Amicus Curiae Brief — R.G. & G.R. Harris Funeral Homes, Inc., Petitioner v. Equal Employment Opportunity Commission, et al.

Nos. 17-1618, 17-1623, 18-107

In The

Supreme Court of the United States

Gerald Lynn Bostock, Petitioner,

v.

Clayton County, Georgia, Respondent.

Altitude Express, Inc., and Ray Maynard, Petitioners,

v.

Melissa Zarda and William Moore, Jr., as

Co-Independent Executors of the

Estate of Donald Zarda, Respondents.

R.G. & G.R. Harris Funeral Homes, Inc., Petitioner,

v.

Equal Employment Opportunity Commission and

Aimee Stephens, Respondents.

On Writs of Certiorari to the

United States Courts of Appeals

for the Eleventh, Second, and Sixth Circuits

BRIEF OF THE AMERICAN FEDERATION OF

LABOR AND CONGRESS OF INDUSTRIAL

ORGANIZATIONS AS AMICUS CURIAE

IN SUPPORT OF THE EMPLOYEES

Harold C. Becker

M atthew J. Ginsburg

(Counsel of Record)

815 Sixteenth Street, NW

Washington, DC 20006

(202) 637-5397

mginsburg@aflcio.org

Mosaic - (301) 927-3800 - Cheverly, MD

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES...................................

iii

INTEREST OF AMICUS CURIAE........................

1

SUMMARY OF ARGUMENT................................

2

ARGUMENT...........................................................

4

CONCLUSION........................................................

17

ii

iii

TABLE OF AUTHORITIES

Page

Cases:

14 Penn Plaza LLC v. Pyett,

556 U.S. 247 (2009)............................................

Bowers v. Hardwick,

478 U.S. 186 (1986).......................................

2

10, 12

Deffenbaugh-Williams v. Wal-Mart Stores,

156 F.3d 581 (5th Cir. 1998)...............................

13

Franchina v. City of Providence,

881 F.3d 32 (1st Cir. 2018).................................

9

Hively v. Ivy Tech Community College of Indiana,

853 F.3d 339 (7th Cir. 2017)...............................

10

Lawrence v. Texas,

539 U.S. 558 (2003).............................................

12

Los Angeles Dep’t of Water & Power v. Manhart,

435 U.S. 702 (1978)............................. 2, 6, 7, 8, 12

Loving v. Virginia,

388 U.S. 1 (1967)...........................................

12, 13

Norton v. Macy,

417 F.2d 1161 (D.C. Cir. 1969)...........................

11

Oncale v. Sundowner Offshore Services, Inc.,

523 U.S. 75 (1998)...............................................

10

Padula v. Webster,

822 F.2d 97 (D.C. Cir. 1987).........................

12, 13

Parr v. Woodmen of the World Life Ins. Co.,

791 F.2d 888 (11th Cir. 1986).............................

13

Phillips v. Martin Marietta Corp.,

400 U.S. 542 (1971).............................................

6

iv

TABLE OF AUTHORITIES—Continued



Price Waterhouse v. Hopkins,

490 U.S. 228 (1989)............................

Page

2, 3, 7, 8, 9

Prowel v. Wise Business Forms, Inc.,

579 F.3d 285 (3d Cir. 2009)................................

9

Sprogis v. United Air Lines, Inc.,

444 F.2d 1194 (7th Cir. 1971).............................

6

Zarda v. Altitude Express, Inc.,

883 F.3d 100 (2d Cir. 2018)..........................

10, 11

StatUtes:

42 U.S.C. § 2000e-2.................................................

1

42 U.S.C. § 2000e-2(a)..................................

2, 3, 13

42 U.S.C. § 2000e-2(a)(1)................................

1, 4, 8

42 U.S.C. § 2000e-2(c).............................................

2

42 U.S.C. § 2000e-2(e).............................................

4

42 U.S.C. § 2000e-2(m)...........................................

4

MiscellaneOUs:

Antonin Scalia & Bryan A. Garner,

A Note on the Use of Dictionaries,

16 Green Bag 2d 419 (2013)...............................

5

Arizona Portland Cement Co. v. United Cement,

Lime & Gypsum Workers’ International Union,

Local 296,

79 Lab. Arb. (BNA) 128 (1982)...........................

14

AT&T Mobility v. Communications Workers of

America, District 3,

129 Lab. Arb. (BNA) 1284 (2011).......................

16

v

TABLE OF AUTHORITIES—Continued



Page

Black’s Law Dictionary (4th ed. 1951)...................

5

Black’s Law Dictionary (rev. 4th ed. 1968).

5, 6, 8, 9

Coca-Cola Bottling Co. of Northern Ohio v.

International Brotherhood of

Teamsters, Local 20,

106 Lab. Arb. (BNA) 776 (1996)...................

14, 15

Elkouri & Elkouri, How Arbitration Works

(Kenneth May ed., 8th ed. 2016)........................

14

Louisiana Pacific Graphics v. Graphics

Communications, Local 747,

88 Lab. Arb. (BNA) 597 (1986)...........................

15

Philip Morris, USA v. International Association

of Machinists & Aerospace

Workers Lodge No. 10,

94 Lab. Arb. (BNA) 826 (1990)..................... 15, 16

The American Heritage Dictionary of the

English Language (1969)....................................

5

U.S. Customs Service v. National Treasury

Employees Union, Chapter 142,

77 Lab. Arb. (BNA) 1113 (1981).........................

11

U.S. Steel Corp. v. United Steelworkers,

Local 1014,

127 Lab. Arb. (BNA) 1127 (2010).................

16, 17

Webster’s II New College Dictionary (2001). 5, 6, 8, 9

Webster’s New World Dictionary of the

American Language (college ed. 1964)..............

5

1

BRIEF OF THE AMERICAN FEDERATION OF

LABOR AND CONGRESS OF INDUSTRIAL

ORGANIZATIONS AS AMICUS CURIAE IN

SUPPORT OF THE EMPLOYEES

INTEREST OF AMICUS CURIAE

The American Federation of Labor and Congress of

Industrial Organizations (AFL-CIO) is a federation of

55 national and international labor organizations

with a total membership of over 12 million working

men and women.1 The AFL-CIO and its affiliate

unions have a long history of advocating on behalf of

employees who face discrimination in the workplace

on the basis of their sexual orientation or transgender

status. For a quarter of a century, Pride at Work has

served as the AFL-CIO’s constituency group representing lesbian, gay, bisexual, and transgender union

members and their allies nationally and in local chapters across the country.

The questions presented in these cases are: “Whether the prohibition in Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e-2(a)(1), against employment

discrimination ‘because of . . . sex’ encompasses discrimination based on an individual’s sexual orientation,” 2 in Nos. 17-1618 and 17-1623; and “Whether

Counsel for the parties in each of the three cases have consented to the filing of this amicus brief. No counsel for a party

authored this brief in whole or in part, and no person or entity,

other than the amicus curiae, made a monetary contribution to

the preparation or submission of this brief.

1

The question in No. 17-1618 is phrased as “[w]hether discrimination against an employee because of sexual orientation

constitutes prohibited employment discrimination ‘because of . . .

sex’ within the meaning of Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e-2.”

2

2

Title VII prohibits discrimination against transgender people based on (1) their status as transgender or

(2) sex stereotyping under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989),” in No. 18-107.

The AFL-CIO has a strong interest in the proper

resolution of these questions because members of

AFL-CIO-affiliated unions, including many lesbian,

gay, bisexual, and transgender employees, are entitled to Title VII’s protections, either directly or via a

collective bargaining agreement that “expressly covers . . . statutory . . . discrimination claims” under Title VII. 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 264

(2009). In addition, the AFL-CIO and its affiliated

unions are subject to Title VII’s requirements, either

as employers under 42 U.S.C. § 2000e-2(a), labor organizations under 42 U.S.C. § 2000e-2(c), or both.

SUMMARY OF ARGUMENT

The established definition of Title VII’s statutory

term “sex” reaches beyond biological differences between men and women to encompass the character of

being male or female generally. The character of being male or female, in turn, involves a combination of

social and emotional traits associated with being a

man or a woman in our society.

The Court has long interpreted Title VII’s prohibition on sex discrimination in this manner, making clear

that the law forbids “[p]ractices that classify employees

in terms of . . . sex” based on “traditional assumptions

about groups,” i.e., “sex stereotypes.” Los Angeles Dep’t

of Water & Power v. Manhart, 435 U.S. 702, 707 n.13,

709 (1978). Importantly, the Court has held that this

prohibition applies both to employer policies “assuming

. . . that [employees] match[] the stereotype associated

with their group” and to policies “insisting” that em-

3

ployees do so by punishing nonconformance with sexbased stereotypes. Price Waterhouse v. Hopkins, 490

U.S. 228, 251 (1989) (plurality opinion).

The belief that an individual should only choose a

partner of a different sex, and the belief that an individual’s outward presentation of their sex should correspond with their sex assigned at birth, are examples

of traditional assumptions about the character of being male or female. A lesbian woman does not conform with the traditional sex-based assumption that a

woman should only form intimate relationships with

men. A transgender man does not conform with the

traditional sex-based assumption that a person who is

assigned the female sex at birth should remain a female and present as a woman in terms of name, appearance, and mannerisms. When an employer makes

an employment decision based on an employee’s nonconformance with one of these sex-based characteristics—e.g., because an employee is gay or because of an

employee’s transgender or transitioning status—the

employer acts “because of such individual’s . . . sex.”

42 U.S.C. § 2000e-2(a).

To be sure, it is likely that Congress, in enacting

Title VII, would not have anticipated that the law’s

prohibition on sex discrimination encompassed discrimination based on sexual orientation or transgender status. But that was a result of the criminalization and stigmatization of homosexuality that reigned

in our society at the time, not the meaning of the statutory term Congress chose to use. It is understandable as a historical matter that, as long as same-sex

intimacy remained a criminal offense under state law,

lower courts did not interpret Title VII’s prohibition

on sex discrimination as reaching discrimination

based on sexual orientation. But now that those laws

4

are no more and social views have changed, there is no

longer any barrier to giving the statutory term “sex”

its common meaning.

The AFL-CIO has seen a similar change with regard to the manner in which labor arbitrators treat

discrimination based on sexual orientation under “just

cause” discharge and discipline provisions in collective bargaining agreements. Arbitrators who previously treated discrimination and harassment based

on sexual orientation as permissible “shop talk” or

“sexual horseplay” now treat such conduct much more

seriously—often as a basis for discipline or discharge.

Although these “just cause” contractual provisions

have remained consistent over time, the outcome of

decisions relating to discrimination based on sexual

orientation have shifted significantly in response to

the change in background law and social assumptions,

similar to how lower courts have begun to interpret

Title VII’s prohibition on sex discrimination.

ARGUMENT

1. Title VII makes it unlawful for an employer “to

fail or refuse to hire or to discharge any individual, or

otherwise to discriminate against any individual with

respect to his compensation, terms, conditions, or

privileges of employment, because of such individual’s

. . . sex.” 42 U.S.C. § 2000e-2(a)(1). “[A]n unlawful

employment practice is established when the complaining party demonstrates that . . . sex . . . was a motivating factor for any employment practice, even

though other factors also motivated the practice.” 42

U.S.C. § 2000e-2(m). An exception is provided “in

those certain instances where . . . sex . . . is a bona fide

occupational qualification reasonably necessary to the

normal operation of th[e] particular business or enterprise.” 42 U.S.C. § 2000e-2(e).

5

In the era of Title VII’s enactment, Black’s Law Dictionary defined “sex” to mean “[t]he sum of the peculiarities of structure and function that distinguish a

male from a female organism; the character of being

male or female.” Black’s Law Dictionary 1541 (rev.

4th ed. 1968) (citing Webster, Dict.).3 Indeed, as suggested by Black’s citation to Webster’s, the term was—

and still is—widely defined to refer to “all of the things

which distinguish a male from a female.” Webster’s

New World Dictionary of the American Language 1335

(college ed. 1964).4 See also The American Heritage

Dictionary of the English Language 1187 (1969) (“The

condition or character of being male or female; the

physiological, functional, and psychological differences

that distinguish the male and the female.”); Webster’s

II New College Dictionary 1012 (2001) (same).

“[T]he character of being male or female,” Black’s

Law Dictionary 1541 (emphasis added), consists of

“[t]he combination of emotional, intellectual, and moral qualities distinguishing one person or group from

Because “[d]ictionaries tend to lag behind linguistic realities, . . . [i]f you are seeking to ascertain the meaning of a term in

an 1819 statute, it is generally quite permissible to consult an

1828 dictionary.” Antonin Scalia & Bryan A. Garner, A Note on

the Use of Dictionaries, 16 Green Bag 2d 419, 423 (2013). In any

case, the previous version of Black’s, the version in print when

Congress enacted Title VII, defined “sex” identically to the 1968

revised fourth edition. See Black’s Law Dictionary 1541 (4th ed.

1951).

3

The full definition is as follows:

“1. either of the two divisions of organisms distinguished as

male or female; males or females (especially men or women)

collectively. 2. the character of being male or female; all of the

things which distinguish a male from a female. 3. anything

connected with sexual gratification or reproduction or the urge

for these, especially the attraction of individuals of one sex for

those of the other.” Webster’s New World Dictionary 1335.

4

6

another,” Webster’s II New College Dictionary 187

(defining “character”),5 that are associated with being

a man or woman. “Sex,” in other words, means more

than the mere biological distinction between male and

female organisms. Rather, the term encompasses the

wide range of social differences that are attributed to

men and women by society.

In full accord with this definition, this Court has

never interpreted Title VII’s reference to “sex” as limited to physical biology. To the contrary, this Court

long ago made clear that “ ‘[i]n forbidding employers to

discriminate against individuals because of their sex,

Congress intended to strike at the entire spectrum of

disparate treatment of men and women resulting from

sex stereotypes,’ ” so that “employment decisions cannot be predicated on mere ‘stereotyped’ impressions

about the characteristics of males or females.” Los

Angeles Dep’t of Water & Power v. Manhart, 435 U.S.

702, 707 & n.13 (1978) (quoting Sprogis v. United Air

Lines, Inc., 444 F.2d 1194, 1198 (7th Cir. 1971)). See,

e.g., Phillips v. Martin Marietta Corp., 400 U.S. 542,

543-44 (1971) (per curiam) (holding policy of refusing

job applications from women, but not men, with preschool-age children unlawful). Title VII’s coverage,

therefore, clearly includes the latter half of Black’s

definition of “sex”—employment decisions based on

“[t]he character of being male or female.” Black’s Law

Dictionary 1541 (emphasis added).

In “strik[ing] at . . . disparate treatment . . . resulting from sex stereotypes,” Manhart, 435 U.S. at 707

n.13 (citation omitted), Title VII not only forbids disBlack’s defined “character” similarly as “[t]he aggregate of

the moral qualities which belong to and distinguish an individual person; the general result of the one’s distinguishing attributes.” Black’s Law Dictionary 294 (rev. 4th ed. 1968).

5

7

crimination predicated on “[m]yths and purely habitual assumptions about a [man’s or a] woman’s inability to perform certain kinds of work,” id. at 707, but

also discrimination based on an individual’s nonconformance with characteristics stereotypically associated with being male or female. Indeed, it was nonconformity with sex stereotypes that underlay the

“intolerable and impermissible catch 22” described in

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)—

that female employees are “out of a job if they behave

aggressively and out of a job if they do not.” Id. at 251

(plurality opinion).6 “Title VII lifts [employees] out of

this bind,” ibid., by making clear that both modes of

sex stereotyping are unlawful—evaluating individuals based on generalized assumptions about how

members of their sex behave as well as punishing individuals when they fail to conform to these sex-based

stereotypes. See ibid. (“[W]e are beyond the day when

an employer could evaluate employees by assuming or

insisting that they matched the stereotype associated

with their group . . . .” (emphasis added)).

This definition of “sex” not only squares with the

common understanding of what the term meant in

The two concurring Justices agreed with the plurality that

the plaintiff had proven by evidence of sex stereotyping that

“gender played a motivating part in [the] employment decision.”

Price Waterhouse, 490 U.S. at 250 (plurality opinion). See id. at

259 (White, J., concurring in judgment) (agreeing that “finding”

that plaintiff had shown that an “unlawful motive was a substantial factor in the adverse employment action” was “supported by the record” (emphasis omitted)); id. at 272-73 (O’Connor,

J., concurring in judgment) (quoting with approval court of appeals’ conclusion that “Ann Hopkins proved that Price Waterhouse ‘permitt[ed] stereotypical attitudes towards women to play

a significant, though unquantifiable, role in its decision not to

invite her to become a partner’ ” (alteration in original)).

6

8

1964, it also accords with this Court’s interpretive approach to Title VII more generally. Most discriminatory practices do not turn on differences actually

linked to protected characteristics—e.g., the comparative ability of black and white people, or of Christians

and Muslims, to complete a job task based on their

skin color or religious beliefs. Rather, “[p]ractices that

classify employees in terms of religion, race, or sex

tend to preserve traditional assumptions about groups

rather than thoughtful scrutiny of individuals.” Manhart, 435 U.S. at 709. For example, “an employer who

acts on the basis of a belief that a woman cannot be

aggressive, or that she must not be, has acted on the

basis of gender.” Price Waterhouse, 490 U.S. at 250

(plurality opinion).

The same analysis applies when an employer acts

on the basis of a belief that a person should only be

attracted to, and form intimate relationships with,

persons of a different sex, or that a person’s identity

and physical appearance should correspond with their

sex assigned at birth. In each case, the employer bases its actions on traditional assumptions concerning

the proper “character of being male or female.” Black’s

Law Dictionary 1541. It need hardly be stated that

both the choice of one’s partner and the outward presentation of one’s gender are important components of

“[t]he combination of emotional, intellectual, and moral qualities,” Webster’s II New College Dictionary 187,

associated with being male or female. Thus, when an

employer makes an employment decision based on

such a characteristic, the decision is made “because of

such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1).

Ann Hopkins, the plaintiff in Price Waterhouse, was

denied a promotion to partnership at her accounting

firm based on comments from existing partners

9

“describ[ing] her as ‘macho,’ ” “criticiz[ing] her use of

profanity,” and, in “the coup de grace,” advising that,

“in order to improve her chances for partnership, . . .

Hopkins should ‘walk more femininely, talk more femininely, dress more femininely, wear make-up, have her

hair styled, and wear jewelry.’ ” 490 U.S. at 235 (plurality opinion). It cannot be that Hopkins would not have

had an actionable Title VII claim if she were called

“butch” instead of “macho,” or advised to talk more

about dating men rather than to “dress more femininely” and “wear make-up.” Cf. Franchina v. City of Providence, 881 F.3d 32, 37 (1st Cir. 2018) (lesbian female

firefighter called “[c]unt,” “bitch,” and “lesbo” by harassers); Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285,

287 (3d Cir. 2009) (male factory worker harassed for

his effeminate mannerisms and style of dress and, after being publicly outed by his harassers, also targeted

for his sexual orientation). The point is that the “employer [has] evaluate[d] employees by . . . insisting that

they match[] the stereotype associated with their

group,” Price Waterhouse, 490 U.S. at 251 (plurality

opinion), not that the employee has failed to conform to

any particular sex-based stereotype.

Who one dates or marries, as much as how one

walks, talks, or dresses, is an important component of

“[t]he combination of . . . qualities,” Webster’s II New

College Dictionary 187, that together comprise being

male or female. Nothing in the statutory term “sex”

provides a basis to attribute meaning to some such aspects of “[t]he character of being male or female,” Black’s

Law Dictionary 1541, while disregarding the relevance

of others on the sole basis that they are also associated

with sexual orientation or transgender status.

2. None of which is to deny that “no one in the 1964

Congress that adopted Title VII intended or anticipat-

10

ed its application to sexual-orientation discrimination.” Hively v. Ivy Tech Cmty. College of Ind., 853

F.3d 339, 361 (7th Cir. 2017) (en banc) (Sykes, J., dissenting). Members of Congress simply could not imagine that the law would someday be so applied because

of the criminalization and stigmatization of homosexuality that reigned at the time. But that lack of legislative foresight tells us nothing about the meaning of

the statutory term “sex.” It goes without saying that

“it is ultimately the provisions of our laws rather than

the principal concerns of our legislators by which we

are governed.” Oncale v. Sundowner Offshore Servs.,

Inc., 523 U.S. 75, 79 (1998).

It is notable, in this regard, that in 1964, most forms

of same-sex intimacy were still criminalized in almost

every state. See Bowers v. Hardwick, 478 U.S. 186,

193-94 (1986) (“[U]ntil 1961, all 50 States outlawed

sodomy, and today, 24 States and the District of Columbia continue to provide criminal penalties for sodomy performed in private and between consenting

adults.”(footnote omitted)). See also Zarda v. Altitude

Express, Inc., 883 F.3d 100, 140 (2d Cir. 2018) (en

banc) (Lynch, J., dissenting) (noting that “[o]nly three

years before the passage of Title VII, Illinois . . . had

become the first state to repeal laws prohibiting private consensual adult relations between members of

the same sex”). And, “[w]hen the American Psychiatric Association published the first Diagnostic and Statistical Manual of Mental Disorders in 1952, homosexuality was classified as a mental disorder, a position

adhered to until 1973.” Zarda, 883 F.3d at 140 (Lynch,

J., dissenting) (citation and quotation mark omitted).

Needless to say, the treatment of homosexuality as a

crime and mental illness served to significantly stigmatize lesbian, gay, and bisexual people in the workplace, as in most other social settings.

11

In the civil service, for example, a gay employee

was subject to discharge “for ‘immoral conduct’ and

for possessing personality traits which render him

‘unsuitable for further Government employment.’ ”

Norton v. Macy, 417 F.2d 1161, 1162 (D.C. Cir. 1969).

Even sympathetic tribunals assumed that an employee’s sexual orientation, if not necessarily disqualifying for employment, was something to be kept

hidden. For example, in reversing the discharge of a

NASA employee for off-duty “homosexual conduct”

pursuant to these civil service rules, the D.C. Circuit

made clear that “we do not hold that homosexual

conduct may never be cause for dismissal of a protected federal employee,” while noting approvingly

that the employee at issue “neither openly flaunts

nor carelessly displays his unorthodox sexual conduct in public.” Id. at 1167-68. Similarly, in an early

labor arbitration decision on the topic, the arbitrator

reinstated a gay public employee, considering highly

relevant that the grievant was “a discreet ‘closet homosexual’ ” who “had drawn a hard line between his

activities as a Customs Inspector and his behavior as

a practicing homosexual,” rather than an individual

who “was clearly effeminate and obvious about his

homosexuality.” U.S. Customs Service v. Nat’l Treasury Emps. Union, Chapter 142, 77 Lab. Arb. (BNA)

1113, 1113-14, 1116-18 (1981).

Given prevailing social views and the background

law that existed at the time, it is no surprise that, until social assumptions and laws began to shift—e.g.,

“in 1975, . . . the American Psychological Association

. . . urg[ed] all mental health professionals to work to

dispel the stigma of mental illness long associated

with homosexual orientation,” Zarda, 883 F.3d at 140

(Lynch, J., dissenting) (citation and quotation mark

omitted), and state laws criminalizing same-sex inti-

12

macy were finally held unconstitutional in Lawrence

v. Texas, 539 U.S. 558 (2003)—the courts of appeals

unanimously understood that Title VII’s prohibition

on sex discrimination did not encompass discrimination based on sexual orientation. As the D.C. Circuit

explained, in a broadly-analogous constitutional case

challenging the FBI’s policy against the hiring of gays

and lesbians issued during the interregnum between

Bowers and Lawrence, “the court’s reasoning in [Bowers] . . . forecloses appellant’s efforts to gain suspect

class status for practicing homosexuals,” since “[i]t

would be quite anomalous, on its face, to declare status defined by conduct that states may constitutionally criminalize as deserving of strict scrutiny under

the equal protection clause.” Padula v. Webster, 822

F.2d 97, 103 (D.C. Cir. 1987). See also ibid. (“If the

Court was unwilling to object to state laws that criminalize the behavior that defines the class, it is hardly

open to a lower court to conclude that state sponsored

discrimination against the class is invidious. After

all, there can hardly be more palpable discrimination

against a class than making the conduct that defines

the class criminal.”)

The fact that changing “assumptions about groups,”

Manhart, 435 U.S. at 709, have now led courts to take

a fresh look at their interpretation of Title VII’s prohibition on sex discrimination is neither unusual nor

problematical. There is no indication, for example,

that individual members of Congress, in enacting Title VII’s prohibition on race discrimination, intended

to prevent employers from refusing to hire white employees who were married to, or otherwise associated

with, African-Americans in one of the many states

where interracial marriage still constituted a crime in

1964. See generally Loving v. Virginia, 388 U.S. 1, 6

& n.5 (1967) (explaining that at least 16 states

13

“prohibit[ed] and punish[ed] marriages on the basis of

racial classifications” and an additional 14 states had

recently enforced similar laws). Yet, after Loving held

such laws unconstitutional, the courts of appeals concluded that “[w]here a plaintiff claims discrimination

based upon an interracial marriage or association, he

alleges, by definition, that he has been discriminated

against because of his race.” Parr v. Woodmen of the

World Life Ins. Co., 791 F.2d 888, 892 (11th Cir. 1986)

(emphasis in original). See also Deffenbaugh-Williams v. Wal-Mart Stores, 156 F.3d 581, 588-89 (5th

Cir. 1998) (collecting cases). Nothing in Loving

changed the meaning of the statutory term “race” in

Title VII. Rather, once this Court concluded that

“state sponsored discrimination against” interracial

marriage “[wa]s invidious,” Padula, 822 F.2d at 103,

there was no longer any bar to giving the statutory

term its full meaning.

To reiterate, neither recent judicial opinions concerning the constitutional rights of lesbian, gay, and

bisexual people nor changing social assumptions affect

the meaning of the statutory term “sex,” as that term

encompassed discrimination based on sexual orientation and transgender status on the day Title VII was

enacted. The transformed legal and social context in

which the present cases arise serves only to explain

why courts that once turned away claims of discrimination based on sexual orientation and transgender

status because of the criminalization and stigmatization of homosexuality now give effect to what was always true as a statutory matter—that such claims fall

squarely within Title VII’s prohibition of discrimination “because of . . . sex,” 42 U.S.C. § 2000e-2(a).

3. As collective bargaining representatives in workplaces in every region and industry in our nation, the

14

AFL-CIO’s affiliate unions have seen firsthand the degree to which views about discrimination based on

sexual orientation have changed in recent years.

While the cases described below were mostly decided

pursuant to general “just cause” provisions in collective bargaining agreements rather than under specific

contractual prohibitions on sex discrimination,7 they

nevertheless provide useful insight into how changing

social norms permit decision-makers to construe a legal term in accordance with its natural meaning.

Earlier arbitration decisions reflect the broader societal trend of treating harassment on the basis of sexual orientation less than seriously. In Arizona Portland

Cement Co. v. United Cement, Lime & Gypsum Workers’ International Union, Local 296, 79 Lab. Arb. (BNA)

128 (1982), for example, the arbitrator upheld the discharge of an openly gay grievant despite evidence of

harassment based on sexual orientation, including

that the grievant was hit by a co-worker, “result[ing]

in . . . a black eye.” Id. at 131-32. In Coca-Cola Bottling Co. of Northern Ohio v. International Brotherhood of Teamsters, Local 20, 106 Lab. Arb. (BNA) 776

(1996), the arbitrator reduced a discharge penalty to a

suspension in a case where two grievants lured a young

male employee into a darkened office, called him a

“faggot,” attempted to pull down his pants, and threatened him with sexual assault. Id. at 777, 783-84. The

arbitrator reasoned that the lesser penalty was warAs the leading treatise on labor arbitration explains, “[m]ost

collective bargaining agreements . . . require cause or just cause

for discharge or discipline.” Elkouri & Elkouri, How Arbitration

Works 15-4 (Kenneth May ed., 8th ed. 2016). Such provisions

“exclude discharge for mere whim or caprice,” and are instead

“intended to include those things for which employees have traditionally been fired,” including “the traditional causes of discharge

in the particular trade or industry.” Ibid. (citation omitted).

7

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ranted because it was shown that the employer had

previously tolerated “sexual horseplay” in the workplace and the “sexually threatening situation . . . was

not actually consummated as such.” Id. at 783.

Starting in the late 1980s and early 1990s, labor arbitrators interpreting collective bargaining agreements began—haltingly at times—to find slurs and

harassment based on real or perceived sexual orientation to constitute objectionable discrimination, rather

than the mere “shop talk” or “sexual horseplay” that

was previously often tolerated in the workplace.

Illustrative of these changing views is Louisiana

Pacific Graphics v. Graphics Communications, Local

747, 88 Lab. Arb. (BNA) 597 (1986), which involved an

employee who was discharged for allegedly walking

off the job, but who contended that he was actually

fired because his manager perceived him to be gay.

Id. at 597-99. The arbitrator found that the manager

“called the Grievant a ‘queer,’ a ‘faggot,’ [and] a ‘gay

caballero’ ” among “ ‘other sexually offensive names.’ ”

Id. at 599. Explaining that “[t]he Employer cannot

excuse, much less defend, [the manager]’s use of profane and foul language aimed at the Grievant as ‘normal shop talk,’ ” the arbitrator found that these slurs

instead demonstrated the manager’s “animus against

the Grievant,” thus undermining the employer’s

claimed reason for discharging the employee. Ibid.

A similar analysis informed the arbitrator’s decision in Philip Morris, USA v. International Association of Machinists & Aerospace Workers Lodge No. 10,

94 Lab. Arb. (BNA) 826 (1990), which involved the

discipline of two male pipefitting employees accused

of harassing a male coworker as well as the coworker’s

wife, who also worked at the plant. Id. at 828. The

harassers “referred to [the victim] as a ‘faggot,’ ” “his

16

mannerisms [were] mocked,” and “his small pick-up

truck was referred to as a ‘fag’ or a ‘faggot’ truck.”

Ibid. In addition, the employees directed “ ‘cat calls’

and ‘animal sounds,’ ” as well as more “faggot” references, towards the victim’s wife. Ibid. In upholding

the discipline of the grievants, the arbitrator explained

that the “banter becomes more than ‘playful shop talk’

when viewed in light of the surrounding circumstances of this case.” Id. at 829. Focusing on the harassment’s impact on the victim’s wife, the arbitrator concluded that “the sexual reference was . . . clear.” Ibid.

While the “[g]rievants’ statements could be viewed as

non-abusive, per se, . . . . such remarks, when made to

the same employee over a period of more than a year,

concerning the sexual preferences of her spouse, do

take on a clear ‘sexual connotation.’ ” Ibid.

In more recent years, reflecting quickly-changing

social views, arbitrators have been much more direct

in finding that similar discriminatory conduct constitutes unacceptable workplace behavior. For example,

an arbitrator required little discussion to uphold the

discharge of an employee for calling his manager and

assistant manager “fucking fags” on the basis that it

constituted “willful gross misconduct.” AT&T Mobility v. Communications Workers of America, District 3,

129 Lab. Arb. (BNA) 1284, 1284-85 (2011). And, in a

similar recent case, an arbitrator upheld the discharge

of an employee who “ask[ed] [the victim] why [he] was

acting as a little ‘puto’ (this word in Spanish means

‘homosexual man whore’) and that [he] needed to be

corrected by the ‘puño’ (Spanish word for fist).” U.S.

Steel Corp. v. United Steelworkers, Local 1014, 127

Lab. Arb. (BNA) 1127, 1129 (2010). Rejecting the

claim that the language constituted “so-called mill

talk,” id. at 1131, the arbitrator explained, “[i]t cannot

reasonably be disputed that an employee who directs

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references in the plant to another employee using sexual language, for the purpose of demeaning and harassing the other employee, engages in serious misconduct and may properly be held accountable for

creating an intimidating, hostile, or offensive working

environment,” id. at 1132.

In sum, as these cases illustrate, “sexually offensive

names,” “sexual language,” and other forms of discrimination and harassment based on sexual orientation that was once considered socially acceptable “shop

talk” or “sexual horseplay” is now understood in workplaces across the nation for what it is—unacceptable

discrimination based on sex. Just as arbitrators construing the same contractual term, “just cause,”

changed their view of whether such conduct constituted cause for discipline or discharge, so too have the

courts of appeals properly begun to change their view

of whether such conduct constitutes discrimination

“because of . . . sex” for purposes of Title VII.

CONCLUSION

The Court should reverse the court of appeals in No.

17-1618, and affirm in Nos. 17-1623 and 18-107.

Respectfully submitted,

harold c. Becker

M aTTheW J. GInsburg

(Counsel of Record)

815 Sixteenth Street, NW

Washington, DC 20006

(202) 637-5397

mginsburg@aflcio.org