On July 3, 2019 the National Employment Lawyers Association (NELA) and The Employee Rights Advocacy Institute for Law & Policy (The NELA Institute) joined the Impact Fund in filing an amicus brief in the United States Supreme Court (S.C. 17-1618, 17-1623, 18-107) in support of LGBTQ workers. Impact Fund, NELA, and The NELA Institute filed this brief in support of the Petitioners in Bostock v. Clayton County, Georgia and Altitude Express, Inc. v. Zarda, and Respondent in R.G. & G.R. Harris Funeral Homes, Inc. v. E.E.O.C., addressing not only the pervasive workplace discrimination LGBTQ workers face, but more importantly the lack of clarity that exists in applying workplace protection laws to those who are discriminated against on the basis of sexual orientation or gender identity.
The amicus brief, written by Impact Fund’s Lindsay Nako and David Nahmias, working in close collaboration with NELA members, focuses on the circuit split in the treatment of discrimination on the basis of sexual orientation. This is further confused by the existing consensus among the circuits regarding discrimination based on transgender status. As the brief notes, “The three decisions under review underscore the unpredictability in the law for LGBT people. Faced with similar factual scenarios, the Second Circuit and the Eleventh Circuit reached opposing conclusions on the question of whether discrimination based on sexual orientation is unlawful sex discrimination under Title VII. Meanwhile, the Sixth Circuit’s ruling in favor of Ms. Stephens reflects the nearly unanimous consensus of courts that Title VII protects transgender or transitioning status, as well as gender identity.”
The brief also addresses the societal impact that this judicial confusion causes. Rates of discrimination against LGBTQ individuals in the workplace are much higher than those of other workers. LGBTQ low-wage workers, LGBTQ workers of color, and LGBTQ immigrants face even higher rates of workplace discrimination. Many LGBTQ workers remain closeted at work, unsure if Courts can and will hold those who discriminate against them accountable. As the amicus brief aptly argues, “Clarification from the Court that Title VII’s prohibition of sex discrimination includes that based on sexual and transgender status is necessary to eliminate an arbitrary carve-out to Title VII that has confused courts and wrongly denied LGBT workers access to its protection.
NELA and the NELA Institute are proud to stand in support of the rights of LGBTQ workers.