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Major Companies Ask High Court to Support LGBT Worker Rights (1)

July 2, 2019, 4:30 PM; Updated: July 2, 2019, 7:26 PM

More than 200 businesses will ask the U.S. Supreme Court to support federal anti-discrimination protections for LGBT workers as a way to provide certainty for companies, healthier workplaces, and ultimately help their bottom lines.

The friend-of-the-court brief, which will be filed July 3, has more corporate signers than any previous business brief filed to the Supreme Court on a Title VII issue, according to the Human Rights Campaign. The 206 companies in the coalition represent more than 7 million employees, a wide variety of industries, and more than $5 trillion in revenue, according to the group.

The names include Amazon.com Inc., American Airlines, and Macy’s Inc. Dozens of the companies have previously supported this point of view in appeals courts, including Levi Strauss & Co. and Microsoft Corp. Others, including Gucci, are wading into the legal fray for the first time.

“We have employees in every state, and the law should protect them wherever they live. How can our employees bring their authentic selves to work if that’s not the case? No one should ever be passed over for a job or promotion, paid less, fired, demoted, or subject to harassment based on their sexual orientation or gender identity,” said Tim Harris, general counsel of Prudential Financial Inc., which signed onto the brief. “Attracting the best talent and ensuring they thrive in an inclusive environment is critical to our business strategy.”

Bloomberg L.P., of which Bloomberg Law is an affiliate, is one of the co-signers to the brief.

The support from the companies comes as the Supreme Court announced that it will hear the arguments Oct. 8 in a trio of cases that will consider whether sexual orientation and gender identity should be protected under the Title VII of the 1964 Civil Rights Act. The question has divided federal appeals courts and agencies in recent years.

The brief doesn’t wade in to the legal specifics of why Title VII should be extended to LGBT workers but instead focuses on why it would be the right outcome for employers. It also points to research that shows nondiscrimination protections in states with existing anti-bias laws can help improve business operations.

“This brief exposes the lie that affirming civil rights protections for LGBTQ Americans is somehow anti-business,” Erin Uritus, CEO of Out & Equal Workplace Advocates, said in a statement. “The opposite is true. Equality is good for businesses and employees. And consumers—who are increasingly savvy and intentional about their spending power—are demanding equality.”

Testing the Scope of Sex Discrimination

The Supreme Court justices in April agreed to hear Altitude Express, Inc. v. Zarda and Bostock v. Clayton County, Ga. to consider sexual orientation protections. It also granted hearing to R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, which involves protections for gender identity. The companies in those cases argue that the federal civil rights laws don’t specify that LGBT workers should be protected from discrimination.

“What this signifies is that companies understand what the right thing to do is by their employees,” said Todd Anten, partner at Quinn Emanuel Urquhart & Sullivan, the counsel of record who wrote the amicus brief. “Companies have responsibilities to their employees, as well as their shareholders. This approach is good for the employees and the employers.”

The Trump administration’s Justice Department has argued against protections for LGBT workers and has said that it’s the responsibility of Congress to change Title VII to offer these protections. The argument for LGBT protections hinges on an expanded view of the definition of sex discrimination under Title VII. The U.S. Court of Appeals for the Seventh and Second Circuits were the first to agree with advocates and the U.S. Equal Employment Opportunity Commission that rights for gay, lesbian, and bisexual workers should be protected. At least five appeals courts have agreed gender identity should be protected under sex discrimination.

Opponents of expanding the scope of sex discrimination say these groups should advocate for change from lawmakers.

“But these Title VII cases come down to whether the courts get to rewrite the law based on their personal policy preferences and then retroactively punish companies for complying with the law as written,” said John Bursch, senior counsel with the Alliance Defending Freedom. “When a court changes the law on its own, it robs all businesses and business owners of the stability they need to flourish.”

Bursch said the conservative Alliance Defending Freedom, which is representing Harris Funeral Home before the Supreme Court, as well, will file a brief arguing that “drastically reinterpreting ‘sex’ to mean ‘gender identity’ steals opportunities set aside for women in employment, athletics, education, and more.”

(Updated with additional reporting.)

To contact the reporter on this story: Erin Mulvaney in Washington at emulvaney@bloomberglaw.com

To contact the editors responsible for this story: Phil Kushin at pkushin@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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