Supreme Court Update for Banking and Financial Services Professionals

by Charles W. Prueter, Waller

For Alabama fans, there’s the third Saturday in October (unfortunately for Tennessee fans, the day is better known as One Especially Depressing Saturday in a Long Line of Depressing Saturdays), and for Supreme Court fans, there’s the first Monday in October. No random day, the first Monday in October is mandated by an Act of Congress as the first day of the Supreme Court’s annual term. Thus, the Roberts Court — to use the traditional moniker that identifies the Court by the Chief Justice’s last name — commences its 15th year next month when the justices hold oral arguments on Oct. 7.

The Court’s docket thus far seems lighter on business cases and heavier on criminal cases. Some of the interesting criminal cases in this term’s queue include Kahler v. Kansas, a challenge to Kansas’s decision to abolish the insanity defense. All Matlock, Perry Mason, or Law & Order watchers know about the insanity defense, but Kansas decided to do away with it. The key question in this case is whether removing the defense violates the Constitution’s ban on cruel and unusual punishment. The capital defendant argues that it is and always has been cruel and unusual to criminally punish the insane and that he has a viable insanity defense and, therefore, cannot be held morally responsible for his crimes.

Another case on the criminal front may call to mind the great 1957 film 12 Angry Men: Ramos v. Louisiana involves a Louisiana law that permits a non-unanimous jury to convict a criminal defendant. (In a system with such a rule, Henry Fonda’s character would have been outvoted, the defendant would have been convicted, and the movie wouldn’t have been very good at all.) The question presented to the Court is whether this non-unanimity system is consistent with the Sixth Amendment to the Constitution. Although there is no question that a federal jury must unanimous, the Supreme Court is reconsidering here whether the Sixth Amendment should be applied to the states so as to impose the same unanimity rule.

One of the biggest legal issues to come before the Court this year, in terms of practical effects for people and businesses, as well as academic debates regarding judicial philosophy, is whether Title VII (i.e., the primary anti-discrimination law on the federal books) prohibits discrimination on the basis of sexual orientation and gender identity. Many businesses, both large and small, and local governments, along with a handful of states, already bar such discrimination. But at the federal level, the issue remains uncertain. For both businesses and employees, the Court’s decision will be important, as it may result in, among other things, important protections for Americans and significant compliance efforts for companies.

The key statutory provision in Title VII makes it unlawful to engage in employment discrimination “because of sex.” Thus, to put it succinctly, the questions are: Does an employer discriminate against a man “because of sex” if it fires the man because he is gay? Or if it discriminates against an employee because she identifies as a woman but formerly presented as a man? The Court will hear a trio of cases on Oct. 8 that present these issues: Altitude Express, Inc. v. Zarda from the Second Circuit, which is based in New York; Harris Funeral Homes, Inc. v. EEOC from the Sixth Circuit, which is based in Cincinnati; and Bostock v. Clayton County from the Eleventh Circuit, which is based in Atlanta and counts Alabama within its jurisdiction. The Second Circuit concluded that Title VII prohibits discrimination on the basis of sexual orientation as discrimination “because of sex.” And the Sixth Circuit agreed with respect to a transgender woman’s claim that she had been discriminated against because of her gender identity. The Eleventh Circuit, bound by the prior precedent of that circuit, reached a different result, concluding that a discharge on the basis of sexual orientation is not prohibited discrimination under Title VII.

The Supreme Court will take a hard look at the text of Title VII and consider whether a prohibition on discrimination “because of sex” also serves as a prohibition on discrimination because of sexual orientation or gender identity. The parties urging the Court to answer that question in the negative point to the history and context of Title VII itself, which reflects little if any intention for Title VII to provide such protections. But the parties on the side of anti-discrimination and inclusion argue that sexual orientation discrimination is discrimination “because of sex” because sexual orientation is plainly a sex-based classification. These parties contend that Title VII must protect these individuals because such discrimination would not occur “but for” their sex.

Underlying some of the arguments regarding statutory interpretation, and certainly driving much of the punditry cable news, will be purported religious liberty interests. The argument that an employer should be permitted to discriminate against employees or candidates by citing religious beliefs is floating just beneath the surface of the fundamental question regarding Title VII. How far this argument will go with the Supreme Court remains to be seen, but we may get some hints when the Court hears oral argument in these cases next month. And when the Court decides these cases, the Update will report on them!

Charles W. Prueter is an appellate lawyer at Waller Lansden Dortch & Davis, LLP, in Birmingham. He can be reached by email at