Tag Archives: Diversity and Inclusion

The Fourth Panel: How Many Sexes can Stand Under Title VII’s Umbrella

by Chris Fortier

Diversity Conference Chair Chidi James provides remarks to end the Forum. James Hammerschmidt, Carla Brown, Joseph Martins, and Judge Joanne Alper look on. (Eva Juncker).

“Now that it’s raining more than ever, Know that we still have each other, You can stand under my umbrella” The United States Supreme Court just heard arguments in three employment cases next session: Bostock v. Clayton County, Zarda v. Altitude Express Inc., and EEOC v. R.G. & G.R. The cases range from a civil suit brought by an employee against a governmental body, an employee suing a private company employer, and a regulatory body bringing an action against a closely held business.  The Court will determine the extent to which Title VII’s protections against sexual discrimination extend to protect against sexual orientation discrimination, associational discrimination, and gender stereotyping.  

This panel was moderated by the Honorable Joanne F. Alper, Retired Judge, Circuit Court of Arlington County, and featured  Carla D. Brown, Esq. of Charlson Bredehoft Cohen & Brown, Prof. Joseph J. Martins, Esq. of Liberty University Law School, and James Hammerschmidt, Esq. of Paley Rothman.

Each panelist provided factual background on each of the cases. When asked what case each would advocate, each chose their own. Mr. Hammerschmidt chose the Zarda case as the question is what does sex mean under Title VII? Ms. Bowen chose the Bostock case as Mr. Bostock was doing a great job locally, regionally, and nationally, and that the action of County embarrassed him with the audit and the news coverage of his firing. Professor Martins chose the EEOC case as the questions arose in the case were better suited for Congress to solve that the Courts.  They speculated to the reason of the Supreme Court hearing all the cases together, thinking that they make an aggressive move on the issue. 

Mr. Hammerschmidt pointed to the PriceWaterhouse decision of 1989, where sex discrimination was found when the only woman in the company who was up for partnership was denied.  In the decision, the Court created an analysis to review these decisions. After the plaintiff shows that discrimination took place, a defendant would have to show that if the same decision would have been made if discrimination was not part of the process.  The decision also added “stereotypes based on sex” to the definition of sex in the statute.

The theme that emerged from audience questions was that to only ask questions of applicants that are directly relevant to the job advertised. For example, questions about sexual orientation, though not illegal in Virginia, are highly discouraged, as they do not have a direct nexus to the job advertised. Questions that invite answers on personal lives, such as “tell me about your family (or upbringing),” are risky as it could be seen as inviting an answer that could lead to discrimination.


Chris Fortier serves on the Board of the Governors of the Diversity Conference, working on the Invictus newsletter and the Diversity Conference website and social media. In his day job, he works at the Social Security Administration (SSA). The views in this article are his and his alone and do not reflect those of SSA or the Federal Government.

Justice Powell to Keynote Diversity Conference Forum at UVA

Newly appointed Justice Cleo E. Powell, an alumnus of the University of Virginia School of Law and member of the Diversity Conference of the Virginia State Bar, will return to her alma mater on Thursday, November 10, 2011, as the keynote speaker at a three-day conference on diversity within the legal profession. The conference is sponsored by the Law School’s Center for the Study of Race and Law, the Diversity Conference of the Virginia State Bar, the Asian Pacific American Law Students Association, and the Black Law Students Association.

On Friday the program will open with a welcome by law school dean Paul G. Mahoney, followed by a discussion led by Shawn J. Chen of Cleary Gottlieb on the Value Added by Diversity. Other participants on the Friday program will include Erica Moeser, president of the National Conference of Bar Examiners; W. Scott Street, chair of the Virginia Board of Bar Examiners; Professor Dan R. Ortiz, immediate past chair of the Law School Admission Council; and Peter Pashley, psychometrician of the Law School Admission Council.

Kim M. Keenan, general counsel of the National Association for the Advancement of Colored People will be the keynote dinner speaker on Friday evening.

The Saturday program will open with a panel on the benefits of expanding the pipeline for a diverse profession and will be followed by a panel on the road to firm partnership. Supreme Court Justice S. Bernard Goodwyn will be the keynote luncheon speaker on Saturday. An open forum on best diversity practices developed by law firms, followed by informed discussion and cocktails will conclude the program.

Participants on the Saturday program include G. Michael Pace of Gentry Locke, Rakes and Moore; Michael HuYoung of Barnes and Diehl; Dana T. Weekes of Patton and Boggs; Richard C. “Rip” Sullivan Jr. of Reed Smith; Jacquelyn E. Stone of McGuire Woods; Tyree R. Jones Jr. of Reed Smith, Manuel A. Capsalis, former president of the Virginia State Bar; and Kenneth Imo of Wilmer and Hale.

This program will cover a wide range of issues and improvements desired to make the legal profession representative of the diverse society in which we live.

The conference is being coordinated by Professor Alex M. Johnson of the University of Virginia School of Law.

All members of the bar and law students are invited to this important conference.

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