Google, CBS, Viacom Back Legal Shield for Gay WorkersBy
Dozens of firms support protection under existing law
Sex discrimination debate ripe for Supreme Court showdown
Dozens of major U.S. companies are encouraging a federal court to declare discrimination based on sexual orientation illegal, even if that decision could increase the firms’ vulnerability to employee lawsuits.
Microsoft Corp., Google, CBS, Viacom Inc., IAC, Lyft, and Ben and Jerry’s Homemade Inc. are among the 50 companies and organizations that signed papers supporting a filing spearheaded by advocacy group Freedom For All Americans in the U.S. court of appeals in Manhattan.
“Laws that allow discrimination erode our ability to foster vibrant, competitive workforces, which halts growth, creativity, and innovation,” Anna Walker, Levi Strauss & Co.’s senior director for policy and advocacy, said in an e-mail.
While corporate support for gay rights has become common and many companies have their own non-discrimination policies, it’s unusual for companies to encourage the courts to enforce employment laws more broadly.
Saks Fifth Avenue Inc., for example, touted its internal policy and support for the LGBTQ community, only to come under fire when, faced with a transgender ex-employee’s allegation of discrimination based on gender identity, it argued in a 2014 court filing that such discrimination wouldn’t be against the law. Saks settled the case after criticism from advocates.
In 2016, Wal-Mart Stores Inc. agreed to a $7.5 million class action settlement in a case brought by a gay former employee, rather than argue that the case be dismissed on the grounds that the law didn’t cover sexual orientation.
"People now expect, rightly so, that a company will be participating in this conversation," said Naomi Trickey, chief people officer for Brandwatch, which signed the brief. "Diverse companies make better companies."
The New York court’s judges are slated to hear arguments in September on whether anti-gay bias is illegal under the Civil Rights Act of 1964, a question which has divided other courts recently and is considered likely to reach the U.S. Supreme Court.
The case concerns Donald Zarda, a skydiving instructor who alleged that his employer, Altitude Express Inc., fired him in 2010 because he was gay. Zarda brought suit that year arguing that the federal ban on sex discrimination, which the Supreme Court has ruled includes punishing employees for not conforming to gender stereotypes, prohibits bias on the basis of sexual orientation.
The appeals court rejected a similar argument in 2000, ruling against a postal worker, Dwayne Simonton. He said co-workers harassed him for being gay, including by taping pornographic photos to his workspace and leaving notes in the bathroom with his name and those of celebrities who died of AIDS.
In rejecting Simonton’s claim, an appellate judge wrote that “the term ‘sex’ in Title VII refers only to membership in a class delineated by gender,” and “we are unable to infer that the alleged conduct would not have been directed at a woman.”
A lot has changed since then. In 2015, the Equal Employment Opportunity Commission for the first time said anti-gay discrimination is inherently a form of illegal sex discrimination, because it is “premised on sex-based preferences, assumptions, expectations, stereotypes, or norms.”
In April, a Chicago-based appeals court became the first to reach that same conclusion, contradicting other appeals courts. The next month, the New York court granted a request from the skydiver’s estate (he died in 2014) to reconsider the issue.
“It really comes down to, if it’s OK for women to date men, it has to be OK for men to date men, or you’re treating them differently,” said Greg Nevins, Workplace Fairness Program Strategist for Lambda Legal, which has provided legal assistance to the Zarda estate and brought other similar Title VII cases.
In court papers, the companies’ argue that ruling anti-gay bias illegal would be good for business. In the filing they contend it “would strengthen and expand benefits, such as the ability to recruit and retain the top talent.” Such a ruling would also “generate innovative ideas by drawing on a greater breadth of perspectives, characteristics, and experiences,” attract a more diverse customer base and increase productivity, the companies said.
“Anti-discrimination laws actually help and not hurt business,” said Todd Anten, a partner at Quinn Emanuel Urquhart & Sullivan LLP, who submitted the filing on behalf of the companies.
Some appeals courts remain unpersuaded by arguments like Zarda’s. In March, an appeals panel in Georgia rejected a security officer’s sex-discrimination claim.
In a concurring opinion, Judge William Pryor wrote that claiming gay people all violate gender stereotypes was itself a gender stereotype. “Because Congress has not made sexual orientation a protected class,” he wrote, “the appropriate venue for pressing the argument ... is before Congress, not this Court.”
Congress has repeatedly defeated efforts to amend civil rights laws to explicitly add sexual orientation, Pryor said.
The split among circuits increases the likelihood the question will reach the Supreme Court. “If the Second Circuit joins the Seventh circuit in holding that Title VII includes sexual orientation, then that’s a big deal,” said Cameron Smith, a partner at Seyfarth Shaw who represents companies in employment disputes. “It’s a significant departure from what the state of the law has been on this issue.”