LGBTQ Employment Rights: DOJ Versus America?

The Department of Justice recently made headlines when it filed its brief in R.G. & G.R. Harris Funeral Homes, one of three cases regarding LGBTQ employment rights that the Supreme Court will hear on October 8, 2019.  The brief made headlines because in it, the United States is arguing that transgender employees are not entitled to protection under Title VII of the Civil Rights Act of 1964. On the one hand, DOJ’s position is not a surprise because this administration has distanced itself from the Government’s prior policy on LGBTQ employment rights for quite some time. And yet, there is another story behind these cases that is not getting the same attention: briefs filed in support of the employees in these cases outnumber those filed in support of the employers.

 When the Supreme Court agrees to hear a case, the parties submit their briefs (i.e., their written arguments) prior to oral arguments.  Other interested parties may also submit briefs on behalf of either party; these are referred to as amicus curiae briefs, which means a brief by a “friend of the court.”    In Harris, 43 amicus briefs were filed on behalf of the employer and 47 amicus briefs were filed on behalf of the employee.  In Bostock and Zarda(the other two cases dealing solely with protection on the basis of sexual orientation), 27amicus briefs were filed on behalf of the employer and 41 amicus briefs were filed on behalf of the employees.  According to SCOTUS Blog (a blog dedicated to the U.S. Supreme Court), the number of briefs received in any given case varies but can reach over 100 in cases with “broad national repercussions.”

Is this Important?

Several groups, individuals, congresspersons, and even states filed amicus briefs in these cases.  Moreover, each brief may be filed on behalf of one person or group, or several persons or groups.  For example, a brief filed by “business organizations” on behalf of the employers in all three cases include two religious affiliation organizations, while a brief filed by “business organizations” on behalf of the employees in all three cases include eight organizations such as the American Independent Business Alliance, American Sustainable Business Council, and local chambers of commerce.  As another example, one brief alone filed in support of the employees in all three cases was filed on behalf of 206 individually named businesses, including household names such as Amazon, American Airlines, American Express, Apple, AT&T, Ben & Jerry’s, CBS, Citigroup, Coca-Cola, CVS, Domino’s, eBay, Etsy, Facebook, Goldman Sachs, Google, Gucci, Hilton, HP, IBM, IKEA, JP Morgan Chase, LinkedIn, Macy’s, Marriott, Mastercard, Microsoft, Morgan Stanley, PayPal, Pfizer, Southwest Airlines, Starbucks, T-Mobile, Wells Fargo, and the Walt Disney Company.  Members of Congress also banded together and filed briefs in each case—one on behalf of each side—with 8 senators and 40 house representatives supporting the employers and 39 senators and 114 house representatives supporting the employees.  The dockets of each case can be found here (Bostock and Zarda) and here (Harris).  (To get a closer look at the parties behind each brief, click on “main document” and turn to the “Interest of Amici Curiae” section of the brief.)

What does this mean?

It depends. It is unlikely that every brief will affect the outcome, nor is the number of briefs filed for either side any indicator of how the justices will ultimately rule.  What it does show, however, is that despite DOJ’s about-face on LGBTQ employment rights in recent years, there is significant public support for the recognition of protection for LGBTQ employees under Title VII.

Click here to read more about these cases.

Click here to read more about the state of LGBTQ employment rights.

If you think you are being discriminated against in the workplace based on your sexual orientation or gender identity and want to know what your legal options are, please don’t hesitate to give KCNF a call, at 202.331.9260.

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