LGBTQ Workplace Protections: Analyzing the Supreme Court’s Landmark Ruling

In this video, I discuss the Supreme Court's recent decision, Bostock v. Clayton County, issued on June 15. Bostock is one of three cases consolidated by the Supreme Court on the issue of whether sexual orientation and transgender discrimination is a form of sex discrimination under Title VII of the Civil Rights Act of 1964. By a 6-3 vote, the Court answered that question in the affirmative, changing the workplace legal environment for a population that, until only a few years ago, had no rights under Title VII.



I was on the legal team in Zarda v. Altitude Express, along with Gregory Antollino (lead counsel), the American Civil Liberties Union, and Pamela Karlan, Esq., who argued the appeal in the Supreme Court on behalf of Bostock and Zarda.

In this discussion, I talk about the history of gay rights in the Supreme Court, how these cases reached the Court, my personal observations from working on the Zarda portion of the case, and what the Court did in ruling that this form of discrimination is a form of sex discrimination under Title VII. Question and answer session follows my discussion.



I gave this talk on July 13 for the Elting Memorial Library in New Paltz, N.Y., where I am on the Board of Trustees.

Inmate's speech rights were violated, but qualified immunity ends the case

This is an interesting little case. The inmate was punished for writing a letter to his sister that the prison thought was a sexual threat against a female correction officer. The Court of Appeals says the inmate's rights were violated and the letter did not demonstrate any such threat. But the Court of Appeals also rules the officers get qualified immunity because they did not violate clearly-established law in punishing plaintiff.

The case is Bacon v. Langford, issued on June 8. Plaintiff wrote a letter to his sister from prison stating that he "wanted" a woman. In particular, he said there was a woman at the prison who "is very beautiful and healthy. I do want her but want a few other women as well." Believing that plaintiff was talking about a particular female correction officer, prison officials charged him with making sexual threats or proposals to the officer, even if he did not direct these statements toward the officer herself. At the disciplinary hearing, plaintiff said he and his sister often joked around this way. But he was sent to the special housing unit for 30 days and denied phone and commissary privileges. The regional director reversed the disciplinary sanctions and expunged them from his record, probably one of those rare moments when a higher authority reverses a disciplinary finding against an inmate.

Hence, this lawsuit. The Court of Appeals (Katzmann, Calabresi and Lohier) finds that, while inmates do not enjoy the free speech rights that everyone else does, they still have some rights. Nothing about the letter was profane, threatening or abusive. Rather, "it contained a mere expression of attraction communicated by a person confined in an institutionalized setting." In addition, plaintiff "did not declare his desire to the correctional officer herself or to anyone in the prison facility," expressing only to his sister in a private letter. Even deferring to the judgment exercised by prison officials, this was not a threat. That means it's protected speech under the First Amendment.

This does not mean the plaintiff can win the case. Since this is a Section 1983 case, he has to show the officials violated clearly established case law in disciplining him for the letter. This is a hallmark of qualified immunity. You need a case almost directly on point to show that the defendants were on constructive notice that they were violating the plaintiff's rights. Novel cases often fail under QI for this reason. And this is such a novel case, the Court of Appeals holds, because "the issue is whether, at the time Bacon sent a letter to a third party expressing his desire for a woman later identified as a female correctional officer, precedent from the Supreme Court or this court put prison officials on notice that they could not punish him for his statements in that correspondence. It did not." It is not enough to ask whether plaintiff's free speech rights were violated. He had to show a case like his has already been decided in an inmate's favor. There is no such case. While the next inmate-letter case might prevail in the plaintiff's favor because of Bacon's case, Bacon himself cannot win.

Inmate beating case will to the jury

This inmate wins his appeal in the Second Circuit, convincing the Court of Appeals that he has an excessive force claim against his jailers.

The case is Randolph v. Griffin, a summary order issued on June 2. Plaintiff says defendants came to his cell, handcuffed him, directed him to turn around and then punched and kicked him in the face and about the body. And they also attacked him with a baton. Then the officers took him to the showers where they punched him in the head. Defendants claim, on contrast, that plaintiff had aggressively raised his hands toward them and tried to hit one of them, requiring then to use some force (body holds) to prevent him from attacking them.

Since we have such contrasting accounts of how plaintiff suffered his injuries, how did a case like this get dismissed on summary judgment? It looks like the trial court said plaintiff's testimony cannot be credited because there was no corroboration. But that argument cannot work. Under settled precedent, like Fincher v. Depository Tr. & Clearing Corp., 604 F.3d 712 (2d Cir. 2010), even uncorroborated, sworn testimony is enough to bring your case to the jury, unless of course the testimony is so contradictory and confused that no jury in its right mind would credit any of it. But such cases are rare. Since plaintiff's testimony in this dispute was always consistent and detailed, he can bring his case to trial.

The trial court also violated a cardinal rule of summary judgment practice: crediting the defendants' accounts over those of the plaintiff. It is not the district court's job to weigh witness credibility. The Second Circuit cites Jeffries v. City of New York, 426 F.3d 549 (2d Cir. 2005), for this proposition, but there are zillions of cases that stand for this proposition. While the district court said that "the record evidence of Randolph's injuries is more consistent with Defendants' version," that was error. As the Court of Appeals said in Fincher, "he said, she said" cases cannot be resolved on a motion for summary judgment.

Finally, the district court got it wrong in holding that plaintiff's version of events, being struck with a baton and assaulted while in handcuffs, was justified as a matter of law. Rather, the Court of Appeals says, the jury may find this was sadistic or malicious, the standard guiding excessive force claims under the Eighth Amendment. The Court of Appeals notes that it has reversed the grant of summary judgment in prisoner excessive force cases even where "the plaintiff's evidence of injury was slight and the proof of excessive force was weak." The Court cites Harris v. Miller, 818 F.3d 49 (2d Cir. 2016), for that proposition.

Supreme Court holds Catholic school teachers cannot sue for disability or age discrimination

The Supreme Court has ruled that teachers who work at Catholic schools cannot sue for employment discrimination under Title VII and other civil rights laws. This case expands the "ministerial exception" that the Court first recognized in 2012.

The case is Our Lady of Guadalupe School v. Morrissey-Berru, issued on July 8. This is a two-plaintiff case involving separate lawsuits that the Court consolidated for purposes of this appeal. In 2012, the Court ruled in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171 (2012), that the First Amendment (which protects the free exercise of religion) prohibits a court from entertaining an employment discrimination claim when the plaintiff takes on certain responsibilities that will advance the religious agenda of the employer. There is no rigid formula for determining whether the plaintiff falls within the ministerial exception, and thus far the only cases the Supreme Court has resolved in this area involve plaintiff-teachers responsible for imparting certain religious principles to their students.

The idea behind the ministerial exception is that "The First Amendment protects the right of religious institutions 'to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.'” The 7-2 majority outlines what appears to be a bright-line rule in teacher discrimination cases:

The religious education and formation of students is the very reason for the existence of most private religious schools, and therefore the selection and supervision of the teachers upon whom the schools rely to do this work lie at the core of their mission. Judicial review of the way in which religious schools discharge those responsibilities would undermine the independence of religious institutions in a way that the First Amendment does not tolerate.

Writing for the majority, Justice Alito states, "This does not mean that religious institutions enjoy a general immunity from secular laws, but it does protect their autonomy with respect to internal management decisions that are essential to the institution’s central mission. And a component of this autonomy is the selection of the individuals who play certain key roles." It looks like anyone who teaches at a religious school cannot sue for employment discrimination, particularly if they have to impart religious doctrine to the students. Plaintiffs lose this case because they were required to teach, among other things, religious doctrine. "When a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith, judicial intervention into disputes between the school and the teacher threatens the school’s independence in a way that the First Amendment does not allow."

Justices Ginsburg and Sotomayor dissent. Justice Sotomayor accuses the majority of improperly expanding the ministerial exception since the teachers in this case primarily taught secular subjects, lacked substantial religious titles and training, and were not even required to be Catholic. As the dissenters see it, the majority reduces the inquiry to a simple test: "whether a church thinks its employees play an important religious role." They call that a "simplistic approach" that "has no basis in law and strips thousands of schoolteachers of their legal protections."

The breadth of the ministerial exception means that even though these two plaintiffs sued over disability discrimination and age discrimination, and the employers did not assert any religious-based defense to the lawsuits, the plaintiff still cannot sue. So the ministerial exception does not simply ask whether the courts have to delve into religious doctrine or principles in determining whether the plaintiff was properly terminated (or denied a position). As Justice Sotomayor notes,

When it applies, the exception is extraordinarily potent: It gives an employer free rein to discriminate because of race, sex, pregnancy, age, disability, or other traits protected by law when selecting or firing their “ministers,”even when the discrimination is wholly unrelated to the employer’s religious beliefs or practices. That is, an employer need not cite or possess a religious reason at all; the ministerial exception even condones animus.

Huge damages award is upheld in wage and hour claim

Wage and hour claims brought under the Fair Labor Standards Act and the New York Labor Law are quite common in New York City. These claims usually allege the plaintiff was denied overtime or even portions of his regular paycheck. Cases reaching the Second Circuit often do not involve a lot of money, especially when it's a single-plaintiff claim. This case is not one of them. In this case, the plaintiff won more than $800,000 because the jury determined he was denied overtime over the course of five years.

The case is Elghourab v. Vista JFK, a summary order issued on June 30. Plaintiff worked as a chef for the defendant, a hotel near Idlewild Airport in Queens. That huge jury award was actually more than $400,000 in lost wages, which is doubled when the jury finds the employer willfully denied the plaintiff his overtime. Plus he got almost $200,000 in pre-judgment interest. Hence the appeal. Defendants don't like paying out damages awards like this.

The main issue on appeal is that defendant claims plaintiff was not even entitled to overtime because he fell under the "executive exception" to the FLSA. The executive exception is what it sounds like: as defined under the statute, executives are exempt while rank-and-file employees are not exempt and can recover overtime pay. The problem for the employer is that the jury decides whether the defendant falls within the exemption. We call this a mixed question of fact and law.

The Court of Appeals (Winter, Calabresi and Chin) does not outline the relevant factors for this exemption, but it does say the jury was able to weigh the evidence in light of these factors and found in plaintiff's favor. That's enough for the Court of Appeals, which cannot second-guess how the jury sees the evidence unless the jury totally blows it and something absolutely must be done to correct the injustice. This was not one of those cases.

Radon gas exposure in jail may violate Eighth Amendment

The Court of Appeals has ruled that class of prisoners in Connecticut may sue state officials for exposing them to radon gas, a carcinogen, and were deliberately indifferent to their safety.

The case is Vega v. Cruz, issued on June 29. Plaintiffs allege the prison, Garner Correctional Facility, was built in 1988-1992 on land with high radon levels without installing radon mitigation systems. This exposed plaintiffs to this dangerous gas, which can enter buildings through slight cracks in the foundation. Plaintiffs also claim the ventilation systems at the jail were always inadequate, and well water tests in 1996 demonstrated high levels of radon. Plaintiffs further allege that inmates were not properly tested for radon gas, and that their mitigation efforts later on were too little, too late. The district court declined to dismiss the lawsuit, ruling the defendants were not entitled to qualified immunity at this early stage of the case, as we must assume for QI purposes that all the facts in the complaint are the God's honest truth before we ask whether plaintiffs allege a violation of clearly-established law.

The Court of Appeals (Raggi, Cabranes and Korman [D.J.]) says the district court got it right on qualified immunity. The standard guiding prisoners' rights cases is "deliberate indifference to serious medical needs" under the Eighth Amendment. Did defendants violate clearly-established law in ignoring the radon threat? The Second Circuit holds that plaintiffs survive that (often difficult) hurdle because in 1993, the Supreme Court issued Helling v. McKinney, which held that prison officials can violate the Eighth Amendment in exposing inmates to health risks such as cigarette smoke. Under that rule, the district court in this case says, and the Court of Appeals agrees, that Helling means that prison officials may be sued for excessive exposure to radon, a toxic environmental substance.

Defendants claimed on appeal that Helling is distinguishable because that case involved cigarettes and this case involves radon. Not a frivolous argument, as courts are often receptive to qualified immunity defenses, which require the plaintiff to show that his case is substantially identical to a prior court ruling such that the defendants were on notice that they were in danger of violating constitutional rights. But the Court of Appeals thinks Helling is close enough to put prison officials on notice that they cannot knowingly ignore the damages posed by exposing inmates to radon gas. Cigarettes, radon, it's all poison. While no binding decision addresses this precise issue of radon gas exposure, the Supreme Court has said that even "novel" factual circumstances can violate clearly-established law.

Our current political environment has given rise to criticism of qualified immunity, which police officers often invoke successfully to avoid liability in misconduct cases. But this immunity applies to all government officials. Those of us who practice Section 1983 law know that QI is often the death-knell for these civil rights cases, the Supreme Court has not rejected a qualified immunity argument in years. But did you know this is the second case in several weeks to deny QI to prison officials? In June 2020, the Second Circuit held in McCray v. Lee, 2020 WL 3273346 (2d Cir. 2020), that prison officials could not invoke QI in denying the inmate an opportunity to exercise outside when no one at the jail felt like clearing the recreation areas of the ice and snow.

Court upholds false arrest/battery verdict

Post-trial appeals are interesting because the losing party still thinks he can somehow win the case. While he lost at trial despite his charismatic trial skills, he now thinks he can win the appeal on the basis of his intellectual chops. Here's the thing: once you lost at trial, even on appeal, the score is 7-2 in the ninth inning.

The case is Theodat v. City of New York, a summary order issued on July 1. This is a false arrest claim. The plaintiff won at trial, convincing the jury that the police had no probable cause to arrest him for a marijuana offense. He also won his battery claim against the officer. While the officer testified that he saw plaintiff smoke a joint and then drop it to the ground on a street corner, plaintiff testified that the police approached him on the street for no reason, twisted his arm behind his back, searched and arrested him and then charged him with smoking marijuana. Plaintiff says he was not in possession of any drugs that night. At the time, 2015, smoking even small amounts of marijuana in public was an arrestable offense; owing to racial disparities in marijuana arrests, that policy changed in 2018, when the Brooklyn District Attorney said he would no longer prosecute low-level marijuana offenses. That was too late for plaintiff. He got arrested.

The jury awarded plaintiff $100,000 in compensatory damages, and $200,000 in punitive damages, for false arrest against the main defendant, Crooms, who was also hit with $1,000 in compensatories and $7,500 in punitives on the battery. Another officer, McDonald, was found liable for failure to intervene to stop the false arrest, ordered to pay $150,000 in punitives.

On appeal, the officers argue that the trial court did not properly charge the jury. This is the best way to challenge an adverse verdict. You cannot really re-argue the facts on appeal. A jury instruction appeal raises a legal issue over which the trial court has no discretion. But there is such a thing as harmless error. Defendants argue that the jury should have been told that the arrest would have been justified if probable cause existed to make any arrest. It is true that probable cause does exist so long any objective basis exists to arrest someone, even if the plaintiff was charged with something else over which the police lacked probable cause. Defendants invoke that principle in claiming that, even there was no reason to arrest plaintiff for smoking marijuana in public, they had probable cause to arrest him for possessing marijuana. The Court of Appeals (Parker, Livingston and Park) disagrees. Any error by the trial court was harmless. This is because "the evidence [at trial] supporting probable cause for possession was . . . essentially identical to the evidence supporting a claim of probable cause as to smoking marijuana in pubic." No harm, no foul.

You might be wondering what happened to the damages awards. Losing defendants often challenge the amount of the verdict on appeal, but first they must do so through the trial court. That's what happened here. Judge Block ruled that the jury had a proper basis to award plaintiff $100,000 for pain and suffering arising from the false arrest and battery. Other court rulings have upheld awards in the amount of $98,500 to $252,000 in 2019 dollars for the loss of liberty from a false arrest, ranging from five to eight hours. Plaintiff was in custody for 2.5 hours, during which time an officer twisted his arm, causing serious pain. But Judge Block reduced the punitive damages awards to $15,000 and $5,000, down from $200,000 and $150,000. Other cases, like King v. Macri, 993 F.2d 294 (2d Cir. 1993), and DiSorbo v. Hoy, 343 F.3d 172 (2d Cir. 2003), awarded money in this high range, but they involved more serious physical injuries. Milfort v. Prevete, 3 F. Supp. 3d 14 (E.D.N.Y. 2014), awarded $5,500 in 2019 dollars for less serious injuries. The trial court said this case is more like Milfort, hence the sharp reduction in punitive damages.