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On June 18, 2020, the U.S. Supreme Court issued a decision allowing the Deferred Action for Childhood Arrivals (DACA) program to continue operating. In so holding, the Court found the Department of Homeland Security (DHS) did not provide an adequate justification for terminating the DACA program and, thereby, violated the Administrative Procedure Act (APA).[1] But the Court’s decision does not resolve the matter entirely.

The Court did not rule on the legality of the DACA program itself. Instead, it merely repudiated the way DHS tried to rescind it. Although the Court held the DHS’s justification to terminate DACA was arbitrary and capricious, it recognized the DHS has the authority to rescind the program if it follows the required APA procedure. Thus, the DHS could try again to end the program by explaining more clearly its reasons for doing so.

Below, we answer two questions: (1) What is the status of the DACA program; and (2) What impact will the Court’s ruling have on DACA recipients and employers?…

Continue Reading Understanding the employment implications of the Supreme Court decision upholding DACA

On June 15, 2020, the U.S. Supreme Court issued a landmark decision in Bostock v. Clayton County, Georgia, No. 17-1618 (U.S. Jun. 15, 2020), which held that an employer who fires an individual merely for being gay or transgender violates Title VII of the Civil Rights Act of 1964. In a 6-3 opinion authored by…

On October 8, 2019, the Supreme Court will hear oral arguments in three landmark LGBTQ+ rights cases, which could broaden protections for the LGBTQ+ community by prohibiting employers from discriminating against employees based on their sexual orientation, transgender-status, or gender identity under federal law. Currently, conflicting federal cases and shifts in interpretation and policies at administrative agencies such as the Equal Employment Opportunity Commission and the Department of Justice have left employers without clear guidance on what is, or is not, protected at a federal level (separate and apart from state and local protections). In Altitude Express v. Zarda and Bostock v. Clayton County, Georgia, since consolidated, the Court will consider whether the prohibition on sex discrimination in Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sexual orientation. In R.G. & G.R. Harris Funeral Homes v. EEOC, the Court will consider whether Title VII prohibits discrimination against transgender people. The cases are summarized below.

Altitude Express, Inc. v. Zarda / Bostock v. Clayton County, Georgia – factual background

Donald Zarda worked as a skydiving instructor for Altitude Express, Inc., responsible for taking clients on tandem skydives, strapped hip-to-hip and shoulder-to-shoulder to the client. In June 2010, while carrying out a tandem skydiving session with a young woman, Zarda stated he was gay in defense of a female client’s allegation that he touched her inappropriately. Altitude Express terminated Zarda’s employment on the grounds that he shared inappropriate information with clients regarding his personal life. After a three-judge panel ruled against Zarda, the Second Circuit, in an en banc decision, overturned the lower court, holding that discrimination based on sexual orientation violates Title VII.…

Continue Reading Supreme Court poised to hear oral arguments in blockbuster LGBTQ+ workplace discrimination cases