A panel of thirteen judges on the US Court of Appeals for the Second Circuit just issued an opinion in Zarda v. Altitude Express, Inc., in which it held that sexual orientation discrimination is an actionable form of sex discrimination under Title VII of the Civil Rights Act of 1964. This is at once a landmark opinion and, in all likelihood, a harbinger of things to come. The en banc panel took a fresh look at an issue in which the law has been stymied by some early judicial opinions that engaged in only superficial analysis of the claim and categorically rejected it. This time, however, the full court was able to wipe the slate clean and give the question of sexual orientation discrimination the in-depth look it deserved.
The Tandem Dive: Alleged Discrimination Against a Skydiving Instructor
The plaintiff in this case, Donald Zarda, sued on the theory that he was fired for being gay and for failing to conform to the stereotype that men should be sexually attracted only to women, not to other men.
Zarda is an openly gay man. In 2010, while working as a skydiving instructor for Altitude Express, he disclosed to a female client that he is gay—a disclosure he made routinely to preempt the awkwardness that female customers might feel due to the close physical proximity and touching that occurs during a tandem skydive. In such a dive, the customer is literally strapped on top of the instructor. With this particular client, as he prepared her for her first jump, he warned her about the tandem-strapping and said not to worry, he was gay “and ha[d] an ex-husband to prove it.” She told her boyfriend about the conversation, he complained to Zarda’s boss, and Zarda was fired. (She tells a slightly different version of events, and the case will now be remanded for a trial where the facts can be determined.)
Zarda filed a complaint with the EEOC, the federal agency charged with implementing Title VII as well as other anti-discrimination laws. (Title VII requires that a complainant go first to the EEOC before filing an anti-discrimination lawsuit.) In his EEOC complaint, Zarda alleged that he was discriminated against on the basis of sexual orientation and on the basis of gender. Specifically, he explained all of the male instructors “made light of the intimate nature of being strapped to a member of the opposite sex,” but that he was fired because he “honestly referred to [his] sexual orientation and did not conform to the straight male macho stereotype.”
When he filed a lawsuit in federal court, he alleged sex stereotyping in violation of Title VII and sexual orientation discrimination under New York law, which expressly prohibits the latter type of discrimination. Zarda’s employer moved for summary judgment on the Title VII claim, arguing that the law does not protect against sexual orientation discrimination. The federal district court agreed and ruled for the employer on that claim. It permitted his state-law claims to go forward to trial, however. He lost on those claims and then appealed on the Title VII issue.
The Early and Not-So-Early Cases That Reject Sexual Orientation Discrimination Claims
Title VII prohibits employers with at least fifteen employees from discriminating on the basis of race, color, religion, sex, or national origin. Sexual orientation is not on the list—nor would one to expect it to be specifically identified in a statute drafted in 1964 when that term was not routinely used. But courts early on were asked to treat claims of sexual orientation discrimination as a form of sex discrimination.
The question whether Title VII protects against sexual orientation discrimination has been asked in cases as far back as 1979. The argument for recognizing sexual orientation discrimination claims was simple: Men should not be discriminated against for being attracted to men, when women are not punished for the same thing, and vice versa. But courts took a different view. Sex discrimination occurs when an employer discriminates “against women because they are women and men because they are men,” the Seventh Circuit wrote, simplistically, in Ulane v. Eastern Airlines, Inc. (1984). As in Ulane, courts that were asked this question uniformly rejected the claim without any serious engagement with the nature of sexual orientation discrimination or its tie to sex and gender roles. Courts tended to cite the lack of congressional intent to protect gay and lesbian employees from discrimination and leave it at that.
Decades later, many courts remained dismissive of sexual orientation discrimination claims, but eventually had to grapple with the fact that the Supreme Court had muddied the waters by recognizing both that same-sex sexual harassment could be actionable under Title VII (Oncale v. Sundowner Offshore Services) and that punishing someone for the failure to live up to gender-role stereotypes is a form of actionable sex discrimination (Price Waterhouse v. Hopkins). One might reasonably have expected these decisions to change the way in which courts thought about the relationship between sexual orientation discrimination and sex discrimination—and to see the inextricable link between the two. However, in another round of cases, courts reverted to the superficial analysis that marked the earlier opinions and continued to reject sexual orientation discrimination claims brought under Title VII. This was true in the Second Circuit as well, where the Zarda case has been litigated.
In Simonton v. Runyan (2000), for example, the Second Circuit held that a postal worker who was harassed in horrific ways because of his sexual orientation could not seek redress under Title VII. Although the appellate court deemed it “morally reprehensible” for Simonton’s co-workers to call him a “fag,” write his name in the bathroom next to the names of celebrities who had died of AIDS, and tape pornographic pictures in his work area, this conduct was not “discrimination.” Likewise, in Dawson v. Bumble & Bumble (2005), a panel of the same court reaffirmed that Title VII does not protect against sexual orientation discrimination and upheld the dismissal of a claim by a lesbian woman because she could not show that the discrimination was based purely on her failure to live up to standards of femininity rather than because she was a lesbian.
During the decades when federal courts were simply unwilling to interpret Title VII in a way that protected LGBT employees, some stop-gap measures were put in place, including Bill Clinton’s executive order banning sexual orientation discrimination in the civilian federal workforce and Barack Obama’s revocation of the Don’t Ask, Don’t Tell policy that kept gays and lesbians from serving openly in the military. Meanwhile, bills to amend Title VII to add express protection against sexual orientation discrimination were introduced in one congressional session after another, never to become law.
The EEOC’s Game-Changing Pivot
Although at one point virtually all rulings rejected sexual orientation discrimination claims under Title VII, the tide has turned. A key point was the EEOC’s issuance of a ruling in an agency adjudication, Baldwin v. Foxx (2015), in which it held that sexual orientation claims are actionable under Title VII.
In that case, the EEOC began with the simple observation that Title VII’s prohibition on taking sex into account when making employment decisions “applies equally in claims brought by lesbian, gay, and bisexual individuals under Title VII.” What it meant is that when an employer acts on the basis of sexual orientation, it has taken sex (gender) into account. The EEOC’s ruling depends on its view that “[d]iscrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, or norms.” There is no way to understand this type of discrimination, the ruling reasons, without reference to a person’s sex. Sexual orientation is, by definition, being attracted to a person of the same sex.
This ruling broke up an otherwise flat landscape. Since then, courts have shown more willingness to consider the relationship between sexual orientation and sex discrimination—and some have concluded that they are indistinguishable. After the EEOC ruling, several federal district courts reached the same conclusion. (Discussion of some of those cases can be found here and here.) Even more notably, the US Court of Appeals for the Seventh Circuit recently issued an en banc ruling, in Hively v. Ivy Tech Community College (2017), in which it held that sexual orientation discrimination is sex discrimination under Title VII.
As discussed in greater detail here, the Hively court did not rely on the conventional wisdom about sexual orientation discrimination, but instead took a more careful look at the claim. Chief Judge Diane Wood began with the observation that while a court cannot add a word to a statute (i.e., it cannot make the words “sexual orientation” magically appear in Title VII), it can interpret the words already there, including “sex.” The Seventh Circuit focused on the Supreme Court’s rulings in Oncale and Price Waterhouse and the ways in which those opinions made it hard to draw a stark line between sexual orientation and sex discrimination. At its core, sexual orientation discrimination is sex discrimination because it punishes a woman for being attracted to another woman, when it would not punish a man for being attracted to a woman. This “tried-and-true comparative method” shows the significance of the plaintiff’s sex to the employer’s decision. Second, the court drew on Loving v. Virginia, in which the Supreme Court struck down Virginia’s interracial marriage ban and rejected the state’s “equal application” theory of neutrality. Relevant to the question of sexual orientation discrimination, the Hively court cited Loving for the proposition that “[i]t is now accepted that a person who is discriminated against because of the protected characteristic of one with whom she associates is actually being disadvantaged because of her own traits.”
Although the Eleventh Circuit declined to recognize sexual orientation discrimination in a recent case, Evans v. Georgia Regional Hospital (2017), the panel judges noted that they were bound by a prior Eleventh Circuit opinion that could not be overruled except by an en banc panel of the circuit or the US Supreme Court.
The Second Circuit’s Second Look: Zarda v. Altitude Express, Inc. (En Banc)
Zarda appealed his loss to the Second Circuit. A three-judge panel appeared sympathetic to his Title VII claim but held that it was bound by prior opinions in the circuit, including Simonton and Dawson, which it did not have the power to overrule. The majority opinion expressly invited reconsideration by an en banc panel—as if they were begging to be reversed. The Second Circuit did agree to rehear the case en banc, which led to the ruling just issued.
One fun but ultimately irrelevant fact is that the federal government filed two briefs before the en banc court, in which it urged opposite conclusions. The EEOC filed a brief, as the agency charged with interpreting and enforcing federal anti-discrimination laws, in which it urged the court to side with Zarda based on its reasoning in Baldwin. The Department of Justice, on the other hand, offering no particular expertise, urged that the court reject Zarda’s claim. (Some more detail on this strange development can be found here.)
In the en banc ruling, the court expressly held that “Title VII prohibits discrimination on the basis of sexual orientation as discrimination ‘because of . . . sex. To the extent our prior precedents hold otherwise, they are overruled.”
The Zarda court identified three different theories on which sexual orientation constitutes a subset of sex discrimination: (1) it is a function of sex; (2) it involves stereotyping; and (3) it constitutes associational discrimination.
First, sexual orientation discrimination only makes sense if an employer takes an employee’s sex into account—the classic understanding of sex discrimination. Even labeling someone as homosexual requires that we identify the person’s sex because the essence of the definition is being attracted to a person of the same sex. It is thus impossible to discriminate against a person because he is gay without firing him because he is a man—not a woman—who is attracted to men. The comparative test—would you fire the same employee if she was a woman rather than a man—supports the same conclusion. It is a gay man’s manhood that makes him vulnerable to this discrimination. As the court explained:
To determine whether a trait operates as a proxy for sex, we ask whether the employee would have been treated differently ‘but for’ his or her sex. In the context of sexual orientation discrimination, a woman who is subject to an adverse employment action because she is attracted to women would have been treated differently if she had been a man who was attracted to women. We can therefore conclude that sexual orientation is a function of sex and, by extension, sexual orientation discrimination is a subset of sex discrimination.
Under standard Title VII doctrine, it doesn’t matter whether this particular type of sex discrimination was the principal evil with which Congress was concerned. If the text bans a type of discrimination, everything that fits that definition is banned. This reasoning is how Title VII came to be understood to prohibit sexual harassment, disparate impact discrimination, sex-plus discrimination, and any number of other subsets of the general category of “sex discrimination.”
While the plain reading of Title VII should readily resolve this case, there are other reasons that federal employment anti-discrimination law prohibits sexual orientation bias in the workplace.
Second, the court in Zarda concluded that sexual orientation discrimination “is almost invariably rooted in stereotypes about men and women” and is thus a type of illegal sex stereotyping. The sex stereotyping theory recognized in Price Waterhouse means that “gender must be irrelevant to employment decisions” and that “in 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.” Simply put, this stands for the proposition that Title VII doesn’t permit an employee to be treated adversely because their appearance or conduct fails to conform to stereotypical gender roles. The norm that individuals should only be attracted to people with who whom they do not share the same sex is deeply held. But the court here sees it for what it is—the quintessential stereotype, no different from antiquated expectations that women should be feminine and men should be masculine. A man who is attracted to men commits the ultimate form of gender non-conformity, as does a woman who is attracted to other women.
Finally, the Zarda court concludes that sexual orientation is properly understood as sex discrimination because it involves associational discrimination, which courts have recognized as a type of intentional discrimination in the race context. Firing a white man, for example, because he is married to a black woman constitutes illegal race discrimination. By the same token, if it is race discrimination to discriminate against one party to an interracial couple, it is sex discrimination to do so with a same-sex couple. The court in Zarda was rightfully unimpressed with the argument that it is lawful to discriminate on the basis of these associations as long as all same-sex pairings are treated equally poorly. But this defense of “equal application” discrimination was rejected by the Supreme Court in Loving v. Virginia, in which the Supreme Court struck down Virginia’s ban on interracial marriage even though it punished white and black individuals equally for marrying outside their race.
With these three reasons for recognizing sexual orientation discrimination as sex discrimination, the Zarda court closely tracks the EEOC’s reasoning in Baldwin, as well as the Seventh Circuit’s in Hively. This promises to become the new conventional wisdom on the discriminatory nature of sexual orientation discrimination.