Dozens of employers filed an amicus brief in the Second US Circuit Court of Appeals in New York on Monday, urging the court to rule that Title VII of the Civil Rights Act of 1964, which bans discrimination in the workplace on the basis of sex, also protects LGBT employees, Reuters reports:
The companies said bias against gay employees is widespread, with more than 40 percent of gay workers reporting harassment and other forms of discrimination in various studies. The lack of a federal law clearly prohibiting discrimination on the basis of sexual orientation has hindered recruitment in states that have not adopted their own, the companies said. “Recognizing that our uniform federal law protects LGBT employees would benefit individual businesses, and the economy as a whole, by removing an artificial barrier to the recruitment, retention, and free flow of talent,” wrote the companies’ lawyers at Quinn Emanuel Urquhart & Sullivan.
The companies asked the 2nd Circuit to revive a lawsuit by the estate of Donald Zarda, who claimed he was fired from his job as a skydiving instructor on Long Island after he told a customer he was gay and she complained. Zarda died in a skydiving accident after filing the lawsuit.
The suit had been dismissed in April by a panel of three judges, who cited a previous ruling from 2000 in which the Second Circuit held that Title VII did not apply to LGBT workers. However, the full court agreed to hear the case last month, and may overturn that decision. That’s just what the Seventh Circuit in Chicago did in April when it overturned the dismissal of suit filed by Kimberly Hively, a former part-time employee of Ivy Tech Community College in Indiana, who said her employer had denied her a full-time job on the basis of her sexual orientation.
In the en banc rehearing of the Hively case, the Seventh Circuit ruled that “it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex.” A federal district court judge made a similar argument last November in upholding another LGBT discrimination case. Another federal court in Atlanta, Georgia, is currently considering whether to revisit the dismissal of yet another case in March, Reuters adds.
The signatories to Monday’s brief include big names in the tech and media sectors like Microsoft, Apple, Google, CBS, Viacom, Quora, Salesforce, and Spotify, as well as other household names such as Ben & Jerry’s and Levi Strauss. While other organizations like the Equal Employment Opportunity Commission, the American Civil Liberties Union, and various advocacy groups have filed amicus briefs in support of Zarda’s estate, this particular set of amici curiae is unique in that their argument rests mainly on the business benefits of extending workplace protections to LGBT Americans, Erin Mulvaney observes at the National Law Journal:
The companies’ amicus brief noted that in a survey of the top 50 Fortune 500 companies and the top 50 federal government contractors, the majority of the companies connect policies prohibiting sexual orientation discrimination with a better bottom line. It also argued that a patchwork of state and local regulations around the country puts some companies in a difficult position. Clarity on a federal level would be helpful for business, lawyers for the companies argued.
“The failure of nondiscrimination protections to include LGBT employees takes a heavy toll on businesses’ bottom lines and, in the aggregate, hurts economic growth,” Quinn Emanuel’s Todd Anten wrote in the brief. “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.”
This is not the first time large companies have weighed in on a lawsuit pertaining to a controversial social issue in the US from a business perspective: 53 companies signed a brief earlier this year in support of Gavin Grimm, a transgender high school student who sued his local school board for the right to use the boy’s restroom after he was told he could not, and leaders of these companies have urged Texas not to implement a “bathroom bill” requiring transgender people to use public restrooms corresponding to the sex listed on their birth certificates rather than their expressed gender. In February, nearly 100 companies signed a brief in a lawsuit challenging President Donald Trump’s executive order temporarily barring nationals of certain countries from entering the US.