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Supreme Court May Consider Whether Federal Law Already Outlaws Sexual Orientation Discrimination

Posted on: July 12th, 2017 by Art Leonard No Comments

Lambda Legal has announced that it will petition the Supreme Court to decide whether Title VII of the Civil Rights Act of 1964, which bans employment discrimination because of sex, also bans discrimination because of sexual orientation. Lambda made the announcement on July 6, when the U.S. Court of Appeals for the 11th Circuit, based in Atlanta, announced that the full circuit court would not reconsider a decision by a three-judge panel that had ruled on March 10 against such a claim in a lawsuit by Jameka K. Evans, a lesbian security guard who was suing Georgia Regional Hospital for sexual orientation discrimination.

The question whether Title VII can be interpreted to cover sexual orientation claims got a big boost several months ago when the full Chicago-based 7th Circuit ruled that a lesbian academic, Kimberly Hively, could sue an Indiana community college for sexual orientation discrimination under the federal sex discrimination law, overruling prior panel decisions from that circuit.  The 7th Circuit was the first federal appeals court to rule in favor of such coverage.  Lambda Legal represented Hively in her appeal to the 7th Circuit.

Title VII, adopted in 1964 as part of the federal Civil Rights Act, did not even include sex as a prohibited ground of discrimination in the bill that came to the floor of the House of Representatives for debate. The primary focus of the debate was race discrimination. But a Virginia representative, Howard Smith, an opponent of the bill, introduced a floor amendment to add sex.  The amendment was approved by an odd coalition of liberals and conservatives, the former out of a desire to advance employment rights for women, many of the later hoping that adding sex to the bill would make it too controversial to pass. However, the amended bill was passed by the House and sent to the Senate, where a lengthy filibuster delayed a floor vote for months before it passed without much discussion about the meaning of the inclusion of sex as a prohibited ground for employment discrimination.  (The sex amendment did not apply to other parts of the bill, and the employment discrimination title is the only part of the 1964 Act that outlaws sex discrimination.)

Within a few years both the Equal Employment Opportunity Commission and federal courts had issued decisions rejecting discrimination claims from LGBT plaintiffs, holding that Congress did not intend to address homosexuality or transsexualism (as it was then called) in this law. The judicial consensus against coverage did not start to break down until after the Supreme Court’s 1989 decision on Ann Hopkin’s sex discrimination lawsuit against Price Waterhouse.  The accounting firm had denied her partnership application.  The Court accepted her argument that sex stereotyping had infected the process, based on sexist comments by partners of the firm concerning her failure to conform to their image of a proper “lady partner.”

Within a few years, litigators began to persuade federal judges that discrimination claims by transgender plaintiffs also involved sex stereotyping. By definition a transgender person does not conform to stereotypes about their sex as identified at birth, and by now a near consensus has emerged among the federal courts of appeals that discrimination because of gender identity or expression is a form of sex discrimination under the stereotype theory.  The Equal Employment Opportunity Commission changed its position as well, following the lead of some of the court decisions, in 2012.

Advocates for gay plaintiffs also raised the stereotype theory, but with mixed success. Most federal circuit courts were unwilling to accept it unless the plaintiff could show that he or she was gender-nonconforming in some obvious way, such as effeminacy in men or masculinity (akin to the drill sergeant demeanor of Ann Hopkins) in women.  The courts generally rejected the argument that to have a homosexual or bisexual orientation was itself a violation of employer’s stereotypes about how men and women were supposed to act, and some circuit courts, including the New York-based 2nd Circuit, had ruled that if sexual orientation was the “real reason” for discrimination, a Title VII claim must fail, even if the plaintiff was gender nonconforming.  Within the past few years, however, several district court and the EEOC have accepted the stereotype argument and other arguments insisting that discrimination because of sexual orientation is always, as a practical matter, about the sex of the plaintiff.  This year, for the first time, a federal appeals court, the Chicago-based 7th Circuit, did so in the Hively case.  A split among the circuits about the interpretation of a federal statute is listed by the Supreme Court in its practice rules as the kind of case it is likely to accept for review.

The Supreme Court has been asked in the past to consider whether Title VII could be interpreted to cover sexual orientation and gender identity claims, but it has always rejected the invitation, leaving in place the lower court rulings.

However, last year the Court signaled its interest in the question whether sex discrimination, as such, includes gender identity discrimination, when it agreed to review a ruling by the Richmond-based 4th Circuit Court of Appeals, which held that the district court should not have dismissed a sex-discrimination claim by Gavin Grimm, a transgender high school student, under Title IX of the Education Amendments of 1972, which bans sex discrimination by schools that get federal money.  The 4th Circuit held in Grimm’s case that the district court should have deferred to an interpretation of the Title IX regulations by the Obama Administration’s Department of Education, which had decided to follow the lead of the EEOC and federal courts in Title VII cases and accept the sex stereotyping theory for gender identity discrimination claims. Shortly before the Supreme Court was scheduled to hear arguments in this case, however, the Trump Administration “withdrew” the Obama Administration interpretation, pulling the rug out from under the 4th Circuit’s decision.  The Supreme Court then canceled the argument and sent the case back to the 4th Circuit, where an argument has been scheduled for this fall on the question whether Title IX applies in the absence of such an executive branch interpretation.

Meanwhile, the Title VII issue has been percolating in many courts around the country. Here in New York, the 2nd Circuit Court of Appeals has had several recent panel decisions in which the judges have refused to allow sexual orientation discrimination claims because they are bound by earlier decisions of the court to reject them, although in some cases they have said that the gay plaintiff could maintain their Title VII case if they could show gender nonconforming behavior sufficient to evoke the stereotype theory. In one of these cases, the chief judge of the circuit wrote a concurring opinion, suggesting that it was time for the Circuit to reconsider the issue by the full court.  In another of these cases, Zarda v. Altitude Express, the court recently granted a petition for reconsideration by the full bench, appellants’ briefs and amicus briefs were filed late in June, and oral argument has been scheduled for September 26.  The EEOC as well as many LGBT rights and civil liberties organizations and the attorneys general of the three states in the circuit have filed amicus briefs, calling on the 2nd Circuit to follow the 7th Circuit’s lead on this issue.

This sets up an interesting dynamic between the 11th Circuit case, Evans, and the 2nd Circuit case, Zarda.  Lambda’s petition for certiorari (the technical term for seeking Supreme Court review) is due to be filed by 90 days after the denial of its rehearing petition by the 11th Circuit, which would put it early in October, shortly after the 2nd Circuit’s scheduled argument in Zarda.  After Lambda files its petition, the Respondent, Georgia Regional Hospital (perhaps, as a public hospital, represented by the state attorney general’s office), will have up to 30 days to file a response, but this is uncertain, since the hospital failed to send an attorney to argue against Evans’ appeal before the 11th Circuit panel.  Other interested parties who want the Supreme Court to take or reject this case may filed amicus briefs as well.  If Lambda uses all or virtually all of its 90 days to prepare and file its petition, the Supreme Court would most likely not announce whether it will take the case until late October or November.  If it takes the case, oral argument would most likely be held early in 2018, with an opinion expected by the end of the Court’s term in June.

That leaves the question whether the 2nd Circuit will move expeditiously to decide the Zarda case?  Legal observers generally believe that the 2nd Circuit is poised to change its position and follow the 7th Circuit in holding that sexual orientation claims can be litigated under Title VII, but the circuit judges might deem it prudent to hold up until the Supreme Court rules on the Evans petition and, if that petition is granted, the 2nd Circuit might decide to put off a ruling until after the Supreme Court rules.  In that case, there will be no change in the 2nd Circuit’s position until sometime in the spring of 2018, which would be bad news for litigants in the 2nd Circuit.  Indeed, some district judges in the Circuit are clearly champing at the bit to be able to decide sexual orientation discrimination claims under Title VII, and two veteran judges have bucked the circuit precedent recently, refusing to dismiss sexual orientation cases, arguing that the 2nd Circuit’s precedents are outmoded.  A few years ago the 2nd Circuit accepted the argument in a race discrimination case that an employer violated Title VII by discriminating against a person for engaging in a mixed-race relationship, and some judges see this as supporting the analogous argument that discriminating against somebody because they are attracted to a person of the same-sex is sex discrimination.

The 2nd Circuit has in the past moved to rule quickly on an LGBT issue in a somewhat similar situation.  In 2012, cases were moving up through the federal courts challenging the Defense of Marriage Act (DOMA), which had been held unconstitutional by several district courts.  A race to the Supreme Court was emerging between cases from Boston (1st Circuit), New York (2nd Circuit), and San Francisco (9th Circuit).  The Supreme Court received a petition to review the 1st Circuit case, where GLAD represented the plaintiffs.  The ACLU, whose case on behalf of Edith Windsor was pending before the 2nd Circuit, filed a petition with the Supreme Court seeking to leapfrog the district court and bring the issue directly up to the highest court.  After the ACLU filed its petition, the 2nd Circuit moved quickly to issue a decision, and the Supreme Court granted the petition.  Meanwhile, Lambda Legal, representing the plaintiff whose case was pending in the 9th Circuit, had filed its own petition asking the Supreme Court to grant review before the 9th Circuit decided that appeal.  It was all a bit messy, but ultimately the Court granted the ACLU’s petition and held the other petitions pending its ultimate decision, announced on June 26, 2013, declaring DOMA unconstitutional.  If the 2nd Circuit moves quickly, it might be able to turn out an opinion before the Supreme Court has announced whether it will review the Evans case, as it did in 2012 in the DOMA case (although that was just a panel decision, not a ruling by the full circuit bench.)  The timing might be just right for that.

Another concern, of course, is the composition of the Supreme Court bench when this issue is to be decided. At present, the five justices who made up the majority in the DOMA and marriage equality cases are still on the Court, but three of them, Justices Anthony Kennedy (who wrote those opinions), Ruth Bader Ginsburg, and Stephen Breyer, are the three oldest justices, and there have been rumors about Kennedy considering retirement.  Donald Trump’s first appointee to the Court, Neil Gorsuch, filling the seat previously occupied by arch-homophobe Antonin Scalia, immediately showed his own anti-LGBT colors with a disingenuous dissenting opinion issued on June 26 in a case from Arkansas involving birth certificates for the children of lesbian couples, and it seems likely that when or if Trump gets another appointment, he will appoint a person of similar views.  Kennedy, who turns 81 this month, has not made a retirement announcement and has hired a full roster of court clerks for the October 2017 Term, so it seems likely he intends to serve at least one more year.  There is no indication that Ginsburg, 84, or Breyer, 79 in August, plan to retire, but given the ages of all three justices, nothing is certain.

Federal Judge Agrees With EEOC that Sexual Orientation Discrimination is Actionable under Title VII

Posted on: October 30th, 2015 by Art Leonard No Comments

At last, a federal district judge has expressly relied on the EEOC’s ruling from July 2015 that sexual orientation discrimination claims can be brought under Title VII of the Civil Rights Act of 1964.

U.S. District Judge Myron H. Thompson of the Middle District of Alabama, rejecting the recommendation of a U.S. Magistrate Judge that a sexual orientation discrimination complaint under Title VII be dismissed on jurisdictional grounds, determined that the Equal Employment Opportunity Commission (EEOC) was correct when it ruled that sexual orientation discrimination is a form of sex discrimination under Title VII.  However, this determination in Isaacs v. Felder, 2015 U.S. Dist. LEXIS 146663 (Oct. 29, 2015), did not do any good for the plaintiff, Roger Isaacs, because the court concluded that his factual allegations included neither direct nor indirect evidence of discriminatory intent in his discharge or treatment by his employer.

Isaacs, a gay man, worked for Felder Services as a dietician for about six months. Felder provides various services to healthcare facilities. Isaacs was assigned to work at Arbor Springs Health and Rehabilitation Center under a contract that Felder had with that organization. He complained that he was subjected to a discriminatory hostile environment at Arbor Springs, and relayed this complaint back to Felder, which asked Arbor to investigate and report.

Meanwhile, Isaacs had also been assigned by Felder to provide dietician services at another facility, in Florala, Alabama, once every three weeks. Isaacs had been injured in a car accident and asked for permission “for a man he identified as his brother but who was actually his husband to drive him to Florala, and for the two to stay overnight there,” wrote Judge Thompson, observing that there was a “dispute” about whether Isaacs was authorized to seek expense reimbursements on behalf of his “brother” for these expeditions. He submitted these expenses, and also brought his mother along on some of these trips and submitted for reimbursement of her expenses as well. An administrative assistant at Felder Services raised questions about these expense reimbursements, leading to an internal investigation at Felder. This investigation led to the conclusion that Isaacs was submitting unauthorized expenses for reimbursement, and then Felder’s human resources director received the result of Arbor’s investigation of Isaacs’ allegations about harassment, which found his charges to be unsubstantiated. The results of the expense reimbursement investigation were brought to Felder’s president by the HR director, and they decided to terminate him “based on the improper reimbursement requests.”

Felder asserted Title VII claims of discrimination (by firing him) on the basis of his sex, gender non-conformity, and sexual orientation, hostile environment sexual harassment, and retaliation for claiming about the harassment. The company’s motion for summary judgment was referred to a magistrate judge, who recommended granting the motion as to all three claims. Among other things, the magistrate judge asserted that the sexual orientation claim should be rejected as not actionable under Title VII.

Judge Thompson, conducting de novo review of the record before the magistrate judge, granted summary judgment to the company on all claims, but for some different reasons from those stated by the magistrate judge. Most importantly, Thompson rejected the contention that a sexual orientation discrimination claim could not be brought under Title VII.

“The court rejects the magistrate judge’s conclusion that ‘sexual orientation discrimination is neither included in nor contemplated by Title VII,” wrote Thompson. “In the Eleventh Circuit, the question is an open one,” he wrote, citing to a recent ruling from the Southern District of Georgia, Evans v. Georgia Regional Hospital, 2015 WL 5316694 (Sept. 10, 2015) (where the judge noted that the 11th Circuit hadn’t decided this issue yet). “This court agrees instead with the view of the Equal Employment Opportunity Commission that claims of sexual orientation-based discrimination are cognizable under Title VII,” Thompson wrote, citing the July EEOC decision in Baldwin v. Federal Aviation Administration. In that case, he wrote, “the Commission explains persuasively why ‘an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.’ Particularly compelling is its reliance on Eleventh Circuit precedent,” he continued, noting the EEOC’s invocation of Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888, 892 (11th Cir. 1986), where the 11th Circuit held that discriminating against an employee based on an interracial marriage or association was a form of race discrimination; Thompson was making an analogy to same-sex marriage or associations as sex discrimination. Judge Thompson also cited a 1994 law review article by Northwestern University Professor Andrew Koppelman titled “Why Discrimination Against Lesbians and Gay Men is Sex Discrimination,” 69 N.Y.U. L. Rev. 197, which made the same argument by analogy to the racial association cases in the wake of the Hawaii Supreme Court’s ruling in Baehr v. Lewin that a ban on same-sex marriage was sex discrimination.

Thompson continued, “To the extent that sexual orientation discrimination occurs not because of the targeted individual’s romantic or sexual attraction to or involvement with people of the same sex, but rather based on her or his perceived deviations from ‘heterosexually defined gender norms,’ this, too, is sex discrimination, of the gender-stereotyping variety,” here again citing Baldwin as well as a concurring opinion in Latta v. Otter, the 9th Circuit’s 2014 marriage equality decision, in which Circuit Judge Marsha Berzon argued that a state ban on same-sex marriage was a form of sex discrimination in violation of the Equal Protection Clause. Judge Thompson quoted a passage from Berzon’s concurring opinion that included a citation to a 1975 law review article by then-professor (now Supreme Court Justice) Ruth Bader Ginsburg titled “Gender and the Constitution” (44 U. Cin. L. Rev. 1), which had helped to provide the theoretical underpinning for the Supreme Court’s subsequent adoption of the view that sex-stereotyping is evidence of sex discrimination.

While determining that the magistrate judge’s recommendation to reject Isaacs’ sex discrimination claim on the basis that Title VII did not apply was incorrect, however, Thompson concluded that Isaacs had failed to allege facts that would give rise to an inference that he was discharged because of his sexual orientation, and he agreed with the magistrate judge that the factual allegations were also insufficient to support Isaacs’ hostile environment and retaliation claims against Felder.

Thompson’s decision is apparently the first by a federal district judge to rely on the EEOC’s Baldwin decision to hold affirmatively that sexual orientation discrimination claims, if supported by sufficient factual allegations, can be brought under Title VII. Since the employer won its motion for summary judgment, there would seem to be no reason for it to seek review of Thompson’s ruling at the 11th Circuit, but the issue might get there if Isaacs were to appeal. He is represented in this lawsuit by Benjamin Howard Cooper of Cooper Law Group LLC, Birmingham, Alabama.