Skip to main content

“Because of Sex”: The Supreme Court, Federal Sex Discrimination Law, and Best Practices for Protecting LGBTQ Workers


Speaker(s): James D. Esseks, Julie Wilensky, Nonnie L. Shivers
Recorded on: Apr. 26, 2021
PLI Program #: 321421

James D. Esseks is Director of the ACLU LGBTQ & HIV Project. The ACLU works to ensure equal treatment of LGBTQ people and people living with HIV through litigation, legislative lobbying, policy advocacy, organizing, and public education nationwide.

James has been counsel in Bostock v. Clayton County, Ga., in which the Supreme Court ruled that anti-LGBTQ discrimination in the workplace is unlawful; in Obergefell v. Hodges, the case that won the freedom to marry nationwide; in United States v. Windsor, the challenge to the federal Defense of Marriage Act; in Gavin Grimm v. Gloucester County School Board, about whether a Virginia school board can bar a boy from the common restrooms because he is transgender; in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, about whether a business open to the public can turn away LGBTQ customers based on its religious or artistic objections; and in successful challenges to bans on adoption and foster parenting by lesbians and gay men in Arkansas, Florida, and Missouri. James and the ACLU have also worked extensively to fight the recent spate of anti-transgender bills in the states and to fight the use of religion as an excuse to harm LGBTQ people.

Prior to joining the ACLU in 2001, James was a partner at Vladeck, Waldman, Elias & Engelhard, PC. He graduated from Yale College and Harvard Law School, where he was editor-in-chief of the Harvard Civil Rights-Civil Liberties Law Review. James clerked for the Honorable Robert L. Carter, United States District Judge for the Southern District of New York, and the Honorable James R. Browning, United States Circuit Judge for the Ninth Circuit.


Julie Wilensky is a senior staff attorney at the National Center for Lesbian Rights. Her practice focuses on litigation and advocacy to ensure the equal treatment of LGBTQ people in many contexts, including employment and employee benefits, education, housing, and health care.

Before joining NCLR in 2018, Julie was a deputy county counsel at the Santa Clara County Counsel’s Office, where she was a member of the Social Justice & Impact Litigation section. Previously, she was senior counsel at Disability Rights California, the director of the California office of the Civil Rights Education and Enforcement Center, and a shareholder at Lewis, Feinberg, Lee & Jackson, P.C., where she litigated class actions involving employment discrimination, disability access, and employee benefits. She also represented same-sex spouses and transgender people in cases involving pension and health benefits.

Julie graduated from Yale College and Yale Law School, where she was an Articles & Essays Editor of the Yale Law Journal. She began her legal career as a Thomas Emerson fellow at David Rosen & Associates. She clerked for Judge Nicholas G. Garaufis of the U.S. District Court for the Eastern District of New York and Judge John T. Noonan, Jr. of the U.S. Court of Appeals for the Ninth Circuit.


Nonnie partners with employers and managers in three primary ways: litigation avoidance through proactive and maximally compliant 50-state counseling and training; complex workplace investigations including at the C-Suite level; and litigating legally complex and factually challenging cases to defend employers actions.

Nonnie advises and counsels employers in all aspects of employment law, including an emphasis on complex but proactive compliance projects, such as 50-state compliant wage deductions and lawful parental leave programs. Nonnie regularly partners with clients to plan and implement reductions in force, severance plans and agreements, and pre-litigation disciplinary matters. Nonnie regularly conducts high-level internal investigations for clients and assists in identifying and resolving potential areas of liability and exposure in a proactive but practical way. Nonnie’s unique practice also includes providing employment advice for employers doing business within the Navajo Nation’s territorial jurisdiction and other tribal lands, including cultural and employment law training on unique tribal code requirements.

Nonnie has successfully defended employers against allegations of discrimination, sexual harassment and wrongful termination in state and federal court, as well as administrative forums. Nonnie has handled hundreds of charges with the U.S. Equal Employment Opportunity Commission and the Arizona Civil Rights Division, as well as claims and appeals filed with the Industrial Commission of Arizona. Nonnie has also litigated whistleblower claims against air carriers under AIR 21 and handled investigations and enforcement actions with numerous other federal agencies, including the U.S. Department of Labor and other employers under SOX.

Nonnie regularly speaks and trains on current and emerging employment law topics, including recent presentations to industry and trade groups on civility in the #MeToo era, gay, lesbian, bisexual and transgender workplace issues, avoidance of retaliation claims, and political expression in the workplace. Nonnie’s advanced degree in education and years of experience as an instructor and student affairs professional at Arizona State University help make her training sessions and presentations simultaneously educational and entertaining. Nonnie has also published several scholarly articles focused on employment law, including a book chapter on the impact of reasonable workplace accommodations for employees with disabilities on employers, employees’ expectations of privacy for off-duty conduct, and most recently an article on ADA caselaw related to benefits and other evolving protections for transgender employees.

Nonnie has received numerous accolades from clients and legal professionals for her dedicated client focus and problem-solving abilities. Southwest Super Lawyers named Nonnie a Rising Star in 2012-2014 and a Super Lawyer from 2015 through today. Nonnie also obtained the recognition of the legal community by receiving an AV Preeminent Rating by Martindale-Hubbell beginning in 2014 through today. Chambers USA first ranked Nonnie as a Leading Individual in 2015 and Best Lawyers added Nonnie to its list of recognized practitioners in 2016. Prior to joining the firm, Ms. Shivers served as a law clerk to the Honorable Patricia K. Norris on the Arizona Court of Appeals (Division One).

Education

  • J.D., University of Arizona, 2004
  • M.Ed., Arizona State University, 1998
  • B.A., Kansas State University, 1996

    Admittance to Practice
  • Arizona
  • U.S. District Court, District of Arizona
  • U.S. Court of Appeals, Third and Ninth Circuits