More than 200 U.S. companies, Apple, JPMorgan Chase, and defense contractor Northrop Grumman among them, are urging the Supreme Court to rule in favor of gay and transgender workers who claim the 1964 Civil Rights Act prohibits discrimination against them.
The high court agreed to consider whether the law applies in April when it took up three cases that will be argued during its next term, which starts in October. Two raise the question of whether Title VIIl of the law, which bans bias on the basis of sex, race, color, national origin, and religion, covers gay employees; the third argues that the bill covers gender identity.
“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,” the companies wrote in an amicus brief to be filed with the court. They cited a study that showed more than 25% of gay workers had experienced discrimination on the job within the past five years; nearly one in 10 workers who were open about their sexual orientation said it had cost them a job.
The cases — Bostock v. Clayton County, Altitude Express Inc. v. Zarda, and R.G. & G.R. Harris Funeral Homes v. EEOC and Aimee Stephens — may test the direction of the court, dominated by conservative justices after two appointments by President Trump. Three of the sitting justices dissented from the landmark 2015 ruling that declared gay couples had a constitutional right to marry, and they opposed an earlier decision in U.S. v. Windsor overturning a ban on federal recognition of same-sex unions.
Chief Justice John Roberts, who wrote the dissent in the right-to-marry case, said his decision had nothing to do with his personal beliefs about gay marriage. “It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law.”
In two of the cases the court is set to consider now, Donald Zarda and Gerald Bostock said they were fired from their respective positions as a New York skydiving instructor for Altitude Express and a child welfare services coordinator for the Clayton County, Ga., Juvenile Court System because they are gay.
While the 2nd Circuit U.S. Court of Appeals found in Zarda’s favor, the 11th Circuit Court of Appeals said the Civil Rights Act didn’t cover Bostock, creating the type of conflict in case law that the Supreme Court often considers when deciding whether to take cases.
In the last case, Aimee Stephens, a transgender woman, says she was fired from R.G. & G.R. Harris Funeral Homes in Michigan after she told her employer in 2013 she identified as female and would begin wearing women’s clothing to work.
“Businesses’ first-hand experiences — supported by extensive social science and economic research — confirm the significant costs for employers and employees when sexual orientation and gender identity discrimination are not forbidden by a uniform law,” the companies intervening in the cases wrote. Together, they employ 7 million people and garner more than $5 trillion a year in sales.
“Even the mere risk of such discrimination impedes productivity by instilling unnecessary anxiety in employees and creating a culture that suffocates openness,” the companies argued. Having a diverse workforce, on the other hand, helps businesses connect better with consumers, they said, particularly since the buying power of gay and transgender consumers topped $900 billion as long ago as 2015.
“We fundamentally believe all of our team members and customers deserve equal protection under the law,” said Patrick O’Keeffe, senior vice president of people for American Airlines, the largest U.S. carrier and one of the brief’s signers
The Forth Worth, Texas-based company was one of 36 corporations that urged the Supreme Court in 2017 to bar businesses from discriminating against gay customers in Masterpiece Cakeshop v. Colorado, a question the justices avoided addressing in a much narrower ruling.
“When employees can safely bring their whole selves to the workplace, they do better work and that leads to success,” said Omar Gonzalez-Pagan, a senior attorney with Lambda Legal, which takes on court cases it believes will further the rights of gay people as well as those living with HIV.
“Many of the nation’s top businesses know that,” he added. “We are thrilled by the unprecedented support from the business community .”
