Jeffrey Harris Jeffrey Harris, a Consovoy McCarthy partner and former associate administrator of the Office of Information and Regulatory Affairs. Photo: Diego M. Radzinschi/ ALM

Consovoy McCarthy partner Jeffrey Harris will make his debut argument next month in the U.S. Supreme Court on behalf of two employers who contend federal civil rights laws do not protect LGBT workers from sexual orientation discrimination.

Harris, who clerked for Chief Justice John Roberts Jr. in the 2008 term, will appear Oct. 8 opposite Pamela Karlan, co-director of Stanford Law's Supreme Court Litigation Clinic. The justices are scheduled to hear the closely watched cases Altitude Express v. Zarda and Bostock v. Clayton County, Georgia.

The two cases concern the scope of protections in Title VII of the Civil Rights Act, which prohibits employers from discriminating because of race, color, religion, national origin and sex. The issue before the justices is whether "because of sex" includes an individual's sexual orientation. The U.S. Court of Appeals for the Second Circuit ruled in the Altitude Express case for broader LGBT protections. The Eleventh Circuit ruled for more limited rights. The Supreme Court that same day will hear a related dispute over whether federal law protections transgender employees from workplace discrimination.

Consovoy McCarthy, an eight-lawyer boutique firm that specializes in constitutional law, appeals and complex litigation, has served as a go-to firm for conservative litigants. Several of the firm's attorneys represent President Donald Trump in various appellate matters challenging the U.S. House of Representatives's subpoenas of Trump's personal financial records. Former Consovoy partner Michael Park was confirmed in May to a seat on the Second Circuit.

In the Supreme Court, Harris's clients—Altitude Express and Clayton County—have agreed to give U.S. Solicitor General Noel Francisco 10 minutes of their 30 minutes of argument time. The Trump Justice Department abandoned the Obama-era argument that Title VII shielded gay, lesbian and transgender workers from discrimination. Trump's Equal Employment Opportunity Commission, however, did not back the Justice Department's arguments in the new Supreme Court cases.

Harris' appearance in one of the new Supreme Court term's highest profile cases will mark his first argument at the Supreme Court lectern. Harris has argued often in the lower federal appeals courts, however. He and partner William Consovoy, a leading attorney for Trump, will be at counsel's table on the first day of the new Supreme Court term as co-counsel to Louisiana in Ramos v. Louisiana, a challenge to non-unanimous juries in criminal cases.

Consovoy McCarthy was neither involved in the briefing of the two Title VII cases nor in any of amicus briefs that were filed in support of, or against, broad civil rights protections for gay, lesbian and transgender workers.

Harris declined to comment on how Consovoy McCarthy was picked to argue in the Title VII case. Lawyers for Altitude Express, represented by Saul Zabell of Zabell & Collotta in New York, and for Clayton County, represented by Jack Hancock of Freeman Mathis & Gary in Georgia, declined to comment about how Consovoy McCarthy was chosen to make the argument next month.

On the other side, Buckley Beal's Brian Sutherland, representing Gerald Bostock, and New York's Gregory Antollino, representing the estate of Donald Zarda, had requested divided argument time from the Supreme Court. They agreed that Stanford's Karlan, a veteran Supreme Court advocate, would argue for their side if the court, as it did, turned down their request for argument time.

Pam Karlan Pamela Karlan of Stanford Law. Photo: Jason Doiy/ ALM

Title VII protections are at the center of a third case being argued the same day as the sexual orientation cases: R.G. and G.R. Harris Funeral Homes v. EEOC and Stephens. In this case, the justices will decide whether federal law bars employers from discriminating because of a person's transgender status or because of sex stereotyping.

The Sixth Circuit ruled in favor of the EEOC and Aimee Stephens, who claims the Michigan funeral home fired her after she made known her intention to transition from a male to female. The Justice Department, without the EEOC's support, has asked the Supreme Court to rule against Stephens.

Francisco, the solicitor general, will share argument time with John Bursch of Alliance Defending Freedom, counsel to the funeral homes. Bursch, a former Michigan solicitor general, will be making his 12th high court argument. He unsuccessfully defended Michigan's same-sex marriage ban in the high court in 2015 in Obergefell v. Hodges.

John Knight, senior staff attorney of the ACLU's LGBT and HIV Project, plans to argue for Stephens in favor of Title VII protection for transgender individuals.

Knight and the ACLU have worked with Stephens since she filed her discrimination claim with the EEOC. They successfully moved to intervene in the Sixth Circuit to protect her interests going forward. The argument, like the one Harris will make in the sexual orientation case, will be Knight's first in the Supreme Court.

 

Read more:

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Justices Will Hear Major LGBT Workplace Cases, Testing Title VII's Scope