200 Companies Join Brief Asking Supreme Court to Rule ‘Sex’ Discrimination Includes Homosexuality, Gender Identity

WASHINGTON — More than 200 major U.S. corporations have signed on to an amicus brief asking the Supreme Court to rule that employers are prohibited under federal civil rights law from firing workers due to their “sexual orientation” or “gender identity.” The ruling would affect Christian business owners nationwide, as one of the cases surrounds a Christian funeral home owner who would not permit his funeral director and embalmer to dress like a woman on the job.

As previously reported, existing federal law against “sex” discrimination has historically been interpreted as barring discrimination against women, but recent lower court rulings have read “sexual orientation” and “sex stereotyping” into the statute.

The nine justices will specifically need to consider whether homosexuality and gender identity fall under Title VII of the Civil Rights Act of 1964, which states that “[i]t shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”

“[T]he 206 businesses joining this brief respectfully urge this Court to recognize that Title VII’s prohibition on discrimination ‘because of … sex’ includes the prohibition of sexual orientation and gender identity discrimination,” the joint brief states. “Amici support the principle that no one should be passed over for a job, paid less, fired, or subjected to harassment or any other form of  discrimination based on their sexual orientation or gender identity.”

“[N]early one in ten out gay, lesbian, or bisexual respondents reported losing a job due to sexual orientation discrimination in the previous five years,” it continues. “[A] 2015 national study found that: (1) 27% of transgender persons reported not being hired, being denied a promotion, or being fired in the past year because of their gender identity or expression.”

Signees include Amazon, American Express, AT&T, Ben & Jerry’s, Best Buy, Coca-Cola, CVS Health, eBay, Etsy, Facebook, General Motors, Google, IKEA, KIND Healthy Snacks, Levi Strauss & Co., Lyft, Macy’s, Marriott International, Microsoft, Nike, PayPal, Pinterest, Procter & Gamble, Starbucks Corporation, State Farm Mutual Auto Insurance, T-Mobile, Vimeo, The Walt Disney Company, Wells Fargo and Zillow.

View the corporate brief in full here.

As previously reported, the U.S. Supreme Court had agreed in April to hear three cases surrounding the issue: two appeals involving those who allege that they were fired due to their homosexuality, as well as a case out of Michigan centering on a Christian-owned funeral home, where a male employee was terminated after advising that he wished to begin dressing as a woman.

ZARDA V. ALTITUDE EXPRESS

One of the cases to be heard is Zarda v. Altitude Express, which centers on skydiving instructor Donald Zarda, who was fired by his employer following a complaint from the boyfriend of a female diver.

“Zarda often informed female clients of his sexual orientation — especially when they were accompanied by a husband or boyfriend — to mitigate any awkwardness that might arise from the fact that he was strapped so tightly to the woman,” legal documents surrounding the matter outline.

Altitude Express told Zarda that he was fired because he “failed to provide an enjoyable experience for the customer” as David Kengle, the boyfriend of Rosanna Orellana, complained to the company about Zarda’s remarks.

Zarda sued his employer in 2010 for discrimination, but died in a skydiving accident before the matter went to trial. The executors of his estate decided to keep the case active, but a district court ruled that while the suit may proceed, Title VII of the Civil Rights Act does not apply to homosexuality.

The three-judge panel of the Second Circuit Court of Appeals agreed, but the case was appealed en banc — or to the full Court of Appeals — which overturned the ruling last year, stating that “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination.”

The U.S. Department of Justice had filed an amicus brief in 2017 contending that the Congressional intent of Title VII did not include sexuality.

“The essential element of sex discrimination under Title VII is that employees of one sex must be treated worse that similarly situated employees of the other sex, and sexual orientation discrimination simply does not have that effect,” it wrote. “Congress has made clear through its actions and inactions in this area that Title VII’s prohibition of sex discrimination does not encompass sexual orientation discrimination.”

HARRIS FUNERAL HOMES V. EEOC

Another case that the U.S. Supreme Court accepted is R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, which had been appealed by the religious liberties organization Alliance Defending Freedom (ADF).

As previously reported, Anthony Stephens, who now goes by the name Aimee Stephens, was hired as the funeral director and embalmer for RG & GR Harris Funeral Homes in 2007. In 2013, Stephens informed his employer that he had been diagnosed with gender dysphoria and would therefore desire to wear a woman’s suit for work.

Owner Thomas Rost, who identifies as a Christian and serves on the board of directors for Salvation Army of Metro Detroit, has a company dress code in place, which states that males must wear dark suits and white shirts.

Because Stephens sought to wear female clothing, which is a violation of the dress code, and because Rost did not feel comfortable with providing a skirt suit due to his Christian convictions, Stephens was let go.

He consequently took the matter to the federal Equal Employment Opportunity Commission (EEOC), which sued Rost with the aid of the ACLU in alleging gender discrimination.

“R.G. employees understand that the dress code requires funeral directors to wear company-provided suits,” attorneys for Rost outlined in a legal brief. “Rost sincerely believes that he would be violating God’s commands if he were to pay for or otherwise permit one of RG’s funeral directors to wear the uniform for members of the opposite sex while at work.”

In August 2016, U.S. District Judge Sean Cox sided with the funeral home and dismissed the EEOC’s legal challenge.

“The court finds that the funeral home has met its initial burden of showing that enforcement of Title VII, and the body of sex-stereotyping case law that has developed under it, would impose a substantial burden on its ability to conduct business in accordance with its sincerely-held religious beliefs,” he wrote.

However, the Sixth Circuit Court of Appeals disagreed with Cox’s ruling and overturned the decision the following year.

“Discrimination against employees, either because of their failure to conform to sex stereotypes or their transgender and transitioning status, is illegal under Title VII. The unrefuted facts show that the funeral home fired Stephens because [he] refused to abide by [his] employer’s stereotypical conception of [his] sex, and therefore the EEOC is entitled to summary judgment as to its unlawful-termination claim,” wrote Judge Karen Nelson Moore on behalf of the unanimous panel.

A third case involves a county child welfare services employee in Georgia.

RELIGIOUS LIBERTY AT STAKE

The religious liberties organization Alliance Defending Freedom (ADF), which is representing Harris Funeral Homes, is asking the court to protect the convictions of religious business owners, including those whose missions are overtly faith-based.

“Harris Homes’ mission statement, announced on its website, says that the company’s ‘highest priority is to honor God in all that we do,’” its brief to the high court notes.

“Since Rost cannot in good conscience ‘support the idea that sex is a changeable social construct,’ forcing him to allow a male funeral director to present as a woman while representing Harris Homes ‘would impose a substantial burden’ on Rost’s ability ‘to conduct his business in accordance with his sincerely-held religious beliefs,’” it states.

ADF argues that Rost believes that he would be “violating God’s commands” if he allowed a man, who represents the company and its God-centered mission, to dress like a woman. Being forced to choose between his business or his faith would result in the closure of the the funeral home altogether.

“Were he forced to violate his faith that way, Rost ‘would feel significant pressure to sell [the] business and give up [his] life’s calling of ministering to grieving people as a funeral home director and owner,’” the brief laments.

But ADF also says that the ramifications will also be pandemic, affecting hiring practices, restroom and locker use, women’s shelters, women’s sports, schools, and freedom of conscience for employers nationwide.

“[T]he Sixth Circuit’s startling decision to change what it means to be male and female will have widespread consequences,” it warns. “It threatens to drive out sex-specific policies — ranging from living facilities and dress codes to locker rooms and restrooms — in employment and public education. It undermines critical efforts to advance women’s employment and educational opportunities. And it imperils freedom of conscience.”

“Statutes interpreted that way have the effect, for instance, of forcing doctors to participate in — or employers to pay for — surgical efforts to alter sex in violation of their deeply held beliefs,” the brief notes. “And some governments have used those laws to mandate that employers, teachers, students, and others speak pronouns and similar sex-identifying terminology that conflicts with their conscience.”

In addition, the organization further contends that civil rights law cannot logically be read to include someone’s feelings being at odds with their biological sex.

“Both at the time of Title VII’s enactment and today, the word ‘sex’ refers to a person’s status as male or female as objectively determined by anatomical and physiological factors, particularly those involved in reproduction. In contrast, gender identity is an altogether different construct. It refers to an ‘inner sense of being male or female,’” it writes.

“Congress has considered and rejected at least a dozen proposals to similarly add ‘gender identity’ to Title VII, even while enacting other nondiscrimination provisions listing either ‘sex’ or ‘gender’ alongside ‘gender identity.’”

View Rost’s story below.

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