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SCOTUS May Hear LGBTQ Discrimination Cases This Term

The highest court in the land may soon decide whether it will hear a trio of cases focused on the exact same issue. The cases – R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, Altitude Express, Inc. v. Zarda, and Bostock v. Clayton County, Georgia – were set for review at the SCOTUS’s first January conference but were not addressed. They have been relisted for its next conference, and will decide whether or not to grant certiorari.  All three of these cases raise the legal question as to whether or not LGBTQ people are protected by the Civil Rights Act of 1964.

Title VII

Title VII of the Civil Rights Act of 1964 (Title VII) is a federal law that makes it illegal for employers to discriminate against employees on the basis of sex, race, color, national origin, and religion. This law generally applies to employers with 15 or more employees and includes federal, state, and local government employers. Moreover, Title VII also applies to private and public universities and colleges, labor organizations, and employment agencies. Title VII prohibits discrimination based on those five classes in any aspect of employment. This includes hiring and firing; recruitment; compensation; testing; fringe benefits; transfer, promotion, layoff, or recall; pay, retirement plans, and disability leave; compensation, assignment, or classification; job advertisements; use of company facilities; training and apprenticeship programs; and other terms and conditions of employment.

The Cases

In Harris Funeral Homes, the SCOTUS will need to determine whether the 6th U.S. Circuit Court of Appeals correctly held that a funeral director unlawfully discriminated against a transgender woman by firing the employee after she began transitioning. In Bostock, the Court must decide if a gay man employed by Clayton County was unlawfully fired after his supervisors learned about his sexual orientation and that he played on a recreational softball team for LGBT individuals and has a claim for wrongful termination. In Zarda, the SCOTUS is tasked with determining whether the 2nd U.S. Circuit Court of Appeals was correct in determining that the firing of a now-deceased skydiving instructor after some clients and staff expressed discomfort because he was gay.

The Impact

If the SCOTUS decides it will review this trio of cases at any point before or during its session, the final decision will have a far-reaching impact on the future of LGBTQ rights. Should the SCOTUS determine that sexual orientation and/or gender identity is not protected under Title VII, then state and federal lawmakers will be tasked with amending or passing laws that explicitly provide these protections. If the SCOTUS holds that gender identity and sexual orientation do fall under Title VII, federal law will provide protections for the LGBTQ community across the country.

Eleventh Circuit Rules Fastcase can Continue Copyright Suit Against Casemaker

The Eleventh Circuit Court of Appeals recently ruled that legal research company Fastcase can bring a copyright lawsuit against its rival, Casemaker. Casemaker has claimed control over the state of Georgia’s administrative regulations. The Atlanta-based Court of Appeals ruled earlier this month on the matter.


The Court of Appeals’ Decision


The appeal originated from two prior lawsuits brought by Fastcase against Casemaker that were unsuccessful. Both of the prior cases were dismissed. The unanimous panel of judges for the 11th Circuit found that the most recent case, which was filed in February 2017, was wrongly dismissed by the lower court. The U.S. District court dismissed the February 2017 case, without prejudice, for lack of jurisdiction ruling the claims did not present a cause of action under federal law and also did not meet the $75,000 amount in controversy requirement. The 11th Circuit Court of Appeals disagreed on both issues and found there was jurisdiction, remanding the case back to the district court.


Remand to the District Court


Now, with this procedural win, Fastcase can go back to the district court and have the case heard and decided on its merits. The district court will decide whether a private company, Casemaker, can claim copyrights to public law. At issue in the case is an agreement that Casemaker entered into with Georgia’s secretary of state. The agreement gives Casemaker exclusive publishing rights to the state’s regulations. Beyond publishing rights, however, the agreement also gives Casemaker the ability to license the content (i.e., state regulations) to others for a fee.


The decision comes right after another, separate, recent 11th Circuit ruling that held Georgia’s official annotated state code is not copyrightable. The Court of Appeals ruled that the law belongs in the public domain. In that case, the 11th Circuit unanimously reversed an Atlanta federal judge’s ruling that open law advocate Carl Malamud violated copyright law by putting up a free version of Georgia’s annotated state code on his website, PublicResoruce.Org, according to an ABA Journal article. In its ruling, the Court of Appeals held the annotations carry the weight of the law. Historically, law and annotations have had clear distinctions under the law. Law is not copyrightable because it belongs to the public while annotations can be, if created by private party. In the PublicResource case, the line was more blurred because the annotations in Georgia’s state code were prepared by LexisNexis but considered part of the official code.

Eleventh Circuit Rules Media Companies are Subject to Georgia’s Anti-SLAPP Statute

The Atlanta-based 11th Circuit Court of Appeals rejected how CNN and other medial companies demanded the special dismissal provision found in Georgia’s anti-SLAPP statute in a defamation case. The loss of this important appeal will – at the minimum – make it easier to file suit against the media in federal court particularly in Alabama, Florida, and Georgia. CNN is headquartered in Atlanta, Ga.


The Underlying Case


The appeal to the Eleventh Circuit is the result of several reports on Anderson Cooper 360 in June 2015 on the infant mortality rate for open-heart surgery at St. Mary’s Medical Center – a West Palm Beach, FL hospital. The show claimed St. Mary’s death rates were three times the national average. The reporting sparked defamation lawsuits from the former chief executive at the hospital who was forced to resign as a result of CNN’s report. The executive claimed that CNN made an unfair comparison of hospitals that conduct both open-heart and closed-heart surgeries which, had it been properly made, would have adjusted for risk and changed the death rates.


CNN argued that the plaintiff could not meet the “of and concerning” standard required by a defamation suit because executive was not mentioned by name in the series. CNN also argued an “academic” disagreement that the methodology of how to calculate the mortality rates is a non-actionable opinion. These arguments, however, were placed on the back burner as a result of the standard that the Georgia federal judge must decide whether or not the case should be dismissed. Like other states, Georgia has tried to reduce frivolous First Amendment lawsuits by passing an anti-SLAPP statute. SLAPP stands for Strategic Lawsuits Against Public Participation. Under the statute, the plaintiff bears a higher evidentiary burden above and beyond those imposed by the federal rules of civil procedure. Accordingly, the 11th Circuit held the SLAPP statute should not apply. Notably, other federal circuits around the country – including the First, Second, Fifth, and Ninth – have ruled that state SLAPP laws should apply in federal courts.


Defamation Explained


Defamation of character is a term that encompasses any statement that hurts another’s reputation. When this happens in writing, it is referred to as “libel”; when it occurs in verbal form, it is referred to as “slander.” While defamation is not a crime, it is a civil wrong – or a tort. An individual who has been defamed has a private right of action to sue the person (or entity) who did the defaming for monetary damages.


Nevada’s law that governs defamation tries to balance two competing interests: People should be able to speak freely without fear of litigation over each mistake, insult, or disagreement, while a person’s life should not be ruined by lies that are told about them. While defamation is governed by state law, and varies from state to state, a victim of defamation must establish that the statement was published, is false, was injurious, and is unprivileged in order to succeed in a defamation lawsuit. Because the public has the right to criticize them, public officials have less protection from defamation. In addition to proving the four elements previously mentioned, a public official must also prove the defendant acted wit

United States Supreme Court to Reconsider Auer Deference

The highest court in our land has agreed to add Kisor v. Wilkie to its docket of cases it will review during its session. According to, however, the Supreme Court of the United States (SCOTUS) will limit its review to the first question only that was presented by the petition for certiorari. The question asks the court to reconsider case precedent that directs courts to defer an agency’s reasonable interpretation of its own ambiguous regulation. The cases that establish this precedent include Auer v. Robbins and Bowles v. Seminole Rock & Sand.


Auer Deference


Auer v. Robbins is a SCOTUS case concerning the standard that the Court should apply when reviewing an executive department’s interpretation of regulations that were promulgated under federal legislation.The issue in Auer was whether or not sergeants and lieutenants who were working for the St. Louis Police Department should receive overtime pay. Overtime pay requirements were established by the Fair Labor Standards Act of 1938 and regulations determining whether an employee was covered by this requirement were issued by the U.S. Department of Labor. The Secretary of Labor issued an interpretation of the regulations and the court considered whether or not it should defer to this interpretation.The Court gave deference to the DOL’s interpretation because his interpretation was controlling unless plainly erroneous or inconsistent with the regulation, which it found it was not.


The Case at Hand


Kisor, a Vietnam War veteran, reopened a claim for disability benefits based on newly found evidence supporting a diagnosis of PTSD. While the Department of Veterans Affairs (“VA”) approved Kisor’s 2006claim for benefits, it refused to grant benefits going back to his initial claim in 1983. The VA’s reasoning ws that Kisor failed to provide relevant service records required for reconsideration. The Court of Appeals deferred to the VA’s interpretation of its own regulations finding in favor of the agency.


How much deference agencies should receive is a central issue in administrative law and, not surprisingly, conservatives – both justices and attorneys – have criticized Auer deference. In fact, the late Justice Scalia voiced concern on this very issue in Perez v. Mortgage Bankers Association. Auer deference expands Chevron deference, by giving an agency the highest level of deference. In Chevron, there was a two-step standard a court had to follow when reviewing an agency’s decision; Auer did not adopt this two-step process.


The  Supreme Court is scheduled to hear oral arguments on the Kisor case next year.