Shifting Winds on Title VII’s Extension to Sexual Orientation? Zarda v. Altitude Express and the Trump Administration’s Amicus Brief

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The Trump Administration has weighed in as to whether Title VII’s employment discrimination protections extend to sexual orientation claims, with a resounding “No.”  Through its amicus (“friend of the court”) brief in the pending federal appeals case of Zarda v. Altitude Express, the U.S. Department of Justice asserts that employment-related sexual orientation discrimination claims do not fall within Title VII’s purview.  The DOJ’s position is consistent with all federal appellate courts save one, drawing battle lines for the expected U.S. Supreme Court challenge ahead. 

Title VII’s Judicial Clash

Title VII of the federal Civil Rights Act of 1964, as amended, prohibits employment discrimination based on specific classifications, such as sex, race, and national origin.   In ruling on discrimination claims, most federal appellate courts have distinguished between “sex” and “sexual orientation.”  These courts have held that Title VII’s protection for the first term does not include the latter.  In recent years, however, the Equal Employment Opportunity Commission, has taken the position that Title VII also protects sexual orientation claims.

Contrary to these courts’ decisions but in accord with the EEOC, the Seventh Circuit Court of Appeals (covering Illinois, Wisconsin, and Indiana) recently ruled en banc (with full circuit judge participation) that Title VII prohibits discrimination based on sexual orientation, in Hively v. Ivy Tech Community College.  In dismissing other interpretations restricting Title VII’s scope, the court observed that the “goalposts have been moving over the years.” The court reasoned that expanding Title VII to include sexual orientation constitutes an appropriate extension, consistent with Title VII’s extension for sexual harassment and gender-nonconforming claims.  For more background on Hively, including a vigorous three-judge dissent and two additional concurrences, please see our prior blog posts on May 17, 2017 and September 16, 2016.

The case of Zarda v. Altitude Express is now pending before the Second Circuit Court of Appeals (covering New York, Connecticut, and Vermont), likewise with a sexual orientation employment discrimination claim scheduled for an en banc court hearing in September 2017.  In that case, a self-identified gay man brought the case after a customer complained about his sexuality, asserting that he was fired in violation of both New York law and federal Title VII.  In its amicus brief supporting the employer, the U.S. Department of Justice asks that the settled law be followed (including that of the Second Circuit) and that Hively be rejected.  The amicus brief adds additional fuel to the debate over Title VII’s scope, providing a window into the Trump Administration’s legal arguments expected for the eventual U.S. Supreme Court case.  And, of course, the Trump Administration takes quite a different tack than the Obama Administration in addressing this issue.

The DOJ’s Arguments

The DOJ’s brief opens by noting that the judicial question of Title VII’s scope cannot be one of policy – that is, whether employment-related sexual orientation claims should be legally prohibited.  Rather, “[t]he sole question here is whether, as a matter of law, Title VII reaches sexual orientation discrimination.”  In other words, the DOJ recasts the issue as one which separates what the law currently provides (the judicial question) from what the law should be (the legislative policy question).  After framing the issue as such, the DOJ asserts for Title VII purposes that the definitions of both the terms “sex” and “discrimination” are pivotal issues.

The definition of “sex” is important because, as the Hively majority opinion argued, if “sexual orientation” is interpreted to be within the ambit of the definition of “sex,” then it strengthens an actionable claim based on sex discrimination prohibited by Title VII. In other words, if “sexual orientation” is interchangeable with “sex”, then “sex discrimination” is equivalent to, for all practical purposes, “sexual orientation discrimination.”  The historical definition of discrimination—particularly “sex discrimination” as a specific type of impermissible discrimination—is important to demonstrate that, in this context, “sex” does not equate to “sexual orientation.”

The DOJ further asserts that for Title VII purposes, the word “discrimination” requires a showing that an employer has treated “similarly situated employees” of different sexes unequally.  Title VII disparate treatment claims involve the question of whether “the employer has treated some people less favorably than others because of their sex” – i.e., those outside the protected class.  Further, a Title VII sexual harassment claim arises if there is discrimination because of sex, regardless of whether it involves opposite sex or same-sex harassment.  The question in Title VII cases thus becomes whether “members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.  Per the DOJ’s amicus brief, this question applies equally to “sex stereotyping” claims that are actionable under Title VII.  As recognized in the U.S. Supreme Court’s landmark Price Waterhouse v. Hopkins ruling, an employer may not legally require that its employees match their gender stereotype, but the plaintiff/employee must show that the employer actually relied on his or her gender in making its adverse decision. The question, then, is whether it was the plaintiff’s sex (as male or female) which was the determining factor in the employment decision, and that members of different sexes receive disparate treatment as a result of their sex itself rather than what they do as a member of that sex.

1.         Stick to Settled Law

Relying on legislative history and judicial precedent, the DOJ asserts that any change to Title VII should be through Congress, not the courts.  The DOJ recites an extensive list of court cases rejecting judicial extensions of statutes.  It then details at length Congress’ refusal to expressly extend Title VII through its subsequent legislative changes, none of which included the addition of “sexual orientation” terminology or otherwise defined the term “sex” more broadly.  As the DOJ further notes: “every Congress from 1974 to the present has declined to enact proposed legislation that would prohibit discrimination in employment based on sexual orientation.”

In making these arguments, the DOJ recognizes the notable cultural and societal changes involved here but nevertheless urges judicial restraint: “[E]ven unforeseen circumstances do not present courts with a license to ‘rewrite a constitutionally valid statutory text under the banner of speculation about what Congress might have done’ to implement a clear statute’s policy objectives” (citing a U.S. Supreme Court 2017 decision).  In other words, the judiciary should “apply,” not “amend” Title VII. 

2.         “Sexual Orientation” Does Not Equal “Sex,” Despite the EEOC’s Arguments to the Contrary

The DOJ moves on to address the EEOC’s arguments asserted in its own amicus brief, as to why sexual orientation discrimination should be protected under Title VII: (1) it is necessarily sex discrimination, since it would not occur “but for” the sex of the gay employee; (2) it is per se sex-stereotyping; and (3) it is gender-based associational discrimination.

With respect to the EEOC’s first point, the DOJ relies on the Hively dissent and argues that it requires an analysis holding everything else constant.  In other words, “[t]he proper comparison would be to change the employee’s sex (from male to female) but to keep the sexual orientation constant (as gay).”  Under such analysis, no actionable adverse action is involved – as required for Title VII – because the employee is adversely affected regardless of sex (i.e., whether as a man or woman regardless of their sexual practices).  Further, different treatment is often involved, such as differing dress codes for men and women and sex-specific bathroom, without necessarily burdening one sex more than the other.   The “but for” approach thus fails the test for a disparate treatment Title VII claim. 

Second, the DOJ argues that sexual orientation does not necessarily involve sex-stereotyping, by targeting an employee’s failure to conform to the gender norm of opposite-sex attraction.  This is because in sexual orientation discrimination, an employer is not necessarily relying on gender but rather may be treating homosexuality differently for non-gender reasons such as moral beliefs about sexual, marital, and familial relationships.  Further, such claims generally involve comparing qualities between women and men – again, based on sex.  For example, as recognized in Price Waterhouse, a woman could succeed on a sex-stereotyping claim for being “too aggressive,” where an employer objects to such quality in women but not in men.  Thus, the DOJ recognizes that impermissible sex stereotypes may not be applied to homosexual employees, such as if gender-based stereotypes cause them to be treated worse than similarly situated employees of the opposite sex. The DOJ notes, though, that such claims are only actionable because such claims are sex discrimination claims, not sexual orientation claims—they could be brought by the employee independent of their homosexuality and base their claim on their sex alone.

Third and last, the DOJ argues that no impermissible associational discrimination is involved here.  An employer who discriminates against an employee in an interracial relationship is basing such decision on the employee’s race.  In contrast, an employer who discriminates against an employee in a same-sex relationship is making a sex-neutral decision, not treating men worse than women or vice versa but rather treating all homosexuals alike.  Thus, the DOJ recognizes a distinction between sex and sexual practice.

Hits and Misses

The DOJ’s amicus brief accurately reflects the judicial and statutory background here:  lengthy judicial precedent and legislative history militate against extension of Title VII’s protections to sexual orientation discrimination.  But the DOJ misses key points to make its argument more compelling, particularly to deflect judicial activist inclinations to so expand Title VII’s reach.

First, the DOJ seems to stumble over or even ignore essential terminology involved here (unlike the extensive and thoughtful analyses contained in most of the Hively en banc opinions, save Judge Posner’s brief activist approach).  Rather, the DOJ refers only briefly to the dissenting opinion in Hively, reciting that the word “sex” is defined in the dictionary as “biologically male or female.”  The DOJ’s arguments are thus less persuasive in light of the enormous complexity here of thinking through gender-nonconforming behavior, sexuality-related aspects, and gender issues underlying sexual orientation, all within an employment context.  The DOJ could have been much more thorough.

Second, the DOJ did not address the facts of the case itself – at all.  While amicus briefs often focus on a particular legal issue significant to the authoring organization, such oversight on the DOJ’s part seems troubling.  In the case at hand, the plaintiff allegedly disclosed to customers that he was gay within the context of the employer’s skydiving business, and his job responsibilities involved close physical contact with females.  After a customer complained about such disclosures, the employer fired him.  Was it because employee was too effeminate, as could possibly be actionable for a sex-stereotyping case?  Or was it simply because he was gay, thus bringing the “but for” analysis into play?  Additional fact-specific legal evaluation could have been more helpful.

Third, the DOJ seems to almost cavalierly use “sexual orientation discrimination” language.  As courts have recognized within this context, and regardless of a case’s outcome, it may be morally abhorrent to treat a person differently in the workplace because of personal choices or physical conditions – and such behavior is not to be lightly countenanced.  Indeed, such adverse treatment may be economically devastating, such as for a person who loses his or her job, and otherwise tragic, such as for a person who is subjected to seriously insulting or demeaning treatment.  Bad cases may make bad law, but compelling injustices can - and often do - lead to new legal protections.  Returning to the DOJ’s opening point, the question is a legal rather than a moral question—it is a judicial rather than a policy question. A lack of legal claim does not equate to a lack of moral wrong. That does not, however, then mean that the law can be read to say something it does not say.

Taken together, the DOJ’s approach adds up to missed opportunities to thoughtfully and respectfully explain how and why Title VII’s protections should not extend to sexual orientation employment claims.  For example, the DOJ could have focused on how the plaintiff really is relying solely on his self-identification as a practicing gay man in asserting his discrimination claim, rather than that his sexuality otherwise played any part in the employer’s termination decision.  Such explanation could have teased out non-gender related reasons for his employment decision – not sexual orientation discrimination, but rather distinctions based on factors other than his gender.  In other words, it would have aided the DOJ’s position if they had drawn attention to facts which highlighted the plaintiff’s treatment as responsive to his actions rather than his being male. The DOJ also could have emphasized that the plaintiff’s interests may be otherwise protected under state or local laws, many of which contain specific employment protections for sexual orientation.  Finally, the DOJ’s arguments beg the question of what is – or should be – a protected class here, without providing an satisfactory answer. 

If the Trump Administration seeks to prevail ultimately before the U.S. Supreme Court on this issue, it should dig in, do more legal homework, and strive better to present a much more winsome argument.