In a remarkable turn of events, the U. S. Dept. of Justice (DOJ) has filed an amicus brief in the Second Circuit Court of Appeals asserting that Title VII of the Civil Rights Act of 1964 does not prohibit discrimination against LGBT employees, only a month after the U. S. Equal Employment Opportunity Commission (EEOC) filed an amicus brief in the very same case taking exactly the opposite position.
The case is Zarda v. Altitude Express, Inc. A gay employee claimed he was fired for his sexual orientation, and brought suit against the employer for violating Title VII of the Civil Rights Act of 1964. Title VII prohibits discrimination “because of sex,” but does not mention sexual orientation. Nevertheless, the EEOC thinks sexual orientation, and LGBT status in general, are protected. To understand how we got here, some history is in order.
The first cases which addressed sexual orientation discrimination uniformly held that it was not protected by Title VII, that only when men were treated differently than women, or vice versa, was there a violation. Further, there have been numerous efforts to pass ENDA, the Employee Nondiscrimination Act, which would amend Title VII explicitly to protect LGBT employees, and all of them have failed.
The law has been developing, however. In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), a woman was denied promotion because she was not “feminine” enough in her dealing with clients, even though her professional competence was undoubted. Her boss told her she needed to go to “charm school.” The Supreme Court found that she had a case of sex discrimination. The Court’s reasoning was crucial, and laid the groundwork for further developments. Hopkins was discriminated against because of her sex in that she didn’t meet the traditional image of femininity. The Court said:
…we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for '[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.’
Then, in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998), the Supreme Court said harassing a male employee who was perceived not to meet the traditional image of masculinity was harassment “because of sex.”
Together these cases suggest that LGBT employees are protected, if they assert a claim based on stereotypes. Traditionally, males are “supposed” to have relationships with, and marry, women, and vice versa. Traditionally, people born with the genetic/anatomical features of one gender do not change genders. (Note that this makes protection of trans persons even more of a stretch, legally).
But simply claiming discrimination based on LGBT status, rather than on stereotypes, has traditionally not been successful—see, e.g., Christiansen v. Omnicom Grp., Inc., 167 F. Supp. 3d 598 (S.D.N.Y. 2016), which addressed an older case called Simonton, which is Second Circuit precedent:
The Simonton Court drew a distinction, however, between claims based on discrimination targeting sexual orientation and those based upon nonconformity with sexual stereotypes — the latter of which the Second Circuit has since recognized are cognizable under Title VII, but ‘should not be used to 'bootstrap protection for sexual orientation into Title VII’.
So Second Circuit precedent, like that of most other circuits, was that you might have a case if you pled nonconformity with sexual stereotypes, but you’d have no case if you just argued that Title VII flatly prohibits discrimination based on sexual preference. It is precisely the Simonton precedent which is being challenged in the Zarda case.
But wait, there’s more! Under President Obama, the EEOC and other federal personnel agencies such as the Office of Personnel Management announced that the official position of the federal government as an employer was that Title VII protection extended to LGBT employees. Then earlier this year the full Seventh Circuit handed down an en banc decision, Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339 (7th Cir. 2017), which agreed with the EEOC. Hively is a critical decision, since it creates a split of authority among the circuits, which should lead to Supreme Court review.
Combine these developments in employment law with Windsor and Obergefell, in which the Supreme Court recognized same sex marriage, and things were looking very good for LGBT employees and the LGBT community in general.
Now, however, comes Jeff Sessions. With the brief in Zarda, the Trump administration is clearly signaling that it is taking a view opposite that of the Obama administration. The brief says:
Although the Equal Employment Opportunity Commission (EEOC) enforces Title VII against private employers…and it has filed an amicus brief in support of the employee here, the EEOC is not speaking for the United States and its position about the scope of Title VII is entitled to no deference beyond its power to persuade….The essential element of sex discrimination under Title VII is that employees of one sex must be treated worse than similarly situated employees of the other sex, and sexual orientation discrimination simply does not have that effect.
And it’s symbolically significant that this brief was filed on the same day that Trump announced that transgender individuals will not be allowed to serve in the armed forces. Trump’s campaign promises to protect LGBT employees had no more substance than any of his other promises.
If I were a betting man, I’d bet that the Second Circuit will rule that Title VII does protect LGBT employees. But it doesn’t matter in the long run. Hively already created a conflict among the circuits with respect to this issue, so there is little doubt that the Supreme Court will eventually have to weigh in. We know that Roberts, Alito, Thomas, and Gorsuch will oppose the extension of Title VII, and that Breyer, Kagan, Sotomayor and Ginsburg will support it. Keep in mind that Kennedy was the author of the Obergefell opinion, so that gives some hope that he’ll side with the liberals. But it’s not certain.