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

Stanford Law School professor Pamela Karlan is set to be at the U.S. Supreme Court lectern  Oct. 8 to argue that federal civil rights law protects employees from job discrimination because of their sexual orientation.

The justices have consolidated two cases for argument and will hear arguments in a third case, all of which confront the contours of Title VII, which forbids discrimination “because of sex.” Federal appeals courts are divided over whether that statutory language includes LGBT employees. The cases arrived from New York and Atlanta-based federal appeals courts.

Cases that are consolidated by the justices for oral arguments sometimes present the sensitive question of who will argue, particularly if the cases are, like the Title VII dispute, among the biggest cases of the term. But there was no real disagreement on how to proceed by the lawyers for the Title VII plaintiffs in the two cases asking whether Title VII protects against  discrimination on the basis of sexual orientation.

Gregory Antollino of New York, counsel to the estate of Donald Zarda in Altitude Express v. Zarda, and Brian Sutherland of Atlanta’s Buckley Beal who represents Gary Bostock in Bostock v. Clayton County, Georgia, agreed to let Karlan, a veteran Supreme Court advocate, take part of the argument.

Sutherland and Antollino have asked the court for divided argument time: 10 minutes for Sutherland and 20 minutes for Karlan. “If they deny the motion, we agreed there won’t be any coin toss or other way to decide,” Antollino said in an interview. “Pam will do the 30 minutes.”

Karlan was not immediately reached for comment. She has argued eight high court cases, most recently successfully arguing a First Amendment retaliatory arrest claim in Lozman v. City of Riviera Beach, Florida, in 2018.

From Antollino’s perspective, Karlan, who co-heads Stanford’s Supreme Court Litigation Clinic, was an obvious choice. He has known her and her legal work for many years. “I implicitly trust her,” he said.

In 1980, Karlan, then at Yale Law School, judged Antollino’s high school debate team (she voted for him and his debate partner). The following year, they crossed paths again at a national debate contest (she voted against him).

In Antollino’s third year at New York University Law School, Karlan taught his professional responsibility class. He said she wrote a clerkship recommendation for him. “I didn’t get a clerkship, but she got me a few interviews,” he recalled. And in later years, he witnessed her work on Supreme Court cases involving same-sex marriage and the Texas sodomy law.

Antollino runs a solo workplace discrimination and civil rights practice in New York. He was the lead advocate for the Zarda plaintiffs in the Second Circuit, which ruled in his favor and said Title VII shields LGBT employees from workplace discrimination. He has never argued in the Supreme Court.

“How could I possibly think I could do it, even if it’s every lawyer’s dream? I’m not going to take a risk for society or for my own ego or resume,” Antollino said.

After the Supreme Court announced it would hear the cases, in April, Antollino said the lawyers who approached him included Hogan Lovells partner Neal Katyal, the former Obama-era acting U.S. solicitor general and veteran high court advocate. “I thought it was very good that someone so great had contacted me,” Antollino said.

Antollino said he’d reached out to Karlan for assistance when he was working on drafts of the brief in which he would ask the justices to turn down Altitude Express’ petition challenging the Second Circuit decision.

Antollino’s opponent, Saul Zabell of Zabell & Collotta in Bohemia, New York, counsel to Altitude Express, and his Clayton County counterpart, Jack Hancock of Freeman Mathis & Gary in Forest Park, Georgia, have not yet decided who will make the opposing arguments.

The Justice Department is also expected to ask for argument time in the two consolidated cases. The Trump-era Justice Department participated as an amicus in the Zarda case in the Second Circuit, taking a position against the U.S. Equal Opportunity Commission’s push for broad LGBT protections.

In the third case, R.G. and G.R. Harris Funeral Home v. EEOC, the Supreme Court intends to address at a stand-alone argument whether Title VII prohibits discrimination against transgender people. The Alliance Defending Freedom’s James Campbell is counsel of record for the funeral home, and John Knight of the American Civil Liberties Union Foundation is counsel to Aimee Stephens, who has alleged discrimination.

Antollino, whose legal team also includes the American Civil Liberties Union, the New York Civil Liberties Foundation and the New York-based civil rights firm Bergstein & Ullrich, said he is content to take a seat at the table with Karlan in October.

“I’ll just sit there and let others do the heavy lifting,” he said.

 

Read more:

Record Number of Companies Back LGBT Workplace Rights in SCOTUS Brief

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

Why a Quinn Emanuel Litigator (and Corporate Clients) Are Fighting for LGBT Workers

Justice Dept. Takes Stance Against Transgender Rights—and the EEOC

Trump Administration Lines Up Against EEOC in LGBT Workplace Rights Case