One of the nation’s most senior federal trial judges, Warren W. Eginton (age 92) of Connecticut, rejected an employer’s motion to dismiss a Title VII sex discrimination claim brought by an openly gay employee in a November 17 ruling. Boutillier v. Hartford Public Schools, 2016 U.S. Dist. LEXIS 159093, 2016 WL 6818348 (D. Conn.). Eginton, who was appointed by Jimmy Carter in 1979 and has been a senior judge (semi-retired) since 1992, accepted the argument that Title VII can be interpreted to ban sexual orientation discrimination, despite prior contrary rulings by the U.S. Court of Appeals for the 2nd Circuit, to which his decision can be appealed.
Eginton’s ruling came less than two weeks after a federal district judge in Pennsylvania, Cathy Bissoon, appointed by Barack Obama, issued a similar ruling in EEOC v. Scott Medical Health Center, bucking contrary appellate precedent in the 3rd Circuit Court of Appeals. Could this be the beginning of a trend?
Lisa Boutillier, a lesbian who formerly taught in the Hartford Public School system, claimed that she had suffered discrimination and retaliation because of her sexual orientation and physical disability in violation of the Connecticut Fair Employment Practices Act, the Americans with Disabilities Act, and Title VII of the Civil Rights Act. Because Connecticut law explicitly bans sexual orientation and disability discrimination, she could have brought her case in state court and, by confining her claims to state law, she could have avoided ending up in federal court where adverse circuit precedent might have doomed her Title VII claim. Instead, however, her attorney, Margaret M. Doherty, included the federal claims and filed in the U.S. District Court, prompting the school district to file a motion arguing that Title VII does not cover this case. The case could remain in Judge Eginton’s court only if he found that Boutillier could assert a potentially valid claim under either or both of the Americans with Disabilities Act or Title VII of the Civil Rights Act. Eginton concluded that Boutillier failed to allege facts sufficient to qualify as a person with a disability under the ADA, so her ability to maintain the action in federal court turned entirely on whether she could allege a sex discrimination claim under Title VII. There is little doubt from her factual allegations that if Title VII covers this case, Boutillier will have stated a potentially valid claim and avoid summary judgment against her.
Judge Eginton devoted most of his opinion to the Title VII question. He sharply disputed the Second Circuit’s prior rulings refusing to allow sexual orientation discrimination claims under Title VII. “Early interpretations of Title VII’s sex discrimination provisions reached illogical conclusions based on a supposed traditional concept of discrimination, which, for example, determined that discrimination based on pregnancy was not discrimination based on sex,” he began his analysis, noting that Congress had overruled that mistaken early Supreme Court decision by amending Title VII. He said that the pregnancy case “and other similar decisions that imposed incongruous traditional norms were misguided in their interpretations regardless of whether Congress had been able to overrule them.” He charged that these early cases were mistaken because “they failed to take the ordinary meaning of the Act’s text to its logical conclusions . . . . The converse of the majority’s decision,” wrote Eginton, “and equally absurd, would be to hold that an exclusion in coverage for prostate cancer does not discriminate against men based on sex. Such conclusion represent a fundamental failure of ordinary interpretation.”
He found a similar error of reasoning in the Second Circuit’s approach to sexual orientation claims. He noted that when Congress overruled the pregnancy case, the House Report stated: “It is the Committee’s view that the dissenting Justices correctly interpreted the Act.” The 2nd Circuit has premised its view on lack of legislative history showing that Congress intended to protect gay people from discrimination when it included “sex” in Title VII in 1964. “Acknowledging that the legislative history on whether sexual orientation should be included in the category of sex under Title VII is slight,” wrote Eginton, “it is difficult to glean the absence of prior intention merely from subsequent efforts by Congress to reinforce statutory civil rights protections” by adding “sexual orientation” to federal law, as the 2nd Circuit has repeatedly done. He pointed out that the Supreme Court has cautioned against relying on legislative inaction as an indication of legislative intent.
More importantly, however, he wrote, “straightforward statutory interpretation and logic dictate that sexual orientation cannot be extricated from sex: the two are necessarily intertwined in a manner that, when viewed under the Title VII paradigm set forth by the Supreme Court, place sexual orientation discrimination within the penumbra of sex discrimination.”
The judge pointed out the inconsistency between the 2nd Circuit’s approach to sexual orientation and its cases about race discrimination. The 2nd Circuit has accepted the argument that it is race discrimination when an employer discriminates against an employee for engaging in an interracial relationship. “The logic is inescapable,” wrote Eginton: “If interracial association discrimination is held to be ‘because of the employee’s own race,’ so ought sexual orientation discrimination be held to be because of the employee’s own sex.” The 2nd Circuit’s cases are “not legitimately distinguishable,” he argued. “If Title VII protects individuals who are discriminated against on the basis of race because of interracial association (it does), it should similarly protect individuals who are discriminated against on the basis of sex because of sexual orientation – which could otherwise be named ‘intrasexual association.’”
He pointed out that the Supreme Court’s key decision in Price Waterhouse v. Hopkins “bolsters” his conclusion, in holding that “sex stereotyping could constitute discrimination because of sex. . . Indeed, stereotypes 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.” The 2nd Circuit has refused to extend this reasoning to sexual orientation cases, however, using an analysis that Eginton maintains is “inherently unmanageable, as homosexuality is the ultimate gender non-conformity, the prototypical sex stereotyping animus.”
He quoted extensively from a recent 7th Circuit decision, Hively v. Ivy Tech Community College, where a 3-judge panel of that court dismissed a sexual orientation discrimination claim because of circuit precedent, but two members of the panel submitted an opinion suggesting that the circuit should be reconsidering its position. Since then, the 7th Circuit has voted to grant “en banc” review in the case, with reargument scheduled for November 30.
Eginton pointed out the paradox stemming from the 2nd Circuit’s position. “Essentially, employers are prohibited from discriminating against employees for exhibiting stereotypical gay behavior, yet, at the same time, employers are free to discriminate against employees for actually being gay.” Thus, Eginton, concluded, he would follow the lead of the 2nd Circuit’s interracial discrimination case instead of its past dismissal of sexual orientation discrimination claims “by interpreting the ordinary meaning of sex under Title VII to include sexual orientation, thereby obviating the need to parse sexuality from gender norms.” Eginton pointed out that the EEOC adopted this view in 2015, the 7th Circuit agreed to a full rehearing in Hively, and a 2nd Circuit panel will soon rule on appeals from trial court dismissals of sexual orientation claims in several cases from New York. While the 2nd Circuit’s expected ruling on those appeals “may ultimately decide the fate of plaintiff’s Title VII claims,” he wrote, “in the meantime, summary judgment will be denied. Plaintiff has adequately established a right to protection under Title VII.”