New Supreme Court Brief Calls for End of Workplace Discrimination Against LGBT People Based on Sex Stereotypes

Columbia Law School’s Sexuality and Gender Law Clinic Represents Women CEOs and Senior Executives Who Urge the High Court to Uphold Essential Protections Under Federal Law.

New York, July 3, 2019—Columbia Law School’s Sexuality and Gender Law Clinic today filed a brief urging the U.S. Supreme Court to recognize that existing federal sex-discrimination law prohibits employers from relying on sex stereotypes to limit workplace opportunities for employees based on sexual orientation or gender identity. 

Thirty women—all chief executive officers or other senior executives—joined the brief, including leaders in communication, entertainment, finance, law, non-profit service and advocacy, and technology. Facebook executive and author Sheryl Sandberg and award-winning television producer, Shonda Rhimes, founder of Shondaland, are among the signatories.

On Oct. 8, the high court will hear three cases that will determine whether gay and transgender people are covered by Title VII of the Civil Rights Act of 1964, which bars employers from discriminating against employees on the basis of sex as well as race, color, national origin, and religion.

“Extensive case law shows that employers sometimes rely on sex stereotypes to make workplace decisions. These stereotypes—about how women and men ‘should’ present themselves, interact with others, and conduct their family life—help explain why fewer women than men are chosen for leadership positions, and why women earn less,” says Suzanne B. Goldberg, director of Columbia Law’s clinic and an  expert on gender and sexuality law.

The brief cites Supreme Court precedent in Price Waterhouse v. Hopkins, which held in 1989 that employers discriminate based on sex when they restrict workplace opportunities based on sex stereotypes. Ann Hopkins’ daughter, Tela Gallagher Mathias, is a senior executive herself and a signer of the brief.  

Goldberg argues that employers’ use of sex stereotypes continues to “impose profound limits” on women’s advancement, and notes that the glass ceiling persists in many sectors, particularly in senior management and other leadership positions.

She adds that such workplace restrictions are “squarely among the sex-based barriers that Congress sought to eradicate in enacting Title VII, both for women and men who conform to those stereotypes and those who do not.” 

“Put simply, there are no free passes for employers that might seek to impose sex stereotypes as a way of restricting opportunities for some employees but not others,” Goldberg added. “Nothing in Title VII suggests that employers may rely on any of these sex stereotypes when making decisions about an individual’s employment opportunities, including for women who are lesbian, bisexual, or transgender.”

Columbia Law clinic students Brett Christensen ’21 and Lydia Turnage ’21 assisted on the brief. Richard M. Segal, Cynthia Cook Robertson, and Robert C. K. Boyd of Pillsbury Winthrop Shaw Pittman LL.P. also served as counsel.

Background on the underlying cases:

R.G. & G.R. Harris Funeral Homes v. EEOC and Aimee Stephens

Aimee Stephens worked as a funeral director at R.G. & G.R. Harris Funeral Homes. When she informed the funeral home’s owner that she is transgender, the business owner fired her. The U.S.  Court of Appeals for the 6th Circuit ruled in March 2018 that when the funeral home fired her for being transgender and departing from sex stereotypes, it violated Title VII, the federal law prohibiting sex discrimination in employment. Aimee was the same capable employee she had always been, and she was fired because her employer wanted her to look and act “like a man.”

Altitude Express Inc. v. Zarda

Donald Zarda, a skydiving instructor, brought suit after he was fired from his job because of his sexual orientation. A federal trial court rejected his discrimination claim, saying that the Civil Rights Act does not protect him from losing his job for being a gay man. In October 2014, Don died unexpectedly, but the case continues on behalf of his estate. In February 2018, the full Second Circuit Court of Appeals ruled that discrimination based on sexual orientation is a form of discrimination based on sex that is prohibited under Title VII. The court recognized that when a lesbian, gay, or bisexual person is treated differently because of discomfort or disapproval that they are attracted to people of the same sex, that is discrimination based on sex.

Bostock v. Clayton County

Gerald Lynn Bostock was fired from his job as a county child welfare services coordinator when his employer learned he is gay. In May 2018, the U.S. Court of Appeals for the 11thCircuit refused to reconsider a 1979 decision excluding sexual orientation from Title VII's prohibition on sex discrimination.

Read the brief here.

The full list of signatories and their bios can be viewed here.

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