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., et al., Petitioners,
v.
MELISSA ZARDA, et al., Respondents.
R.G. & G.R. HARRIS FUNERAL HOMES, INC., Petitioner,
v.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, et al.,
Respondents.
On Writs of Certiorari to the United States Courts of
Appeals for the Eleventh, Second, and Sixth Circuits
BRIEF OF 206 BUSINESSES AS AMICI CURIAE
IN SUPPORT OF THE EMPLOYEES
CYNTHIA H. HYNDMAN
ROBINSON CURLEY P.C.
300 South Wacker Drive,
Suite 1700
Chicago, IL 60606
ROBERT S. COHEN
TAYLOR & COHEN LLP
40 Worth Street,
10th Floor
New York, NY 10013

TODD ANTEN
Counsel of Record
KATHLEEN M. SULLIVAN
CORY D. STRUBLE
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
51 Madison Avenue,
22nd Floor
New York, NY 10010
(212) 849-7000
toddanten@
quinnemanuel.com

Counsel for Amici Curiae
(Additional counsel listed on inside cover)

July 3, 2019

 Additional Counsel:
JUSTIN T. REINHEIMER
QUINN EMANUEL URQUHART &
SULLIVAN, LLP
50 California Street
22nd Floor
San Francisco, CA 94111
TICO ALMEIDA
QUINN EMANUEL URQUHART &
SULLIVAN, LLP
1300 I Street NW
Suite 900
Washington, D.C. 20005

 i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES........................................ ii
INTEREST OF AMICI CURIAE ................................ 1
SUMMARY OF ARGUMENT ..................................... 7
ARGUMENT ............................................................... 8
I.

II.

EXCLUDING SEXUAL ORIENTATION
AND GENDER IDENTITY FROM TITLE
VII’S
PROTECTION
AGAINST
SEX
DISCRIMINATION WOULD UNDERMINE
THE NATION’S BUSINESS INTERESTS ........ 8
A.

The U.S. Economy Benefits From A
Diverse Workforce ...................................... 9

B.

Excluding Sexual Orientation And
Gender Identity From Title VII’s
Prohibition On Sex Discrimination
Would Undermine Diverse And
Inclusive Workplaces ............................... 11

UNIFORM FEDERAL PROTECTIONS
AGAINST SEXUAL ORIENTATION AND
GENDER IDENTITY DISCRIMINATION
ARE NECESSARY TO PROVIDE BUSINESSES
AND
EMPLOYEES
WITH
CONSISTENCY AND CERTAINTY ................ 18

CONCLUSION .......................................................... 25
APPENDIX ................................................................ 1a

 ii
TABLE OF AUTHORITIES
Page(s)
Cases
Baldwin v. Foxx,
2015 WL 4397641 (E.E.O.C. July 15, 2015) ........ 19
Bd. of Educ. of the Highland Local Sch. Dist. v.
U.S. Dep’t of Educ.,
208 F. Supp. 3d 850 (S.D. Ohio 2016) .................. 12
Capek v. BNY Mellon, N.A.,
2016 WL 2993211 (S.D.N.Y. May 23, 2016) ........ 20
Macy v. Holder,
2012 WL 1435995 (E.E.O.C Apr. 20, 2012) ......... 19
Perry v. Schwarzenegger,
704 F. Supp. 2d 921 (N.D. Cal. 2010) .................. 16
Roberts v. United Parcel Serv., Inc.,
115 F. Supp. 3d 344 (E.D.N.Y. 2015) ................... 12
SmithKline Beecham Corp. v. Abbott Labs.,
740 F.3d 471 (9th Cir. 2014)................................. 12
Statutes
Cal. Gov’t Code § 12940 ............................................ 19
Colo. Rev. Stat. §§ 2-4-401, 24-34-402 ...................... 19
Conn. Gen. Stat. §§ 46a-60, 46a-81c ......................... 19
D.C. Code § 2-1402.11 ............................................... 19
Del. Code Ann. tit. 19, § 711 ..................................... 19
Haw. Rev. Stat. § 378-2 ............................................. 19
775 Ill. Comp. Stat. Ann. 5/1-103 ............................. 19
Iowa Code § 216.6 ...................................................... 19
Mass. Gen. Laws ch. 151B, § 4 ................................. 19
Md. Code Ann., State Gov’t § 20-606 ........................ 19

 iii
Me. Rev. Stat Ann. tit. 5, §§ 4553, 4571 ................... 19
Minn. Stat. §§ 363A.03, 363A.08 .............................. 19
N.H. Rev. Stat. Ann. § 354-A:7 ................................. 19
N.J. Stat. Ann. §§ 10:5-4, 10:5-12 ............................. 19
N.M. Stat. Ann. § 28-1-7 ........................................... 19
N.Y. Exec. Law § 296 ................................................ 19
Nev. Rev. Stat. § 613.330 .......................................... 19
Or. Rev. Stat. §§ 174.100, 659A.030 ......................... 19
R.I. Gen. Laws § 28-5-7 ............................................. 19
Utah Code Ann. § 34A-5-106 .................................... 19
Vt. Stat. Ann. tit. 21, § 495 ....................................... 19
Wash. Rev. Code §§ 49.60.030, 49.60.040,
49.60.180 ................................................................ 19
Wis. Stat. § 111.36..................................................... 19
Other Authorities
M.V. Lee Badgett, et al., The Business Impact
of LGBT-Supportive Workplace Policies,
THE WILLIAMS INST. (May 2013)............................ 15
Laura G. Barron & Michelle Hebl, The Force
of Law: The Effects of Sexual Orientation
Antidiscrimination Legislation on Interpersonal Discrimination in Employment, 19
PSYCHOL. PUB. POL’Y L. 191 (2013) ................. 21, 24
Luke A. Boso, Acting Gay, Acting Straight:
Sexual Orientation Stereotyping, 83 TENN.
L. REV. 575 (2016) ............................................ 21, 24
Lauren Box, Note, It’s Not Personal, It’s Just
Business: The Economic Impact of LGBT
Legislation, 48 IND. L. REV. 995 (2015) ................. 11

 iv
Crosby Burns, The Costly Business of
Discrimination, CTR. FOR AM. PROGRESS
(2012).......................................................... 10, 15, 18
Niraj Chokshi, Out of the Office: More People
Are Working Remotely, Survey Finds, N.Y.
TIMES (Feb. 15, 2017)............................................. 24
Credit Suisse ESG Research, LGBT: The Value
of Diversity (2016) .................................................. 11
EEOC, COMPLIANCE MANUAL § 15-II (2006) ............. 20
EEOC, Employment Discrimination Based on
Religion, Ethnicity, or Country of Origin .............. 20
Equality at Work: The Employment NonDiscrimination Act: Examining Equality at
Work, Including S. 811, To Prohibit
Employment Discrimination on the Basis of
Sexual Orientation or Gender Identity Before
S. Comm. on Health, Educ., Labor, and
Pensions, 112th Cong., 2d Sess. (2012) ................. 13
Equality Maps: State Non-Discrimination Laws,
MOVEMENT ADVANCEMENT PROJECT (current as
of June 30, 2019) .................................................... 20
Gary J. Gates, Adult LGBT Population in the
United States, THE WILLIAMS INST. (Mar. 2019) .. 12
Gary J. Gates, Marriage and Family: LGBT
Individuals and Same-Sex Couples, 25
FUTURE OF CHILDREN 67 (Fall 2015) ..................... 23
Gary J. Gates & Taylor N. T. Brown, Marriage
and Same-Sex Couples after Obergefell, THE
WILLIAMS INST. (Nov. 2015) ................................... 22
Gary J. Gates & Frank Newport, An Estimated
780,000 Americans in Same-Sex Marriages,
GALLUP (Apr. 24, 2015) .......................................... 22
Shoshana K. Goldberg & Keith J. Conron,
How Many Same-Sex Couples in the U.S.
are Raising Children?, THE WILLIAMS INST.
(July 2018) ............................................................. 23

 v
Mark L. Hatzenbuehler, et al., Stigma as a
Fundamental Cause of Population Health
Inequalities, 103 AM. J. PUB. HEALTH 813
(2013)...................................................................... 17
Sylvia Ann Hewlett, et al., How Diversity Can
Drive Innovation, HARV. BUS. REV. (Dec. 2013) ......9
Sylvia Ann Hewlett, et al., Innovation, Diversity,
and Market Growth, CTR. FOR TALENT
INNOVATION (2013) ................................................. 10
Human Rights Campaign Foundation, A
Workplace Divided: Understanding the
Climate for LGBTQ Workers Nationwide
(June 2018) ................................................ 13, 16, 17
Human Rights Campaign Foundation,
Corporate Equality Index (Mar. 2019) .................. 10
Sandy E. James, et al., The Report of the 2015
U.S. Transgender Survey (2016) ........................... 14
Ian Johnson & Darren Cooper, Out Now Global
LGBT 2020 Study, LGBT Diversity: Show Me
the Business Case (2015) ....................................... 18
Jeffrey M. Jones & Gary J. Gates, Same-Sex
Marriages Up After Supreme Court Ruling,
GALLUP (Nov. 5, 2015) ........................................... 22
Christy Mallory & Brad Sears, Discrimination,
Diversity, and Development: The Legal and
Economic Implications of North Carolina’s
HB2, THE WILLIAMS INST. (May 2016) .................. 18
Vickie M. Mays & Susan D. Cochran, Mental
Health Correlates of Perceived Discrimination
Among Lesbian, Gay, and Bisexual Adults in
the United States, 91 AM. J. PUB. HEALTH
1869 (2001) ............................................................. 17
Ilan H. Meyer, Prejudice, Social Stress, and
Mental Health in Lesbian, Gay, and Bisexual
Populations: Conceptual Issues and Research
Evidence, 129 PSYCHOL. BULL. 674 (2003) ............ 17

 vi
Jon Miller & Lucy Parker, Open For Business:
The Economic and Business Case for Global
LGB&T Inclusion (2015) ......................................... 9
Frank Newport, In U.S., Estimate of LGBT
Population Rises to 4.5%, GALLUP (May 22,
2018) ....................................................................... 12
Alison Kenney Paul, et al., Diversity as an
Engine of Innovation: Retail and Consumer
Goods Companies Find Competitive Advantage
in Diversity, 8 DELOITTE REV. 108 (2011) ............... 9
Pew Research Center, A Survey of LGBT
Americans: Attitudes, Experiences and Values
in Changing Times (June 2013) ............................ 14
Jennifer C. Pizer, et al., Evidence of Persistent
and Pervasive Workplace Discrimination
Against LGBT People: The Need for Federal
Legislation Prohibiting Discrimination and
Providing for Equal Employment Benefits,
45 LOY. L.A. L. REV. 715 (2012) ................. 13, 15, 16
Adam P. Romero, 1.1 Million LGBT Adults Are
Married to Someone of the Same Sex at the
Two-Year Anniversary of Obergefell v. Hodges,
THE WILLIAMS INST. (June 23, 2017) ..................... 22
Brad Sears & Christy Mallory, Documented
Evidence of Employment Discrimination &
Its Effects on LGBT People, THE WILLIAMS
INST. (July 2011) .................................. 13, 14, 16, 22
Brad Sears & Christy Mallory, Economic Motives
for Adopting LGBT-Related Workplace Policies,
THE WILLIAMS INST. (Oct. 2011) ............................ 10
Sandra F. Sperino, The New Calculus of Punitive
Damages for Employment Discrimination
Cases, 62 OKLA. L. REV. 701 (2010) ....................... 20
András Tilcsik, Pride and Prejudice: Employment
Discrimination Against Openly Gay Men in the
United States, 117 AM. J. SOC. 586 (2011) ............ 21

 vii
Daniel Trotta, Some 4.5 percent of U.S.
adults identify as LGBT: study, REUTERS
(Mar. 5, 2019) ......................................................... 12
U.S. Travel Ass’n, U.S. Travel Answer Sheet
(2019)...................................................................... 24
Craig R. Waldo, Working in a Majority Context: A
Structural Model of Heterosexism as Minority
Stress in the Workplace, 46 J. COUNSELING
PSYCHOL. 218 (1999) .............................................. 17
Witeck Communications, America’s LGBT 2015
Buying Power Estimated at $917 Billion (July
20, 2016) ................................................................... 9

 INTEREST OF AMICI CURIAE1
The 206 businesses that join this brief as amici
collectively employ over 7 million employees, and
comprise over $5 trillion in revenue. These businesses—which range across a wide variety of industries
(and some of which are even competitors)—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. These businesses are committed to creating
workplaces that afford lesbian, gay, bisexual and
transgender (“LGBT”) employees the opportunity to
earn a living, excel in their professions, and provide
for their families free from fear of unequal treatment.
Amici support the principle that no one should be
passed over for a job, paid less, fired, or subjected to
harassment or any other form of discrimination
based on their sexual orientation or gender identity.
Amici’s commitment to equality is violated when any
employee is treated unequally because of their sexual
orientation or gender identity. When workplaces are
free from discrimination against LGBT employees,
everyone can do their best work, with substantial
benefits for both employers and employees.
The 206 businesses joining this brief, also listed
in the attached Appendix, are:

Pursuant to Supreme Court Rule 37.6, amici state that no
counsel for a party authored this brief in whole or in part, and
no one other than amici or their counsel made a monetary
contribution intended to fund the preparation or submission of
this brief. All parties have consented in writing to the filing of
this brief.
1

 2
 1010data

 Asana, Inc.

 3 Percent Movement,
Inc.

 ASCAP – American
Society of Composers,
Authors and
Publishers

 98point6 Inc.
 Accenture
 Adobe Inc.

 Ascena Retail Group,
Inc.

 AdRoll Group

 AT&T Services, Inc.

 Advance

 Atlassian

 Advance Local

 AXA Equitable Life
Insurance Company

 Airbnb, Inc.
 Akamai Technologies,
Inc.

 Bank of America

 AllianceBernstein

 Bayer US LLC

 Amalgamated Bank
 Amazon.com, Inc.

 Ben & Jerry’s
Homemade, Inc.

 American Airlines

 Best Buy Co., Inc.

 American City
Business Journals

 Betterment

 American Express

 Bloomberg L.P.

 American
International Group,
Inc.

 BNP Paribas USA, Inc.

 Amyris, Inc.
 ANGI Homeservices
Inc.
 Apple
 Aramark

 BASF Corporation

 BlackRock, Inc.

 BNY Mellon
 Boehringer Ingelheim
USA
 Boston Scientific
Corporation
 Broadcast Music, Inc.

 3
 Brown-Forman
Corporation

 CSAA Insurance
Group

 Brownstein Group

 Cummins Inc.

 Caldwell Partners
Executive Search

 CVS Health

 Caven Enterprises

 Danaher Corporation

 CBS Corporation

 Danone North
America, PBC

 Celo Labs Inc.

 Deloitte

 Chobani Global
Holdings, LLC

 Deutsche Bank

 Chubb

 Diageo North America,
Inc.

 Cigna

 Domino’s

 Cisco Systems, Inc.

 DoorDash, Inc.

 Citigroup Inc.

 Dow, Inc.

 Citrix

 Dropbox, Inc.

 Clockwork

 DTCC

 CNO Financial Group

 Eastern Bank

 The Coca-Cola
Company

 eBay Inc.

 Comcast
NBCUniversal
 Condé Nast
 Corning Incorporated
 COTA, Inc.
 Couchbase, Inc.
 Cox Enterprises, Inc.

 Edelman
 Electric Imp, Inc.
 Ernst & Young LLP
 The Estée Lauder
Companies Inc.
 Etsy, Inc.
 Evolent Health LLC
 Exelon Corporation

 4
 Expedia Group

 ICM Partners

 Facebook, Inc.

 IHS Markit

 Fastly, Inc.

 IKEA North America
Services, LLC

 Genentech, Inc.
 General Assembly
 General Motors
 Gilead Sciences
 Glassdoor, Inc.
 GlaxoSmithKline LLC
 The Goldman Sachs
Group, Inc.
 Google LLC
 Grant Thornton LLP
 Greenhouse Software,
Inc.
 GSBA
 Gucci
 Gusto
 The Hartford
 HERE Technologies

 Indiegogo, Inc.
 Ingersoll Rand
 Ingram Micro Inc.
 Insala, LLC
 International
LGBTQ+ Travel
Association
 Intuit Inc.
 Invesco, Ltd.
 John Hancock
 JPMorgan Chase &
Co.
 Kering Americas, Inc.
 Kickstarter, PBC
 KIND Healthy Snacks
 Levi Strauss & Co.

 Hilton

 Linden Research, Inc.
d/b/a Linden Lab

 HP Inc.

 LinkedIn Corporation

 HSBC Bank USA, N.A.

 Lord Abbett

 IAC/InterActiveCorp

 Lush Fresh
Handmade Cosmetics

 IBM Corporation

 Lyft, Inc.

 5
 Macy’s, Inc.
 Mallinckrodt plc
 Mapbox
 Marriott International,
Inc.
 Marsh & McLennan
Companies, Inc.
 MassMutual
 Mastercard
International
Incorporated
 Match Group, Inc.
 MGM Resorts
International
 Michelin North
America, Inc.
 Microsoft Corporation
 Mitchell Gold + Bob
Williams

 Nuance Communications, Inc.
 Ogilvy
 PayPal, Inc.
 Peloton
 Pfizer Inc.
 Pinterest, Inc.
 Pivotal
 PricewaterhouseCoopers LLP
 Principal
 The Procter & Gamble
Company
 Prudential Financial,
Inc.
 Publicis Groupe
 Pure Storage, Inc.
 Quantcast Corp.

 Moody’s Corporation

 Replacements, Ltd.

 Morgan Stanley

 Rockwell Automation,
Inc.

 Mozilla Corporation
 New York Life
 NIKE, Inc.
 Nokia of America
Corporation
 Northrop Grumman
Corporation

 Rowdies Soccer LLC
d/b/a Tampa Bay
Rowdies
 Royal Bank of Canada
 Runtime Collective
Limited (d/b/a
Brandwatch)

 6
 S&P Global Inc.
 salesforce.com, inc.
 San Francisco Giants
 Southwest Airlines Co.
 Starbucks
Corporation
 State Farm Mutual
Automobile Insurance
Company

 Uber Technologies,
Inc.
 Ultimate Software
 Ultragenyx
Pharmaceutical Inc.
 Under Armour, Inc.
 Univision Communications Inc.
 User Testing, Inc.

 Sun Life U.S.

 Viacom Inc.

 Sunrun Inc.

 ViiV Healthcare
Company

 T-Mobile USA, Inc.
 T. Rowe Price
 Takeda Pharmaceuticals USA, Inc.
 Tampa Bay Rays
 Tapestry, Inc.
 Tech Data Corporation
 Thermo Fisher
Scientific Inc.
 Thumbtack, Inc.
 TNTP, Inc.
 TPG Global
 Trillium Asset
Management LLC
 Turnitin
 Turo Inc.

 Vimeo, Inc.
 The Walt Disney
Company
 WarnerMedia LLC
 Wells Fargo &
Company
 Williams-Sonoma, Inc.
 Workday, Inc.
 Wyndham Hotels &
Resorts, Inc.
 Xerox Corporation
 Xylem Inc.
 YSC Consulting
 Zillow Group, Inc.
 Zume, Inc.

 7
SUMMARY OF ARGUMENT
Interpreting Title VII of the Civil Rights Act of
1964 to exclude sexual orientation or gender identity
from protections against sex discrimination would
have wide-ranging, negative consequences for businesses, their employees and the U.S. economy.
Businesses’ first-hand experiences—supported by
extensive social-science and economic research—
confirm the significant costs for employers and
employees when sexual orientation and gender
identity discrimination are not forbidden by a uniform law, even where other policies exist against
such discrimination. Our nation’s employers and
employees would benefit from this Court’s recognition that members of the nation’s large and productive LGBT workforce are protected from such sexbased discrimination in the workplace.
Laws forbidding sexual orientation or gender
identity discrimination are not unreasonably costly
or burdensome for business. To the contrary, recognizing that Title VII prohibits these forms of sex
discrimination would strengthen and expand
benefits to businesses, such as the ability to recruit
and retain top talent; to generate innovative ideas by
drawing on a greater breadth of perspectives, characteristics, and experiences; to attract and better serve
a diverse customer base; and to increase productivity
among employees who experience their workplace as
a place where they are valued and respected.
Businesses and their employees all benefit from
the consistency and predictability that uniform federal law provides nationwide. Removing sexual
orientation and gender identity discrimination from
Title VII’s scope means that employees and their

 8
families may be unprotected from such discrimination based on nothing more than where they happen
to live, work, or travel to for their jobs. Even where
companies voluntarily implement policies to prohibit
sexual orientation or gender identity discrimination,
such policies are not a substitute for the force of law.
Nor is the patchwork of incomplete state or local
laws sufficient protection—for example, they cannot
account for the cross-state mobility requirements of
the modern workforce. Only a uniform federal rule
can enable businesses to recruit and retain, and
employees to perform, at their highest levels.
Accordingly, the 206 businesses joining this brief
respectfully urge this Court to recognize that Title
VII’s prohibition on discrimination “because of …
sex” includes the prohibition of sexual orientation
and gender identity discrimination.
ARGUMENT
I.

EXCLUDING SEXUAL ORIENTATION
AND GENDER IDENTITY FROM TITLE
VII’S PROTECTION AGAINST SEX DISCRIMINATION WOULD UNDERMINE
THE NATION’S BUSINESS INTERESTS

Amici are businesses in wide-ranging sectors of
the national and local economy and are committed to
building workplaces that value diversity, inclusion,
and equality. The U.S. economy is strengthened
when all employees are protected from discrimination in the workplace based on sexual orientation
or gender identity. The failure to recognize that
Title VII protects LGBT workers would hinder the
ability of businesses to compete in all corners of the
nation, and would harm the U.S. economy as a whole.

 9
A.

The U.S. Economy Benefits From A
Diverse Workforce

Diversity is a key factor in U.S. businesses’ ability
to compete and succeed in the modern global economy. Including diverse viewpoints in the workforce
brings unique backgrounds and experiences to the
table, which fosters creativity and innovation and
makes businesses more competitive in the local,
national and global economy. 2 Diversity has been
found to “unlock[] innovation by creating an environment where ‘outside the box’ ideas are heard.” 3
LGBT individuals come from all backgrounds, offer
insights drawn from every walk of life, and bring
unique and valuable perspectives on these experiences.
A diverse and inclusive workforce likewise furthers businesses’ ability to connect with consumers,
particularly given that the buying power of diverse
groups has increased substantially over the past 30
years.4 In 2015, the buying power of LGBT people in
the United States stood at over $900 billion. 5 In
2
See Jon Miller & Lucy Parker, Open For Business: The
Economic and Business Case for Global LGB&T Inclusion 28
(2015), https://tinyurl.com/y4cq7awe (“Researchers have found
a close correlation between economic development and LGB&T
inclusion.”).

Sylvia Ann Hewlett, et al., How Diversity Can Drive
Innovation, HARV. BUS. REV. 30, 30 (Dec. 2013).
3

Alison Kenney Paul, et al., Diversity as an Engine of
Innovation: Retail and Consumer Goods Companies Find
Competitive Advantage in Diversity, 8 DELOITTE REV. 108, 111
(2011), https://tinyurl.com/ya8nb3rd.
4

See Witeck Communications, America’s LGBT 2015
Buying Power Estimated at $917 Billion (July 20, 2016),
(footnote continued)
5

 10
“matching the market,” businesses succeed by including diverse employees who “are better attuned to
the unmet needs of consumers or clients like themselves,” and “their insight is critical to identifying
and addressing new market opportunities.”6
LGBT-inclusive workplaces result in stronger
work performance by all employees. When LGBT
employees feel safe to be themselves in the workplace, “everybody’s productivity is enhanced, including straight and nontransgender colleagues.” 7 In a
survey of the top 50 companies in the Fortune 500
and the top 50 federal government contractors, for
example, the overwhelming majority of the topperforming, most innovative companies connect policies prohibiting sexual orientation and gender identity discrimination with a better bottom line.8

https://tinyurl.com/y6qy6zfh (“The combined buying power of
the U.S. lesbian, gay, bisexual and transgender (LGBT) adult
population for 2015 is estimated at $917 billion[.]”).
6
Sylvia Ann Hewlett, et al., Innovation, Diversity, and
Market Growth, CTR. FOR TALENT INNOVATION 4 (2013),
https://tinyurl.com/htpyqra.
7
Crosby Burns, The Costly Business of Discrimination,
CTR. FOR AM. PROGRESS 34 (2012), https://tinyurl.com/j2r8wtu.

Brad Sears & Christy Mallory, Economic Motives for
Adopting LGBT-Related Workplace Policies, THE WILLIAMS
INST. 2 (Oct. 2011), https://tinyurl.com/yd5g6sha (surveying top
50 Fortune 500 companies (2010) and top 50 federal
government contractors (2009)). In addition, as of 2019, 85% of
Fortune 500 companies include gender identity in their nondiscrimination policies. Human Rights Campaign Foundation,
Corporate
Equality
Index
2019
5-6
(Mar.
2019),
https://tinyurl.com/y48l45cj.
8

 11
Recent studies confirm that companies with
LGBT-inclusive workplaces also have better financial
outcomes. 9 This superior performance extends beyond the walls of the company itself to the larger
community in which the company operates; as
multiple studies have found, the level of inclusiveness of LGBT employees is strongly correlated with a
jurisdiction’s “wealth, prospects for economic investment, and ability to recruit talent.” 10 Recognizing
that Title VII protects LGBT employees would
benefit individual businesses, and the economy as a
whole, by removing an artificial barrier to the
recruitment, retention and free flow of talent.
B.

Excluding Sexual Orientation And
Gender Identity From Title VII’s
Prohibition On Sex Discrimination
Would Undermine Diverse And Inclusive Workplaces

Employment discrimination based on sexual orientation or gender identity is widespread and has
significant, harmful effects on employers, employees,
and the bottom line. As of 2017, more than 11 million adults in the United States (4.5% of all adults)
9
See, e.g., Credit Suisse ESG Research, LGBT: The Value
of Diversity 1 (2016), https://tinyurl.com/ybwhjqe8 (finding that
270 companies that supported and embraced LGBT employees
outperformed the market by 3% per annum).

Lauren Box, Note, It’s Not Personal, It’s Just Business:
The Economic Impact of LGBT Legislation, 48 IND. L. REV. 995,
995-96 (2015) (citing multiple studies, noting that “[w]hile
LGBT inclusiveness is not the only factor contributing to a
state’s economic vitality, it plays a key role in helping states
progress in the economic development race”).
10

 12
identified as LGBT. 11 By any measure, the LGBT
segment of the U.S. workforce represents a significant number of both public- and private-sector employees. Businesses draw on and benefit from the
contributions of LGBT workers at all levels and
across industries.
Courts have acknowledged the long history of
sexual orientation and gender identity discrimination in the workplace. See, e.g., SmithKline Beecham
Corp. v. Abbott Labs., 740 F.3d 471, 484-85 (9th Cir.
2014) (“for most of the history of this country, being
openly gay resulted in significant discrimination,”
including “in employment”); Bd. of Educ. of the
Highland Local Sch. Dist. v. U.S. Dep’t of Educ., 208
F. Supp. 3d 850, 874 (S.D. Ohio 2016) (“there is not
much doubt that transgender people have historically been subject to discrimination including in …
employment”); Roberts v. United Parcel Serv., Inc.,
115 F. Supp. 3d 344, 361-62 (E.D.N.Y. 2015) (surveying empirical literature on workplace discrimination
against LGBT employees). There is also significant

11 Frank Newport, In U.S., Estimate of LGBT Population
Rises
to
4.5%,
GALLUP
(May
22,
2018),
https://tinyurl.com/y8cp2c3l (noting increase from 4.1% in 2016
and 3.5% in 2012); see also Daniel Trotta, Some 4.5 percent of
U.S. adults identify as LGBT: study, REUTERS (Mar. 5, 2019),
https://tinyurl.com/y42hhmxb (roughly 11.3 million adults
identify as LGBT); Gary J. Gates, Adult LGBT Population in
the United States, THE WILLIAMS INST. (Mar. 2019),
https://tinyurl.com/y5hemhl9 (estimating more than 11.3
million LGBT adults in the U.S., approximately 4.5%, based on
2017 data).

 13
evidence that such discrimination continues. 12 For
example:


Sexual orientation. One analysis estimates
that over 25% of all lesbian, gay and bisexual
respondents had experienced sexual orientation discrimination (such as harassment and
wage discrimination) at the workplace in the
previous five years—a figure that rose to 42%
when expanded to cover their entire working
lives.13 In addition, nearly one in ten out gay,

12 See, e.g., Human Rights Campaign Foundation, A
Workplace Divided: Understanding the Climate for LGBTQ
Workers Nationwide 6 (June 2018), https://tinyurl.com/ycy6coo4
(national survey finding that one in five LGBT respondents had
been told or had coworkers imply they should dress in more
feminine or masculine ways, compared to one in twenty-four
non-LGBT workers); Jennifer C. Pizer, et al., Evidence of
Persistent and Pervasive Workplace Discrimination Against
LGBT People: The Need for Federal Legislation Prohibiting
Discrimination and Providing for Equal Employment Benefits,
45 LOY. L.A. L. REV. 715, 720-22 (2012). Such evidence has also
been offered to Congress in legislative hearings. See Equality
at Work: The Employment Non-Discrimination Act: Examining
Equality at Work, Including S. 811, To Prohibit Employment
Discrimination on the Basis of Sexual Orientation or Gender
Identity Before the S. Comm. on Health, Educ., Labor, and
Pensions, 112th Cong., 2d Sess. 8-10 (2012) (statement of M.V.
Lee Badgett, Research Director, The Williams Institute),
https://tinyurl.com/ycqk6ntb (describing evidence of continuing
discrimination in sources such as: (1) official complaints filed in
states that prohibit such conduct; (2) controlled experiments to
measure the treatment of LGBT job applicants; (3) comparisons
of wages earned by LGBT employees and their heterosexual
peers; and (4) self-reported experiences).

Brad Sears & Christy Mallory, Documented Evidence of
Employment Discrimination & Its Effects on LGBT People, THE
WILLIAMS INST. 4 (July 2011), https://tinyurl.com/ld8w42w; id.
at 1-2 (prior work documenting discrimination against LGBT
(footnote continued)
13

 14
lesbian, or bisexual respondents reported
losing a job due to sexual orientation discrimination in the previous five years.14


Gender identity. As of 2011, 78% of transgender respondents reported experiencing at
least one form of harassment or mistreatment
at work because of their gender identity, and
47% had been discriminated against in hiring,
promotion, or job retention. 15 And a 2015
national study found that: (1) 27% of transgender persons reported not being hired, being
denied a promotion, or being fired in the past
year because of their gender identity or expression; and (2) 15% reported being verbally
harassed, physically attacked, and/or sexually
assaulted at work in the past year because of
their transgender status.16

Rates of discrimination were higher for LGBT persons who did not hide their sexual orientation or
gender identity at work, with harassment being the
most common reported form of discrimination. 17 And

persons has drawn data from “field studies, controlled experiments, academic journals, court cases, state and local administrative complaints, complaints to community-based organizations, and in newspapers, books, and other media”).
14

Sears & Mallory, supra note 13, at 5.

15

Sears & Mallory, supra note 13, at 2.

Sandy E. James, et al., Nat’l Ctr. for Transgender
Equality, The Report of the 2015 U.S. Transgender Survey 151,
153 (Dec. 2016), https://tinyurl.com/yaop2spp.
16

Sears & Mallory, supra note 13, at 4-5; see also Pew
Research Center, A Survey of LGBT Americans: Attitudes,
Experiences and Values in Changing Times 42 (June 2013),
(footnote continued)
17

 15
such discrimination is not hidden—up to 30% of
heterosexual respondents reported having witnessed
anti-gay discrimination at the workplace. 18
Amici recognize that employees are essential to
businesses’ success and are, in many ways, their
most valuable assets. Accordingly, amici are strong
proponents of anti-discrimination laws and policies
for LGBT employees, which are linked to higher
morale and productivity. Sexual orientation and
gender identity discrimination—even the mere risk
of such discrimination—impedes productivity by instilling unnecessary anxiety in employees and creating a culture that suffocates openness. 19 In the absence of full protection from such discrimination,
LGBT employees may seek to protect themselves by
hiding who they are—a practice linked by substantial research to poorer workplace performance and
increased health risks.20
Hiding one’s sexual orientation or gender identity
is an understandable response to the fact that
persons who are out in the workplace are more likely
to experience discrimination than their closeted

https://tinyurl.com/y4s3efds (21% of LGBT persons report
unequal treatment by their employer).
18

Pizer, et al., supra note 12, at 727.

M.V. Lee Badgett, et al., The Business Impact of LGBTSupportive Workplace Policies, THE WILLIAMS INST. 26 (May
2013), https://tinyurl.com/y7mtb6um.
19

See Badgett, supra note 19, at 6, 26; see also Burns, supra
note 7, at 33 (“Gay and transgender employees who are out at
work are 20 to 30% more productive than their closeted
counterparts.”); Pizer, et al., supra note 12, at 735-37.
20

 16
peers. 21 A 2018 survey found that 46% of LGBT
employees reported not being open at work about
their sexual orientation or gender identity. 22 Fear of
discrimination has also been shown to exact a significant toll on employees—manifesting in, among other
things, negative attitudes toward one’s career;
increased stress; difficulty trusting coworkers and
superiors; and experiences of isolation, frustration,
anxiety, depression and low self-esteem.23
LGBT employees cannot perform effectively when
they are subject to the ever-present possibility of
discrimination. Productivity decreases when workplaces are unwelcoming or hostile to LGBT workers—these workers, for example, report spending
time looking for other jobs, feeling exhausted from
expending energy to hide their identities, staying
home from work, and being distracted due to a
negative environment.24
“Laws are perhaps the strongest of social structures that uphold and enforce stigma,”25 and excluding a class of persons from legal protections against
sex discrimination that otherwise protect everyone
21

See Sears & Mallory, supra note 13, at 1.

22

Human Rights Campaign Foundation, supra note 12, at 6.

23

Pizer, et al., supra note 12, at 736-37, 740-41.

See Human Rights Campaign Foundation, supra note 12,
at 7, 15 (significant percentage of LGBT respondents indicated
that working in unwelcoming environments led to distraction at
work, lying about personal lives, exhaustion, avoiding special
work events and specific co-workers, staying home from work,
depression, and searching for a new job).
24

Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 974 (N.D.
Cal. 2010).
25

 17
sends a strong message in the workplace. Excluding
sexual orientation and gender identity from sex
discrimination protections has a stigmatizing effect
on LGBT employees, resulting in negative consequences for employee health and productivity.26 For
example, while 10% of LGBT employees reported
finding a new job to escape a workplace that was not
accepting, 25% of LGBT employees reported staying
in a job specifically because it offered an inclusive,
safe workplace.27
The failure to uniformly recognize discrimination
against LGBT persons as inherently sex-based and
properly covered by Title VII takes a heavy toll on
businesses’ bottom lines and, in the aggregate, hurts
26 See, e.g., Craig R. Waldo, Working in a Majority Context:
A Structural Model of Heterosexism as Minority Stress in the
Workplace, 46 J. COUNSELING PSYCHOL. 218, 229 (1999) (finding
LGB people who experienced sexual orientation discrimination
exhibited higher levels of health-related problems); Mark L.
Hatzenbuehler, et al., Stigma as a Fundamental Cause of
Population Health Inequalities, 103 AM. J. PUB. HEALTH 813,
816 (2013) (noting the corrosive impact of stigma on physical
and mental health, social relationships, and self-esteem); Ilan
H. Meyer, Prejudice, Social Stress, and Mental Health in Lesbian, Gay, and Bisexual Populations: Conceptual Issues and
Research Evidence, 129 PSYCHOL. BULL. 674, 679-85 (2003)
(summarizing empirical evidence of “minority stress” in LGB
populations and health consequences); Vickie M. Mays & Susan
D. Cochran, Mental Health Correlates of Perceived Discrimination Among Lesbian, Gay, and Bisexual Adults in the United
States, 91 AM. J. PUB. HEALTH 1869, 1874 (2001) (finding
“robust association between experiences of discrimination and
indicators of psychiatric morbidity” and noting that “social
factors, such as discrimination against gay individuals, function
as important risk factors for psychiatric morbidity”).
27

Human Rights Campaign Foundation, supra note 12, at 7.

 18
economic growth. The U.S. economy could save as
much as $8.9 billion by protecting and welcoming
LGBT employees in the workplace—more than any
other country.28 One study, for example, concluded
that businesses in one state “risk[ed] losing $8,800
on average for each LGBT employee that leaves the
state or changes jobs because of the negative
environment.” 29 Such costs can be significantly
higher depending on the job.30
II.

UNIFORM FEDERAL PROTECTIONS
AGAINST SEXUAL ORIENTATION AND
GENDER IDENTITY DISCRIMINATION
ARE NECESSARY TO PROVIDE BUSINESSES AND EMPLOYEES WITH CONSISTENCY AND CERTAINTY

Title VII’s nationwide, established sex discrimination prohibition provides uniquely powerful guidance,
certainty and safety to those within its ambit. For
years, many businesses have operated under the
expectation that Title VII prohibits sexual orientation and gender identity discrimination without
incurring oppressive costs or burdens. 31 This Court’s
Ian Johnson & Darren Cooper, Out Now Global LGBT
2020 Study, LGBT Diversity: Show Me the Business Case 5, 47
(Feb. 2, 2015), https://tinyurl.com/yaput4mn.
28

Christy Mallory & Brad Sears, Discrimination, Diversity,
and Development: The Legal and Economic Implications of
North Carolina’s HB2, THE WILLIAMS INST. 2 (May 2016)
(emphasis added), https://tinyurl.com/y6wpzoj3.
29

See Burns, supra note 7, at 10 (assessing replacement
costs as between $75,000 and $211,000 for an executive with
$100,000 salary).
30

The Equal Employment Opportunity Commission, for
example, has enforced Title VII as prohibiting sexual orienta(footnote continued)
31

 19
confirmation that Title VII prohibits sexual orientation and gender identity discrimination would
benefit businesses and their employees across the
nation, above and beyond any local, state or private
efforts.
Businesses and their employees benefit from the
clarity, predictability, reliability and efficiency that
comes from the uniform application of federal law.
Without Title VII’s guarantees, however, employees
may receive little or no protection from sexual orientation or gender identity discrimination, based entirely upon the city and state where they happen to
live, fostering uncertainty and inconsistency for
employers and employees alike.
For example, while 22 states and the District of
Columbia have enacted provisions prohibiting sexual
orientation and/or gender identity discrimination in
private employment,32 28 states offer neither; thus, it
is estimated that 44% of the nation’s LGBT poption and gender identity discrimination. See Baldwin v. Foxx,
2015 WL 4397641 at *5 (E.E.O.C. July 15, 2015) (sexual
orientation); Macy v. Holder, 2012 WL 1435995, at *1 (E.E.O.C
Apr. 20, 2012) (gender identity).
Cal. Gov’t Code § 12940; Colo. Rev. Stat. §§ 2-4-401, 2434-402; Conn. Gen. Stat. §§ 46a-60, 46a-81c; Del. Code Ann. tit.
19, § 711; Haw. Rev. Stat. § 378-2; 775 Ill. Comp. Stat. Ann.
5/1-103; Iowa Code § 216.6; Me. Rev. Stat Ann. tit. 5, §§ 4553,
4571; Md. Code Ann., State Gov’t § 20-606; Mass. Gen. Laws ch.
151B, § 4; Minn. Stat. §§ 363A.03, 363A.08; Nev. Rev. Stat.
§ 613.330; N.H. Rev. Stat. Ann. § 354-A:7; N.J. Stat. Ann.
§§ 10:5-4, 10:5-12; N.M. Stat. Ann. § 28-1-7; N.Y. Exec. Law
§ 296; Or. Rev. Stat. §§ 174.100, 659A.030; R.I. Gen. Laws § 285-7; Utah Code Ann. § 34A-5-106; Vt. Stat. Ann. tit. 21, § 495;
Wash. Rev. Code §§ 49.60.030, 49.60.040, 49.60.180; Wis. Stat.
§ 111.36 (sexual orientation only); D.C. Code § 2-1402.11.
32

 20
ulation lives in states that do not prohibit sexual
orientation or gender identity discrimination in the
workplace.33 Moreover, state and local laws can differ in important ways from the established protections under Title VII.34 Although legal protections
against sexual orientation and gender identity discrimination continue to evolve, they often remain
under-inclusive or nonexistent at state and local
levels.35

33 See Equality Maps: State Non-Discrimination Laws,
MOVEMENT ADVANCEMENT PROJECT (current as of June 30,
2019), https://tinyurl.com/ph36ql7.
34 “For example, some state laws do not allow for recovery of
punitive damages at all, or they impose caps that are lower
than those under Title VII.” Sandra F. Sperino, The New
Calculus of Punitive Damages for Employment Discrimination
Cases, 62 OKLA. L. REV. 701, 716 & n.96 (2010) (collecting
examples of states with more restrictive punitive damages
provisions).
35 Even where state or local laws exist against sexual
orientation or gender identity discrimination, they do not
always provide the same level of protection as Title VII. For
example, unlike Title VII, the state anti-discrimination statutes
of Delaware, Vermont, and Washington do not prohibit discrimination based on perceived sexual orientation. See, e.g.,
Capek v. BNY Mellon, N.A., 2016 WL 2993211, at *3 (S.D.N.Y.
May 23, 2016) (recognizing and agreeing with “the weight of
authority in other circuit and district courts, which hold that
claims of discrimination based on a mistaken ‘perception’ are
cognizable” under Title VII and collecting authority, including
2006 EEOC Compliance Manual); EEOC, COMPLIANCE MANUAL
§ 15-II (2006) (“Discrimination against an individual based on a
perception of his or her race violates Title VII even if that
perception is wrong.”); EEOC, Employment Discrimination
Based on Religion, Ethnicity, or Country of Origin,
https://tinyurl.com/y7fwz8sj (noting that Title VII prohibits
(footnote continued)

 21
To be sure, many companies have voluntarily implemented their own policies to prohibit discrimination based on sexual orientation or gender identity.
While amici laud those efforts, voluntary company
initiatives are not a substitute for the force of law.
Employees who are protected under a company’s policy, but unprotected by federal law, are left without
full legal recourse or the same assurances that their
colleagues protected by Title VII enjoy.
This uncertainty and vulnerability subjects LGBT
employees to unnecessary anxiety and impedes
productivity, harming workers and businesses. Empirical research confirms that anti-discrimination
laws make a difference: Sexual orientation discrimination tends to be higher in jurisdictions without
non-discrimination laws. 36 In addition, workplace
discrimination tends to decrease in response to legal
rules against it.37

“discriminating because of the perception or belief that a person
is a member of a particular” group).
36 See András Tilcsik, Pride and Prejudice: Employment
Discrimination Against Openly Gay Men in the United States,
117 AM. J. SOC. 586, 614-15 (2011).

See Laura G. Barron & Michelle Hebl, The Force of Law:
The Effects of Sexual Orientation Antidiscrimination
Legislation on Interpersonal Discrimination in Employment, 19
PSYCHOL. PUB. POL’Y L. 191, 198, 200-02 (2013) (summarizing
studies finding that antidiscrimination laws reduce discrimination against LGBT individuals by employers, “even after
controlling for those community variables shown to affect both
the adoption of antidiscrimination laws and prejudice in the
absence of legislation”); Luke A. Boso, Acting Gay, Acting
Straight: Sexual Orientation Stereotyping, 83 TENN. L. REV.
575, 603 (2016) (“[S]tudies have shown that sexual orientation
(footnote continued)
37

 22
As a practical matter, excluding sexual orientation and gender identity from Title VII’s scope would
leave LGBT employees and their families vulnerable
to employment discrimination and economic disruption because such employees are guaranteed legal
protection only by (at best) a patchwork of inconsistent, under-inclusive or nonexistent state and
local laws. The uncertainty and vulnerability LGBT
workers face results in diminished employee health,
productivity, job engagement and satisfaction. 38
LGBT employees risk losing the right to be free from
discrimination merely because they transfer from
one jurisdiction to another.
Even where a business voluntarily implements its
own anti-discrimination policies based on sexual
orientation and gender identity, those policies do not
guarantee the same protections to employees’ family
members who may work for businesses that do not
offer such protections. 39 Thus, family members of
inclusive anti-discrimination laws and policies significantly
decrease reports of discrimination in the workplace.”).
38

See Sears & Mallory, supra note 13, at 15-16.

39 As of June 2017, there were nearly 1.1 million people in a
same-sex marriage in the United States, and an estimated 1
million cohabiting same-sex couples. Adam P. Romero, 1.1
Million LGBT Adults Are Married to Someone of the Same Sex
at the Two-Year Anniversary of Obergefell v. Hodges, THE
WILLIAMS INST. 1 (June 23, 2017), https://tinyurl.com/y5y6f97u;
Jeffrey M. Jones & Gary J. Gates, Same-Sex Marriages Up
After Supreme Court Ruling, GALLUP (Nov. 5, 2015),
https://tinyurl.com/ydgazdcd; Gary J. Gates & Frank Newport,
An Estimated 780,000 Americans in Same-Sex Marriages,
GALLUP (Apr. 24, 2015), https://tinyurl.com/y9pryqbs. More
than 1 in 4 married same-sex couples are raising children.
Gary J. Gates & Taylor N. T. Brown, Marriage and Same-Sex
(footnote continued)

 23
LGBT employees could face discrimination by taking
a job in or transferring to a state or city without
adequate nondiscrimination laws.
As a result, companies conducting business in
places that offer lesser or no protections for sexual
orientation or gender identity discrimination are at a
disadvantage in recruiting from the most diverse
pool of employees for operations in those jurisdictions,
harming their ability to perform and compete.
Amici’s LGBT employees (and employees who prefer
to work in a community that does not tolerate discrimination) are less willing to move to or work in
locations where such discrimination is permitted,
undermining businesses’ ability to organize a workforce without regard for such arbitrary legal barriers.
In this way, excluding sexual orientation and gender
identity from Title VII’s sex discrimination protections undermines businesses’ efforts to recruit,
organize and retain talent.
Even when an employee accepts a job in a state
that has enacted some form of protection, uncerCouples after Obergefell, THE WILLIAMS INST. 4 (Nov. 2015),
https://tinyurl.com/y6ut343k. In addition, estimates based on
aggregated data from 2014 to 2016 indicate that 16.2% of all
same-sex couples are raising children, with higher rates of
childrearing among same-sex married couples. Shoshana K.
Goldberg & Keith J. Conron, How Many Same-Sex Couples in
the U.S. are Raising Children?, THE WILLIAMS INST. 1 (July
2018), https://tinyurl.com/y3z9dhnm; see also Gary J. Gates,
Marriage and Family: LGBT Individuals and Same-Sex
Couples, 25 FUTURE OF CHILDREN 67, 67 (Fall 2015),
https://tinyurl.com/y5at5zeo (“Though estimates vary, as many
as 2 million to 3.7 million U.S. children under age 18 may have
a lesbian, gay, bisexual, or transgender parent, and about
200,000 are being raised by same-sex couples.”).

 24
tainty may still persist. For example, in amici’s
experience, it is increasingly common for employees
to work across state borders. One source reports
that U.S. workers took over 460 million business
trips in 2018.40 Employees may travel to other states
to meet with clients or to work with colleagues in
other locations. Employees also often live in one
state, but work in another.41 Ensuring that uniform
nondiscrimination protections travel with employees
who cross state lines for work is essential to allowing
businesses to recruit and retain employees.
Amici are committed to equal treatment and
equal opportunity of employees regardless of sexual
orientation and gender identity. But amici cannot
create equality in the workplace by themselves; Title
VII plays a crucial role in cultivating workplaces that
uniformly and predictably embody equality. 42 By
confirming that sexual orientation and gender identity discrimination are prohibited under Title VII,
this Court would remove an artificial barrier that
restricts the free flow of resources, ideas and capital.
Because businesses benefit from clear, administrable
rules and a diverse workforce free from discrimination, this Court should hold that Title VII’s ban on
employment discrimination “because of … sex” pro-

U.S. Travel Ass’n, U.S. Travel Answer Sheet (2019),
https://tinyurl.com/y68brrxq.
40

For example, in 2016, 43% of U.S. workers reported
spending at least some time working remotely. Niraj Chokshi,
Out of the Office: More People Are Working Remotely, Survey
Finds, N.Y. TIMES (Feb. 15, 2017).
41

See Barron & Hebl, supra note 37, at 192-202; Boso,
supra note 37, at 603.
42

 25
hibits discrimination on the basis of sexual orientation and gender identity.
CONCLUSION
Amici respectfully urge this Court to rule in favor
of the employees by affirming the judgments in Nos.
17-1623 and 18-107, and reversing the judgment in
No. 17-1618.
Respectfully submitted,
CYNTHIA H. HYNDMAN
ROBINSON CURLEY P.C.
300 South Wacker Drive,
Suite 1700
Chicago, IL 60606
ROBERT S. COHEN
TAYLOR & COHEN LLP
40 Worth Street,
10th Floor
New York, NY 10013

TODD ANTEN
Counsel of Record
KATHLEEN M. SULLIVAN
CORY D. STRUBLE
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
51 Madison Ave., 22nd Floor
New York, NY 10010
(212) 849-7000
toddanten@
quinnemanuel.com

TICO ALMEIDA
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
1300 I Street NW, Ste. 900
Washington, D.C. 20005

JUSTIN T. REINHEIMER
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
50 California St., 22nd Floor
San Francisco, CA 94111

Counsel for Amici Curiae
July 3, 2019

 APPENDIX

1a
APPENDIX
The businesses* that join this brief are:
1.

1010data

2.

3 Percent Movement, Inc.

3.

98point6 Inc.

4.

Accenture

5.

Adobe Inc.*

6.

AdRoll Group

7.

Advance

8.

Advance Local

9.

Airbnb, Inc.

10.

Akamai Technologies, Inc.

11.

AllianceBernstein

12.

Amalgamated Bank*

13.

Amazon.com, Inc.*

14.

American Airlines

15.

American City Business Journals

16.

American Express

17.

American International Group, Inc.

18.

Amyris, Inc.

19.

ANGI Homeservices Inc.

20.

Apple*

Denotes amici curiae represented by Robinson Curley P.C.
Denotes amici curiae represented by Taylor & Cohen LLP. All
other amici curiae are represented by Quinn Emanuel
Urquhart & Sullivan, LLP.
*

†

 2a
21.

Aramark

22.

Asana, Inc.

23.

ASCAP – American Society of Composers,
Authors and Publishers

24.

Ascena Retail Group, Inc.

25.

AT&T Services, Inc.†

26.

Atlassian

27.

AXA Equitable Life Insurance Company

28.

Bank of America*

29.

BASF Corporation

30.

Bayer US LLC*

31.

Ben & Jerry’s Homemade, Inc.*

32.

Best Buy Co., Inc.*

33.

Betterment

34.

BlackRock, Inc.

35.

Bloomberg L.P.†

36.

BNP Paribas USA, Inc.*

37.

BNY Mellon*

38.

Boehringer Ingelheim USA†

39.

Boston Scientific Corporation

40.

Broadcast Music, Inc.

41.

Brown-Forman Corporation

42.

Brownstein Group†

43.

Caldwell Partners Executive Search

44.

Caven Enterprises

45.

CBS Corporation*

46.

Celo Labs Inc.

 3a
47.

Chobani Global Holdings, LLC

48.

Chubb*

49.

Cigna*

50.

Cisco Systems, Inc.

51.

Citigroup Inc.*

52.

Citrix

53.

Clockwork

54.

CNO Financial Group

55.

The Coca-Cola Company

56.

Comcast NBCUniversal

57.

Condé Nast

58.

Corning Incorporated*

59.

COTA, Inc.

60.

Couchbase, Inc.

61.

Cox Enterprises, Inc.

62.

CSAA Insurance Group

63.

Cummins Inc.*

64.

CVS Health*

65.

Danaher Corporation*

66.

Danone North America, PBC†

67.

Deloitte†

68.

Deutsche Bank*

69.

Diageo North America, Inc.

70.

Domino’s

71.

DoorDash, Inc.

72.

Dow, Inc.*

73.

Dropbox, Inc.

 4a
74.

DTCC

75.

Eastern Bank

76.

eBay Inc.

77.

Edelman

78.

Electric Imp, Inc.

79.

Ernst & Young LLP*

80.

The Estée Lauder Companies Inc.

81.

Etsy, Inc.†

82.

Evolent Health LLC

83.

Exelon Corporation

84.

Expedia Group

85.

Facebook, Inc.*

86.

Fastly, Inc.

87.

Genentech, Inc.*

88.

General Assembly

89.

General Motors†

90.

Gilead Sciences

91.

Glassdoor, Inc.

92.

GlaxoSmithKline LLC

93.

The Goldman Sachs Group, Inc.*

94.

Google LLC

95.

Grant Thornton LLP*

96.

Greenhouse Software, Inc.

97.

GSBA

98.

Gucci

99.

Gusto

100. The Hartford*

 5a
101. HERE Technologies
102. Hilton*
103. HP Inc.*
104. HSBC Bank USA, N.A.*
105. IAC/InterActiveCorp
106. IBM Corporation
107. ICM Partners
108. IHS Markit
109. IKEA North America Services, LLC*
110. Indiegogo, Inc.
111. Ingersoll Rand†
112. Ingram Micro Inc.
113. Insala, LLC
114. International LGBTQ+ Travel Association
115. Intuit Inc.
116. Invesco, Ltd.*
117. John Hancock
118. JPMorgan Chase & Co.†
119. Kering Americas, Inc.†
120. Kickstarter, PBC
121. KIND Healthy Snacks†
122. Levi Strauss & Co.
123. Linden Research, Inc. d/b/a Linden Lab
124. LinkedIn Corporation*
125. Lord Abbett
126. Lush Fresh Handmade Cosmetics
127. Lyft, Inc.

 6a
128. Macy’s, Inc.
129. Mallinckrodt plc
130. Mapbox
131. Marriott International, Inc.
132. Marsh & McLennan Companies, Inc.†
133. MassMutual
134. Mastercard International Incorporated†
135. Match Group, Inc.
136. MGM Resorts International*
137. Michelin North America, Inc.*
138. Microsoft Corporation*
139. Mitchell Gold + Bob Williams
140. Moody’s Corporation
141. Morgan Stanley
142. Mozilla Corporation
143. New York Life
144. NIKE, Inc.
145. Nokia of America Corporation*
146. Northrop Grumman Corporation
147. Nuance Communications, Inc.*
148. Ogilvy
149. PayPal, Inc.
150. Peloton
151. Pfizer Inc.
152. Pinterest, Inc.
153. Pivotal
154. PricewaterhouseCoopers LLP*

 7a
155. Principal
156. The Procter & Gamble Company*
157. Prudential Financial, Inc.*
158. Publicis Groupe†
159. Pure Storage, Inc.
160. Quantcast Corp.
161. Replacements, Ltd.
162. Rockwell Automation, Inc.†
163. Rowdies Soccer LLC d/b/a Tampa Bay Rowdies†
164. Royal Bank of Canada*
165. Runtime Collective Limited (d/b/a Brandwatch)
166. S&P Global Inc.*
167. salesforce.com, inc.
168. San Francisco Giants*
169. Southwest Airlines Co.†
170. Starbucks Corporation
171. State Farm Mutual Automobile Insurance
Company
172. Sun Life U.S.*
173. Sunrun Inc.
174. T-Mobile USA, Inc.†
175. T. Rowe Price†
176. Takeda Pharmaceuticals USA, Inc.*
177. Tampa Bay Rays*
178. Tapestry, Inc.
179. Tech Data Corporation*
180. Thermo Fisher Scientific Inc.

 8a
181. Thumbtack, Inc.
182. TNTP, Inc.
183. TPG Global
184. Trillium Asset Management LLC
185. Turnitin
186. Turo Inc.
187. Uber Technologies, Inc.*
188. Ultimate Software
189. Ultragenyx Pharmaceutical Inc.
190. Under Armour, Inc.*
191. Univision Communications Inc.†
192. User Testing, Inc.
193. Viacom Inc.
194. ViiV Healthcare Company
195. Vimeo, Inc.
196. The Walt Disney Company*
197. WarnerMedia LLC†
198. Wells Fargo & Company*
199. Williams-Sonoma, Inc.†
200. Workday, Inc.
201. Wyndham Hotels & Resorts, Inc.†
202. Xerox Corporation
203. Xylem Inc.
204. YSC Consulting
205. Zillow Group, Inc.
206. Zume, Inc.