positive reprisal

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Robert Sindermann taught in the state college system of Texas from 1959 to 1969. He spent two years at the University of Texas and four years at San Antonio Junior College. In 1965 he joined Odessa Junior College as a professor of Government and Social Science. He worked there under four successive one-year contracts and served for a time as cochairman of his department. During the 1968-1969 academic year, Sindermann was elected president of the Texas Junior College Teachers Association. He left his teaching duties on several occasions to testify before committees of the Texas Legislature. Sindermann became involved in public disagreements with the policies of the college’s Board of Regents. He aligned himself with advocates for elevating the college to four-year status, which the Regents opposed. A newspaper advertisement highly critical of the Regents appeared over his name. In May 1969 Sindermann's one-year employment contract terminated. The Board of Regents voted not to offer him a new contract. The Regents issued a press release setting forth allegations of the respondent’s insubordination. They provided him no official statement of the reasons for the nonrenewal. They allowed him no opportunity for a hearing to challenge the basis of the nonrenewal. Sindermann brought an action in Federal District Court against the members of the Board of Regents and the president of the college. He alleged that the decision not to rehire him was based on his public criticism of the administration and infringed his right to freedom of speech. He also alleged that the failure to provide an opportunity for a hearing violated the Fourteenth Amendment’s guarantee of procedural due process. The petitioners denied that their decision was retaliatory and argued they had no obligation to provide a hearing. On the basis of the pleadings and three brief affidavits filed by Sindermann, the District Court granted summary judgment for the petitioners. The Court of Appeals reversed the judgment of the District Court. It held that the nonrenewal would violate the Fourteenth Amendment if based on protected free speech and remanded for a hearing on that issue. The court also held that the failure to allow a hearing would violate due process if Sindermann could show an expectancy of re-employment and ordered that issue aired on remand. The Supreme Court granted a writ of certiorari and considered the case along with Board of Regents v. Roth.

Virginia law made it unprofessional conduct for a licensed pharmacist to publish, advertise, or promote any price for prescription drugs under Va. Code Ann. § 54-524.35(3). The Virginia State Board of Pharmacy regulated the profession to protect public health, safety, and welfare. It licensed pharmacists only after they showed good moral character, graduated from an approved school, completed up to twelve months of experience, and passed a Board examination. Licensed pharmacists remained subject to penalties or license revocation for negligence, fraud, or unprofessional conduct. Prescription drug prices varied sharply even within the same locality. In Richmond the cost of forty Achromycin tablets ranged from $2.59 to $6.00. In the Newport News-Hampton area the price of tetracycline ranged from $1.20 to $9.00. About ninety-five percent of prescriptions were filled with dosage forms prepared by manufacturers. Some pharmacies refused to quote prices over the telephone. An individual Virginia resident who suffered from diseases requiring daily prescription drugs, together with two nonprofit organizations whose members included many users of such drugs, brought suit against the Board and its members. The plaintiffs claimed the ban prevented them from learning where their limited resources could be spent most effectively. A prior challenge to the same statute brought by a drug retailer and one of its pharmacists had been rejected on due-process and equal-protection grounds. The three-judge District Court for the Eastern District of Virginia declared the quoted portion of the statute void and enjoined its enforcement. The Supreme Court noted probable jurisdiction of the Board's appeal.

The three cases consolidated before the Supreme Court arose when employers fired long-time employees shortly after the employees revealed their homosexual or transgender status. Gerald Bostock worked for Clayton County, Georgia, as a child welfare advocate whose leadership earned the county national awards. After a decade with the county, Bostock began participating in a gay recreational softball league. Influential community members then made disparaging comments about his sexual orientation, and he was fired for conduct unbecoming a county employee. Donald Zarda worked as a skydiving instructor at Altitude Express in New York for several seasons. After mentioning that he was gay, he was fired days later. Aimee Stephens worked at R. G. & G. R. Harris Funeral Homes in Michigan, presenting as male when hired. After two years she began treatment for gender dysphoria and wrote a letter stating she planned to live and work full-time as a woman. The funeral home fired her before she left for vacation. Each employee sued under Title VII of the Civil Rights Act of 1964 alleging unlawful discrimination on the basis of sex. The Eleventh Circuit held that Title VII does not prohibit employers from firing employees for being gay and dismissed Bostock's suit as a matter of law. The Second Circuit allowed Zarda's claim to proceed on the ground that sexual orientation discrimination violates Title VII. The Sixth Circuit reached the same conclusion in Stephens's case regarding transgender status. Both Zarda and Stephens passed away during the proceedings, but their estates continued to press the claims. The Supreme Court granted certiorari to resolve the disagreement among the courts of appeals over the scope of Title VII's protections for homosexual and transgender persons.