Employment Law Daily En banc CA-2 says sexual orientation discrimination is ‘because of’ sex under Title VII
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Wednesday, February 28, 2018

En banc CA-2 says sexual orientation discrimination is ‘because of’ sex under Title VII

By Lorene D. Park, J.D.

Sitting en banc, a divided Second Circuit reversed course and held that Title VII prohibits sexual orientation discrimination. It explained that sexual orientation discrimination is a subset of sex discrimination because it is defined by one’s sex in relation to the sex of those to whom one is attracted. The court further concluded that sexual orientation discrimination is based on gender stereotypes, including to whom an employee should be attracted, and constitutes associational discrimination because it is motivated by opposition to association between members of certain sexes. The court therefore vacated summary judgment against a Title VII claim by an employee allegedly fired because he is gay. Judges Jacobs, Sack, Lohier, and Cabranes wrote concurring opinions, while Judges Lynch and Livingston dissented (Zarda v. Altitude Express, Inc. dba Skydive Long Island, February 26, 2018, Katzmann, R.).

Background facts. In the summer of 2010, the employee worked as a sky-diving instructor and regularly participated in tandem skydives, strapped hip-to-hip and shoulder-to-shoulder with clients. Given that close physical proximity was common, his coworkers routinely referenced sexual orientation or made sexual jokes around clients, and the employee sometimes told female clients he was gay to assuage any concern they might have about being strapped to a male instructor. The employee was fired after a customer’s boyfriend complained that he touched her inappropriately and referenced his sexual orientation to excuse it. He filed an EEOC charge claiming that all men at his workplace made light of the intimate nature of being strapped to a member of the opposite sex, but he was fired because he “honestly referred to [his] sexual orientation and did not conform to the straight male macho stereotype.” He subsequently filed this suit.

District court proceedings. The court found he had enough evidence to support his state-law claim for sexual orientation discrimination, but he failed to show he was discriminated against based on his sex for purposes of his Title VII claim, which therefore failed on summary judgment. While his remaining claims were still pending, the EEOC issued a decision holding that “allegations of discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex.” The agency illustrated the “inescapable link” in three ways, including that sexual orientation discrimination “necessarily involves discrimination based on gender stereotypes,” most commonly “heterosexually defined gender norms.”

Based on the EEOC’s analysis, the employee asked the district court to reinstate his Title VII claim. Citing the Second Circuit’s 2000 decision in Simonton v. Runyon, the district court refused. The remaining claims went to trial, and the defendants prevailed. The employee then appealed, arguing that Simonton should be overturned based on the EEOC’s reasoning.

Second Circuit’s question. Affirming, a Second Circuit held that the Title VII discrimination claim was properly before it because the state-law claim was tried under a higher causation standard. However, the panel refused to revisit Second Circuit precedent, which it explained “can only be overturned by the entire Court sitting in banc.” The court subsequently ordered this rehearing en banc, instructing the parties to brief only the following question: “Does Title VII of the Civil Rights Act of 1964 prohibit discrimination on the basis of sexual orientation through its prohibition of discrimination ‘because of… sex’?”

Split among agencies, circuits. In amicus briefs, the EEOC and DOJ took opposing views. The DOJ argued that Title VII does not prohibit sexual orientation discrimination. But the EEOC’s brief, noting that it is the “primary agency” charged with interpreting Title VII, argued that sexual orientation discrimination claims “necessarily involve impermissible consideration of a plaintiff’s sex, gender-based associational discrimination, and sex stereotyping,” so they fall “squarely within Title VII’s prohibition against discrimination on the basis of sex.”

Circuit courts have also come to different conclusions. In a divided April 2017 en banc decision, the Seventh Circuit in Hively v. Ivy Tech Community College of Indiana ruled that discrimination based on sexual orientation actually is a form of sex discrimination under Title VII. The Eleventh Circuit found otherwise in Evans v. Georgia Regional Hospital, and has since declined en banc review. Absent Supreme Court authority (the Court declined to review Evans), the split remains.

Because of sex. Here, the Second Circuit reversed its precedent and held that “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination.” First, the most natural reading of Title VII’s prohibition on discrimination “because of… sex” is that it extends to sexual orientation because sex is necessarily a factor in sexual orientation. For example, amici argued the employee was fired because he is “gay” and not because he is “a man,” but the word choice does not change the fact that a gay employee is a man attracted to men, and the termination was based in part on the employee’s sex. Intent matters, not semantics.

The court’s conclusion was reinforced by the Supreme Court’s “comparative” test for deciding if a trait that is the basis for discrimination is a “function of sex” by asking if the treatment would have been different “but for that person’s sex.” The Supreme Court has held, for example, that Title VII prohibits discrimination based on life expectancy and non-conformity with gender norms, which were a function of sex. In the context of sexual orientation, the appeals court gave an example of a woman subjected to an adverse action because she is attracted to women. She would have been treated differently if she had been a man attracted to women, so her sexual orientation was a function of her sex and was a subset of sex discrimination, the court averred.

Gender stereotyping and associational discrimination. “Viewing the relationship between sexual orientation and sex through the lens of gender stereotyping provides yet another basis for concluding that sexual orientation discrimination is a subset of sex discrimination,” continued the appeals court, because sexual orientation discrimination is almost invariably rooted in stereotypes about men and women. The conclusion also was reinforced by viewing the issue through the lens of associational discrimination and drawing parallels to race discrimination against an employee due to his or her interracial association. From that perspective, sexual orientation is “motivated by an employer’s opposition to romantic association between particular sexes,” so is discrimination based on the employee’s own sex.

Concurring opinions. Judge Jacob concurred on the associational discrimination analysis, finding that the employee’s “same-sex relationship resolves this appeal; good craft counsels that we go no further. Much of the rest of the Court’s opinion amounts to woke dicta.” Judge Cabranes concurred only in the judgment, finding this to be a “straightforward case of statutory construction.” Judge Sack noted that the appeal was decided “in the context of something of a revolution in American law respecting gender and sex,” agreed with associational discrimination analysis, and found it “best to stop there.” Judge Lohier also concurred, concluding that the issue was resolved by statutory text, because there was “no reasonable way to disentangle sex from sexual orientation in interpreting the plain meaning of the words ‘because of… sex.’”

Dissents. Judges Lynch and Judge Livingston dissented based largely on legislative history, which to them indicated the “based on sex” language was meant to secure the rights of women to equal protection, not to prohibit sexual orientation discrimination.

Practitioners react. In a press release, New York Attorney General Eric T. Schneiderman said: “No one should face discrimination because of their sexual orientation – and I am pleased that the Second Circuit has sent a clear statement in support of equal justice today.” He further stated that “No employer should be able to penalize its employees because of who they love,” and that the appeals court had affirmed that “fundamental right.”

Ria Tabacco Mar, staff attorney with the American Civil Liberties Union’s LGBT & HIV Project, also haled today’s victory for the LGBT community, stating: “There have now been two federal appeals courts to recognize what we’ve always known — that discrimination based on sexual orientation is in fact discrimination, and that there is no room for it in the workplace. This decision is also a repudiation of the Trump administration’s Justice Department, which has insisted that LGBT discrimination is acceptable under federal law.”

Seyfarth Shaw partner Sam Schwartz-Fenwick, who leads the firm’s LGBT Affinity Group, provided some advice for employers: “Today, the Second Circuit joins the Seventh Circuit in ruling that Title VII prohibits sexual orientation discrimination. The Eleventh Circuit and the current administration continue to take the opposite view, and other appellate courts have yet to weigh in. In conducting business during this period of legal uncertainty, employers must be aware that gay, lesbian and bisexual individuals may be protected under federal law in addition to relevant state or local laws, and that any allegations concerning sexual orientation discrimination require the same analysis, investigation and response as a traditional sex discrimination complaint.”

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