SACRAMENTO – California Attorney General Xavier Becerra today joined a multistate coalition, led by Illinois and New York, defending the civil rights of lesbian, gay, bisexual, and transgender (LGBT) workers across the country in three cases currently before the U.S. Supreme Court. The central question at issue is whether Title VII’s prohibition against sex discrimination protects LGBT employees from workplace discrimination. In an amicus brief to the high court, the Attorneys General argue that Title VII of the Civil Rights Act of 1964 does protect LGBT individuals from workplace discrimination based on their sexual orientation or transgender status.
“How can it be that in 2019 we still are debating whether members of the LGBT community deserve to be protected from workplace discrimination because of who they love or because they are transgender?” said Attorney General Becerra. “The answer is simple—they do. I’m proud to stand with states around the country to fight for the civil rights of each and every person living in the United States. The American dream isn’t just for some subsection of our country, it’s for everyone.”
The cases currently before the U.S. Supreme Court center around three separate instances where individuals were fired from their place of work solely on the basis of their sexual orientation or transgender status. In Altitude Express Inc. v. Zarda, the late Donald Zarda brought suit against his former employer for Title VII violations, alleging that he had been fired after coming out as gay at work. The case, continued by Zarda’s estate, was allowed to proceed by the Second Circuit Court of Appeals, which concluded that “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination.” In Bostock v. Clayton County, Georgia, Gerald Bostock was fired from his job as a child welfare services coordinator shortly after joining a gay recreational softball league, despite 10 years of positive reviews and accolades for his performance. Lastly, in R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, Aimee Stephens, a transgender woman, lost her job after informing her employer in 2013 that she would begin presenting at work as a woman after having presented as a man in her job as funeral director for approximately five years. Stephens’ employer had openly stated that the reason for the termination was that Stephens would no longer present as a man at work.
Historically, the U.S. Supreme Court has affirmed a broad reading of Title VII as reflecting Congress’ intent “to strike at the entire spectrum of disparate treatment” including an employer’s enforcement of sex stereotypes. For instance, in 1989 the U.S. Supreme Court in Price Waterhouse v. Hopkins held that adverse employment actions taken against an employee because the employee does not conform to the employer’s sexual stereotypes constitute unlawful discrimination “because of sex” under Title VII. Both the Zarda and R.G. courts cited the unworkability of separating LGBT status from other instances of gender nonconformity, e.g. distinguishing whether a female employee is being criticized for being “macho” or for being a lesbian, in order to protect the former but not the latter.
In the pending appeals, the coalition’s brief highlights that employment discrimination on the basis of sexual orientation and gender identity is pervasive, and causes significant harm to both LGBT people and the public at large. The brief also describes how Title VII serves as an essential part of states’ broad efforts to combat discrimination in the workplace. Even for jurisdictions such as California, where state antidiscrimination laws expressly protect LGBT people, federal workers in the state as well as telecommuters, seasonal workers, and college students working for companies out-of-state are susceptible to gaps in the protection of their civil rights if the Supreme Court holds that Title VII does not also address sexual orientation and transgender status.
Recognizing that discrimination has no place in our society, the California Department of Justice is committed to protecting the rights of the LGBT community. In May, Attorney General Becerra led a coalition of states in asserting that gender non-binary individuals deserve full legal recognition of their accurate gender identity on passports. On behalf of the State of California, the California Department of Justice is a co-plaintiff in Stockman v. Trump, a case seeking to defend the rights of transgender individuals seeking to join, or currently serving in, the U.S. military. Attorney General Becerra has also fought against discriminatory actions by the federal government threatening safe and equitable access to healthcare and education for members of the LGBT community. Additionally, in accordance with California law, the California Department of Justice develops and maintains a list of states that are subject to state-sponsored travel restrictions because of laws that authorize or require discrimination on the basis of sexual orientation, gender identity, or gender expression.
In submitting the brief, Attorney General Becerra joined the Attorneys General of New York, Illinois, Colorado, Connecticut, Delaware, Hawai’i, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and the District of Columbia.
A copy of the brief is available here.