Google, Facebook Urge High Court to Settle Sex Orientation Bias

From labor disputes cases to labor and employment publications, for your research, you’ll find solutions on Bloomberg Law®. Protect your clients by developing strategies based on Litigation...

By Hassan A. Kanu and Jay-Anne B. Casuga

Apple, Facebook, Google, and Microsoft are among 76 companies urging the U.S. Supreme Court to settle a hot-button legal issue by deciding that lesbian, gay, and bisexual workers are protected from workplace discrimination under federal civil rights law.

The “friend of the court” brief was announced Oct. 11, National Coming Out Day, by the Human Rights Campaign. It asks the justices to accept a case filed by Jameka Evans, a former security guard alleging she was harassed and fired because she’s a lesbian and doesn’t conform to gender norms ( Evans v. Ga. Reg’l Hosp. , U.S., No. 17-370, motion for leave to file brief 10/10/17 ).

The justices during an Oct. 27 conference are scheduled to consider whether to hear the case.

If it’s accepted, the justices would decide for the first time whether protections against “sex” discrimination in Title VII of the 1964 Civil Rights Act also encompass “sexual orientation” bias. Federal appeals courts, and even federal agencies, are split on the issue.

“Yes, the statute says ‘sex’ and is commonly understood to cover harassment based on sex, and stereotyping based on sex,” Hayley Gorenberg, general counsel at Lambda Legal, told Bloomberg BNA Oct. 11. The statute “quite logically should be read to also prohibit bad treatment based on sex orientation,” she said. Lambda Legal is the largest legal organization advocating for equal rights on behalf of the LGBTQ population.

“In this case, there’s ideas about being attracted to or associating with someone of the same sex when that doesn’t fit” social norms as the employer views them, Gorenberg said. “That’s taking sex into account in making an adverse employment decision, and is therefore discrimination based on sex, plain and simple.”

DOJ Reverses Position

The Equal Employment Opportunity Commission, which enforces Title VII against private employers, has taken the position that Title VII does prohibit sexual orientation discrimination. However, the Justice Department, which enforces that same law against public employers, changed its previous position on the issue in July. The agency is arguing in a federal circuit court case involving a private employer that the plain meaning of the word “sex” refers only to biological sex, and Congress didn’t mean to extend protections based on sexual orientation.

The DOJ last week reversed an Obama-era policy of protecting transgender workers under Title VII.

“The apparent hostility flowing from this administration towards LGBT people in the workplace, in schools, in just about all walks of life, makes it all the more urgent that we settle this matter now, and settle it clearly to protect people against what seems like an ongoing assault,” Gorenberg said.

Other businesses that signed the brief to the Supreme Court include: CBS Corp., the Estée Lauder Cos., Mastercard International Inc., Morgan Stanley, Starbucks Corp., and Viacom Inc. Sports organizations the Miami HEAT and the Tampa Bay Rays Baseball Ltd. also joined the brief.

“Businesses that want to succeed are recognizing that if they can retain people from all backgrounds and all walks of life, and people are not distracted or deterred by bad treatment, then they get the best of the best,” Gorenberg told Bloomberg BNA.

Lambda Legal and the Stanford Law School Supreme Court Litigation Clinic petitioned the high court for review on Evans’ behalf last month.

It’s unclear whether the Supreme Court will grant review of her case against Georgia Regional Hospital, or wait to take up the issue in a different dispute. The current split in the federal circuit courts and recent shifts in popular opinion are further reasons the case is suitable for the court to take up, Gorenberg said.

To contact the reporters on this story: Hassan A. Kanu in Washington at hkanu@bna.com; Jay-Anne B. Casuga at jcasuga@bna.comTo contact the editors responsible for this story: Chris Opfer at copfer@bna.com; Terence Hyland at thyland@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

Request Labor & Employment on Bloomberg Law