Business Community Responds to Administration’s Transgender Discrimination Memorandum

Kollman & Saucier
Kollman & Saucier

The ink was still fresh on the DOJ’s October 4 memorandum recanting the federal government’s position that Title VII protects transgender individuals at work, as a drove of major U.S. businesses responded in opposition.

In an amicus brief filed October 10, a group of 76 businesses and organizations demands equality in the workplace and urges the U.S. Supreme Court to grant certiorari in Evans v. Georgia Regional HospitalEvans involves the Eleventh Circuit’s holding that Title VII does not protect employees from sexual orientation bias.  While the brief explicitly requests a finding that sexual orientation discrimination is unlawful, it also advocates broadly for ending discrimination in the workplace for LGBT employees.  Among the amici are Apple, Facebook, Mastercard, eBay, Ben & Jerry’s, Starbucks, the Miami HEAT, MassMutual, Cigna, and Sun Life Financial.

The brief evaluates the impact of LGBT discrimination in the workplace in that:

  • Approximately 10 million adults in the U.S. identify as LGBT;
  • Employers could save thousands of dollars by retaining LGBT employees who would otherwise change jobs due to negative work environments;
  • In 2016, the buying power of LGBT employees in the U.S. exceeded $900 billion; and
  • The U.S. economy could save $8.9 billion by welcoming and protecting LGBT employees at work.

The brief asserts that it makes good business sense to protect LGBT employees since:

  • Businesses are more competitive and better able to connect with customers when they employ diverse individuals, including members of the LGBT community;
  • Workplaces inclusive of LGBT individuals yield better financial outcomes;
  • Hostility and the risk of discrimination of LGBT employees at work impede productivity; and
  • Excluding sexual orientation from sex discrimination protection under Title VII undermines businesses’ efforts to recruit, organize, and retain talented employees.

The brief also calls for uniformity in the law, arguing that conflicting interpretations of Title VII in the context of sexual orientation discrimination impose significant costs on businesses.  The amici note that even though many companies voluntarily enact non-discrimination policies, these cannot replace uniform federal legislation.


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