People For the American Way Foundation was among the allied organizations that came together in April 2017 on a friend-of-the-court brief supporting Aimee Stephens’ claim that her rights were violated when she was fired for living and dressing consistent with her gender identity, as well as the idea that religious freedom not be used as a license to discriminate. Stephens’ case will be argued alongside the Bostock and Zarda cases at the Supreme Court on October 8, 2019. The introduction to our Supreme Court brief follows below. Click here to download a PDF copy of the full brief.
INTEREST OF AMICI CURIAE1
The Lawyers’ Committee for Civil Rights Under Law (Lawyers’ Committee) is a nonpartisan, nonprofit organization that was formed in 1963 at the request of President John F. Kennedy to enlist the private bar’s leadership and resources in combating racial discrimination. The principal mission of the Lawyers’ Committee is to secure equal justice for all through the rule of law. To that end, the Lawyers’ Committee has participated in hundreds of impact lawsuits challenging race discrimination prohibited by the Constitution and federal statutes relating to voting rights, housing, employment, education, and public accommodation. As a leading national racial justice organization, the Lawyers’ Committee has a vested interest in ensuring that racial and ethnic minorities, including minorities who identify as lesbian, gay, bisexual, transgender, and queer/questioning (LGBTQ), have strong, enforceable protections from employment discrimination.
The Leadership Conference on Civil and Human Rights (The Leadership Conference) is a diverse coalition of more than 200 national organizations charged with promoting and protecting the civil and human rights of all persons in the United States, including LGBTQ individuals. It is the nation’s largest and most diverse civil and human rights coalition. For more than half a century, The Leadership Conference, based in Washington, D.C., has led the fight for civil and human rights by advocating for federal legislation and policy, securing passage of every major civil rights statute since the Civil Rights Act of 1957. The Leadership Conference works to build an America that is inclusive and as good as its ideals.
Statements of interest for all other amici are included in the Appendix.
INTRODUCTION AND SUMMARY OF ARGUMENT
Workplace discrimination against LGBTQ people is discrimination “because of … sex.” 42 U.S.C. § 2000e-2(a). Recognition of that reality is essential to safeguarding the job security and economic stability of millions of LGBTQ persons in America, especially those most often subjected to discrimination in the workplace: LGBTQ people of color. It also follows directly from Title VII’s protections against other forms of prohibited discrimination—protections that depend on the same legal rules that the LGBTQ employees rely on in these cases. The diversity and vitality of American workplaces, and in turn the American economy, are dependent upon Title VII’s continued application to provide robust protections against discrimination.
Outlawing job discrimination based on LGBTQ status is fully consistent with Title VII’s long history of antidiscrimination achievements, as well as the statutory text that has made those successes possible. Title VII was enacted in 1964 with the ambitious goal of “root[ing] out discrimination in employment.” EEOC v. Shell Oil Co., 466 U.S. 54, 77 (1984). At that time, America’s workplaces were rife with bias. While the plight of African-American workers was clearly Congress’ primary impetus for action, see United Steelworkers of Am. v. Weber, 443 U.S. 193, 202 (1979), courts have repeatedly interpreted the plain language of Title VII to ensure protection against disparate treatment on the basis of all characteristics protected by Title VII—race, color, religion, sex, and national origin—and against all forms in which discrimination is manifested—whether overt or obscured by pretext, whether in the form of a termination notice or pervasive harassment that creates a hostile work environment, and whether part of categorical mistreatment of an entire group or targeted discrimination against an individual based on harmful stereotypes.
This record of far-reaching application is a product of the statute’s plain terms. As this Court has recognized time and again, the reach of a statute is not limited to “the principal evil” Congress sought to address, but instead turns upon “the statutory text.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998). And here, that text is straightforward. It prohibits disparate treatment of an employee “because of” his or her race, sex, or other protected characteristic. That means courts need only apply a “simple test”: “whether the evidence shows treatment of a person in a manner which but for [the protected characteristic] would be different.” City of Los Angeles, Dep’t of Water & Power v. Manhart, 435 U.S. 702, 711 (1978).
In these cases, that “simple test” is clearly satisfied. Aimee Stephens was fired because she is a transgender woman who exhibits traits associated with women; she “would not have been fired for living openly as a woman if she had been assigned the sex of female at birth.” Stephens Br. 25. Gerald Bostock and Donald Zarda were fired for being men who are attracted to men; if they were not men, “[they] would not have been fired for [their] attraction to men.” Zarda Br. 21; accord Bostock Br. 15.
This application of Title VII’s text is important to ensure that LGBTQ individuals are not “treated as social outcasts or as inferior in dignity and worth.” Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719, 1727 (2018). That is especially imperative for people living at the intersection of LGBTQ and racial-minority identities. For these people, racial bias is often compounded by other forms of discrimination.
Indeed, though LGBTQ people of color have made and continue to make great contributions to our society, they suffer far higher rates of job discrimination than their white counterparts. See infra at 22-23. If Title VII is interpreted to deny protection on the basis of LGBTQ status, employers could attempt to cloak their racial bias in anti-LGBTQ garb. And it may be challenging for employees suffering discrimination to prove that race, rather than LGBTQ status, caused the adverse employment action. Civil rights leader Pauli Murray made the same point about protections for women of color at the time of Title VII’s enactment: “Without the addition of ‘sex’” to the statute, she explained, “Title VII would have protected only half the potential Negro work force.” After all, it would be “exceedingly difficult for a Negro woman to determine whether or not she is being discriminated against because of race or sex.” Infra at 26. So too here: If Title VII does not bar LGBTQ discrimination, that will leave many LGBTQ people of color vulnerable to workplace discrimination—an outcome contrary to Congress’ paramount goal of ensuring equal access to employment opportunities for minorities.
Adopting a restrictive interpretation of Title VII in these cases would also mark a deviation from settled Title VII doctrine as applied to other forms of discrimination, including racial prejudice. Racial bias, to be sure, implicates unique historical and institutional concerns. See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 438-44 (1968). For Title VII’s purposes, however, race- and sex-based discrimination are treated equivalently, subject to narrow exceptions irrelevant here.
Accordingly, legal rules developed in race discrimination cases must be applied with full strength to claims of sex discrimination, including the LGBTQ employees’ claims here. For example, courts have long held that employers violate Title VII by treating employees adversely based on their marriage to, or association with, someone of a different race or national origin. There is no basis to carve out a special exception for discrimination on the basis of sex, including discrimination based on an employee’s association with a spouse or romantic partner of the same sex.
Since the enactment of Title VII, there have been significant strides in making our workforce more diverse and inclusive. Title VII’s enduring protections help ensure that employees of all backgrounds can contribute to the economy free from harassment and discrimination—ever so important as our country continues to become more diverse. The sweeping text of Title VII, alongside the statute’s storied history of rooting out pervasive workplace discrimination, compels treating LGBTQ discrimination as unlawful.