poll and Conference