TABLE OF AUTHORITIES................................................................................................... ii
STATEMENT OF INTEREST.............................................................................................. 1
STATEMENT OF THE ISSUE............................................................................................. 1
STATEMENT OF THE CASE.............................................................................................. 2
Statement of the Facts.......................................................................................................... 2
District Court and Circuit Court Decisions..................................................................... 2
ARGUMENT.............................................................................................................................. 4
I. .... Sexual
Orientation Discrimination is Discrimination “Because of … Sex” Under Title
VII................................................................................................................................... 5
A..... Sexual orientation
discrimination is, by definition, discrimination “because of … sex,” in
violation of Title VII............................................................................ 5
B..... Sexual orientation
discrimination constitutes associational discrimination that violates Title
VII................................................................................................ 10
C..... Sexual orientation
discrimination necessarily involves sex stereotyping, in violation of Title
VII......................................................................................................... 13
II.... Precedent and
Practicality Also Justify Overruling Simonton En Banc............. 18
A..... The cases on which
Simonton relied are no longer good law..................... 18
B..... Simonton
and Dawson’s distinction between permissible sexual orientation
discrimination and impermissible gender stereotyping is unworkable and leads to
absurd results..................................................................................................... 19
III... The Contrary
Arguments Do Not Justify Retaining Simonton as Binding
........ Authority...................................................................................................................... 22
CONCLUSION........................................................................................................................ 25
Table of Authorities
Page(s)
Cases
Back v. Hastings on Hudson Union Free School
District,
365 F.3d 107 (2d Cir. 2004)................................................................................................. 8
Baldwin v. Foxx,
EEOC Appeal No. 0120133080, 2015 WL 4397641 (July 16, 2015)...................... 2, 6
Boutillier v. Hartford Public Schools,
221 F. Supp. 3d 255 (D. Conn. 2016).................................................................. 7, 16, 20
Centola v. Potter,
183 F. Supp. 2d 403 (D. Mass. 2002).............................................................................. 17
Christiansen v. Omnicom Group, Inc.,
852 F.3d 195 (2d Cir. 2017)........................................................................................ passim
Connecticut v. Teal,
457 U.S. 440 (1982)............................................................................................................... 8
Dawson v. Bumble & Bumble,
398 F.3d 211 (2d Cir. 2005).................................................................................... 4, 18, 20
Deffenbaugh-Williams v. Wal-Mart Stores, Inc.,
156 F.3d 581 (5th Cir. 1998), vacated in part on other grounds in Williams
v. Wal-Mart Stores, Inc., 182 F.3d 333 (5th Cir. 1999) (en banc)........................................................ 11
DeSantis v. Pacific Telephone & Telegraph Co.,
608 F.2d 327 (9th Cir. 1979)............................................................................................. 19
EEOC v. Boh Brothers Construction Co.,
731 F.3d 444 (5th Cir. 2013) (en banc)..................................................................... 14, 22
EEOC v. Scott Medical Health Center, P.C.,
217 F. Supp. 3d 834 (W.D. Pa. 2016).............................................................................. 16
Evans v. Georgia Regional Hospital,
850 F.3d 1248 (11th Cir. 2017).................................................................................. 21, 24
Floyd v. Amite County School District,
581 F.3d 244 (5th Cir. 2009)............................................................................................. 11
Glenn v. Brumby,
663 F.3d 1312 (11th Cir. 2011)......................................................................................... 15
Hall v. BNSF Railway Co.,
No. C13-2160, 2014 WL 4719007 (W.D. Wash. Sept. 22, 2014)................................. 6
Heller v. Columbia Edgewater Country Club,
195 F. Supp. 2d 1212 (D. Or. 2002)............................................................................ 7, 17
Hively v. Ivy Tech Community College,
853 F.3d 339 (7th Cir. 2017) (en banc)..................................................................... passim
Holcomb v. Iona College,
521 F.3d 130 (2d Cir. 2008)........................................................................................ 10, 11
Horace v. City of Pontiac,
624 F.2d 765 (6th Cir. 1980)............................................................................................. 12
International Brotherhood of Teamsters v. United
States,
431 U.S. 324 (1977)............................................................................................................. 23
Los Angeles Department of Water & Power v.
Manhart,
435 U.S. 702 (1978)...................................................................................................... 6, 8, 9
Loving v. Virginia,
388 U.S. 1 (1967)............................................................................................................. 9, 11
McGinest v. GTE Service Corp.,
360 F.3d 1103 (9th Cir. 2004)........................................................................................... 11
Meritor Savings Bank, FSB v. Vinson,
477 U.S. 57 (1986)............................................................................................................... 23
Newport News Shipbuilding & Dry Dock Co. v.
EEOC,
462 U.S. 669 (1983)............................................................................................................... 6
Nichols v. Azteca Restaurant Enterprises, Inc.,
256 F.3d 864 (9th Cir. 2001)................................................................................ 10, 15, 19
Obergefell v. Hodges,
135 S. Ct. 2584 (2015)........................................................................................................ 22
Oncale v. Sundowner Offshore Oil Services, Inc.,
523 U.S. 75 (1998).................................................................................................. 18, 19, 23
Parr v. Woodmen of the World Life Insurance Co.,
791 F.2d 888 (11th Cir. 1986)........................................................................................... 11
Pension Benefit Guaranty Corp. v. LTV Corp.,
496 U.S. 633 (1990)............................................................................................................. 24
Price Waterhouse v. Hopkins,
490 U.S. 228 (1989)...................................................................................................... passim
Prowel v. Wise Business Forms, Inc.,
579 F.3d 285 (3d Cir. 2009)............................................................................................... 21
Schmedding v. Tnemec Co.,
187 F.3d 862 (8th Cir. 1999)............................................................................................. 19
Simonton v. Runyon,
232 F.3d 33 (2d Cir. 2000).......................................................................................... passim
Smith v. City of Salem,
378 F.3d 566 (6th Cir. 2004)............................................................................................. 14
Stacks v. Southwestern Bell Yellow Pages, Inc.,
27 F.3d 1316 (8th Cir. 1994)............................................................................................. 11
Terveer v. Billington,
34 F. Supp. 3d 100 (D.D.C. 2014)............................................................................. 16, 17
Tetro v. Elliott Popham Pontiac, Oldsmobile,
Buick, & GMC Trucks, Inc.,
173 F.3d 988 (6th Cir. 1999)............................................................................................. 11
Videckis v. Pepperdine University,
150 F. Supp. 3d 1151 (C.D. Cal. 2015)................................................................ 7, 16, 20
Whidbee v. Garzarelli Food Specialties, Inc.,
223 F.3d 62 (2d Cir. 2000)................................................................................................. 11
Williams v. Owens-Illinois, Inc.,
665 F.2d 918 (9th Cir. 1982)............................................................................................. 12
Williamson v. A.G. Edwards & Sons, Inc.,
876 F.2d 69 (8th Cir. 1989)............................................................................................... 19
Wrightson v. Pizza Hut of America, Inc.,
99 F.3d 138 (4th Cir. 1996)............................................................................................... 19
Statutes
Civil Rights Act of 1964
Title VII, 42 U.S.C. §§ 2000e et seq..................................... passim
42 U.S.C. § 2000e-2(a)........................................................................................................ 13
42 U.S.C. § 2000e-2(a)(1)..................................................................................................... 4
42 U.S.C. § 2000e-2(e)(1)................................................................................................... 12
Other
Authorities
Fed. R. App. P. 29(a).................................................................................................................. 1
Kate B. Rhodes, Defending ENDA: The
Ramifications of Omitting the BFOQ Defense in the Employment Non-Discrimination
Act, 19 Law & Sexuality 1 (2010)............................... 24
Brian Soucek, Perceived Homosexuals: Looking
Gay Enough for Title VII, 63 Am. U. L. Rev. 715, 766 (2014)........................................................................................................... 21
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
(2009)........................................................................................................................ 24
The Equal Employment Opportunity Commission (“EEOC”
or “Commission”) is the primary agency charged by Congress with interpreting
and enforcing Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. This appeal addresses
whether claims of sexual orientation discrimination are cognizable under Title VII as claims of sex discrimination.
Because such claims necessarily involve impermissible consideration of a
plaintiff’s sex, gender-based associational discrimination, and sex
stereotyping, the EEOC believes they fall squarely within Title VII’s
prohibition against discrimination on the basis of sex. In furtherance of its
strong interest in the interpretation of the federal anti-discrimination employment
laws, and in response to the invitation in this Court’s Order of May 31, 2017, the EEOC offers
its views to the Court. Fed. R. App. P.
29(a).
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”?
Plaintiff Donald Zarda worked for Defendant Altitude
Express as a skydiving instructor.
Following one jump, a customer complained that Zarda had disclosed his
homosexuality and other personal details during the jump. Zarda was fired soon
thereafter. He sued Altitude Express claiming sex discrimination under Title VII, gender and sexual orientation
discrimination under New York state law, and violation of state and federal
wage and hour laws.
The district court granted summary judgment to
Altitude Express on Zarda’s Title VII
claim, finding no evidence that his termination was connected to his failure to
conform to a masculine stereotype. At the same time, the district court found
sufficient evidence of sexual orientation discrimination to allow Zarda’s state
law discrimination claim to go forward. Zarda sought reconsideration of the
denial of his Title VII claim based on the
newly decided Baldwin v. Foxx, EEOC
Appeal No. 0120133080, 2015 WL 4397641 (July 16, 2015), an EEOC administrative
decision holding that sexual orientation discrimination violates Title VII. The district court denied the
motion, concluding it was bound by Simonton
v. Runyon, 232 F.3d 33 (2d Cir. 2000), which held that Title VII does not prohibit discrimination
based on sexual orientation. At trial on his state law discrimination claim,
the jury found that Zarda had not proved that his sexual orientation was a
determining factor in his termination.
On appeal, Zarda challenged the dismissal of his
Title VII claim under Simonton but did not challenge the court’s
ruling that he had failed to establish a connection between his termination and
his failure to conform to gender stereotypes in appearance or behavior. Thus,
he limited his appeal to the question whether Simonton precludes claims of sexual
orientation discrimination under Title
VII.
A panel of this Court affirmed the district court’s ruling, holding that “Zarda
may receive a new trial only if Title VII’s prohibition on sex discrimination
encompasses discrimination based on sexual orientation – a result foreclosed by
Simonton.” Slip op. at 8. This Court also held that the
jury’s finding on Zarda’s state law sexual orientation claim did not moot the Title VII issue because a sexual orientation
discrimination claim under New York state law is subject to a “but-for causation”
standard of proof, which is higher than the “motivating factor” standard
attaching to Title VII claims. Id. at 7. Thus, this Court concluded, “if
Title VII protects against
sexual-orientation discrimination, then Zarda would be entitled to a new trial.”
Id. In its May 25, 2017
Order, this Court granted en banc rehearing limited to the issue whether Title
VII’s prohibition of discrimination “because of … sex” encompasses
discrimination on the basis of sexual orientation.
Title VII
prohibits employers from discriminating against an individual “because of such
individual’s . . . sex.” 42 U.S.C. §
2000e-2(a)(1). This Court concluded seventeen years ago that “Title VII does not prohibit harassment or
discrimination because of sexual orientation.” Simonton, 232 F.3d at 35; see also Dawson v. Bumble & Bumble, 398 F.3d
211, 217-218 (2d Cir. 2005). In the years since this Court decided Simonton and Dawson, however, the EEOC and an
increasing number of courts (including, most recently, the Seventh Circuit
sitting en banc) have analyzed the issue and come to the opposite conclusion.
In doing so, they have repeatedly focused on three arguments about sexual
orientation discrimination, none of which was addressed in Simonton or Dawson: that such discrimination (1)
involves impermissible sex-based considerations, (2) constitutes gender-based
associational discrimination, and (3) relies on sex stereotyping. For each of
these reasons, sexual orientation discrimination is sex discrimination,
and sex discrimination violates Title VII.
See Christiansen v. Omnicom
Group, Inc., 852 F.3d 195, 207 (2d Cir. 2017) (Katzmann, C.J., concurring)
(summarizing these theories and noting that “[n]either Simonton nor Dawson had occasion to consider these
worthy approaches”).
Several additional reasons warrant overruling Simonton and its progeny. First, the
primary authorities on which that case relied are no longer followed. Second,
as many courts have concluded, the line this Court drew in Simonton and Dawson between sexual orientation
discrimination and discrimination based on sex stereotypes is unworkable and
leads to absurd results. Thus, both precedent and practicality dictate
overruling Simonton.
As Chief Judge Katzmann’s Christiansen concurrence noted, this Court
did not have the benefit of three key arguments when it first addressed whether
Title VII’s prohibition on sex-based discrimination includes a prohibition on
sexual orientation discrimination. Christiansen,
852 F.3d at 202, 206-07 (Katzmann, C.J., concurring). Those three arguments –
that sexual orientation discrimination treats otherwise similarly situated
people differently solely because of their sex, constitutes associational
discrimination, and necessarily involves impermissible sex stereotyping, all in
violation of Title VII – lead inexorably
to the conclusion that discrimination because of sexual orientation cannot
rationally be distinguished from discrimination because of sex.
In passing Title
VII, Congress made the “simple but momentous announcement” that sex, like other
protected characteristics, is “not relevant” to employment decisions; thus, in
making such decisions, employers “may not take gender into account.” Price Waterhouse v. Hopkins, 490 U.S. 228,
239, 242 (1989). If an employer treats an employee less favorably than it
would treat a comparable employee who, aside from his or her sex, is identical
in all respects (including, for example, the sex of that employee’s spouse),
the employer discriminates against the employee “because of sex.” See L.A. Dep’t of Water & Power v. Manhart,
435 U.S. 702, 711 (1978) (employing “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” to determine whether a sex-based violation of Title VII occurred (internal citation and
quotation marks omitted)); see also Newport
News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 682-83 (1983)
(applying Manhart’s “simple test of Title
VII discrimination”); Baldwin, 2015
WL 4397641, at *5 (noting that an employer who fires a lesbian employee but not
a male employee for displaying a photo of a female spouse at work would violate
Title VII under Manhart by impermissibly taking the
employee’s sex into account).
Several courts have already applied Manhart’s
“simple test” to hold that sexual orientation discrimination constitutes
discrimination because of sex. The Seventh Circuit en banc court posed the
counterfactual scenario of “a situation in which [the plaintiff] is a man, but
everything else stays the same: in particular, the sex or gender of the
partner.” Hively v. Ivy Tech Community
Coll., 853 F.3d 339, 345 (7th Cir. 2017) (en banc). To the extent no
discrimination would have occurred in this alternate scenario, the court
concluded, “[t]his describes paradigmatic sex discrimination.” Id. (holding that sexual orientation
discrimination therefore violates Title
VII). In Hall v. BNSF Railway Co.,
similarly, the court held that a plaintiff, a man married to another man,
successfully alleged sex discrimination under Title
VII when he was denied a spousal health benefit available to similarly situated
women married to men. No. C13-2160, 2014
WL 4719007, at *3 (W.D. Wash. Sept. 22, 2014). The court in Heller v. Columbia Edgewater Country
Club explained that a woman claiming sexual harassment could prove her
claim if she could show that her manager would have treated her differently if
she were a man dating a woman instead of a woman dating a woman. Heller v. Columbia Edgewater Country Club,
195 F. Supp. 2d 1212, 1223 (D. Or. 2002). In Videckis v. Pepperdine University, the
court explained, “If Plaintiffs had been males dating females, instead of
females dating females, they would not have been subjected to the alleged
different treatment,” and therefore concluded that they “have stated a
straightforward claim of sex discrimination.” Videckis v. Pepperdine Univ., 150 F. Supp.
3d 1151, 1161 (C.D. Cal. 2015).
Each of these cases recognizes the same
principle: sexual orientation discrimination requires the employer to take the
employee’s sex into account (in conjunction with the sex of that employee’s
actual or desired partner). See Hively,
853 F.3d at 358 (Flaum, J., concurring) (“Fundamental to the definition of
homosexuality is the sexual attraction to individuals of the ‘same sex.’ … One
cannot consider a person’s homosexuality without also accounting for their sex:
doing so would render ‘same’ and ‘own’ meaningless.”); Boutillier, 221 F. Supp. 3d at 267 (noting
that sexual orientation discrimination necessarily requires a consideration of
the sex of the individual, as well as that of the partner). In short, an
employer cannot discriminate against an employee based on that employee’s
sexual orientation without taking the employee’s sex into account – precisely
what Title VII forbids. Price Waterhouse, 490 U.S. at 242.
Under this analysis, it is irrelevant that an
employer discriminating on the basis of sexual orientation does 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 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 on the basis of … sex merely because
[it] favorably treats other members of the employees’ group.”); Hively, 853 F.3d at 346 n.3 (“A failure to
discriminate against all women does not mean that an employer has not
discriminated against one woman on the basis of sex.”); Back v. Hastings on Hudson Union Free Sch.
Dist., 365 F.3d 107, 118 (2d Cir. 2004) (holding that a valid claim of
gender discrimination does not require discrimination against all members of a
disfavored class).
In her Hively
dissent, Judge Sykes disagreed with the en banc majority’s application of Manhart. She argued instead that the
valid comparison in the sexual orientation context requires comparing the
treatment of gay men to that of lesbians, rather than comparing a heterosexual
man to a lesbian, or a gay man to a heterosexual woman. See, e.g., Hively, 853 F.3d at 366 (Sykes, J.,
dissenting) (“If an employer is willing to hire gay men but not lesbians, then
the comparative method has exposed an actual case of sex discrimination.”).
But such an argument distorts Manhart’s “simple test.” Manhart, 435 U.S. at 711. Rather than
simultaneously changing both the plaintiff’s (a) sex and (b) sexual orientation
to create a hypothetical comparator, as Judge Sykes proposed, Manhart instead requires that the court
change only the protected characteristic being analyzed – the plaintiff’s sex.
See Hively, 853 F.3d at 345
(“The fundamental question is not whether a lesbian is being treated better or
worse than gay men, bisexuals, or transsexuals, because such a comparison
shifts too many pieces at once.”). Adopting Judge Sykes’s approach strays from
the simple Manhart approach by
changing two variables; this “would no longer be a
‘but-for-the-sex-of-the-plaintiff’ test.” Christiansen,
852 F.3d at 203 (Katzmann, C.J., concurring); cf. Loving v. Virginia, 388 U.S. 1, 7-8 (1967)
(rejecting the argument in the Equal
Protection Clause context that anti-miscegenation laws did not discriminate
between races because it restricted members of both races equally from engaging
in interracial relationships). In Price
Waterhouse, the Supreme Court did not examine whether the plaintiff was
treated differently from a comparable male perceived as insufficiently
masculine. Instead, the Court asked, simply, whether she was treated
differently because of her sex. Price
Waterhouse, 490 U.S. at 241; see also Hively, 853 F.3d at 359 (Flaum, J.,
concurring) (“So if discriminating against an employee because she is
homosexual is equivalent to discriminating against her because she is (A) a
woman who is (B) sexually attracted to women, then it is motivated, in part, by
an enumerated trait: the employee’s sex. That is all an employee must show to
successfully allege a Title VII claim.”).
Sex alone is the key factor guiding the inquiry; “the holding in Price Waterhouse applies with equal force
to a man who is discriminated against for acting too feminine.” Nichols, 256 F.3d at 874.
Sexual orientation discrimination also violates
Title VII’s prohibition against sex discrimination because it treats
individuals differently based on the sex of those with whom they associate.
Just as discrimination against individuals based on the race of their partners
and friends constitutes a violation of Title
VII, discrimination based on the sex of those with whom an individual
associates similarly violates the statute. Such associational discrimination
necessarily, and illegally, takes into account the employee’s sex, in violation
of Title VII. See Price Waterhouse, 490 U.S. at 243.
This Court recognized that associational
discrimination violates Title VII. In Holcomb v. Iona College, 521 F.3d 130 (2d
Cir. 2008), decided eight years after Simonton,
a white assistant college basketball coach alleged he had been terminated
because he married a black woman. This Court held that he had established a
prima face case of race discrimination, explaining 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.” Id. at 132. The
holding did not depend on a theory of third-party injury; to the contrary, this
Court explained, “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.
A panoply of cases from other circuits,
involving a range of interracial associational relationships, have likewise
concluded that such claims for association-based discrimination are cognizable
under Title VII. See, e.g., Parr v. Woodmen of the World Life Ins. Co.,
791 F.2d 888, 892 (11th Cir. 1986) (interracial marriage); Deffenbaugh-Williams v. Wal-Mart Stores, Inc.,
156 F.3d 581, 589 (5th Cir. 1998) (interracial dating), vacated in part on
other grounds in Williams v. Wal-Mart Stores, Inc., 182 F.3d 333 (5th Cir.
1999) (en banc); Tetro v. Elliott
Popham Pontiac, Oldsmobile, Buick, & GMC Trucks, Inc., 173 F.3d 988,
994-95 (6th Cir. 1999) (having a biracial child); Stacks v. Sw. Bell Yellow Pages, Inc., 27
F.3d 1316, 1327 n.6 (8th Cir. 1994) (interracial working relationship); Floyd v. Amite Cty. Sch. Dist., 581 F.3d
244, 249 (5th Cir. 2009) (interracial teacher-student friendship); McGinest v. GTE Serv. Corp., 360 F.3d
1103, 1118 (9th Cir. 2004) (interracial friendships or associations among
coworkers).
As the Seventh Circuit recently explained,
“[t]he fact that Loving, Parr, and Holcomb deal with racial associations, as
opposed to those based on color, national origin, religion, or sex, is of no
moment. The text of the statute draws no distinction, for this purpose, among
the different varieties of discrimination it addresses ….” Hively, 853 F.3d at 349. This Court and
others have made the same observation. See Whidbee v. Garzarelli Food Specialties, Inc.,
223 F.3d 62, 69 n.2 (2d Cir. 2000) (“[T]he same standards apply to both
race-based and sex-based hostile environment claims.” (internal citation
omitted)); Williams v. Owens-Illinois,
Inc., 665 F.2d 918, 929 (9th Cir. 1982) (“Under [Title VII] the standard for proving sex
discrimination and race discrimination is the same.”); Horace v. City of Pontiac, 624 F.2d 765,
768 (6th Cir. 1980) (holding that standards and orders of proof used in race
discrimination cases “are generally applicable to cases of sex
discrimination”). These cases are consistent with the Supreme Court’s
pronouncement that Title VII “on its face
treats each of the enumerated categories” – race, color, religion, sex, and
national origin – “exactly the same.” Price
Waterhouse, 490 U.S. at 243 n.9; see id. (noting that even though the case
involved sex discrimination, its analysis “appl[ied] with equal force to
discrimination based on race, religion, or national origin”). Other than the
statutory exception for bona fide occupational qualifications, 42 U.S.C. § 2000e-2(e)(1), there is no basis in
the legislative history or elsewhere for applying different criteria when
analyzing claims of discrimination based on race and those based on sex.
Thus, the analysis of race-based associational
discrimination described above should apply with equal force to claims of
sex-based associational discrimination. As the Seventh Circuit held in Hively when it endorsed the application of
an associational discrimination theory to a claim of sexual orientation
discrimination under Title VII, “to the
extent that the statute prohibits discrimination on the basis of the race of
someone with whom the plaintiff associates, it also prohibits discrimination on
the basis of the national origin, or the color, or the religion, or (as
relevant here) the sex of the associate. No matter which category is involved,
the essence of the claim is that the plaintiff would not be suffering
the adverse action had his or her sex, race, color, national origin, or
religion been different.” Hively,
853 F.3d at 349. If a plaintiff is in a relationship with someone of the same
sex, and an adverse employment consequence results from that relationship,
discrimination has occurred “because of [the plaintiff’s] … sex,” in violation
of Title VII. 42 U.S.C. § 2000e-2(a); see Christiansen, 852 F.3d at 204 (Katzmann,
C.J., concurring) (“[I]f it is race discrimination to discriminate against
interracial couples, it is sex discrimination to discriminate against same-sex
couples.”).
Sexual orientation discrimination necessarily
involves sex stereotyping, as it results in the adverse treatment of
individuals because they do not conform to the norm that men should be
attracted only to women, and women only to men. Such discrimination is at
heart based on gender stereotypes – indeed, it is “as clear a gender stereotype
as any.” Christiansen, 852 F.3d at
206 (Katzmann, C.J., concurring); see also Hively, 853 F.3d at 346 (characterizing
the plaintiff’s lesbianism as representing “the ultimate case of failure to
conform to the female stereotype” in modern America). It therefore violates
Title VII’s prohibition of discrimination against employees “because of …
sex.” Price Waterhouse, 490 U.S.
at 240 (citing 42 U.S.C. §
2000e-2(a)(1)).
Price
Waterhouse involved a woman perceived by her employer to be insufficiently
feminine. Six justices agreed that comments the defendant’s representatives
made about the plaintiff – that she was “macho” and “overcompensat[ing] for
being a woman,” and would have better chances of promotion to partnership at
her firm if she would “walk more femininely, talk more femininely, dress more
femininely, wear make-up, have her hair styled, and wear jewelry” – indicated
discrimination based on sex stereotypes that is illegal under Title VII. Id. at 235, 251. As the Court held, “[W]e
are beyond the day when an employer could evaluate employees by assuming or
insisting that they matched the stereotype associated with their group.” Id. at 251. 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. (quoting Manhart, 435 U.S. at 707 n.13).
Many circuits have relied on Price Waterhouse in concluding that
employers violate Title VII’s prohibition against sex discrimination when they
discriminate against employees for failing to conform to gender-based
stereotypes by acting in an effeminate or masculine manner or by wearing
gender-nonconforming clothing. See, e.g., EEOC v. Boh Bros. Constr. Co., 731
F.3d 444, 459-60 (5th Cir. 2013) (en banc) (holding that liability was
warranted under Title VII if a jury
concluded harassment occurred because the victim “fell outside of [the
harasser’s] manly-man stereotype”); Smith
v. City of Salem, 378 F.3d 566, 574 (6th Cir. 2004) (“After Price Waterhouse, an employer who
discriminates against women because, for instance, they do not wear dresses or
makeup, is engaging in sex discrimination because the discrimination would not
occur but for the victim’s sex. It follows that employers who discriminate
against men because they do wear dresses and makeup, or otherwise act
femininely, are also engaging in sex discrimination, because the discrimination
would not occur but for the victim’s sex.”); Nichols v. Azteca Rest. Enters., Inc., 256
F.3d 864, 874 (9th Cir. 2001) (“[T]he holding in Price Waterhouse applies with equal force
to a man who is discriminated against for acting too feminine. … At its
essence, the systematic abuse directed at [the plaintiff] reflected a belief
that [he] did not act as a man should act.”); Glenn v. Brumby, 663 F.3d 1312, 1317 (11th
Cir. 2011) (summarizing cases and concluding that “instances of discrimination
against plaintiffs because they fail to act according to socially prescribed
gender roles constitute discrimination under Title
VII according to the rationale of Price
Waterhouse”).
Intentional discrimination on the basis of the
gender of an individual’s actual or desired partners – whether that individual
is lesbian, gay, bisexual, or straight – necessarily implicates stereotypes
relating to “proper” sex-specific roles in romantic and/or sexual
relationships. The Seventh Circuit sitting en banc recently made this
connection explicit, referring to lesbianism as “the ultimate case of failure
to conform to the female stereotype” and concluding:
[A]
policy that discriminates on the basis of sexual orientation … is based on
assumptions about the proper behavior for someone of a given sex. … Any
discomfort, disapproval, or job decision based on the fact that the complainant
– woman or man – dresses differently, speaks differently, or dates or
marries a same-sex partner, is a reaction purely and simply based on sex.
That means that it falls within Title VII’s prohibition against sex
discrimination, if it affects employment in one of the specified ways.
Hively, 853 F.3d at 346-47 (emphasis
added). An increasing number of district courts have applied Price Waterhouse and come to the same
conclusion. See, e.g., Boutillier
v. Hartford Pub. Sch., 221 F. Supp. 3d 255, 269 (D. Conn. 2016)
(“[S]tereotypes concerning sexual orientation are probably the most prominent
of all sex related stereotypes, which can lead to discrimination based on what
the Second Circuit refers to interchangeably as gender non-conformity. …
[H]omosexuality is the ultimate gender non-conformity, the prototypical sex
stereotyping animus.”); EEOC v. Scott
Med. Health Ctr., P.C., 217 F. Supp. 3d 834, 842 (W.D. Pa. 2016)
(“[D]iscrimination 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,
150 F. Supp. 3d at 1160 (“Stereotypes 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. Discrimination based on a perceived failure
to conform to a stereotype constitutes actionable discrimination ….”); Terveer v. Billington, 34 F. Supp. 3d 100,
116 (D.D.C. 2014) (finding that a homosexual plaintiff’s allegations that he
was denied promotions and subjected to a hostile work environment because his
sexual orientation “did not conform to the Defendant’s gender stereotypes
associated with men” stated a sufficient claim to survive a motion to
dismiss).
This connection between sexual orientation and
gender nonconformity applies even if the employee exhibits no other
gender-nonconforming behavior. See Christiansen,
852 F.3d at 206 (Katzmann, C.J., concurring) (“[I]f gay, lesbian, or bisexual
plaintiffs can show that they were discriminated against for failing to comply
with some gender stereotype, including the stereotype that men should be
exclusively attracted to women and women should be exclusively attracted to
men, they have made out a cognizable sex discrimination claim.”); Centola v. Potter, 183 F. Supp. 2d 403,
410 (D. Mass. 2002) (“Conceivably, a plaintiff who is perceived by his
harassers as stereotypically masculine in every way except for his actual or
perceived sexual orientation could maintain a Title
VII cause of action alleging sexual harassment because of his sex due to his
failure to conform with sexual stereotypes about what ‘real’ men do or don’t
do.”); Heller, 195 F. Supp. 2d at
1222-24 (“[A] jury could find that Cagle repeatedly harassed (and ultimately
discharged) Heller because Heller did not conform to Cagle’s stereotype of how
a woman ought to behave. Heller is attracted to and dates other women, whereas
Cagle believes that a woman should be attracted to and date only men. … That
Cagle perceived Heller as being a lesbian does not compel a different
outcome.”); Terveer, 34 F. Supp. 3d
at 116 (holding that a complaint alleging the plaintiff’s “sexual orientation
is not consistent with the Defendant’s perception of acceptable gender roles”
stated a valid claim of sex discrimination).
In addition to the three arguments above, several
additional factors counsel in favor of overruling Simonton and its progeny. First, the
cases on which Simonton relied are
largely no longer good law. Second, experience has shown that the distinction Simonton draws between valid gender
nonconformity claims and invalid sexual orientation claims is unworkable in
practice and leads to absurd results.
In concluding that Title VII does not prohibit sexual orientation
discrimination, Simonton relied on
a number of cases that were subsequently overruled, either implicitly or
explicitly. Dawson, in turn,
relied on Simonton for this point.
The irreparable erosion of those decisions’ foundation further justifies
overturning them en banc.
Simonton
cited three out-of-circuit cases in support of its conclusion that judicial
decisions consistently “refus[e] to interpret ‘sex’ to include sexual
orientation.” Simonton, 232 F.3d
at 35-36 (citing DeSantis v. Pacific
Tel. & Tel. Co., 608 F.2d 327, 329-32 (9th Cir. 1979); Williamson v. A.G. Edwards & Sons, Inc.,
876 F.2d 69, 70 (8th Cir. 1989); Wrightson
v. Pizza Hut of Am., Inc., 99 F.3d 138, 143 (4th Cir. 1996)). In light of
subsequent Supreme Court decisions, however, none of these cases justifies
retaining Simonton as binding
precedent. See Price Waterhouse,
490 U.S. at 250-51; Oncale v. Sundowner
Offshore Oil Servs., Inc., 523 U.S. 75, 79 (1998) (noting that Title VII’s
protections extend beyond those the statute was initially enacted to combat,
and cover “reasonably comparable evils” as well). DeSantis, which held that Title VII does not protect against
discrimination based on sex stereotypes, 608
F.2d at 331-32, was abrogated by Price
Waterhouse and is no longer good law. See Nichols, 256 F.3d at 875 (recognizing
abrogation). Williamson, a
four-paragraph decision from the Eighth Circuit that predates Price Waterhouse and Oncale,
relies entirely on DeSantis without
additional analysis. Williamson,
876 F.2d at 70. In a subsequent case reversing dismissal of a suit alleging
harassment based on sex and “perceived sexual preference,” the Eighth Circuit
discounted Williamson’s precedential authority, referring to it as a
“pre-Oncale case.” Schmedding
v. Tnemec Co., 187 F.3d 862, 864 n.3 (8th Cir. 1999). Wrightson relies exclusively on Williamson and DeSantis, and was dicta on this point in
any event. Wrightson, 99 F.3d at
143. Thus, of the three cases Simonton
cites to support its conclusion, two are no longer followed and the third
relies wholly on the other two. These cases do not justify maintaining Simonton in the face of more recent legal
developments.
Simonton
should be overruled for another, equally important reason: the distinction it
draws between impermissible sex-based stereotyping and permissible sexual
orientation discrimination is unworkable and leads to absurd results. Under
current Second Circuit law, employers cannot discriminate against employees
based on an “animus toward their exhibition of behavior considered to be stereotypically
inappropriate for their gender,” but can discriminate “because of sexual
orientation.” Dawson, 398 F.3d at
217-18. Given that “homosexuality is the ultimate gender non-conformity, the
prototypical sex stereotyping animus,” Boutillier,
221 F. Supp. 3d at 269, courts asked to differentiate between sex stereotyping
and sexual orientation have understandably found the task difficult, if not
essentially impossible. See Hively,
853 F.3d at 346 (“Our panel described the line between a gender nonconformity
claim and one based on sexual orientation as gossamer-thin; we conclude that it
does not exist at all.”); Videckis,
150 F. Supp. 3d at 1159 (“Simply put, the line between sex discrimination and
sexual orientation discrimination is ‘difficult to draw’ because that line does
not exist, save as a lingering and faulty judicial construct.”). Indeed, even
this Court recognized the inherent difficulty in this sort of line-drawing,
observing that “[s]tereotypical notions about how men and women should behave
will often necessarily blur into ideas about heterosexuality and
homosexuality.” Dawson, 398 F.3d
at 218.
The distinction drawn in Simonton between valid claims based on
gender nonconformity and invalid ones based on sexual orientation discrimination
is inherently arbitrary, leading to irrational outcomes. In Simonton this Court cautioned against
allowing plaintiffs to rely on a Price
Waterhouse gender-nonconformity theory to “bootstrap protection for sexual
orientation into Title VII,” reasoning
that the two are not interchangeable “because not all homosexual men are
stereotypically feminine, and not all heterosexual men are stereotypically
masculine.” Simonton, 232 F.3d at
38; see also Evans v. Ga. Reg’l
Hosp., 850 F.3d 1248, 1259-60 (11th Cir. 2017) (Pryor, J., concurring)
(distinguishing between homosexual status and homosexual conduct). But this
leads to the absurd result that only those gay men who act
“stereotypically feminine” and those lesbians who act stereotypically masculine
are entitled to protection from discrimination. See Christiansen, 852 F.3d at 200; cf. Prowel v. Wise Bus. Forms, Inc., 579 F.3d
285, 287 (3d Cir. 2009) (focusing on plaintiff’s high voice, failure to curse,
grooming, clothes, neatness, manner of crossing his legs, effeminacy,
conversational interests, and degree of “pizzazz” when operating a work machine
in determining whether the claimed discrimination was based on gender
stereotypes rather than sexual orientation). In short, “[p]laintiffs who ‘look
gay’ succeed under Title VII while those
merely known or thought to be gay do not.” Brian
Soucek, Perceived Homosexuals: Looking Gay Enough for Title VII, 63 Am.
U. L. Rev. 715, 766 (2014). Whether an individual is entitled to protection
under federal law cannot turn on such an arbitrary factor.
It is similarly absurd to hold that 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). There is no justification for such a judicially created
“carve-out” exception that offers protections to most individuals but denies
them to gays and lesbians. Even more absurd, as the law now stands in this
Circuit, employees are free to marry their same-sex partners, as the Supreme
Court held in Obergefell v. Hodges,
135 S. Ct. 2584 (2015), but can lawfully be fired the next day for doing so.
Overruling Simonton and holding
that Title VII protects against sexual
orientation discrimination would eliminate these inconsistent and arbitrary
results.
Opponents to the EEOC’s position have raised two
additional arguments –based in part on Simonton
itself – against finding that Title VII’s ban on sex discrimination extends to
sexual orientation discrimination. Neither provides a sufficient justification
to retain Simonton as the law of
this Circuit.
First, some have argued that Title VII would not have been reasonably
understood to protect against sexual orientation discrimination when Congress
enacted it in 1964. See, e.g., Hively,
853 F.3d at 360-63 (Sykes, J., dissenting). But as the Supreme Court clearly
held when discussing Title VII,
“[S]tatutory prohibitions often go beyond the principal evil [the law was
passed to address] 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,
523 U.S. at 79; see also Int’l
Bhd. of Teamsters v. United States, 431 U.S. 324, 381 (1977) (Marshall, J.,
concurring in part and dissenting in part) (explaining that “[t]he evils
against which [Title VII] is to be aimed
are defined broadly”). Indeed, the Court has taken this approach repeatedly
when interpreting Title VII. It has
recognized, for example, that the statute’s prohibition against discrimination
in the terms and conditions of employment encompasses sexual harassment of an
employee, 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 Congress likely considered neither issue when it
initially passed the law. As explained above, in cases of sexual orientation
discrimination, “members of one sex are exposed to disadvantageous terms or
conditions of employment to which members of the other sex are not exposed.” Oncale, 523 U.S. at 80 (internal quotation
marks omitted). This situation “meets the statutory requirements” of Title VII and warrants its protections,
regardless of Congress’s interpretation in 1964. Id. As the Seventh Circuit explained in Hively, an en banc court “sits … to
consider what the correct rule of law is now in light of the Supreme Court’s
authoritative interpretations, not what someone thought it meant one, ten, or
twenty years ago.” Hively, 853
F.3d at 350.
Second, the panel in Simonton emphasized the fact that Congress
has not enacted bills that would have explicitly extended Title VII to prohibit sexual orientation
discrimination. Simonton, 232 F.3d
at 35; Evans, 852 F.3d at 1261 (Pryor, J., concurring). But
the Supreme Court has made clear that the outcome of legislative efforts to
amend Title VII over the years says
nothing about what the existing statute prohibits. As the Court explained,
“[S]ubsequent legislative history 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,” because “several equally tenable inferences
may be drawn from such inaction, including the inference that the existing
legislation already incorporated the offered change.” Pension Benefit Guar. Corp. v. LTV Corp.,
496 U.S. 633, 650 (1990). With respect to failed proposals to offer explicit
workplace protections on the basis of sexual orientation, it is possible
legislators objected to the proposed addition of other protections as well, or
disagreed with the language of proposed exemptions, or did not think the
proposed protections extended far enough. See, e.g., Jill D. Weinberg, Gender
Non-Conformity: An Analysis of Perceived
Sexual Orientation & Gender Identity Protection Under the Employment
Non-Discrimination Act, 44 U.S.F. L. Rev. 1, 8 (2009) (noting that the
proposed Equality Act of 1974 would have
added protections on the basis of both sexual orientation and marital status); Kate
B. Rhodes, Defending ENDA: The Ramifications of Omitting the BFOQ Defense in the Employment
Non-Discrimination Act, 19 Law & Sexuality 1, 4, 8-11 (2010) (noting
opposition to one version of the Employment
Non-Discrimination Act based on its failure to protect transgender individuals,
as well as debate over the scope of exemptions). In short, “we have no idea
what inference to draw from congressional inaction or later enactments, because
there is no way of knowing what explains each individual member’s votes, much
less what explains the failure of the body as a whole to change this 1964
statute.” Hively, 853 F.3d at 344.
For the foregoing reasons, Simonton should be overruled, the judgment
of the district court should be reversed, and the case should be remanded for
further proceedings.
Respectfully submitted,
JAMES L. LEE
Deputy General Counsel
JENNIFER S. GOLDSTEIN
Associate General Counsel
ANNE NOEL OCCHIALINO
Senior Appellate Attorney
/s/ Jeremy D. Horowitz
JEREMY D. HOROWITZ
Attorney
U.S.
Equal Employment
Opportunity Commission
Office of General Counsel
131 M St. N.E., Room
5SW24J
Washington, D.C. 20507
(202) 663-4716
jeremy.horowitz@eeoc.gov
I hereby certify that this brief complies with
the type-volume requirements set forth in Federal Rules of Appellate Procedure
Rules 29(a)(5) and Second Circuit Local Rules 29.1(c) and 32.1(a)(4)(A). This
brief contains 6,096 words, from the Statement of Interest through the
Conclusion, as determined by the Microsoft Word 2016 word processing program,
with 14-point proportionally spaced type for text and footnotes.
/s/ Jeremy D. Horowitz
JEREMY D. HOROWITZ
Attorney
U.S.
Equal Employment
Opportunity Commission
Office of General Counsel
131 M St. N.E., Room
5SW24J
Washington, D.C. 20507
(202) 663-4716
jeremy.horowitz@eeoc.gov
Dated:
June 23, 2017
