In Hively v. Ivy Tech Cmty. Coll., 2016 U.S. App. LEXIS 13746, **54-56 (7th Cir. July 28, 2016), the Seventh Circuit affirmed the district court’s decision granting defendant’s motion to dismiss the plaintiff’s Title VII sexual orientation claim based on the doctrine of stare decisis – relying on the jurisdiction’s precedent determining that Title VII does not protect against same-sex discrimination. In doing so, however, the court made clear its reservations, noting the incongruity whereby a same-sex couple can marry legally in the United States on a Saturday and be fired on Monday for having done so. The court’s conclusion is instructive:
Perhaps the writing is on the wall. It seems unlikely that our society can continue to condone a legal structure in which employees can be fired, harassed, demeaned, singled out for undesirable tasks, paid lower wages, demoted, passed over for promotions, and otherwise discriminated against solely based on who they date, love, or marry. The agency tasked with enforcing Title VII does not condone it … many of the federal courts to consider the matter have stated that they do not condone it … and this court undoubtedly does not condone it…. But writing on the wall is not enough. Until the writing comes in the form of a Supreme Court opinion or new legislation, we must adhere to the writing of our prior precedent, and therefore, the decision of the district court is AFFIRMED.
Jonathan Evan Goldberg is a litigation and employment law partner at FisherBroyles, LLP. An experienced trial lawyer and frequent public speaker, he has represented corporations, LLCs, partnerships, non-profits, law firms, and boards of directors, as well as officers, executives, attorneys, and others, in all aspects of complex commercial litigation, employment litigation, arbitration, and employment law. Mr. Goldberg, a native New Yorker, began his legal career at the international law firm of Baker & McKenzie, followed by a federal clerkship for The Honorable Harvey E. Schlesinger in the Middle District of Florida. Upon his return north, he joined the New York office of Davis Polk & Wardwell as a lateral, during which he successfully prosecuted and first chaired a federal jury trial involving claims of excessive force under Section 1983 (Ruffin v. Fuller). Seeking more trial experience, he joined Kasowitz Benson Torres & Friedman and subsequently joined the labor and employment department of Greenberg Traurig as Of Counsel. He left GT with a group of lawyers in 2008 and became a partner at Seyfarth Shaw, during which he again first chaired and won his second federal jury trial defending claims of retaliatory and discriminatory termination of employment (Riscilli v. Gibson Guitar). Mr. Goldberg rounded out his big firm experience at Dentons, during which he won his third jury trial, successfully defending claims for, among others, breach of contract, fraud, conspiracy, defamation, and tortious interference with contract and prospective economic advantage (Bogage v. Display Group 21).
During his 21-year legal career, Mr. Goldberg has litigated hundreds of cases in federal and state courts throughout the United States involving claims of retaliation, discrimination, wrongful termination, fraud, defamation, breach of fiduciary duty, and breach of contract, as well as commercial contract disputes, civil RICO, ERISA, trade secrets and restrictive covenants, corporate governance disputes, minority shareholder disputes, partnership disputes, Madoff counseling and defense, advancement and indemnification proceedings, whistleblower actions (SOX and CEPA), executive compensation counseling, litigation, and arbitration, international litigation and arbitration, antitrust litigation and arbitration, products liability litigation, environmental and toxic tort litigation, and securities fraud. Jonathan has also defended corporate and individual clients in connection with investigations by the US Department of Labor (DOL) and the US Department of Justice (DOJ), and is experienced in bringing and defending against TROs (temporary restraining orders) and preliminary injunctions in federal and state courts. He has also handled a number of state and federal appeals.
Jonathan also concentrates on and advises US and multinational corporations and executives in all aspects of employment law, including drafting and negotiating employment and separation agreements, corporate restructurings and reductions in force, employment advice related to corporate transactions, internal corporate investigations, handbooks and policy manuals, sexual harassment and other sensitivity training, protecting against employee raiding and theft of confidential information, and compliance with all federal, state, and local discrimination laws.
Jonathan is also a trained and skilled mediator and always explores ways to resolve disputes early so that his clients can focus on their business and personal matters.
Mr. Goldberg lives in New York, New York, and is the co-founder, President, and Chairman of the Board of Cherub Improv (www.cherubimprov.org), a non-profit that “performs community service” by providing free, family-friendly improv comedy shows and workshops to those who need it most, including senior citizens, adults and children living with cancer, veterans, hospital and hospice patients, and many others. Mr. Goldberg himself frequently performs improv for underserved-communities and teaches various groups (including lawyers, entrepreneurs, and corporate leaders) the basic principles of improv: listening, being supportive of others’ ideas, feeling confident, embracing creativity, teamwork, and thinking quickly on one’s feet. He also serves on the board of Citileaf (f/k/a Friends House).
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