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2nd Circuit, En Banc, Votes 10-3 That Sexual Orientation Discrimination Violates Federal Employment Discrimination Law

Posted on: February 26th, 2018 by Art Leonard No Comments

The U.S. Court of Appeals for the 2nd Circuit, with appellate jurisdiction over federal cases from New York, Connecticut and Vermont, ruled on February 26 that Title VII of the Civil Rights Act of 1964, which prohibits discrimination because of an individual’s sex, also makes it unlawful for employers to discriminate against a person because of his or her sexual orientation.

 

The ruling in Zarda v. Altitude Express, Inc., 2018 U.S. App. LEXIS 4608, was not unexpected, as the questions and comments of the judges during the oral argument held on September 26, 2017, suggested general agreement that it was time for the 2nd Circuit to bring its case law in line with the evolving understanding that sexual orientation discrimination is a form of sex discrimination.

 

The Zarda ruling widens a split among federal appeals courts, as the 2nd Circuit joins the Chicago-based 7th Circuit, which ruled the same way last spring in Hively v. Ivy Tech Community College, in departing from the consensus of all the other circuit courts that have previously addressed the issue.  Although the Supreme Court recently refused to review a three-judge panel decision from the Atlanta-based 11th Circuit, Evans v. Georgia Regional Hospital, which had decided the other way, the Zarda ruling makes it more likely that the Court will soon take up the issue, especially if an employer on the losing end of the argument petitions the court to do so.

 

The Zarda case dates from the summer of 2010, when Donald Zarda, an openly gay sky-diving instructor, was fired by Altitude Express after a female customer’s boyfriend complained that Zarda had “come out” to his girlfriend while preparing for a “tandem skydive” during which they would be strapped together.

 

Zarda complained to the Equal Employment Opportunity Commission (EEOC), which at that time had not yet accepted the idea that sexual orientation claims violate Title VII. In his EEOC charge, Zarda asserted that he suffered discrimination because of his gender, complaining that he was fired because he “honestly referred to [his] sexual orientation and did not conform to the straight male macho stereotype.”  The EEOC, which did not then take a position on the merits of his claim, issued him a letter authorizing him to bring a lawsuit, which he did in the U.S. District Court for the Eastern District of New York.

 

Zarda’s court complaint cited Title VII, alleging sex discrimination (including discrimination because of a failure to conform to gender stereotypes), and the New York Human Rights Law, which explicitly outlaws sexual orientation discrimination.  The district court rejected his Title VII claim, following 2nd Circuit precedent, but allowed his state law claim to go to trial, where a jury ultimately ruled against him.  By the time of the trial, unfortunately, Zarda had died in a sky-diving accident, but the lawsuit was continued by his estate, seeking damages for employment discrimination.

 

In July 2015, the EEOC changed its view of the sexual orientation issue under Title VII, issuing a decision in the case of David Baldwin, a gay air traffic controller suing the U.S. Transportation Department.  The EEOC held that when an employer discriminates because of a person’s sexual orientation, the employer is unlawfully taking account of the person’s sex in making an employment decision.  Zarda’s Estate sought reconsideration of its Title VII claim from the district court, but was turned down, and encountered the same rejection from a three-judge panel of the court of appeals last spring.  The three-judge panel consisted of Circuit Judges Dennis Jacobs, Robert Sack, and Gerard Lynch.

 

However, in a different case decided last spring, Christiansen v. Omnicom Group, also presenting the sexual orientation issue under Title VII, a three-judge panel applied 2nd Circuit precedent to reject a sexual orientation claim but, in a concurring opinion, Chief Judge Robert Katzmann, taking note of the 7th Circuit’s Hively ruling and the EEOC’s Baldwin decision, suggested that the 2nd Circuit should reconsider its precedent in an appropriate case.  That would require a rare “en banc” review by the full bench of the Circuit.  The Zarda case, decided shortly after Christiansen, provided the opportunity for this, and the Circuit voted to grant a petition for reconsideration.

 

The panel that heard arguments on September 26 included all eleven active judges of the circuit plus two senior judges, Robert Sack and Gerard Lynch, who were part of the three-judge panel whose decision was being reconsidered.

 

All ten judges in the majority agreed with the proposition that individuals can bring a sexual orientation discrimination claim under Title VII, but only five judges agreed to base their decision on the three different theories that the EEOC and the 7th Circuit had embraced in their decisions.

 

Judge Katzmann wrote what the court described as the “majority opinion,” basically channeling his concurring opinion from the Christiansen case.  “Logically, because sexual orientation is a function of sex and sex is a protected characteristic under title VII, it follows that sexual orientation is also protected,” wrote Katzmann, explaining the first of three theoretical bases for the ruling, continuing that “because sexual orientation discrimination is a function of sex, and is comparable to sexual harassment, gender stereotyping, and other evils longs recognized as violating Title VII, the statute must prohibit it.”

 

“Our conclusion is reinforced by the Supreme Court’s test for determining whether an employment practice constitutes sex discrimination,” he continued.  “This approach, which we call the ‘comparative test,’ determines whether the trait that is the basis for discrimination is a function of sex by asking whether an employee’s treatment would have been different ‘but for that person’s sex.’”  Here her reverted to the 7th Circuit’s Hively decision, where that court found that a lesbian college professor, a woman who was attracted to women, would not have been fired if she was attracted to men.  “But for” her being a woman, her attraction to women would not have led to her discharge.

 

“To determine whether a trait operates as a proxy for sex,” he wrote, “we ask whether the employee would have been treated differently ‘but for’ his or her sex.  In the context of sexual orientation, a woman who is subject to an adverse employment action because she is attracted to a woman 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.”

 

The second theory is the gender stereotype theory.  “Specifically,” wrote Katzmann, “this framework demonstrates that sexual orientation discrimination is almost invariably rooted in stereotypes about men and women.”  He reviewed the history of Supreme Court rulings developing the stereotype theory in the context of sex discrimination.

 

Finally, he turned to the associational theory, noting that the 2nd Circuit had accepted this theory in the context of race discrimination in a 2008 decision involving a white man who was discharged because he had married a black woman.  The court had found that this was discrimination because of both his race and the race of his wife, and thus violated Title VII.  Applying the reasoning of that case, he wrote, “if a male employee married to a man is terminated because his employer disapproves of same-sex marriage, the employee has suffered associational discrimination based on his own sex because ‘the fact that the employee is a man instead of a woman motivated the employer’s discrimination against him,’” quoting from the EEOC’s Baldwin decision.

 

Katzmann rejected the argument that the failure of Congress to approve any of more than fifty bills that have been introduced since the 1970s to add sexual orientation to the prohibited grounds for discrimination under federal law should defeat Zarda’s claim, or that the failure of Congress to address this issue when it amended Title VII in 1991 to overrule several Supreme Court decisions on other discrimination issues should be construed to constitute congressional approval of the three court of appeals decision that had up to that time rejected sexual orientation claims under Title VII.

 

This appeal was unusual in that the government filed amicus briefs and made arguments on both sides of the issue.  The EEOC filed a brief supporting the Zarda Estate’s claim that Title VII covers sexual orientation claims, consistent with its ruling in the Baldwin case, but the Justice Department filed a brief and participated in the oral argument on the other side, taking the view, consistent with Attorney General Jeff Sessions’ announced position, that Title VII does not cover sexual orientation or gender identity claims.  A large portion of Judge Katzman’s opinion, which runs over 65 pages, was devoted to refuting various arguments made by the Justice Department.

 

Several of the concurring judges joined the result but limited their agreement to the associational discrimination theory, finding it to be consistent with the Circuit’s 2008 race discrimination case.  Judge Dennis Jacobs went further, explaining why he was not convinced by the other theories accepted by Judge Katzmann.  Judge Raymond Lohier, Jr., premised his agreement on Judge Katzmann’s “but for” argument.

 

Judge Jose Cabranes concurred in the judgment without signing on to any of the other opinions, characterizing this as “a straightforward case of statutory construction.” He wrote, “Zarda’s sexual orientation is a function of his sex.  Discrimination against Zarda because of his sexual orientation therefore is discrimination because of his sex, and is prohibited by Title VII.  That should be the end of the analysis.”

 

Judge Lynch’s dissenting opinion was actually longer than Judge Katzmann’s majority opinion, providing a detailed history of the adoption of Title VII to support his agreement with Judge Diane Sykes of the 7th Circuit (who dissented in the Hively case) that the court must confine its interpretation of Title VII to what the legislators thought they were enacting in 1964.  Their argument is that the role of the court in statutory interpretation is relatively modest, and does not extend to “updating” statutes to embrace new legal principles that are not clearly logical extensions of what the legislature intended to address.  Lynch went out of his way to say multiple times that he thinks sexual orientation discrimination is a bad thing, to laud the states that have banned such discrimination, and to bemoan the failure of Congress to address the issue.  But, he insisted, it was not the role of the court to impose new legal obligations on private employers under the guise of interpreting a statute adopted more than fifty years ago. Judges Debra Ann Livingston and Reena Raggi also dissented, agreeing with Judge Lynch.

 

Thus, the three dissenters premised their view on a judicial philosophy concerning the statutory construction rather than a view about whether sexual orientation discrimination should be illegal.

 

New York, Connecticut and Vermont already have state laws banning sexual orientation discrimination in the workplace, so the 2nd Circuit’s ruling does not alter the obligations of employers and the rights of employees in a substantial way.  But it opens the doors of the federal court houses to such discrimination claims, and there are some ways in which Title VII can provider a broader range of protection than the state laws.  For example, at the Zarda trial, the judge gave a jury charge that required a finding that Zarda’s sexual orientation was the motivating factor in his discharge.  Such a charge would be too narrow under Title VII, where a jury could find a statutory violation as long as sexual orientation was “a factor,” even if there were other factors contributing to the decision.  Thus, the jury’s verdict on the state law claim will not preclude a ruling in favor of Zarda’s Estate when the case is returned to the district court for disposition of the Title VII claim.

 

New York solo practitioner Gregory Antollino has represented first Zarda and then his Estate throughout the proceedings, with Stephen Bergstein as co-counsel for the Estate. Altitude Express, which now has to decide whether to petition the Supreme Court for review or to defend the case back in the Eastern District court, is represented by Saul D. Zabell of Bohemia, New York.  Arguing as amicus in support of Zarda were Jeremy Horowitz from the EEOC and Gregory Nevins from Lambda Legal.  Arguing as amicus in support of Altitude Express were Hashim M. Mooppan from the Justice Department and Adam K. Mortara, of Bartlit Beck Herman Palenchar & Scott LLP, Chicago, as a court-appointed amicus. The case attracted many other amicus curiae filings, including from the LGBT Bar Association of Greater New York, and a wide array of civil rights, civil liberties, and LGBT rights groups in support of Zarda’s appeal.  On the other side were arrayed the Justice Department and some conservative groups, including the Christian Legal Society, the National Association of Evangelicals, the U.S. Justice Foundation, and the Conservative Legal Defense and Education Fund.

 

 

2nd Circuit Panel Rejects Sexual Orientation Discrimination Claim Under Title VII, but Revives Sex-Stereotyping Claim by Gay Man

Posted on: March 27th, 2017 by Art Leonard No Comments

A three-judge panel of the U.S. Court of Appeals for the 2nd Circuit, based in Manhattan, has issued a mixed ruling concerning a gay man’s claim that he was sexually harassed in his workplace in violation of Title VII of the Civil Rights Act of 1964.  In a per curiam opinion in Christiansen v. Omnicom Group, 2017 U.S. App. LEXIS 5278, 2017 WL 1130183, the court ruled on March 27 that plaintiff Matthew Christiansen could not sue under Title VII on a claim of sexual orientation discrimination because of existing circuit precedents, but that he  could maintain his lawsuit on a claim that he was the victim of unlawful sex stereotyping by his employer.  Thus, the case was sent back to U.S. District Judge Katherine Polk Failla (S.D.N.Y.), who last year had granted the employer’s motion to dismiss all federal claims in the case and to decline to exercise jurisdiction over state law claims; see 167 F. Supp. 3d 598.

The ruling on this appeal, which was argued on January 20, was much awaited because it was the first time for the 2nd Circuit to address the sexual orientation issue since the Equal Employment Opportunity Commission (EEOC) reversed its position, held for half a century, and ruled in 2015 that sexual orientation discrimination claims should be treated as sex discrimination claims subject to Title VII, which prohibits discrimination “because of sex.”

In a separate concurring opinion, Chief Judge Robert Katzmann, joined by U.S. District Judge Margo K. Brodie, suggested that if the full 2nd Circuit bench, which can change a circuit precedent, were to consider the question, Katzmann and Brodie would find that sexual orientation discrimination claims can be litigated under Title VII.  The other member of the panel, Circuit Judge Debra Ann Livingston, did not join the concurring opinion.

Christiansen, described in the opinion as “an openly gay man who is HIV-positive,” worked at DDB Worldwide Communications Group, an advertising agency based in New York that is a subsidiary of Omnicom Group. He alleged that his direct supervisor subjected him to humiliating harassment “targeting his effeminacy and sexual orientation.”  This began in the spring and summer of 2011, a time when marriage equality in New York was much in the news as the legislature prepared to vote upon and pass the marriage equality bill.  The supervisor, who is not named in the opinion, “drew multiple sexually suggestive and explicit drawings of Christiansen on an office whiteboard.”  These graphic drawings “depicted a naked, muscular Christiansen with an erect penis, holding a manual air pump and accompanied by a text bubble reading, ‘I’m so pumped for marriage equality.’”

There was another picture that “depicted Christiansen in tights and a low-cut shirt ‘prancing around.’” Yet another showed his “torso on the body of ‘a four legged animal with a tail and penis, urinating and defecating.’” Later in 2011, the same supervisor “circulated at work and posted to Facebook a ‘Muscle Beach Party” poster that depicted various employees’ heads on the bodies of people in beach attire,” including Christiansen’s head “attached to a female body clad in a bikini, lying on the ground with her legs upright in the air in a manner that one coworker thought depicted Christiansen as ‘a submissive sissy.’”

The supervisor also made remarks about “the connection between effeminacy, sexual orientation, and HIV status,” and allegedly told other employees that Christiansen “was effeminate and gay so he must have AIDS.”  The supervisor made other references to AIDS in connection with Christiansen, although at the time Christiansen was keeping his HIV-status private.  Christiansen included a disability discrimination claim in his complaint, but the district court found that his factual allegations were not sufficient to maintain a claim under the Americans with Disabilities Act, a conclusion that Christiansen did not appeal.

Christiansen filed a complaint with the EEOC in 2014, describing the harassment in detail, and upon receiving the agency’s notice of right to sue, filed his lawsuit in the federal court in Manhattan, which the defendants quickly moved to dismiss. Christiansen alleged violations of the Americans with Disabilities Act and Title VII for his federal claims, and also alleged violations of New York State and city anti-discrimination laws. The employer argued that his claim under Title VII was really a sexual orientation discrimination claim rather than a gender stereotyping claim, and the district judge agreed.

The state of precedent in the 2nd Circuit has frequently been questioned by federal trial courts in the circuit as confusing and difficult to apply.  The Circuit has ruled that under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), an employee, including a gay or lesbian employee, can bring a sex discrimination claim involving sex stereotyping, but if the court perceives that the employer’s mistreatment of the employee was really due to the employee’s sexual orientation, the claim will be rejected.  These precedents date from 2000 (Simonton v. Runyon, 232 F.3d 33) and 2005 (Dawson v. Bumble & Bumble, 398 F.3d 211).  They predate the Supreme Court’s decisions striking down the Defense of Marriage Act (U.S. v. Windsor, 133 S.Ct. 2675) and state bans on same-sex marriage (Obergefell v. Windsor, 135 S. Ct. 2584), as well as the EEOC’s 2015 ruling recognizing sexual orientation discrimination claims under Title VII.  While none of these later rulings produced a precedent binding on the 2nd Circuit that sexual orientation claims are covered under Title VII, they have “changed the landscape,” as Judge Katzmann wrote in his concurring opinion.

The per curiam opinion premised its holding squarely on the rule that circuit precedents can only be revised or reversed by the Supreme Court or the full circuit bench sitting en banc. Thus, the panel ruled that it was precluded from reconsidering Simonton and Dawson.

However, the panel disagreed with Judge Failla’s conclusion that there was too much about sexual orientation in Christiansen’s complaint to allow him to proceed with a gender stereotyping sex discrimination claim under Title VII. The panel pointed out that the 2nd Circuit has never ruled that gay people may not sue under Title VII when they have substantial evidence of gender stereotyping to present, provided that such evidence is not limited to the argument that sexual orientation discrimination is itself a form of sex stereotyping.  That is, the Title VII claim may not based, under current circuit precedent, on the argument that men loving men and women loving men is a violation of gender stereotypes in and of itself.  In this case, the panel wrote that there were enough allegations of gender stereotyping as such to survive the employer’s motion to dismiss.

“The district court commented that much more of the complaint was devoted to sexual orientation discrimination allegations than gender stereotyping discrimination allegations and that it thus might be difficult for Christiansen to withstand summary judgment or prove at trial that he was harassed because of his perceived effeminacy and flouting of gender stereotypes rather than because of his sexual orientation.” But the court pointed out that Christiansen’s burden at this initial stage of the litigation was not to show that he would prevail at later stages. Rather, it was enough for him to “state a claim that is plausible on its face” that he was subjected to harassment because of non-conformity to male gender stereotypes.

Judge Katzmann noted in his concurrence that because Christiansen was also alleging violations of state and local laws forbidding sexual orientation discrimination as well as a violation of Title VII, it was to be expected that his factual allegations would cover both kinds of claims. While joining in the per curiam opinion, Judge Katzmann wrote separately to express his view “that when the appropriate occasion presents itself, it would make sense for the Court to revisit the central legal issue confronted in Simonton and Dawson, especially in light of the changing legal landscape that has taken shape in the nearly two decades since Simonton issued.”

He went on to identify three theories under which sexual orientation discrimination claims should be treated as sex discrimination claims under Title VII, drawing heavily on the EEOC’s 2015 decision. First, he wrote, “sexual orientation discrimination is sex discrimination for the simple reason that such discrimination treats otherwise similarly-situated people differently solely because of their sex.”  The EEOC has observed, he wrote, that “sexual orientation ‘cannot be defined or understood without reference to sex,’ because sexual orientation is defined by whether a person is attracted to people of the same sex or opposite sex (or both, or neither).”  Thus, according to the EEOC, “sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex.”

The second theory follows a 2nd Circuit ruling from 2008, Holcomb v. Iona College, 521 F.3d 130 (2008), where the circuit formally embraced the associational discrimination theory that other courts have applied in race discrimination cases.  If an employee suffers discrimination because he is involved in an interracial relationship, the courts will recognize his claim of race discrimination in violation of Title VII.  By analogy, discriminating against an employee because of a same-sex relationship is quite simply sex discrimination.  In Price Waterhouse, the Supreme Court had commented that Title VII “on its face treats each of the enumerated categories exactly the same.”  Thus, if employees in interracial relationships are protected from race discrimination, then employees in same-sex relationships should be protected from sex discrimination.

Finally, of course, there is gender stereotyping, including the kind of stereotyping that the 2nd Circuit has not yet accepted as violating Title VII, the stereotype that men should be attracted only to women and women only to men.  “Relying on common sense and intuition rather than any ‘special training,’” wrote Katzmann, “courts have explained that sexual orientation discrimination ‘is often, if not always, motivated by a desire to enforce heterosexually defined gender norms.  In fact, stereotypes about homosexuality are directly related to our stereotypes about the proper roles of men and women.’”  Katzmann noted that the circuit in Dawson had pointed out that “stereotypical notions about how men and women should behave will often necessarily blur into ideas about heterosexuality and homosexuality.”  He continued, “Having conceded this, it is logically untenable for us to insist that this particular gender stereotype is outside of the gender stereotype discrimination prohibition articulated in Price Waterhouse,” and concluded that this particular stereotype about sexual attraction is “as clear a gender stereotype as any.”

At the same time, he rejected the argument, raised by some courts, that because Congress has been considering unsuccessful efforts to pass a federal ban on sexual orientation discrimination since the 1970s, the courts are precluded through interpreting Title VII to ban such discrimination. When the circuit decided Simonton in 2000, it reached the same conclusion that all other federal circuit courts had then reached on this issue.  “But in the years since,” he wrote, “the legal landscape has substantially changed,” citing Lawrence v. Texas, 539 U.S. 558 (the sodomy law case) and Obergefell v. Hodges (the marriage equality case), “affording greater legal protection to gay, lesbian, and bisexual individuals.  During the same period,” he observed, “societal understanding of same-sex relationships has evolved considerably.”  Thus, he wrote, despite the failed legislative proposals, there is “no justification in the statutory language for a categorical rule” excluding sexual orientation claims.

“I respectfully think that in the context of an appropriate case our Court should consider reexamining the holding that sexual orientation discrimination claims are not cognizable under Title VII. Other federal courts are also grappling with this question, and it well may be that the Supreme Court will ultimately address it.”

The other cases are in the 7th Circuit, where the full bench heard argument on November 30 on this question, and the 11th Circuit, where a petition for en banc review is being filed by Lambda seeking reversal of a 2-1 adverse panel decision issued a few weeks ago.  There is also another panel case argued in January in the 2nd Circuit, although the circuit rule on precedent will likely produce the same result in that case, which does not include a separate gender non-conformity allegation.

Christiansen is represented by Susan Chana Lask, a New York attorney whose Complaint in this case originally cast the federal claim as a sex stereotyping claim. Now that the case is being sent back to the district court to be litigated on the stereotyping theory, the plaintiff need not seek full circuit en banc review to proceed and seek discovery to produce evidence in support of his claim.

The case attracted widespread amicus participation, including a brief filed by the EEOC, another from a long list of civil rights organizations led by the ACLU, and briefs on behalf of 128 members of Congress, the National Center for Lesbian Rights, and Lambda Legal, all arguing that the court should allow the case to proceed as a sexual orientation discrimination case.