Interest of Amici Curiae
Amici curiae are civil rights, anti-poverty, and child and family welfare organizations dedicated to eradicating poverty, its associated harms, and its causes. One common cause of poverty is unequal access to employment due to discrimination. The questions presented in these cases speak directly to workplace discrimination. As organizations that fight discrimination and poverty, amici have a substantial interest in the resolution of those questions.
The Southern Poverty Law Center (“SPLC”) is a non-profit civil rights organization dedicated to fighting hate and bigotry and seeking justice for the most vulnerable members of society. Since its founding in 1971, SPLC has won numerous landmark legal victories on behalf of the exploited, the powerless, and the forgotten. As part of its work, SPLC has served as counsel for lesbian, bisexual, gay, or transgender (“LGBT”) persons asserting their constitutional or civil rights and has filed multiple briefs in this Court and the courts of appeals. In particular, SPLC appeared as counsel of record in Frontiero v. Richardson, 411 U.S. 677 (1973), a critical sex-discrimination case which paved the way for this Court’s subsequent holding that intermediate scrutiny applies to gender-based classifications.
The Children’s Defense Fund (“CDF”) is a national non-profit child advocacy organization that has worked relentlessly for more than 40 years to ensure a level playing field for all children. CDF champions policies and programs that lift children out of poverty, protect them from abuse and neglect, and ensure their access to health care, quality education, and a moral and spiritual foundation. CDF advocates nationwide on behalf of children to ensure children are always a priority, paying particular attention to the needs of poor children, children of color, and those with disabilities.
Dēmos is a dynamic think-and-do tank that powers the movement for a just, inclusive, multiracial democracy. Founded in 2000, Dēmos brings litigation, conducts original research, and engages in advocacy and strategic communications to advance economic justice and remove barriers to political participation. The organization’s anti-poverty work focuses on research and policy solutions to overcome racial and economic inequality. The organization is deeply involved in the Black Census Project, which explores economic issues faced by LGBT people of color, including low pay. Dēmos’ race-forward state policy platform, Everyone’s America: State Policies for an Equal Say in Our Democracy and an Equal Chance in Our Economy, requires, as a component, guaranteed fair employment for LGBT people, precisely because harassment and discriminatory hiring, firing, promotions, and pay continue to shape the U.S. labor markets in ways that systemically disadvantage people of color and LGBT workers, among others.
The Economic Policy Institute (“EPI”) is a nonprofit organization with over 30 years of experience analyzing the effects of economic policy on the lives of American’s working families. EPI strives to protect and improve the economic conditions of working people. EPI is concerned that all employees enjoy the full protections of labor and employment laws. As part of its work, EPI has participated as amicus curiae in numerous cases involving workers’ rights and economic justice.
The National Association of Social Workers (“NASW”), established in 1955, is the largest association of professional social workers in the United States, with over 120,000 members in 55 chapters. As part of its mission to improve the quality and effectiveness of social work practice, NASW promulgates professional standards through the NASW Code of Ethics, provides continuing education, and develops policy statements on issues of importance to the social work profession. Consistent with those policy statements, NASW supports the adoption of local, state, federal, and international policies and legislation that ban all forms of discrimination based on sexual orientation.
The National Center for Law and Economic Justice has decades of experience litigating in state and federal courts nationwide to protect and promote the economic security of low-income families and individuals, and as part of that advocacy has worked to protect access to the courts for these individuals.
The Poverty & Race Research Action Council (“PRRAC”), a 20-year-old civil rights policy organization based in Washington, D.C., is committed to bringing the insights of social science research to the fields of civil rights and poverty law. PRRAC’s work focuses on the government’s role in creating and remedying patterns of structural racism, in particular the causes and consequences of racial and economic segregation. PRRAC seeks to understand and address the long term consequences of such policies for low-income families of color, especially across generations.
9to5, National Association of Working Women (“9to5”) is a grassroots, member-led organization. With 45 years of experience in the field, 9to5 continues to advocate for equality at the intersections of gender, class, and racial and ethnic justice. 9to5 works on issues that are directly impacted by our membership. 9t5’s members are working women, men and those who identify as gender-nonconforming— across gender, class, racial and ethnic divides. 9to5’s work is to end discrimination in the workplace and beyond, and to win good jobs for the formerly incarcerated, higher wages and equal pay, work/family policies, child care and other work and income supports, and to advance the growing movement toward a more equitable society.
As national organizations with substantial expertise in eradicating discriminatory practices that drive poverty, as well as racial and gender inequality, and who see firsthand the devastating effects that poverty has on families and communities, amici have obtained critical insight into the real-world consequences of the legal issues pending before this Court. This brief shares that expertise and insight with the Court. In particular, this brief focuses on the harmful effects of employment discrimination against LGBT people—especially LGBT women, people of color, and those in small, rural communities—and its impact on those individuals, their families, and the community at large.
Introduction and Summary of Argument
As this Court has explained, discrimination in employment based on sex is an “evil” which Title VII prohibits. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79–80 (1998). That discrimination can take many forms, and is actionable so long as an employee can show that the discrimination was “because of [an individual’s] sex.” Id. at 80. The employees in these cases have explained why LGBT discrimination is a form of discrimination “because of sex.” Id. Amici agree fully. What this brief will explain is how pervasive and far-reaching that “evil” in fact is. LGBT people experience sex-based discrimination in the workplace at alarming rates. This discrimination ranges from being denied a job to enduring daily insults. And the discrimination is particularly pronounced for LGBT women and people of color. Such discrimination is a harm in and of itself. But workplace discrimination against LGBT people leads to a cascade of other harms. Without legal protection from discrimination, an LGBT person could become unemployed, if not entirely unemployable, in many communities and sectors. Such unemployment, in turn, negatively affects access to healthcare and housing, as well as that person’s health. And LGBT people are not the only victims. Joblessness increases the need for government assistance programs and reduces overall economic output. And, perhaps most tragically, unemployment and unstable employment harm children—millions of whom are being raised by LGBT people. These harms are not evenly distributed; LGBT women and people of color are disproportionately harmed.
Discrimination, moreover, takes its toll even when the LGBT person remains employed. Hostile and abusive workplaces are both commonplace and particularly harmful for LGBT people. The fear of having to endure such an environment, paired with the fear of adverse employment actions (that could lead to unemployment), often forces LGBT people to conceal their identities. That, in turn, has a significant impact on their mental health and productivity at work. The decision to conceal one’s identity in order to get or keep a job also forces some LGBT people to face an unconscionable choice: should they forego a family or relationships in order to avoid detection? These harms are particularly acute in smaller communities, where work and community life are not easily segregated. For millions of LGBT people, lack of protection against sex-based discrimination may force them to live in a perpetual state of secrecy.
Discrimination against LGBT people pervades and harms the nation. This Court should reject a “categorical rule” (Oncale, 523 U.S. at 79) denying LGBT people the protections of Title VII.
Download the amicus brief PDF to read the full argument