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  • Milo Primeaux

200+ Businesses Call for LGBTQ+ Employee Protections

Why should employers care about these cases and protecting LGBTQ+ employees?


This October, the Supreme Court of the United States ("SCOTUS") will hear oral arguments in three LGBT+ discrimination cases. These cases -- summarized below -- will decide whether Title VII of the Civil Rights Act of 1964 protects employees based on their sexual orientation or transgender status.


206 major U.S. employers, ranging from Apple to Zillow Group, have joined an amicus brief supporting the employees. Collectively these businesses employ over 7 million people and comprise over $5 trillion in revenue.


Every employer should take time to understand why these business giants care so much about these cases and their LGBTQ+ employees -- and why you should, too.


The 25-page amicus brief makes two major arguments in support of the employees.


First, excluding LGBT+ people from Title VII's protections undermines the nation's business interests.


The authors argue that protecting sexual orientation and gender identity under Title VII is good for business and the economy. "A diverse and inclusive workforce furthers businesses' ability to connect with consumers," the authors argue. Diversity within the workforce allows for employees "better attuned to the unmet needs of consumers or clients like themselves,” and “their insight is critical to identifying and addressing new market opportunities” (referencing this 2013 article by Sylvia Ann Hewlett et al).


In 2015, the buying power of LGBT people in the United States stood at over $900 billion.

Beyond this argument for market matching, the authors point to various studies on the "Business Case" for greater diversity and inclusivity within the workplace. For instance, referencing a 2011 study by the Williams Institute, the authors explain:


... the overwhelming majority of the top-performing, most innovative companies connect policies prohibiting sexual orientation and gender identity discrimination with a better bottom line.

The brief also quotes from a 2016 study by Credit Suisse ESG Research which found that 270 companies that supported and embraced LGBT employees outperformed the market by 3% annum over a 6 year period.


Their second major argument is that uniform federal protections provide businesses and employees with consistency and certainty about their responsibilities and rights, respectively.


The authors argue that "excluding sexual orientation and gender identity from Title VII’s sex discrimination protections undermines businesses’ efforts to recruit, organize and retain talent."


This focuses on the day-to-day realities of modern employees. Currently there is a patchwork of state and local protections for LGBT+ employees. In addition, companies can choose to institute protective policies in those jurisdictions where there are no legal protections. Employees are less willing to move to or work in locations where discrimination is permitted. Companies in turn, are harmed, as their "ability to organize a work-force without regard for such arbitrary legal barriers" is undermined.


The brief concludes by underlining the immense savings to the U.S. economy when LGBT employees are protected from discrimination. Relying on a 2015 study by Out Now Global the authors explain that the "... U.S. economy could save as much as $8.9 billion by protecting and welcoming LGBT employees in the workplace—more than any other country."


... no one should be passed over for a job, paid less, fired, or subjected to harassment or any other form of discrimination based on their sexual orientation or gender identity.


QUICK GUIDE TO THE CASES:


R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC

Is gender identity a protected status under Title VII?


Aimee Stephens was a funeral director at Harris Funeral Homes, in Detroit, for almost 6 years. Though identified male at birth, Stephens had known for much of her life that she was a woman. In 2013 she came out to her boss in a letter. She was fired two weeks later. Her employer said it was because dressing as a woman would not be in line with the dress code.

In 2018, the 6th Circuit Court of Appeals decided that Harris Funeral Homes had engaged in unlawful sex discrimination for firing Stephens because she was a transgender woman. 


Bostock v. Clayton County, Georgia

Is sexual orientation a protected status under Title VII?


Gerald Lynn Bostock was employed as a child welfare coordinator in Clayton County, Georgia for 10 years. After joining a gay softball league, he began receiving criticism from his superiors. Within months, he was fired for “conduct unbecoming an employee.” Bostock filed a pro-se law suit against Clayton County. The 11th Circuit said no, protections against discrimination based on sex under Title VII did not explicitly include sexual orientation. Bostock appealed. The case has been consolidated with Altitude Express v. Zarda, discussed below. 


Altitude Express v. Zarda

Is sexual orientation a protected status under Title VII?


Donald Zarda was a skydiving instructor with Altitude Express in Long Island, New York. He made a comment to a female student that he was gay. The student told her boyfriend, who in turn told Altitude Express. Zarda was fired shortly thereafter.  Zarda filed his case in 2010. In 2018, the 2nd Circuit in New York determined that his termination was discrimination under Title VII. The case has been consolidated with Bostock v. Clayton County, discussed above.


*Donald Zarda tragically passed away in 2014. His partner and his sister have continued the lawsuit on behalf of his estate.



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