How Stanford's Pamela Karlan Got SCOTUS Argument Time in LGBT Cases
The justices in October are set to examine the scope of federal protections for gay, lesbian and transgender workers.
August 07, 2019 at 11:58 AM
5 minute read
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.
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllDivided 5th Circuit Shoots Down Nasdaq Diversity Rules
Nevada Supreme Court to Decide Fate of Groundbreaking Contingency Cap Ballot Measure
5 minute readLawyers, Law Groups Oppose Proposal to Require Court Approval for Amicus Briefs
9th Circuit Judges Weigh if Section 230 Shields Grindr From Defective Design Claims
Trending Stories
- 1K&L Gates Secures $10.5M Verdict for Washington Meat Retailer in Lawsuit Over 'Boneless' Chicken Product
- 2Ice Miller Debuts New Miami Office After Landing Two Greenspoon Marder Attorneys
- 3New Year’s Mandate: Respect Our Matrimonial Judges
- 4Examining New York Court Decisions on Website Accessibility Claims
- 5What to Expect in the Securities Enforcement Space in 2025
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250