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.