On June 15, 2020, the Supreme Court of the United States issued a 6-3 decision in Bostock v. Clayton County, Georgia, holding that employers may not discriminate on the basis of LGBTQ status without violating Title VII of the 1964 Civil Rights Act. The majority opinion, written by Justice Gorsuch, held that anti-LGBTQ discrimination violates Title VII as a form of discrimination because of sex. Justices Alito, Thomas and Kavanaugh dissented.
RBGG participated in the case by submitting a friend of the Court brief for several LBGTQ attorney groups.
Sanford Jay Rosen, Michael Nunez, and Alexander Gourse of RBGG filed an amicus brief on July 3, 2019 in the U.S. Supreme Court on behalf of National LGBT Bar Association, National Trans Bar Association, LGBT Bar Association of New York, Bay Area Lawyers for Individual Freedom, and LGBT Bar Association of Los Angeles in support of the rights of LGBT employees in three cases currently before the Court.
The full brief is available here: National LGBT Bar Association Amicus Brief 17-1618 17-1623 18-107
RBGG Founding Partner Sandy Rosen previously authored an article for the Daily Journal on May 7, 2019, New justices and shifting public opinion make Title VII cases hard to predict.
According to the brief’s “Summary of Argument”:
“Congress enacted the Civil Rights Act of 1964 to eradicate invidious discrimination throughout the American economy and society. Consistent with that goal, Title VII was intended to remake the American labor market and workplace into spheres of equal opportunity, where qualifications and performance prevail over identity. Excluding gay, lesbian, bisexual, and transgender (“LGBT”) employees from Title VII’s prohibition of discrimination on the basis of sex would undermine the Act’s overarching purpose of ensuring equal opportunity in the workplace.
In these cases, three employers subject to Title VII hope to carve out discrimination against LGBT employees from the law’s protections. They seek to pare back Title VII’s scope and secure the unfettered right to discriminate against LGBT employees. Their efforts, if successful, would place millions of American workers at economic risk, would harm the American economy, and would advance no legitimate business interest.
Both Donald Zarda and Aimee Stephens were terminated from their employment because their employers—Altitude Express and R.G. & G.R. Harris Funeral Homes (“Funeral Homes”)—chose to adopt the real or perceived anti-LGBT prejudices shared by some of their customers. See Zarda v. Altitude Express, Inc., 883 F.3d 100, 108-09 (2d Cir. 2018); E.E.O.C. v. R.G. &. G.R. Harris Funeral Homes, Inc., 884 F.3d 560, 586-87 (6th Cir. 2018). The fact that some customers may have approved of the discrimination at issue in these cases does not excuse it.
For decades, this Court and others have rejected employers’ attempts to justify their discriminatory actions as permissible responses to the alleged biases of their customers. Here, Amici marshal examples of courts rejecting such defenses to claims under Title VII, as well as to claims brought under other Federal statutes and the U.S. Constitution. Amici also identify the harms that would result if such defenses are validated.”