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Justices to hear arguments on LGBTQ discrimination in October, DACA rescission in November

By Pamela Wolf, J.D.

On October 8, the Court will hear argument on whether Title VII’s prohibition against sex discrimination extends to sexual orientation and gender identity; on November 12, it will consider the lawfulness of the Trump Administration’s attempted DACA rescission.

On the second day of the Supreme Court’s 2019 oral argument lineup, the Justices will tackle three cases questioning exactly how far Title VII goes in protecting people from employment discrimination “because … of sex.” Later, the Court will take up nationwide injunctions blocking implementation of the Trump Administration’s attempted rescission of the Obama-era Deferred Action for Childhood Arrivals (DACA) program, which offers deportation protection to children who were brought to the United States by parents who immigrated unlawfully.

How elastic is Title VII? In three cases scheduled for oral argument on October 8, the second day of a session that begins October 7, the justices will determine whether a transgender funeral home employee, a gay skydiving instructor, and a gay child welfare services coordinator, all allegedly fired for reasons related to sexual orientation or gender identity, are protected from discrimination under Title VII.

Bostock v. Clayton County, Georgia (17-1618), and Altitude Express, Inc. v. Zarda (17-1623) are consolidated for one hour of oral argument on whether Title VII’s prohibition against discrimination “because of … sex” encompasses discrimination based on sexual orientation. R.G. & G.R Harris Funeral Homes v. EEOC (18-107) will be argued separately on the question whether Title VII prohibits discrimination against transgender people based on their status as transgender, or as sex stereotyping under the Court’s 1989 decision in Price Waterhouse v. Hopkins.

Form I-9 information. On October 16, the Justices will hear argument in Kansas v Garcia (17-834), which queries whether the Immigration Reform and Control Act (IRCA) expressly pre-empts states from using information entered on or appended to a Form I-9, including information such as name, date of birth, and social security number, in a prosecution of any person (citizen or alien) when that same, commonly used information also appears in non-IRCA documents, such as state tax forms, leases, and credit applications. The Justices will also consider whether IRCA impliedly preempts Kansas’ prosecution of the respondents.

Below, in three separate cases, the Kansas Supreme Court held that IRCA preempts the application of state identity theft, identity fraud, and making a false writing laws whenever any of the information necessary for the prosecution is included in, or appended to, a Form I-9, even when the state prosecutes for use of that very same information in non-IRCA documents.

ESOP breach of duty claims. In its second argument session, which begins November 4, the Court on November 6 will review a Second Circuit decision that retirement plan fiduciaries contend, if permitted to stand, would allow meritless litigation based only on general economic principles that exist in every case of corporate fraud.

The question in Retirement Plans Committee of IBM v. Jander (18-1165) is whether the “more harm than good” pleading standard in  Fifth Third Bancorp v. Dudenhoeffer (U.S. 2014) can be satisfied by generalized allegations that the harm of an inevitable disclosure of an alleged fraud generally increases over time.

In Fifth Third, the Supreme Court established pleading requirements for an investor to state a claim for breach of the duty of prudence against a fiduciary of an employee stock ownership plan (ESOP). Here, IBM ESOP defendants petitioned the Court to examine, in light of a circuit split, whether a plaintiff can satisfy this pleading standard by alleging generally that the harm from a fraud increases the longer it goes on.

DACA rescission put to the test. On November 12, the Court will hear argument in DHS v. Regents of the University of California (18-587); Trump v. NAACP (18-588); and McAleenan (then-Nielsen) v. Vidal (18-589). The three petitions, which are consolidated for one hour of oral argument, ask the Justices to take up the questions of whether the Department of Homeland Security’s decision to “wind down” the DACA policy is (1) judicially reviewable and (2) lawful.

On June 28, the Court granted the Trump Administration’s petitions for certiorari seeking review before final judgment on the nationwide injunctions preventing it from rolling back DACA) program. Just days after the petitions were filed, the Ninth Circuit weighed in on one of those cases, which will now get review after final judgment.

This is the second time around on the DACA question. In February 2018, the Court denied the administration’s petition for certiorari in Department of Homeland Security v. Regents of the University of California (17-1003) without prejudice, writing, “It is assumed that the Court of Appeals will proceed expeditiously to decide this case.”

Section 1981 burden of proof. On November 13, the Court will hear oral argument in Comcast Corp. v. National Association of African American-Owned Media (18-1171), addressing the question of whether a claim of race discrimination under Section 1981 fails in the absence of but-for causation.

In a case arising outside the employment context, the African-American owner of Entertainment Studios Network (ESN) sued Comcast, claiming that its decision not to carry channels produced by ESN amounted to racial discrimination in violation of Section 1981. Comcast contends that the Ninth Circuit’s holding—that to prevail against a Rule 12(b)(6) motion on their Section 1981 claim, the plaintiffs were required only ‘to plausibly allege that discriminatory intent was a factor in [the] refusal to contract, and not necessarily the but-for cause of that decision’—created a split with the Third, Sixth, Seventh, Eighth, and Eleventh Circuits, all of which have ruled that but-for causation applies.