Fashion companies marked the 50th anniversary of the Stonewall riots this June with exuberant Pride Month branding that included sponsored floats, rainbow avatars and special collections. On Wednesday, they will target a loftier audience — the U.S. Supreme Court.
Nike, Tapestry Inc., Macy’s Inc., Gucci and other top fashion and retail companies will tell the High Court in an amicus brief Wednesday that they believe federal civil rights protections extend to LGBTQ employees and should shield them from workplace discrimination.
The issue underpins a trio of cases the Supreme Court took up in April that deal with the scope of Title VII of the Civil Rights Act of 1964. The federal law protects against workplace discrimination on the basis of traits including race, national origin and sex. The cases essentially ask the High Court to determine whether discrimination on the basis of sex applies to sexual orientation and gender identity, and mark the first time the court will explicitly consider these questions.
More than 200 businesses in the fashion, retail, technology, media and pharmaceutical industries, which together have more than 7 million employees, signed on to the amicus brief, which will be filed in all three cases.
“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,” the companies said in the brief.
The companies aren’t making legal arguments so much as telling the court why federal anti-discrimination protections are good for business, said Todd Anten, a partner at Quinn Emanuel Urquhart & Sullivan LLP, and one of the attorneys who represent the companies in the brief.
Quinn Emanuel has previously represented fashion brands including Gucci and Tapestry in other cases.
“Over the years, we’ve had a chance to talk to many people who are executives, or in the legal departments of some of these companies,” said Anten. “Having these protections helps businesses’ bottom line.”
Groups including the Human Rights Commission, Lambda Legal, and Freedom for All Americans worked to coordinate with companies on joining onto the brief, according to a representative for the Human Rights Commission. The groups issued a statement Tuesday revealing the brief.
“Standing for equality is a core value for Under Armour,” Kelley McCormick, the brand’s senior vice president of corporate communications, said in a statement Tuesday.
Tech companies Google, Apple and Facebook also signed on.
The cases at issue before the Supreme Court involve two that ask the court to consider if Title VII’s prohibition on sex discrimination includes sexual orientation, and one that asks that about gender identity.
In Gerald Lynn Bostock, v. Clayton County, Georgia, one of the cases, a child welfare services coordinator in Georgia claims the county he worked for fired him for being gay. The second case, Altitude Express Inc. v. Melissa Zarda, centers around a former skydiving instructor, Donald Zarda, who was gay and who has died since filing his discrimination suit against a now defunct skydiving company in New York. He had claimed that Altitude had fired him on the basis of his sexual orientation after a customer complained about one of their dives together.
The third case, R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission, involves a trans woman who said she was fired from her job as funeral director from a funeral home in Michigan after she came out as transgender. She claimed also that the funeral home imposed strict dress codes based on essentialist notions of gender, a workplace policy that some jurisdictions in the country, including New York City, deem discriminatory on the basis of gender identity and expression.
The High Court will hear oral arguments in the cases when it reconvenes in October.
The companies said in their amicus brief that if Title VII’s protections against sex discrimination don’t include sexual orientation and gender identity, it would leave vulnerable employees without federal anti-discrimination protections.
While some states and workplaces offer those types of protections, such measures don’t have the force of federal law, the companies said. And even now, some 28 states don’t have statewide laws that protect LGBTQ people from housing and workplace discrimination.
In the meantime, the Justice Department, which enforces civil rights at the federal level, has its own shifting interpretations of federal laws depending on who’s in charge. In October 2017, the Justice Department, helmed at the time by former Attorney General Jeff Sessions, issued a memorandum saying that it did not consider Title VII’s protections to include discrimination on the basis of gender identity. The memo reversed the agency’s position under President Barack Obama’s administration, when then-Attorney General Eric Holder said in a 2014 memo that Title VII protections applied to transgender employees.
“To be sure, many companies have voluntarily implemented their own policies to prohibit discrimination based on sexual orientation or gender identity,” the companies said in the brief, an early copy of which was posted online Tuesday by organizations including the Human Rights Campaign.
“While amici laud those efforts, voluntary company initiatives are not a substitute for the force of law,” the companies said in the brief. “Employees who are protected under a company’s policy, but unprotected by federal law, are left without full legal recourse or the same assurances that their colleagues protected by Title VII enjoy.”