American Bar Association
July 3, 2019, 3:34 pm CDT
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In an amicus brief filed in support of employees in a trio of cases, the ABA urged the U.S. Supreme Court to recognize that the prohibition against discrimination “based on … sex” in Title VII of the Civil Rights Act encompasses discrimination based on an employee’s sexual orientation or gender identity.
The Supreme Court is considering whether federal employment discrimination laws protect LGBTQ employees after granting certiorari in and consolidating Bostock v. Clayton County, Georgia; Altitude Express v. Zarda and R.G. & G.R. Harris Funeral Homes Inc. v. EEOC. The ABA’s news release is here.
Consistent with its mission, the ABA has advocated for the elimination of sex discrimination for more than three decades to ensure that “all persons—regardless of sex, gender, sexual orientation, or transgender status—can fully and equally participate in the public and private spheres,” according to its brief.
The ABA told the court that “recognizing sexual orientation and transgender status discrimination as forms of sex discrimination honors the plain text of Title VII’s statutory prohibition against discrimination ‘because of * * * sex,’ consistent with this court’s long-standing interpretations.”
In Bostock, a former employee of Clayton County, Georgia alleged that his employment was terminated because he was gay. The U.S. District Court for the Northern District of Georgia ruled that Title VII does not prohibit discrimination on the basis of sexual orientation and dismissed the case. The 11th U.S. Circuit Court of Appeals in Atlanta affirmed the dismissal.
Similarly, in Altitude Express, a former employee of Altitude Express alleged that his employment was terminated because he was gay. The U.S. District Court for the Eastern District of New York granted summary judgment to the employer on the Title VII claims and dismissed the case. A panel of the 2nd U.S. Circuit Court of Appeals in New York City affirmed the dismissal, but in rehearing en banc, the full court concluded that Title VII does prohibit sexual orientation discrimination.
The third case, R.G. Harris, involves a former employee of R.G. Harris who alleged her employment was terminated when she requested to be identified as a female rather than as a male.
She filed a charge with the Equal Employment Opportunity Commission, which then filed a lawsuit against R.G. Harris in the U.S. District Court for the Eastern District of Michigan alleging that the company violated Title VII in firing the employee because of her gender identity and because of its adherence to gender-based stereotypes.
The district court granted summary judgment for the employer. In the EEOC’s appeal, the 6th U.S. Circuit Court of Appeals in Cincinnati reversed, ruling that Title VII prohibits discrimination based on the employee’s gender identity, either under a straightforward definition of “sex” or under a theory of sex stereotyping.
The ABA adopted its first policy against sexual orientation discrimination in February 1989 and has continued to express its strong opposition to all forms of discrimination, including sex discrimination, according to its amicus brief.
Most recently, in January 2019, the ABA urged Congress to pass legislation that explicitly states that discrimination due to “sexual orientation, gender identity or expression, sex stereotyping, or pregnancy,” constitute forms of sex discrimination prohibited by Title VII and similar federal statutes.
The ABA told the Supreme Court in its amicus brief that in passing Title VII, “’Congress made the simple but momentous announcement that sex, race, religion, and national origin’ have no relevance ‘to the selection, evaluation, or compensation of employees.’”
“In accordance with the text’s plain meaning, people experience discrimination ‘because of * * * sex’ when they have been treated differently than they would have been had their sex been different,” the ABA said in its brief. “If a person is fired because he is a man who loves a man but would not have been fired if he had been a woman who loves a man, that person has been discriminated against ‘because of * * * sex.’”
“This court’s precedent makes clear that this kind of ‘but for’ discrimination lies at the heart of anti-discrimination protections.”
The Supreme Court will hear arguments in the cases Oct. 8.