By Taylor Elicegui '20
On February 27, Jennifer Davidson '18, Jay Swanson '18, Allie Herzog '18, and Tess Sewell '18 squared off in Caplin Pavilion for the 89th Lile Moot Court Finals. U.S. Court of Appeals Judges Paul Niemeyer (4th Cir.), Gregg Costa (5th Cir.), and Thomas Griffith ’85 (D.C. Cir.) judged the arguments. Arguing for the appellant, Davidson and Swanson won the competition. Herzog won Best Oralist.
The problem centered around Susan Schroeder, fired from her job at Natural Foods, Inc. after Schroeder failed to maintain proper safety controls at the plant she oversaw. As a result, several consumers reported that their children became sick after eating almond butter manufactured at the plant. After Natural Foods conducted an investigation, Schroeder’s boss, Eric Michaelson, placed her on probation for the rest of the year. Approximately one month later, Schroeder attended the company Christmas party with her wife, Jane Roberts. Immediately following the Christmas party, Michaelson, who serves as president for a group that advocated against Lile’s same-sex marriage referendum in 2008, fired Schroeder.
Schroeder filed suit under Title VII of the Civil Rights Act, alleging that Natural Foods terminated her because of her sexual orientation. Schroeder identified two comparators—straight employees who were not fired after similar quality control issues. The district court ruled that Title VII does protect sexual orientation, but Schroeder did not identify suitable comparators to establish a prima facie claim and granted Natural Food’s motion to dismiss. Schroeder appealed to the Fourteenth Circuit. The appeal raised two questions: 1) Is sexual orientation a protected class under Title VII? 2) Did Schroeder identify suitable comparators to establish a prima facie Title VII claim?
After giving their introductions, the competitors fielded questions from the bench. Swanson and Herzog argued the first issue, while Davidson and Sewell focused on the second. Swanson argued that Title VII protects sexual orientation, because sexual orientation discrimination involves discriminating based on sex stereotypes—the idea that men marry women, and women marry men. Under that theory, Michaelson fired Schroeder for failing to conform with his conception of acceptable behavior for women. The judges focused on congressional intent behind Title VII, asking Swanson why Congress hadn’t included sexual orientation in the statute and pointed out many instances where Congress failed to amend Title VII to include sexual orientation. Swanson explained that statutes sometimes have unintended consequences, and Title VII properly covers sexual orientation even if Congress didn’t originally intend for the act to do so.
Herzog argued that the Fourteenth Circuit should overturn the district court and defer to Congress’ intent, since Congress did not intend to include sexual orientation as a protected class. She focused on the common use of “sex,” which does not include “sexual orientation.” The panel asked Herzog about recent decisions out of the Second and Seventh Circuits, which held that Title VII prohibits discrimination on the basis of sexual orientation. Herzog focused on the plain meaning of the statute and explained that the other circuits erred when they departed from the plain meaning.
Davidson argued that Schroeder should survive the motion to dismiss because she created a plausible inference of discrimination and focused on the standard that governs comparators. Davidson walked through the two main standards—"substantially similar" or "nearly identical"—and explained that Schroeder had comparators under either standard, since each employee’s quality-control mistakes resulted in the same loss in revenue, even though Schroeder’s mistake drew more public attention. Judge Niemeyer asked about the Fourth Circuit’s standard, which takes a more case-by-case, fact-specific approach. He declared, “Maybe the Fourth Circuit’s onto something!” earning chuckles from the audience.
During Sewell’s argument, she focused on distinguishing the other employees from Schroeder. Natural Foods never found one of the employees responsible for the quality-control problems and treated the other employees' mistake less seriously from the very beginning. Given the differences, Sewell argued, the employees couldn’t be considered comparators. The judges focused their questions on the legal standard for a motion to dismiss.
After deliberation, the judges came back, announced the winners, and gave feedback. The judges gave the advocates a lot of well-deserved praise and told them they would rank among the best advocates that appeared in their respective courtrooms. Judges Costa and Niemeyer complimented the oralists for answering questions, which they believe separates the best advocates from decent advocates. Judge Griffith praised the competitors for not dodging any of the questions, even when they were difficult and outside the scope of the problem. Judge Costa also explained that the best advocates treat arguments as a dialogue with the court, maintaining a friendly and helpful demeanor even when the judges ask hard questions. Finally, Judges Costa and Griffith talked about how the best advocates acknowledge the weaknesses in their arguments and then pivot to the strengths. For example, Chief Justice Roberts, arguably the best oralist of our generation, specifically points out the weakest part of his argument at the beginning of his time. In total, the competitors gave great arguments and gave a wonderful example of effective oral advocacy.