Daily Dicta: Big Law Is on the Right Side of History in Landmark LGBT Decision
The case attracted a stellar crop of amicus briefs from many of the top law firms in the country—and across the board, every single one of them sided with the LGBT employees.
June 16, 2020 at 12:35 AM
11 minute read
U.S. Supreme Court wins aren't eligible for Litigator of the Week honors, but if they were, Stanford Law School professor Pamela Karlan would be an absolute shoo-in.
Karlan argued on behalf of LGBT workers in Bostock v. Clayton County. For those you living under rocks, the high court on Monday in an extraordinary 6-3 decision held that Title VII of the Civil Rights Act prohibits employment discrimination based on sexual orientation or gender identity.
While Karlan as lead counsel deserves the most accolades, law firms that submitted amicus briefs are also entitled to some glory.
Do amicus briefs actually sway the court? It's hard to say, but one thing is certain: The case attracted a stellar crop of briefs from many of the top law firms in the country—and across the board, every single one of them sided with the LGBT employees. I'd like to think that carried some weight with the justices.
It's not that the employers didn't have amicus backing—they did, with more than 20 briefs. But not one was penned by a law firm I'd ever heard of (and I've heard of A LOT of law firms). The imbalance in advocacy was striking.
One of the more prominent Big Law amicus filings came from Cravath, Swaine & Moore. Firm lawyers led by Peter Barbur worked pro bono to represent 39 U.S. Senators and 114 members of the House of Representatives, including Chuck Schumer and Nancy Pelosi.
In their amicus brief, the Cravath litigators countered some of the objections made by the three dissenting justices.
Justice Samuel Alito, who was joined by Justice Clarence Thomas in his dissent, wrote that the court's duty "is to interpret statutory terms to 'mean what they conveyed to reasonable people at the time they were written.'" And in 1964, Alito argued, no one thought discrimination on the basis of sex covered anything other than "discrimination because of the genetic and anatomical characteristics that men and women have at the time of birth."
Justice Brett Kavanaugh in his dissent added that "judges may not rewrite the law simply because of their own policy views."
But the Cravath team, which also included Katherine Janson, Nicholas Suellentrop and Derek Mong, argued that the "supposed intent" of legislators at the time isn't what matters most.
"When the language of a statute is clear, legislative intent and history need not be considered," they wrote. "There is scant discussion in the legislative history of the specific term 'sex'. But Congress unquestionably intended to prohibit workplace discrimination that reflects beliefs about the abilities, preferences, behaviors and roles of employees based on their 'sex'."
Wilkinson Walsh litigators Chanakya Sethi, Angela Cai and Rakesh Kilaru writing on behalf of historians who study the history of gender, sexuality and law in the United States bolstered this argument.
"In 1964, the word 'sex' encompassed a variety of social meanings, as it does today," they wrote. "The term referred not only to the male sex and female sex, but also to a broad range of behaviors, social roles, and sexual practices."
Mayer Brown's Andrew Pincus, Nicole Saharsky, Lauren Goldman, Scott Chesin and Karen Lin weighed in with support for LGBT workers on behalf of one of the more unlikely amici—Altria Group. Yes, that Altria, which used to be known as Marlboro cigarette maker Phillip-Morris USA—and which I certainly never thought of as an especially progressive company.
But here, Altria argued that a diverse and inclusive workplace is good for business, and "makes the company stronger, more nimble in responding to business challenges, and better able to come up with creative solutions."
Williams & Connolly's Lisa Blatt struck a similar note on behalf of a variety of business organizations with tens of thousands of members.
"Substantial research shows that LGBT employees perform better when their sexual orientation or transgender status is known to their coworkers (i.e., when they are 'out' at work), and that businesses that employ diverse workforces outperform businesses that do not," wrote Blatt along with Colette Connor, Amanda Cox, Brian Hagerty and Michael Mestitz.
(Not on the brief: appellate practice co-leader Sarah Harris, whose husband Jeffrey Harris, a partner at Consovoy McCarthy, argued for the employers.)
Quinn Emanuel Urquhart & Sullivan's Todd Anten, Kathleen Sullivan, Cory Struble, Justin Reinheimer and Tico Almeida submitted a brief on behalf of 206 businesses that collectively employ 7 million people.
"Amici support the principle that no one should be passed over for a job, paid less, fired, or subjected to harassment or any other form of discrimination based on their sexual orientation or gender identity," they argued.
Wiley Rein did double-duty as amicus counsel.
Litigation practice co-chair Richard Smith and associate Douglas Dreier weighed in on behalf of The Trevor Project, PFLAG, and Family Equality in a brief featuring stories of employment discrimination suffered by LGBTQ individuals "to show how every instance of employment discrimination against lesbian, gay, or bisexual Americans or transgender Americans is sex discrimination."
Wiley partner Scott Wilkens and associate Tatiana Sainati filed the other amicus brief on behalf of the American Medical Association, the American College of Physicians, and 14 other national medical and health care groups.
Robert Carlson, Douglas Hallward-Driemeier and Logan Elliott Pettigrew of Ropes & Gray landed the American Bar Association as their amicus client, and urged the high court to apply the "straightforward, unqualified statutory text" of Title VII to find for the LGBT employees.
They also noted that in 2018, the ABA "adopted policies recognizing that Title VII's prohibition of sex discrimination includes discrimination against persons whose sexual orientation or gender identity does not conform to sex stereotypes."
Patterson Belknap Webb & Tyler's Jonah Knobler and Devon Hercher represented interACT: Advocates for Intersex Youth, noting in their amicus brief that close to 2% of infants are born intersex. They argued that "sexual anatomy and physiology are not binary for many people, and one's 'sex' cannot be reduced to a straightforward function of body parts."
Knobler along with Patterson lawyers Adeel Mangi and Mohammed Badat also represented several Muslim bar associations and advocacy groups in another amicus brief. "A holding that adopts the employers' reading of Title VII would necessarily erode aspects of the protections Title VII affords to Muslims and other protected groups," they wrote.
Hogan Lovells litigators Mitchell Reich and Thomas Schmidt teamed up with Jessica Clarke of Vanderbilt Law School and Brian Soucek of U.C. Davis School of Law to pen a brief on behalf of anti-discrimination legal scholars, arguing that there's widespread consensus among scholars that "discrimination against LGBT people in employment is discrimination on the basis of sex, and is therefore unlawful."
At Latham & Watkins, Melissa Arbus Sherry, Adam Tuetken and Riley Keenan teamed up with the Southern Poverty Law Center to represent civil rights, anti-poverty, and child and family welfare organizations. "[W]orkplace discrimination against LGBT people leads to a cascade of other harms," they wrote.
Brian Burgess of Goodwin Procter represented the Legal Aid Society, along with firm lawyers William Evans, Frederick Rein, Michael Cottler, Amanda Protess and Nicole Tate-Naghi.
They wrote that "Case law, social science, and real-life experience of sexual minorities—as represented by Legal Aid's clients—all show that discrimination based on transgender status or sexual orientation by its nature implicates sex stereotyping."
Sidley Austin's Jeffrey Green, Justin Becker, Katy (Yin Yee) Ho, Carol Lynn Thompson, Dana Angood and Patrick Bryant worked with UCLA School of Law's Adam Romero on behalf of scholars who study the LGBT population.
"Despite expanded legal rights and increased social acceptance of LGB people, many still experience widespread employment discrimination. Such discrimination is worse in states that do not have antidiscrimination statutes expressly prohibiting sexual orientation discrimination," they wrote.
Robbins, Russell, Englert, Orseck, Untereiner & Sauber's Roy Englert, Jr., Laurie Rubenstein, Peter Gabrielli and Carolyn Forstein represented Republicans, former Republicans, and political conservatives from diverse backgrounds.
"Basic principles of textualism resolve this case," they wrote. They urged the court to apply Title VII's words "to mean what they say: It is unlawful for an employee's sex to contribute to an employer's decision to discharge or otherwise discriminate against the employee."
The list goes on.
Allen & Overy's Andrew Rhys Davies led a team representing linguists, professors, and scholars of corpus linguistics, because why not? ("Amici submit this brief to assist the court in understanding the ordinary meaning of 'sex' in Title VII through a corpus linguistics analysis of how the words 'sex' and 'gender' were used, and were not used, in the 1960s when Title VII was enacted.")
Cleary Gottlieb Steen & Hamilton partners Howard Zelbo and Carmine Boccuzzi, Jr. with associates Mark McDonald & Aaron Francis joined with the Transgender Legal Defense & Education Fund in a brief supported by 33 other signatories representing local and state-based organizations.
Jeffrey Trachtman of Kramer Levin Naftalis & Frankel represented more than 700 individual clergy and faith leaders.
Evan Wolfson led a Dentons team on behalf of former government officials and career employees, including well-known names such as William Baer, James Cole, Jenny Yang, William Schultz, David Lopez, Arne Duncan and Chai Feldblum.
The Lawyers' Committee for Civil Rights Under the Law tapped counsel including Orrick, Herrington & Sutcliffe's Daniel Rubens, Samuel Harbourt and Ethan Fallon.
Pillsbury Winthrop Shaw Pittman's Richard Segal, Cynthia Cook Robertson and Robert C.K. Boyd teamed up with Columbia Law School's Suzanne Goldberg to represent women CEOs and other executives.
Wilmer Cutler Pickering Hale and Dorr's Alan Schoenfeld led a team representing GLBTQ Legal Advocates & Defenders, or GLAD.
Husch Blackwell's Joseph Diedrich and others filed a brief on behalf of an array of Wisconsin-based advocacy organizations
Leading associations of psychologists, psychiatrists, mental health professionals and behavioral scientists tapped Jenner & Block lawyers led by Jessica Ring Amunson.
And how's this for an all-star lineup?
Harvard Law School's Lawrence Tribe along with Joshua Matz and Alexandra Conlon of Kaplan Hecker & Fink represented Walter Dellinger, Karen Dunn, Neal Katyal, Theodore Olson and Seth Waxman—four former Solicitors General and Acting Solicitors General of the United States, and a former Associate White House Counsel.
We'll let them have the last word.
"These cases are simpler than they seem," they wrote. "Here, all that is necessary to decide the questions presented is a direct application of textualist principles to the plain language of Title VII."
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Law Firms Mentioned
- Quinn Emanuel Urquhart & Sullivan
- Kramer Levin Naftalis & Frankel LLP
- Pillsbury Winthrop Shaw Pittman
- Mayer Brown
- Patterson Belknap Webb & Tyler LLP
- Allen & Overy
- Sidley Austin
- Ropes & Gray
- Dreier
- Goodwin Procter
- Williams & Connolly
- Orrick, Herrington & Sutcliffe
- Wiley Rein
- Jenner & Block
- Wilmer Cutler Pickering Hale and Dorr LLP
- Husch Blackwell
- Latham & Watkins
- Dentons
- Hogan Lovells
- Cravath, Swaine & Moore
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Attorneys from A&O Shearman has stepped in as defense counsel for Toronto-Dominion Bank and other defendants in a pending securities class action. The suit, filed Dec. 11 in New York Southern District Court by Bleichmar Fonti & Auld, accuses the defendants of concealing the bank's 'pervasive' deficiencies in regards to its compliance with the Bank Secrecy Act and the quality of its anti-money laundering controls. The case, assigned to U.S. District Judge Arun Subramanian, is 1:24-cv-09445, Gonzalez v. The Toronto-Dominion Bank et al.
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