Companies Ask Supreme Court to Hear Gay-Rights Case
October 11 2017 - 10:29AM
Dow Jones News
By Jess Bravin
WASHINGTON -- Dozens of businesses asked the Supreme Court on
Wednesday to find that federal law bars discrimination based on
sexual orientation, putting companies including Apple Inc., Cigna
Corp., Morgan Stanley and Viacom Inc. at odds with the Trump
administration.
The businesses asked the court to hear the appeal of a lesbian
who alleges discrimination at the Savannah, Ga., hospital where she
worked as a security officer. The 11th U.S. Circuit Court of
Appeals, in Atlanta, dismissed her claim in March, after holding
that sex discrimination, which the Civil Rights Act of 1964
prohibits under Title VII, doesn't encompass discrimination based
on sexual orientation.
The ruling "has wide-ranging, negative consequences for
businesses, their employees and the U.S. economy," the companies
told the Supreme Court in a friend of the court brief. "Businesses'
firsthand experiences -- supported by extensive social-science
research -- confirm the significant costs for employers and
employees when sexual orientation discrimination is not forbidden
by a uniform law, even where other policies exist against such
discrimination."
Other major companies signing the brief include Airbnb Inc.,
Alphabet Inc.'s Google unit, American Airlines Group Inc., BASF
Corp., Deutsche Bank AG, Facebook Inc., Levi Strauss & Co.,
Microsoft Corp., MasterCard International Inc., salesforce.com inc.
and Uber Technologies Inc.
Federal courts are divided on the legal question.
In April, the Chicago-based Seventh Circuit held in an
employment case against a South Bend, Ind., community college "that
discrimination on the basis of sexual orientation is a form of sex
discrimination."
The same month, a three-judge panel of the Second Circuit in New
York rejected that position in a suit filed by a skydiving
instructor alleging he was fired because he was gay. The full
Second Circuit voted to reconsider that decision, and at its
September argument saw lawyers from the federal government take
contrary positions -- the Equal Employment Opportunity Commission's
attorney contended that sexual orientation discrimination was
illegal, while the Justice Department lawyer asserted that it was
permissible.
Although Congress hasn't passed antidiscrimination laws for gay
men and lesbians, their legal status has improved substantially
over the past decade due to developments in the judicial and
executive branches. A series of Supreme Court rulings struck down
discrimination based on sexual orientation, culminating in
Obergefell v. Hodges, the 2015 decision that prohibits states from
denying marriage rights to same-sex couples.
The Obama administration interpreted civil-rights law against
that backdrop, extending protections to gay, lesbian and
transgender individuals. Under Attorney General Jeff Sessions, the
Justice Department has reversed some of those positions.
The different interpretations of Title VII largely result from
how the question is framed. For example, under the Seventh
Circuit's approach, the issue would be whether a woman could be
penalized for dating a woman while a man wouldn't be penalized for
dating a woman. If a man would be treated differently from a woman
with all other factors the same, the court concluded, then sex
discrimination may be present.
The Trump administration, however, finds no sex discrimination
if, for instance, a business refused to employ gay men and lesbians
altogether.
"Of course, if an employer fired only gay men but not gay women
(or vice versa), that would be prohibited by Title VII -- but
precisely because it would be discrimination based on sex, not
sexual orientation," the Justice Department said in its Second
Circuit brief.
In the brief filed Wednesday, the companies said that private
antidiscrimination policies, or the protections for gay men and
lesbians that 23 states and numerous local governments have
enacted, were insufficient.
"The failure to recognize that Title VII protects LGBT workers
hinders the ability...to compete in all corners of the nation and
harms the U.S. economy as a whole," they said, using the
abbreviation for lesbian, gay, bisexual and transgender
individuals.
The Supreme Court hasn't yet indicated when it will consider
whether to hear the case, Evans v. Georgia Regional Hospital.
Write to Jess Bravin at jess.bravin@wsj.com
(END) Dow Jones Newswires
October 11, 2017 10:14 ET (14:14 GMT)
Copyright (c) 2017 Dow Jones & Company, Inc.
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