Bench Memos

Law & the Courts

Bizarre Business Brief in Title VII SOGI Cases

A group of 206 corporations has submitted an amicus brief in the three Supreme Court cases to be argued next term that present the question whether Title VII’s ban on employment practices that “discriminate … on the basis of … sex” prohibits discrimination on the basis of sexual orientation and gender identity. The corporations submit their brief in support of the plaintiff employees who argue that Title VII does prohibit such discrimination.

1. On its own terms, the corporations’ brief makes little or no sense.

a. The corporations argue that they “share a common interest in equality because they know that ending discrimination in the workplace is good for business, employees, and the U.S. economy as a whole.” Among other things, they contend that “[d]iversity is a key factor in U.S. businesses’ ability to compete and succeed in the modern global economy”; that “LGBT-inclusive workplaces result in stronger work performance by all employees”; and that “companies with LGBT-inclusive workplaces also have better financial outcomes.”

Let’s assume that these assertions are unqualifiedly true. If they are, then the “woke” corporations that embrace them will have a significant competitive advantage over the corporations that don’t. Why would the corporate signatories to the amicus brief want to give away their competitive advantage?

b. The corporations argue that “[f]or years, many businesses have operated under the expectation that Title VII prohibits sexual orientation and gender identity discrimination without incurring oppressive costs or burdens.” That would be a strange “expectation” to have. Until a mere four years ago, when the EEOC first opined that Title VII bars sexual-orientation discrimination, every federal court of appeals that had addressed the question over a period of decades had ruled to the contrary. So the interests that the corporations assert in the “clarity, predictability, reliability and efficiency that comes [sic] from the uniform application of federal law” ought to be in favor of preserving the longstanding rule.

c. The corporations contend that “voluntary company initiatives are not a substitute for the force of law.” That might well be true in the abstract. But these corporations could impose on themselves obligations (e.g., low-cost arbitration with arbitrator selected by employee from list compiled by LGBT groups, stipulation in advance to large damages award for violations, personal vicarious liability of corporate officers) that are, from an employee’s perspective, much more valuable than a prospective Title VII lawsuit. If they truly believe their rhetoric, why don’t they? Wouldn’t that just enhance their “ability to compete and succeed in the modern global economy”?

2. For all their talk about their commitment to “equality in the workplace,” these corporations are strangely silent about some critical aspects of what their norm of non-discrimination means in practice.

Do these corporations, for example, allow individuals who identify as transgender to use the common restrooms and shower facilities (e.g., in corporate gyms) of the sex they identify as, on exactly the same terms as members of that sex?

Do these corporations even continue to maintain sex-segregated restrooms? If so, how can they reconcile that with the theory of Title VII that they are supporting? (Allowing a man who identifies as female to use a women’s restroom while barring a man who identifies as male from doing so would seem a clear case of discrimination on the basis of gender identity. After all, the only relevant difference between the two men is that they have different gender identities.)

3. The assertion by these corporations that all businesses have an interest in having the same “LGBT-inclusive workplaces” assumes that other business owners aren’t intelligent enough to discern their own interests. But it just might be, say, that the operator of a local funeral home knows his own business better than these corporations do. (I am of course not contending that the laws should always allow businesses to pursue their own best interests; I am simply responding to the feeble business argument that the corporations are making.)

4. The entire brief would seem to be nothing more than a showy exercise in virtue-signaling.

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