TABLE OF CONTENTS

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

STATEMENT OF INTEREST................................................................................ 1

STATEMENT OF THE ISSUE............................................................................... 2

STATEMENT OF THE CASE................................................................................ 2

1. Nature of the Case and Course of Proceedings......................................... 2

2. Statement of Facts............................................................................................. 2

3. District Court Decision..................................................................................... 3

ARGUMENT................................................................................................................. 4

This Court should correct its precedent to hold that sexual orientation

discrimination constitutes sex discrimination under Title VII...................... 4

A. Sexual orientation discrimination necessarily involves sex

stereotyping, which Title VII prohibits. ................................................. 5

B. By its definition, sexual orientation is discrimination “because

of . . . sex” and therefore violates Title VII......................................... 10

C. Sexual orientation discrimination constitutes associational

discrimination, which violates Title VII. .............................................. 12

D. This Court should reconsider Simonton and Dawson........................... 15

1. The legal landscape has shifted..................................................... 16

2. Congressional inaction does not provide support.................... 17

3. Simonton’s reliance on circuit precedent was misplaced............ 20

4. Simonton has proven unworkable and leads to absurd results. 21

TABLE OF CONTENTS (cont’d)

CONCLUSION........................................................................................................... 22

STATEMENT OF RELATED CASE............................................................... C-1

CERTIFICATE OF COMPLIANCE................................................................. C-2

CERTIFICATE OF SERVICE............................................................................ C-3

TABLE OF AUTHORITIES

CASES Page(s)

Back v. Hastings on Hudson Union Free School District,

365 F.3d 107 (2d Cir. 2004)...................................................................................... 5,6,12

Baldwin v. Foxx,

Appeal No.0120133080, 2015 WL 4397641 (EEOC July 15, 2015)......... 11,13,16

Boutillier v. Hartford Pub. Schs., __ F. Supp. 3d __, 2016 WL 6818348

(D. Conn. Nov. 21, 2016)....................................................................................... 9,14,17

Bowers v. Hardwick,

478 U.S. 186 (1986)....................................................................................................... 16

City of Los Angeles, Department of Water & Power v. Manhart,

435 U.S. 702 (1978) .................................................................................................... 6,11

Dawson v. Bumble & Bumble,

398 F.3d 211 (2d Cir. 2005).................................................................................. passim

DeCintio v. Westchester County Medical Center,

807 F.2d 304 (2d Cir. 1986)...................................................................................... 20,21

Doe v. City of Belleville, 119 F.3d 563 (7th Cir. 1997),

vacated and remanded on other grounds, 523 U.S. 1001 (1998)......................................... 7

EEOC v. Boh Brothers Construction Co.,

731 F.3d 444 (5th Cir. 2013) (en banc).......................................................................... 7

EEOC v. Scott Medical Health Center, No. 16-225,

2016 WL 6569233 (W.D. Pa. Nov. 4, 2016)...................................................... 8,14,21

Hall v. BNSF Railway Co.,

2014 WL 4719007 (W.D. Wash. Sept. 22, 2014)....................................................... 11

Heller v. Columbia Edgewater Country Club,

195 F. Supp. 2d 1212 (D. Or. 2002) ............................................................................ 9

TABLE OF AUTHORITIES (cont’d)

Hively v. Ivy Tech. Community College., 830 F.3d 698 (7th Cir. 2016),

petition for rehearing en banc granted, No. 15-1720 (Aug. 25, 2016) .............. 8,13,16

Holcomb v. Iona College,

521 F.3d 130 (2d Cir. 2008).......................................................................... 13,14,15,17

Isaacs v. Felder Services,

2015 WL 6560655 (M.D. Ala. Oct. 29, 2015).......................................................... 15

Lawrence v. Texas,

539 U.S. 558 (2003)......................................................................................................... 16

McGinest v. GTE Serv. Corp., 360 F.3d 1103 (9th Cir. 2004).......................................... 13

Nichols v. Azteca Restaurant Enterprises,

256 F.3d 864 (9th Cir. 2001)............................................................................................ 7

Obergefell v. Hodges,

135 S. Ct. 2584 (2015)................................................................................................. 16,22

Oncale v. Sundowner Offshore Services,

523 U.S. 75 (1998)............................................................................................................. 18

Pension Benefit Guarantee Corp. v. LTV Corp., 496 U.S. 633 (1990)................................ 18

Price Waterhouse v. Hopkins,

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

Prowel v. Wise Business Forms,

579 F.3d 285 (3d Cir. 2009)............................................................................................. 21

Simonton v. Runyon,

232 F.3d 33 (2d Cir. 2000).................................................................................... passim

Smith v. City of Salem,

378 F.3d 566 (6th Cir. 2004)............................................................................................ 7

TABLE OF AUTHORITIES (cont’d)

Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick & GMC Trucks,

173 F.3d 988 (6th Cir. 1999)......................................................................................... 13

United States v. Windsor,

133 S. Ct. 2675 (2013)..................................................................................................... 16

Videckis v. Pepperdine University,

150 F. Supp. 3d 1151 (C.D. Cal. 2015) ............................................................... 9,12,21

Whidbee v. Garzarelli Food Specialties, 223 F.3d 62 (2d Cir. 2000)................................... 13

STATUTES AND RULES

Defense of Marriage Act,

Pub. L. No. 104-199, 110 Stat. 2419 (Sept. 21, 1996)............................................... 16

Title VII of the Civil Rights Act of 1964,

42 U.S.C. §§ 2000e et seq.,...................................................................................... passim

42 U.S.C. § 2000e-2(a)(1)................................................................................................... 4

42 U.S.C. § 2000e-2(e)(1)................................................................................................. 13

Federal Rule of Appellate Procedure 29(a)................................................................. 1

OTHER

Jill D. Weinberg, Gender Non-Conformity: An Analysis of Perceived Sexual Orientation and Gender Identity Protection Under the Employment Non-Discrimination Act,

44 U.S.F.L. Rev. 1, 8 (2009)................................................................................................... 19

Kate B. Rhodes, Defending ENDA: The Ramifications of Omitting

the BFOQ Defense in the Employment Non-Discrimination Act,

19 Law & Sexuality 1 (2010).................................................................................................. 19

STATEMENT OF INTEREST

The Equal Employment Opportunity Commission (“EEOC” or “Commission”) is charged with interpreting and enforcing Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. This case raises a significant legal issue: whether sexual orientation discrimination is cognizable under Title VII as sex discrimination. This Court has held that it is not. See Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000); Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005). This unduly restrictive interpretation of Title VII is contrary to the view of the Commission and an increasing number of courts, which recognize that discrimination based on sexual orientation necessarily involves illegal sex stereotyping, impermissible consideration of an individual’s sex, and illegal gender-based associational discrimination, placing such discrimination squarely within the statute’s prohibition against discrimination on the basis of sex. Because resolution of this issue will impact the ability of the Commission and private parties to vindicate their rights under Title VII, the Commission offers its views to the Court. Fed. R. App. P. 29(a).

STATEMENT OF THE ISSUE^{^[1]}

Whether this Court should reconsider its precedent in Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), and Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005), to hold that discrimination on the basis of sexual orientation is cognizable under Title VII, as such discrimination necessarily is based on illegal sex stereotyping, impermissible consideration of an individual’s sex, and illegal gender-based associational discrimination.

STATEMENT OF THE CASE

1. Nature of the Case and Course of Proceedings

This is an employment discrimination case alleging, inter alia, sex discrimination under Title VII. The district court granted the defendant’s motion for summary judgment, and the plaintiff appealed.

2. Statement of Facts

Plaintiff Frederick M. Cargian, who is gay, began working for Defendant Breitling USA, Inc., (“Breitling”) in 1990. SPA-2.[2] Breitling manufactures high-end watches. Id. In 1992, Cargian was promoted from training manager to sales representative, earning a base salary and a bonus. Id. Cargian worked under President Mary Bodman, who described him as dedicated, reliable, and knowledgeable. A-748. The company’s former Marketing Director called Cargian “one of the top sales reps from 2002-2010” and said he was respected, easy to work with, responsible, and had an “outstanding reputation.” A-404-05; 407-09; 411-12; 419-20.

In 2010, Breitling hired Thierry Prissert as its new president. SPA-2. According to Cargian, Prissert created a “boy’s club” atmosphere, excluding “the girls” from his inner circle. Id. Cargian was treated as one of “the girls,” meaning he was excluded from office conversations about sports and from other social events and golf outings with clients. Id. During the next few years, Cargian’s sales goal for his territory fluctuated, and he was consistently one of the employees who achieved the lowest percentage of his or her sales goal. SPA-2-3. At the end of 2012, Prissert reduced Cargian’s sales territory and cut his base salary by $34,000/year. SPA-3. Part of Cargian’s sales territory was then reassigned to another male sales representative who lacked any sales experience. SPA-3. Breitling reduced Cargian’s sales goals in 2013. SPA-4.

In December 2013, Prissert decided to fire Cargian. SPA-3. Cargian later filed suit alleging, inter alia, that his termination violated Title VII’s prohibition on sex discrimination. SPA-5.

3. District Court Decision

The district court stated, “[t]he Second Circuit has held that ‘Title VII does not proscribe discrimination because of sexual orientation.’” SPA-6 (quoting Simonton v. Runyon, 232 F.3d 33, 36 (2d Cir. 2000), and citing Christiansen v. Omnicom Group, Inc., 167 F. Supp. 3d 598 (S.D.N.Y. 2016)). Accordingly, the district court observed, Cargian had pursued his sex discrimination claim based on a gender stereotyping theory. Id. (citing Dawson v. Bumble & Bumble, 398 F.3d 211, 218 (2d Cir. 2005)). The district court rejected Cargian’s argument under this theory. SPA-7. The district court held that Cargian’s claim that as a gay man he was treated as “one of the girls” and that a macho atmosphere prevailed at work impermissibly “conflates a sexual orientation discrimination claim with a gender-stereotyping claim. Such claims are not actionable under current Second Circuit law.” SPA-8. Additionally, the district court held, Cargian failed to show that he suffered any adverse action under circumstances giving rise to an inference of sex-based discrimination. Id. The district court therefore granted summary judgment for Breitling.

ARGUMENT

This Court should correct its precedent to hold that sexual orientation discrimination constitutes sex discrimination under Title VII.

Title VII prohibits employers from discriminating against individuals “because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). Here, the district court applied this Court’s precedent to conclude that any discrimination Cargian endured due to his sexual orientation was not “because of . . . sex.” Specifically, this Court held in Simonton, and again in Dawson, that sexual orientation discrimination is not actionable under Title VII. See Simonton, 232 F.3d at 38; Dawson, 398 F.3d at 217-18. The Commission disagrees, as do an increasing number of district courts, including courts within this Circuit. The Commission submits that this Circuit’s contrary precedent is outdated and unworkable, as even this Court has acknowledged the difficulty in drawing a line between sexual orientation discrimination and gender stereotyping discrimination. This Court should therefore reconsider Simonton and Dawson—en banc, if necessary—and overturn its precedent to hold that discrimination based on sexual orientation violates Title VII’s prohibition on sex discrimination.

A. Sexual orientation discrimination necessarily involves sex stereotyping,

which Title VII prohibits.

The Supreme Court, and this Court, have long recognized that sex stereotyping violates Title VII’s prohibition against discrimination against employees “because of . . . sex.” See Price Waterhouse v. Hopkins, 490 U.S. 228, 240, 250 (1989). Sexual orientation discrimination necessarily involves sex stereotyping, and therefore constitutes discrimination “because of . . . sex,” because at its core such discrimination involves the adverse treatment of individuals because they do not conform to the traditional gender stereotype of opposite-sex attraction.

Price Waterhouse involved a woman perceived by her employer as insufficiently feminine. In denying her bid for partnership, several male partners commented that she was “macho” and “overcompensated for being a woman”; she would have a better chance of becoming a partner if she took “a course at charm school” or would “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” 490 U.S. at 235. The Supreme Court concluded that these comments indicated illegal sex discrimination.[3] Writing for the plurality, Justice Brennan explained that “[i]n the specific context of sex stereotyping, 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.” Id. at 250. This conclusion followed from the Court’s earlier recognition that Congress passed Title VII “‘to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.’” Id. at 251 (quoting L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702, 707 n.13 (1978)).

This Court has consistently recognized and applied Price Waterhouse. Although this Court disallowed sexual orientation claims in Simonton, this Court acknowledged in Simonton that Price Waterhouse implied that plaintiffs may base a Title VII claim on evidence that they faced discrimination because they failed to meet stereotypical expectations of masculinity or femininity. Simonton, 232 F.3d at 38 (but stating that the plaintiff did not preserve the issue). Likewise, this Court reiterated in Dawson that sexual orientation discrimination is not actionable but again acknowledged that “sex stereotyping by an employer based on a person’s gender non-conforming behavior is impermissible discrimination.” Dawson, 398 F.3d at 218, 221 (finding no sex-stereotyping evidence was presented) (internal quotation marks, brackets, and citation omitted). Finally, in Back v. Hastings on Hudson Union Free School District, this Court applied Price Waterhouse to hold that a plaintiff may utilize a sex-stereotyping theory to prove sex discrimination under 42 U.S.C. § 1983 where the employer denies tenure to a woman with small children on the assumption that she will not be committed to her job. 365 F.3d 107, 120-22 (2d Cir. 2004).

Other circuits have also recognized, in a variety of contexts, that Title VII prohibits sex stereotyping. The en banc Fifth Circuit upheld a jury verdict for the Commission in a Title VII same-sex harassment case under a sex-stereotyping theory. EEOC v. Boh Bros. Constr. Co., 731 F.3d 444 (5th Cir. 2013) (en banc). The court concluded that the jury reasonably could have found that the victim, a heterosexual construction worker, was targeted because he “fell outside of [his supervisor’s] manly-man stereotype.” Id. at 459-60. Numerous other circuits likewise have held that employers violate Title VII’s ban on sex discrimination when they discriminate against employees for failing to conform to traditional gender-based stereotypes. See, e.g., Smith v. City of Salem, 378 F.3d 566, 574 (6th Cir. 2004) (stating that discriminating against men for wearing make-up or acting femininely constitutes sex discrimination “because the discrimination would not occur but for the victim’s sex”); Nichols v. Azteca Rest. Enters., 256 F.3d 864, 874 (9th Cir. 2001) (reinstating gay waiter’s Title VII claim, reasoning that “[a]t its essence, the systematic abuse directed at [plaintiff] reflected a belief that [he] did not act as a man should act”); Doe v. City of Belleville, 119 F.3d 563, 580 (7th Cir. 1997) (“Title VII does not permit an employee to be treated adversely because his or her appearance or conduct does not conform to stereotypical gender roles.”), vacated and remanded on other grounds, 523 U.S. 1001 (1998).

There is no reason why the well-established sex-stereotyping theory—premised, as it is, on an individual’s failure to conform to traditional gender stereotypes of dress, conduct, or appearance—should not include sexual orientation discrimination. As courts have recognized, discrimination based on an individual’s sexual orientation is, at its core, discrimination based on that individual’s failure to conform to what is arguably society’s most central gender-based stereotype: the stereotype of opposite sex attraction. The Seventh Circuit, for instance, has stated that “[d]iscrimination against gay, lesbian, and bisexual employees comes about because their behavior is seen as failing to comply with the quintessential gender stereotype about what men and women ought to do . . . that men should have romantic and sexual relationships only with women, and women should have romantic and sexual relationships only with men. In this way, almost all discrimination” based on sexual orientation “can be traced back to some form of discrimination on the basis of gender nonconformity.” Hively v. Ivy Tech. Cmty. Coll., 830 F.3d 698, 705 (7th Cir. 2016), petition for reh’g en banc granted and opinion vacated, 2016 WL 6768628 (Oct. 11, 2016).

An increasing number of district courts have also recognized that sexual orientation discrimination “is, at its very core, sex stereotyping plain and simple,” and that such discrimination therefore violates Title VII’s prohibition on discrimination “because of . . . sex.” EEOC v. Scott Med. Health Ctr., No. 16-225, 2016 WL 6569233, at *6-*7 (W.D. Pa. Nov. 4, 2016) (concluding that “discrimination on the basis of sexual orientation is a subset of sexual stereotyping and thus covered by Title VII’s prohibitions on discrimination ‘because of sex[]’”); Videckis v. Pepperdine Univ., 150 F. Supp. 3d 1151, 1159-60 (C.D. Cal. 2015) (holding that “claims of sexual orientation discrimination are gender stereotype or sex discrimination claims” under Title VII and are therefore unlawful; stating that “[s]tereotypes about lesbianism, and sexuality in general stem from a person’s views about the proper roles of men and women—and the relationships between them”); Heller v. Columbia Edgewater Country Club, 195 F. Supp. 2d 1212, 1224 (D. Or. 2002) (holding that a jury question existed as to whether supervisor harassed and ultimately fired plaintiff because she did not conform to his “stereotype of how a woman ought to behave,” as the plaintiff was “attracted to and dates other women, whereas [her harasser] believe[d] that a woman should be attracted to and date only men”).

This Court should therefore correct its precedent to hold—as compelled by Price Waterhouse—that sexual orientation discrimination constitutes sex discrimination under Title VII. One district court within this circuit has already recognized that Simonton cannot be squared with Price Waterhouse. See Boutillier v. Hartford Pub. Schs., __ F. Supp. 3d __, 2016 WL 6818348, at *11 (D. Conn. Nov. 21, 2016). In Boutillier, the district court denied summary judgment on the plaintiff’s claim she was discriminated against based on her sexual orientation. The district court observed that although this Court has acknowledged that under “Price Waterhouse, a plaintiff may properly allege discrimination based on sex stereotyping,” this Court has also held that “a plaintiff may not use a gender stereotyping claim to bootstrap protection for sexual orientation into Title VII.” Id. at *10 (internal quotation marks and citation omitted) (emphasis added). These contrasting interpretations of Title VII are irreconcilable, the district court stated, “as homosexuality is the ultimate gender non-conformity, the prototypical sex stereotyping animus.” Id. The upshot of the prohibition against “bootstrapping,” the court added, is “paradoxical” in light of Price Waterhouse, as it means that “employers are prohibited from discriminating against employees for exhibiting stereotypical gay behavior, yet, at the same time, employers are free to discriminate against employees for actually being gay.” Id. Thus, the court held, “reconciliation of Simonton and Price Waterhouse produces untenable results.” Id. at *11. Relying on this conclusion—as well as this Court’s precedent concerning associational discrimination (discussed below)—the district court held that “the ordinary meaning of sex under Title VII . . . include[s] sexual orientation[.]” Id. This Court should hold the same.

B. Sexual orientation discrimination is, by definition, discrimination

“because of . . . sex” and therefore violates Title VII.

Title VII prohibits employers from considering sex when taking actions affecting employees’ terms or conditions of employment. Because discrimination based on sexual orientation necessarily involves consideration of an employee’s sex, it falls within the statutory ban on sex discrimination.

“In passing Title VII, Congress made the simple but momentous announcement that sex,” like other protected characteristics, is “not relevant to the selection, evaluation, or compensation of employees,” or to other terms or conditions of employment. Price Waterhouse, 490 U.S. at 239. That is, employers may not “take gender into account in making employment decisions.” Id. An employer that discriminates on the basis of sexual orientation violates this principle because, by definition, the employer is taking account of the employee’s sex, in conjunction with the sex of those to whom the individual is sexually and/or emotionally attracted. See Baldwin v. Foxx, 2015 WL 4397641, at *5 (EEOC July 15, 2015) (noting that “sexual orientation is inseparable from and inescapably linked to sex”). For example, if an employer fires a lesbian employee for displaying a photo of her female spouse at work but does not fire a male employee for doing the same, the employer has impermissibly taken the employee’s sex into consideration. Id.; see also Manhart, 435 U.S. at 711 (“Such a practice does not pass the simple test of whether the evidence shows treatment of a person in a manner which but for that person’s sex would be different.”) (internal quotation marks omitted).

Several courts have already taken this straightforward approach to sexual orientation discrimination cases, eschewing the artificial distinction between discrimination based on sexual orientation and sex discrimination that some courts, including this one, have imposed. In Hall v. BNSF Railway Co., the district court held that the male plaintiff, married to another man, successfully alleged sex discrimination under Title VII based on the denial of spousal health benefits available to similarly situated women married to men. No. 13-2160, 2014 WL 4719007, at *3-5 (W.D. Wash. Sept. 22, 2014). Likewise, in Videckis, where the plaintiffs were told “lesbianism” would not be tolerated, the court stated that if “Plaintiffs had been males dating females, instead of females dating females, they would not have been subjected to the alleged different treatment,” and the court therefore concluded that the plaintiffs “have stated a straightforward claim of sex discrimination.” 150 F. Supp. 3d at 1161.

The consideration of sex exists even though employers discriminating on the basis of sexual orientation do not discriminate against all men or women, but only against those who are gay or lesbian. Title VII has never required an employer to discriminate against all employees in a protected class before recognizing an individual employee’s claim. See Back, 365 F.3d at 118 (need not be “all members of a disfavored class”); see also Connecticut v. Teal, 457 U.S. 440, 455 (1982) (“It is clear that Congress never intended to give an employer license to discriminate against some employees . . . merely because [it] favorably treats other members of the employees’ group.”).

C. Sexual orientation discrimination constitutes associational discrimination, which violates Title VII.

Sexual orientation discrimination treats individuals differently because of their personal associations. Just as discrimination against individuals based on the race of their associates is conduct based on race (as it is based on the individual’s own sex), discrimination against individuals based on the sex of their associates should be considered conduct based on sex (as it is based on the individual’s own sex). See Baldwin, 2015 WL 4397641, at *6 (reasoning that sexual orientation discrimination violates Title VII because it constitutes associational discrimination); see also Hively, 830 F.3d at 715 (pointing out the “inconsistency” in interpreting Title VII to prohibit race association claims but not sex association claims).

This Court has recognized that race association claims are cognizable under Title VII, stating that “an employer may violate Title VII if it takes action against an employee because of the employee’s association with a person of another race.” Holcomb v. Iona Coll., 521 F.3d 130, 132 (2d Cir. 2008). “The reason is simple: where an employee is subjected to adverse action because an employer disapproves of interracial association, the employee suffers discrimination because of the employee’s own race.” Id. at 139. Applying that rule, this Court held in Holcomb that the white plaintiff had alleged discrimination based on his race where he was fired for marrying an African-American woman. Id.; see also McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1118 (9th Cir. 2004) (interracial friendships); Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick, & GMC Trucks, Inc. 173 F.3d 988, 994-95 (6th Cir. 1999) (having a biracial child).

Aside from the availability of the narrow defense for bona fide occupational qualifications based on sex, but not race (42 U.S.C. § 2000e-2(e)(1))—which are not relevant here—Title VII “on its face treats each of the enumerated categories exactly the same.” Price Waterhouse, 490 U.S. at 243 n.9. Because the same standards apply to both race-based and sex-based discrimination claims, see Whidbee v. Garzarelli Food Specialties, Inc. 223 F.3d 62, 69 n.6 (2d Cir. 2000), associational claims based on sex, like those based on race, should be considered actionable. An employer therefore violates Title VII if it takes adverse action against an employee because of the employee’s association with a person of the same sex.

Again, the reason is straightforward. The behavior of an employer that discriminates against a gay employee because it disapproves of same-sex dating is not materially different from the behavior of an employer that discriminates against an employee because it disapproves of interracial dating. In both cases, the employer bases its actions on the protected characteristic of its employee, viewed in relation to the individuals with whom that employee associates. Just as Holcomb was a victim of race discrimination, Holcomb, 521 F.3d at 139, Cargian was a victim of sex discrimination to the extent he was targeted for mistreatment because he is attracted to, or dates, men. Faithful application of Holcomb thus compels the conclusion that sexual orientation discrimination violates Title VII’s ban on sex-based discrimination. See Boutillier, 2016 WL 6818348, at *9 (stating that “[t]he logic is inescapable: If interracial association discrimination is held to be ‘because of the employee’s own race,’ so ought sexual orientation discrimination be held to be because of the employee’s own sex[,]” and holding that Holcomb and Simonton “are not legitimately distinguishable”). This Court should therefore rely on Holcomb to hold, as a number of courts already have, that sexual orientation discrimination constitutes impermissible associational discrimination, which violates Title VII. See, e.g., Scott Medical, 2016 WL 6569233, at *5 n.5 (finding “compelling” the EEOC’s argument that the analysis for interracial association cases applies to sexual orientation discrimination, and citing Holcomb in support); Isaacs v. Felder Servs., LLC, 143 F. Supp. 3d 1190, 1193 (M.D. Ala. 2015) (agreeing with the EEOC that sexual orientation is cognizable under Title VII and finding “[p]articularly compelling” the agency’s reliance on Eleventh Circuit precedent prohibiting race association discrimination).

D. This Court should reconsider Simonton and Dawson.

In Simonton, this Court held that Title VII does not prohibit discrimination based on sexual orientation. 232 F.3d at 35; see also Dawson, 398 F.3d at 218 (same). In reaching this conclusion, this Court suggested that it was effectively pre-determined by circuit precedent. See Simonton, 232 F.3d at 36 (relying on circuit precedent stating that Title VII does not protect disparate treatment based on “sexual affiliations”). Also, the Simonton court held, Congress had strongly signaled—through its repeated failure to amend the statute to prohibit discrimination based on sexual preference—that sexual orientation is not covered by Title VII. While Simonton was within the mainstream when it was decided sixteen years ago, it is now outdated. The broader legal landscape has changed dramatically, and, as discussed above, other courts and the EEOC now recognize that sound analyses support the conclusion that sexual orientation is cognizable under Title VII. This Court should therefore reconsider and overrule its circuit precedent, either in a formal en banc proceeding or through this Court’s “mini-en banc” process, if necessary.

1. The legal landscape has shifted.

In the last seventeen years since Simonton was decided, there has been a sea change in the law. In Lawrence v. Texas, 539 U.S. 558, 578 (2003), the Supreme Court overruled Bowers v. Hardwick, 478 U.S. 186, 192-93 (1986)—which predated Simonton—to hold that a state law criminalizing consensual homosexual conduct violates due process. The Supreme Court also struck down the Defense of Marriage Act (“DOMA”), which had defined “marriage” and “spouse” under federal laws and regulations to exclude same-sex partners, United States v. Windsor, 133 S. Ct. 2675 (2013), and the Court held that same-sex couples have the right to marry, Obergefell v. Hodges, 135 S. Ct. 2584 (2015).

As the legal landscape has changed, the EEOC’s interpretation of Title VII has also developed. In 2015, the Commission held in Baldwin, a federal sector case, that discrimination based on sexual orientation constitutes sex discrimination in violation of Title VII. 2015 WL 4397641. As discussed above, an increasing number of district courts have agreed with the EEOC’s view that sexual orientation discrimination constitutes sex discrimination under Title VII, under either a sex-stereotyping analysis, under a straightforward “because of sex” analysis, and/or because such discrimination constitutes impermissible association discrimination. Other courts—including a panel of the Seventh Circuit and district courts within this Circuit—have openly questioned the validity of precedent disallowing sexual orientation claims under Title VII. See Hively, 2016 WL 4039703, at *10 (discussing Baldwin and stating that “the district courts . . . are beginning to ask whether the sexual orientation-denying emperor of Title VII has no clothes[,]” but concluding it was bound by circuit precedent disallowing sexual orientation claims); Christiansen, 167 F. Supp. 3d at 622 (acknowledging Simonton but asking whether, “[i]n light of the EEOC’s recent decision on Title VII’s scope” and the difficulty in parsing out sexual orientation and gender stereotyping claims, the line between the two “should be erased”).

In addition to this sea change as to the understanding of sex discrimination, this Circuit’s precedent has changed since Simonton was decided. It was not until eight years after Simonton that this Court held in Holcomb that Title VII forbids discrimination based on interracial association. This Court’s more recent decision in Holcomb further undermines the continued validity of Simonton. See Boutillier, 2016 WL 6818348, at *11 (concluding that Simonton “cannot be legitimately reconciled” with Holcomb (or with Price Waterhouse) and therefore holding that “the ordinary meaning of sex under Title VII . . . include[s] sexual orientation[.]”

2. Congressional inaction does not provide support.

In Simonton this Court justified its holding that sexual orientation discrimination is not cognizable on the ground that “[w]hen interpreting a statute, the role of a court is limited to discerning and adhering to legislative meaning.” 232 F.3d at 35. Noting a dearth of legislative history as to the meaning of based on sex, this Court stated it was “informed by Congress’s rejection, on numerous occasions, of bills that would have

extended Title VII’s protection to people based on their sexual preferences.” Id. This reasoning does not withstand scrutiny.

Congress may not have intended in 1964 that the statute’s prohibition on sex discrimination would encompass sexual orientation discrimination, and it is true that Congress has not since amended the statute to expressly include sexual orientation. But the Supreme Court has explained that “subsequent legislative history is a hazardous basis for inferring the intent of an earlier Congress” and is “a particularly dangerous ground on which to rest an interpretation of a prior statute when it concerns a proposal that does not become law.” Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 650 (1990) (internal quotation marks and citation omitted). The Supreme Court has also stated that “statutory prohibitions often go beyond the principal evil [they were passed to combat] to cover reasonably comparable evils, and 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 Oil Servs., Inc., 523 U.S. 75, 79 (1998). Thus, the Court has recognized that Title VII’s prohibition against discrimination in the terms and conditions of employment encompasses sexual harassment, see Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986), and that the term “because of . . . sex” can include same-sex harassment, see Oncale, 523 U.S. at 79-80, though it is unlikely that Congress considered either issue when it enacted Title VII.

In any event, Simonton itself recognized that “congressional inaction subsequent to the enactment of a statute is not always a helpful guide[.]” 232 F.3d at 35. Such is the case here. An early proposed bill to amend Title VII to include sexual orientation included other protections as well. See, e.g., Jill D. Weinberg, Gender Non-Conformity: An Analysis of Perceived Sexual Orientation and Gender Identity Protection Under the Employment Non-Discrimination Act, 44 U.S.F.L. Rev. 1, 8 (2009) (noting that proposed Equality Act of 1974 would have added sexual orientation and marital status to Title VII’s protections). It is therefore difficult to determine why the bill failed. Bills proposed in the mid-1990s, to which Simonton referred directly, would not have amended Title VII at all. Rather, they would have created a stand-alone statute, the Employment Non-Discrimination Act (ENDA). Id. at 9. In 1996, the Senate was one vote away from approving ENDA; the bill had been expected to pass, but one senator was unexpectedly unable to vote. Id. at 9 n.38. More recent versions of ENDA have lost support because they failed to prohibit transgender discrimination. See Kate B. Rhodes, Defending ENDA: The Ramifications of Omitting the BFOQ Defense in the Employment Non-Discrimination Act, 19 Law & Sexuality 1, 4 (2010) (noting, e.g., that an openly gay House member refused to support one version of ENDA in 2007 because it omitted coverage for transgender people). Congress’s failure to pass any particular bill—either to amend Title VII or to create a stand-alone bill to prohibit sexual orientation discrimination—therefore shows only that a majority of legislators could not agree on any single proposed bill.

3. Simonton’s reliance on circuit precedent was misplaced.

This Court stated in Simonton that it was “not writing on a clean slate” and that circuit precedent compelled the conclusion that sexual orientation discrimination is not cognizable. 232 F.3d at 36. But the slate was relatively clean. Simonton was referring to this Court’s statement in DeCintio v. Westchester County Medical Center, 807 F.2d 304, 306-07 (2d Cir. 1986), that “the other categories afforded protection under Title VII refer to a person’s status as a member of a particular race, color, religion, or nationality. ‘Sex,’ when read in this context, logically could only refer to membership in a class delineated by gender, rather than sexual activity regardless of gender. . . . The proscribed differentiation under Title VII, therefore, must be a distinction based on the person’s sex, not his or her sexual affiliations.” From this, Simonton concluded that “[b]ecause the term ‘sex’ in Title VII refers only to membership in a class delineated by gender, and not to sexual affiliation, Title VII does not proscribe discrimination because of sexual orientation.” 232 F.3d at 36.

DeCintio was not controlling in Simonton because it has nothing to do with sexual orientation. A “paramour preference” case, DeCintio rejected the notion that the phrase “discrimination on the basis of sex encompasses disparate treatment premised not on one’s gender, but rather on a romantic relationship between an employer and a person preferentially hired.” 807 F.2d at 306. When DeCintio used the phrase “a distinction based on . . . his or her sexual affiliations,” id. at 306-07, it meant favoritism based on romantic relationships. Simonton was incorrect, then, in holding that DeCintio was controlling as to the question of whether sexual orientation discrimination is cognizable.

4. Simonton has proven unworkable and leads to absurd results.

Simonton’s disallowance of sexual orientation claims, and its simultaneous acknowledgment that Title VII prohibits gender stereotyping, has led to an unworkable rule. Simply put, it is impossible to coherently parse out sexual orientation discrimination from gender stereotyping discrimination, as this Court has itself recognized. See Dawson, 398 F.3d at 218 (acknowledging that gender stereotyping claims brought by homosexual plaintiffs “can easily present problems for an adjudicator” because stereotypes “about how men and women should behave will often necessarily blur into ideas about heterosexuality and homosexuality”) (internal quotation marks and citation omitted); see also Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285, 291 (3d Cir. 2009) (line can be “difficult to draw”). As one court explained, the “distinction” between sex discrimination and sexual orientation discrimination is “illusory and artificial”; the line is difficult to draw because it “does not exist, save as a lingering and faulty judicial construct.” Videckis, 150 F. Supp. 3d at 1159; see Scott Medical, 2016 WL 6569233, at *5 (“The Court sees no meaningful difference between sexual orientation discrimination and discrimination ‘because of sex.’”). And it is this very insistence on drawing an artificial line between sexual orientation discrimination and gender stereotyping that “has been an invitation to the precise bootstrapping that the Simonton Court intended to avoid.” Christiansen, 167 F. Supp. 3d at 619.

Finally, this Court should reverse Simonton because disallowing sexual orientation claims leads to absurd results. Under this view of the statute, Title VII protects persons like the heterosexual employee in Boh Brothers, 731 F.3d at 459-60, from egregious same-sex harassment but does not protect a homosexual man from similarly egregious harassment, as in Simonton. 232 F.3d at 35 (noting that the plaintiff was subjected to vulgar, graphic comments and conduct). Likewise, Simonton’s holding means that effeminate gay males (or masculine lesbians) can recover under Title VII but macho gay males (and feminine lesbians) cannot, even if the underlying discrimination is motivated by sexual orientation animus. Even more absurd, as the law now stands in this Circuit, employees are free to marry their same-sex partners, as the Supreme Court so held in Obergefell, but they can, under Simonton, lawfully be fired the next day for doing so.

CONCLUSION

For the foregoing reasons, the Commission respectfully asks this Court to reconsider its existing precedent and hold that Title VII’s ban on sex discrimination includes discrimination based on sexual orientation.

Respectfully submitted,

JAMES L. LEE

Deputy General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

LORRAINE C. DAVIS

Assistant General Counsel

s/Anne Noel Occhialino

ANNE NOEL OCCHIALINO

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Fl.

Washington, D.C. 20507

(202) 663-4724 (phone)

(202) 663-7090 (fax)

Annenoel.Occhialino@eeoc.gov

[1] EEOC takes no position on any other issue raised in this appeal.

[2] “SPA-*” refers to the corresponding page of the plaintiff’s Special Appendix. “A-*” refers to the Appendix. Because the EEOC addresses only the legal issue of whether sexual orientation is cognizable under Title VII, these facts are drawn primarily from the district court’s opinion.

[3] The four-Justice plurality, as well as Justices White and O’Connor, who concurred separately, all agreed with this conclusion. See Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 119 (2d Cir. 2004).