Lieff Cabraser Authors Amicus Brief to Help Eliminate LGBT Discrimination in the Workplace

A coalition of six organizations filed an amicus brief in support of the respondents in the case of Janus v. AFSCME Council 31 to work to help eliminate discrimination against LGBT individuals in the workplace. This brief marks the first time that LGBT rights groups have joined together in a non-marriage case at the Supreme Court as amici curiae.

Over time, numerous cases have made their way through the U.S. courts attacking the rights of public-sector union members. The most recent under review by the Supreme Court is Janus v. AFSCME Council 31, which involves public sector unions’ ability to collect “fair share” (or agency) fees. Janus centers on the question of whether such fair share fees can be collected by unions from non-union workers.

Anti-labor interests argue that the imposition and collection of such fees from non-union member workers violates those workers’ First Amendment rights. Labor proponents conversely posit that such fees support unions’ collective bargaining work on behalf of employees they are legally required to represent but who are not union members. The new brief focuses not on the underlying law itself, but on the impact of these fees and the “important role that secure, fee-supported unions have played in securing equal treatment for LGBT workers” with an eye toward educating the Court on “the full scope of what is at stake in the case.”

Janus’ attack on union fees is being financed by a small group of foundations with ties to powerful corporate lobbies. This policy agenda is widely viewed as an attempt to undermine worker bargaining power. According to the Economy Policy Institute, “if the court rules for Janus, it will likely have the most significant impact on workers’ freedom to organize and bargain collectively in 70 years.”

“AFSCME must be defended from the point of view of LGBT individuals because AFSCME and unions in the U.S. have been defending gay rights in the workplace since the 1970s,” stated Miriam Frank, teacher, feminist and author of Out In the Union: A Labor History of Queer America. “Unions have given our community dignity and a way to make a living. We want to show how that has been part of the labor unions that Mr. Janus is trying to destroy.”

The amicus brief recognizes and establishes that LGBT workers routinely suffer from sexual orientation-based or gender identity-based discrimination in the work environment. Individuals frequently experience verbal harassment and physical violence, which negatively affects their mental and physical health as well as their productivity. The brief highlights how unions prevent and remedy discrimination against LGBT workers through collective bargaining, resulting in contractual protections.

“Research suggests that LGBT employees experience less discrimination when their employer has a nondiscrimination policy that includes sexual orientation and gender identity,” notes the brief. As a result of having such employment policies, workers can invoke union grievance procedures to address and resolve violations.

Lieff Cabraser submitted the amicus brief on behalf of Human Rights Campaign, Lambda Legal Defense and Education Fund, the National Center for Lesbian Rights, the National LGBTQ Task Force, and PFLAG National, and can be found here.