Janet Hall was a nurse at a private hospital for 16 months. Because Janet didn’t act in a stereotypically female way, and because as an atheist she refused to attend daily nurse prayer meetings, her co-workers suspected she was a lesbian and began a campaign of terrible, homophobic abuse until she was fired for “not fitting in.” She promptly sued.
However, Title VII, the federal employment discrimination statute, while covering discrimination “because of” sex and religion, doesn’t cover discrimination on the basis of sexual orientation. The question: could Hall recover for abuse that was homophobic and sexist and religiously discriminatory?
This was the (fictional, but realistic) problem that brought me and Ollie Persey LLM ’15 to Los Angeles last weekend. We were to represent NYU (in a collaboration between NYU’s OutLaw and the Moot Court Board) at the 11th Annual Williams Institute Moot Court Competition, where we would take up the case of Janet Hall and her employer before panels of distinguished judges from across California.
Janet Hall’s dilemma is a timely one. As marriage equality looks increasingly inevitable, attention is turning to another great civil rights battle for LGBT people: the struggle against workplace discrimination. Since the Supreme Court’s decision in Hobby Lobby effectively detonated the then-pending Employment Non-Discrimination Act (which would add “sexual orientation” to the characteristics against which employers may not discriminate), the focus will shift to the courts to see to what extent victims of intersectional discrimination—for example, in Janet Hall’s case, being discriminated against for being a lesbian because she did not conform to gender stereotypes—can recover under Title VII.
NYU competes in dozens of moot court competitions each year, but this competition is special for a few reasons. First, and most importantly, given how ‘orrible the weather is in New York (and elsewhere), we got the chance to step lightly off the plane into beautiful, summery weather for the whole weekend we were in LA. Second, the competition was completely supported thanks to NYU and Kirkland & Ellis. Third, Williams is the only LGBT moot court competition in the country, and allowed us to meet more than 100 LGBT-interested law students and practitioners, all while debating a critical emerging issue in LGBT law.
As for the results? NYU placed fifth out of 46 teams, breaking to the quarter-finals (and beating Columbia!) but, sadly, losing valiantly to Indiana in a split decision in the semis. Still, this was an amazing experience; it’s inspired me and others to look at this area of law for the first time, and hopefully will lead to more scholarship and research in the future.