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Supreme Court Holds that Federal Law Bans Anti-LGBT Employment Discrimination in Historic 6-3 Ruling

Posted on: June 17th, 2020 by Art Leonard No Comments

The U.S. Supreme Court’s ruling on June 16, 2020, in Bostock v. Clayton County, Georgia, 590 U.S. — , 2020 WL 3146686, 2020 U.S. LEXIS 3252, that Title VII of the 1964 Civil Rights Act bans employment discrimination against people because of their sexual orientation or gender identity, was the fifth landmark in a chain of important LGBT rights victories dating from 1996, continuing the Court’s crucial role in expanding the rights of LGBT people. The ruling culminated seventy years of struggle and activism seeking statutory protection for sexual minorities against employment discrimination, dating from the 1950s, when early LGBT rights organizations always listed such protection as one of their goals, even before the federal government began to address the issue of employment discrimination statutorily in 1964.
Trump-appointee Neil Gorsuch wrote the Court’s opinion, joined by Chief Justice John Roberts (a George Bush appointee), and the four Justices appointed by Democratic presidents: Ruth Bader Ginsburg and Stephen Breyer (Bill Clinton) and Sonia Sotomayor and Elena Kagan (Barack Obama).
Samuel Alito, appointed to the Court by George Bush, wrote an outraged dissenting opinion, joined by Clarence Thomas, who was appointed by George H.W. Bush. Trump-appointee Brett Kavanaugh penned a more temperate dissent, concluding with a surprising salute to the movement’s achievement of this milestone.
Justice Gorsuch’s emergence as the writer of this opinion caught many by surprise, since he is an acolyte of Justice Antonin Scalia, whom he replaced on the Court. Despite Scalia’s avowed commitment to many of the interpretive principles that Gorsuch also embraces, one could not imagine Scalia writing such an opinion, especially in light of the vitriolic dissenting opinions that he wrote to all four prior landmark opinions.
Because Chief Justice Roberts voted with the majority of the Court, he was in the position to assign the majority opinion to Gorsuch. Had this been a 5-4 ruling without Roberts, Justice Ginsburg, the senior justice in the majority, would have decided which justice would write for the Court. In the two marriage equality rulings, Justice Anthony Kennedy, whose approach to gay issues had been established in earlier cases, assigned the opinions to himself as senior justice in the majority. Ginsburg might well have assigned the opinion to Gorsuch in any event, to help secure his vote, especially as it was possible that if Ginsburg or one of the other Democratic appointees wrote an opinion embracing arguments Gorsuch could not accept, he might either drift away or write a concurrence in the judgment, resulting in a plurality opinion. It is even possible that Roberts’ vote came from his institutional concern that such a significant ruling have the weight of a 6-3 vote. Since there were already five votes in favor of the employee parties, his vote would not affect the outcome, but would give him some control over the opinion through his assignment to Gorsuch.
The 1996 landmark gay rights ruling was Romer v. Evans, a decision that established for the first time that a state’s discrimination against “homosexuals” violated the 14th Amendment’s Equal Protection Clause, striking down a homophobic amendment that Colorado voters had added to their state constitution, forbidding the state from providing anti-discrimination protection to gay people. Justice Kennedy’s opinion for a 6-3 Court found that the only explanation for the Colorado amendment’s adoption was animus against lesbians and gay men, never a constitutionally valid reason, so the Court did not expressly consider whether heightened scrutiny would apply to a sexual orientation discrimination claim.
The second landmark decision was Lawrence v. Texas (2003), declaring that a state law making gay sex a crime violated the guarantee of liberty in the 14th Amendment’s Due Process clause, and overruling a 1986 decision, Bowers v. Hardwick, which had rejected such a challenge to Georgia’s penal law.
The third landmark, United States v. Windsor, held in 2013 that the federal government must recognize same-sex marriages that states had authorized, striking down Section 3 of the Defense of Marriage Act, which had put into the United States Code a definition of marriage limited to different-sex couples. The Court held that this violated the Due Process and Equal Protection rights of same-sex couples under the 5th Amendment, again without explicitly engaging in discussion of whether a law discriminating based on sexual orientation is subject to heightened scrutiny.
The fourth landmark, Obergefell v. Hodges, held in 2015 that gay people enjoyed the same fundamental right to marry that had previously been guaranteed to straight people under the Due Process and Equal Protection Clauses of the 14th Amendment. Since the Court dealt with this as a fundamental rights case, both from the perspectives of due process and equal protection, it again avoided discussing whether the discriminatory aspect of the case implicated a suspect or quasi-suspect classification of sexual orientation.
In each of these cases, Justice Anthony M. Kennedy, Jr., wrote for the Court. The decisions were noteworthy as being the product of an otherwise conservative Court whose Republican appointees outnumbered the Democratic appointees. In Windsor and Obergefell, Kennedy was the only Republican appointee to side with the Democratic appointees to make up the 5-4 majority of the Court. Justice Sandra Day O’Connor, who was appointed by Ronald Reagan, cast a sixth vote for the prevailing parties in Romer and Lawrence. Her replacement, Justice Alito, dissented in Windsor and Obergefell, as well as Bostock.
The Bostock decision, incorporating two other cases, Altitude Express v. Zarda and R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, was the first major LGBT rights decision by the Court since Kennedy retired and Trump made his second appointment to the Court, seemingly locking in a solid conservative majority that was expected not to be so receptive to LGBT rights claims. With the retirement of Kennedy, it was widely believed that it would be unlikely for a gay rights claim to carry a majority of the Court.
Consequently, when the Court announced more than a year ago that it would review these three cases, tremors ran through the LGBT rights legal community. Although progress had been made in persuading the Obama Administration – including the EEOC – and the lower federal courts that Title VII’s ban on “discrimination because of an individual’s sex” could be interpreted to forbid discrimination because of sexual orientation or gender identity, it was difficult for people to count a fifth vote to add to the presumed votes of the Democratic appointees on the Court. Chief Justice Roberts had emphatically dissented from the Windsor and Obergefell rulings, and LGBT rights groups had strongly opposed the nominations of Gorsuch and Kavanaugh, based on their extremely conservative records as court of appeals judges, which was seemingly borne out in Gorsuch’s case by his dissent in Pavan v. Smith (2017), taking the transparently incorrect position that the Court had not clearly held in Obergefell that same-sex marriages must be treated the same as different-sex marriages for all legal purposes, including birth certificates, something specifically mentioned in Kennedy’s Obergefell opinion. Nobody really thought it possible that Alito or Thomas would ever cast a vote in favor of an LGBT employee’s claim, but Kavanaugh and Gorsuch were a question marks, as was the unpredictable chief justice, despite his anti-LGBT voting record up to that time.
The only facts about these cases that were relevant to the Supreme Court’s decision were that the three employees whose discrimination claims ended up before the Court claimed that they were fired because of their sexual orientation (Gerald Bostock and Donald Zarda) or their gender identity (Aimee Stephens) in violation of Title VII’s ban on sex discrimination. The merits of the Title VII claims had not been decided in Bostock or Zarda, because the district courts in both cases found the claims not to be covered under Title VII and dismissed them. Aimee Stephens’ Title VII claim survived a motion to dismiss, however; the district court found that although Title VII, standing alone, was violated in her case (but solely using a gender stereotype theory rather than holding the gender identity claims are necessarily covered by Title VII), but that the employer, a deeply religious funeral home owner, had a valid defense under the Religious Freedom Restoration Act (RFRA), and so granted judgement to the employer. The 11th Circuit affirmed the dismissal in Bostock, as did a three-judge panel of the 2nd Circuit in Zarda, but the 2nd Circuit ultimately reversed the dismissal en banc. The Equal Employment Opportunity Commission (EEOC), which had sued on Stephens’ behalf, appealed to the 6th Circuit, which reversed the district court, finding the RFRA defense invalid, and ruling that Stephens’ gender identity discrimination claim had been proven. The 6th Circuit also rejected the district court’s conclusion that the EEOC, representing Stephens, was limited to a gender stereotyping claim, expanding on its prior precedents to hold that gender identity claims are necessarily covered by Title VII as a form of sex discrimination. Thus, the only final merits ruling in the cases before the Court was the EEOC’s (and Stephens’) victory in the 6th Circuit. Stephens had intervened at the 6th Circuit, represented by the ACLU, making her a respondent alongside the EEOC in the Supreme Court.
After the Trump Administration took office, the Solicitor General took over the case from the EEOC and, consistent with the Administration’s view that Title VII did not forbid gender identity discrimination, effectively “changed sides,” arguing that the employer should have prevailed. But, surprisingly inasmuch as the employer was being represented by Alliance Defending Freedom, a conservative religious freedom litigation group, the employer had not sought review of the 6th Circuit’s rejection of its RFRA defense, so the only question before the Court was the Title VII interpretation issue. Stephens was left to defend the 6th Circuit’s ruling, with the EEOC, represented by the Solicitor General, on the other side. The Solicitor General also participated as an amicus on behalf of the government in the Bostock and Zarda cases.
There was a big difference between the earlier landmark cases and this case. The four landmarks all involved interpretations of Constitutional Due Process and Equal Protection, and were decided, in sometimes quite emotional opinions by Justice Kennedy, based on concepts of human dignity and equality. The Bostock case, by contrast, was a matter solely of statutory interpretation, and solely of Title VII (despite Justice Alito’s decision to dwell on the RFRA question in his dissent). Perhaps surprisingly, two of the most ardent “textualists” on the Court, Trump’s appointees, parted company about how to apply that approach in determining the meaning of a 55-year-old statute.
Textualists contend that statutory interpretation is a matter of figuring out what the meaning of statutory language was at the time it was adopted. Extraneous information, such as congressional committee reports, hearing transcripts, speeches on the floor of Congress or statements inserted into the Congressional Record, are generally rejected by textualists, who argue, as Scalia memorably wrote in a 1998 opinion also involving Title VII and sex discrimination, that “it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”
Gorsuch and Kavanaugh (as well as Alito) swear allegiance to this principle, but it took them in different directions in this case. Gorsuch, who had signaled this result as a possibility during the oral argument on October 8 last year, inclined towards a literalistic approach to the words of Title VII. While claiming that he was trying to determine “the ordinary public meaning” of the words at the time they were enacted, he rejected the argument that this meant that sexual orientation and gender identity could not possibly be covered, because he was persuaded by various arguments and examples that the statute as properly understood has always prohibited discrimination against people because of their “homosexuality” or “transgender status.” He wrote, “an employer who intentionally treats a person worse because of sex – such as firing the person for actions or attributes it would tolerate in an individual of another sex – discriminates against that person in violation of Title VII.”
Having accepted that point, he found persuasive several examples offered by counsel for Bostock and Zarda. Most prominent was the example of two employees, a man and a woman, with equally good qualifications, work records, and so forth, both of whom are attracted to men. The employer will hire the woman but reject the man. Because the employer will tolerate attraction to men by women but not by men, the employer’s refusal to hire the man is discrimination because of the man’s sex.
Stating his holding more generally, he wrote: “An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It doesn’t matter if other facts besides the plaintiff’s sex contributed to the decision. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group.” The idea is that sex is supposed to be irrelevant to a personnel decision unless, as the statute provides, the employer can prove that sex is a bona fide occupational qualification for the job in question, an affirmative defense provision that Gorsuch neglects to mention. But Gorsuch agreed that making a personnel decision because the person is gay or transgender makes sex relevant to the decision, and thus is generally prohibited by Title VII. Or, as he put it quite strongly, “Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
The issue, wrote Gorsuch, is whether the plaintiff’s sex is a “but-for” cause of the challenged personnel action, but it doesn’t have to be the sole cause, because the statute does not expressly require that. “When an employer fires an employee because she is homosexual or transgender,” he explained, “two causal factors may be in play, both the individual’s sex and something else (the sex to which the individual is attracted or with which the individual identifies). But Title VII doesn’t care. If an employer would not have discharged an employee but for that individual’s sex, the statute’s causation standard is met, and liability may attach.” Because all three cases being argued involved discharges, it is not surprising that Gorsuch mentions only discharges, but the clear important of the decision is that all the personnel actions coming within the scope of Title VII come within this ruling.
Responding to the argument that this could not possibly be the meaning of a statute passed in 1964, Gorsuch insisted that it has always been the meaning, it just was not recognized as such by the courts until more recently. He characterized this as the “elephant in the room” that everybody pretended was not really there. It was now time to recognize the presence of the elephant.
Aside from some passing references, Gorsuch’s interpretive discussion, and the examples he presented, focused mainly on the sexual orientation issue, but he was careful to mention gender identity or transgender status as well as sexual orientation whenever he stated his conclusions.
Alito unkindly stated in his dissent that Gorsuch’s conclusion that sexual orientation and gender identity are covered by Title VII is “preposterous.” Alito’s focus on the “original meaning” of statutory language, which he documents at length, shows as a matter of the historical record that in 1964 gay people were widely reviled as sick criminals, so it is impossible in his view to read the statutory language of 1964 as forbidding discrimination on this ground. Furthermore, he pointed out, as of 1964 the public’s awareness of transgender individuals was slight at best. Indeed, the very terms “transgender” and “gender identity” were not even used until much later. That a statute enacted in 1964 could be interpreted as prohibiting discrimination on this ground could not possibly accord with its “ordinary public meaning” at that time, he argued. But Gorsuch countered that Alito was talking about legislative intent, not contemporary meaning of the statutory language. As Scalia wrote so often in cases where he rejected evidence of legislative history, when the law is reduced to a written text, it is the text that is the law. Gorsuch even cited a few sources to suggest that some people at or near the time of enactment actually believed that gay or transgender people might have discrimination claims under Title VII.
“Ours is a society of written laws,” Gorsuch wrote. “Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations. In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.”
Reading Alito’s dissenting opinion may induce nausea in the reader, so graphic is his recounting of the horrendously homophobic views of the government and the public towards LGBT people in 1964, but he recites them to make his point that prohibition of discrimination on these grounds could not possibly be a correct textualist interpretation of this language from his perspective. He started his dissent pointedly by saying that the Court was engaged in “legislation,” not interpretation. And he concentrated on shooting holes in Gorsuch’s examples of the situations that led Gorsuch to conclude that discrimination because of homosexuality or transgender identity is, at least in part, sex discrimination.
Alito also wandered far from the central question in the cases, interjecting discussion of various issues likely to arise as a result of the decision, such as hardship for employers with religious objections to homosexuality or transgender identity (such as the employer in the Harris Funeral Homes case), and objections by co-workers to transgender employees using bathrooms and locker rooms. Gorsuch rejoined that these were questions for another day, not presently relevant to decide the appeals before the Court, noting particularly that Harris Funeral Homes had not asked the Court to review the 6th Circuit’s decision rejecting its RFRA defense. Alito was definitely putting down markers for the future cases that the Court may confront.
Kavanaugh makes some of the same points as Alito in his dissenting opinion, but it is notable that he did not join Alito’s dissent. This may be at least in part a generational thing. Gorsuch and Kavanaugh are considerably younger than Alito. By the time they were in college and law school, there were out gay people around and, on a personal level, they undoubtedly both agreed that as a matter of politics it would be appropriate for Congress to ban such discrimination. They just differed on whether the Court could reach the same result through interpretation of the 55-year old law. Kavanaugh noted that three-judge panels of ten circuit courts of appeals had rejected this interpretation. 30 judges out of 30, he wrote, more than once in his opinion, as if the unanimity of an incorrect interpretation somehow turned it into a correct interpretation. Obviously, these judges did not recognize the “elephant in the room”!
For Kavanaugh, this was really a “separation of powers” issue. The question for the Court, he wrote, was “Who decides?” The legislature has the power to make law, while the courts are limited to interpreting the statutes passed by the legislature. Here, agreeing with Alito, he asserted that the Court’s decision was violating the separation of powers. And he disagreed with Gorsuch’s approach to textualism in this case, find it too narrowly focused on individual works, thus losing the context necessary in his view to determine the contemporary “public meaning” of the overall provision in 1964.
However, Kavanaugh concluded his dissent revealing his political, as opposed to interpretive, preferences. “Notwithstanding my concern about the Court’s transgression of the Constitution’s separation of powers, it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans,” he wrote. “Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit – battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s results. Under the Constitution’s separation of powers, however, I believe that it was Congress’s role, not this Court’s, to amend Title VII.” Kavanaugh’s dissent largely ignored transgender people. His omission of them from this paragraph is inexplicable in light of the scope of the Court’s opinion and their activist role over the past several decades in seeking protection against discrimination.
Interestingly, Gorsuch premised the case entirely on a strict textualist reading of the statute, avoiding reliance on the alternative theories that the EEOC and some lower courts embraced. One such theory was gender stereotyping, grounded in the Court’s 1989 decision in Price Waterhouse v. Hopkins, in which the Court held that an employer who takes an adverse action because an employee fails to comport with stereotypes about women or men has exhibited an impermissible motivation for its actions under Title VII. Another theory, first developed in race discrimination cases, was that discharging a worker because he or she was engaged in an interracial relationship was a form of discrimination because of race. Neither this “associational theory” nor the sex stereotyping theory entered into Gorsuch’s rationale for binding Title VII applicable in Bostock.
The Court’s opinion has the immediate effect of extending protection to LGBT workers in the majority of states that do not ban sexual orientation or gender identity discrimination in their state civil rights laws, but there remain significant gaps in protection. Title VII applies to employers with at least 15 employees, state and local government employees, and federal employees. It does not apply to the uniformed military (so this decision does not directly affect Trump’s transgender service ban), or to religious organizations in their policies on “ministerial employees.” Thus, a substantial portion of the nation’s workforce does not gain any protection from discrimination by this interpretation of Title VII, because a substantial portion of the workforce is employed by smaller businesses or is classified as non-employee contractors. Furthermore, as Gorsuch noted briefly but Alito expounded at length, the Religious Freedom Restoration Act (RFRA) might be interpreted to “supplant” the Title VII protections in particular cases.
The potential application of RFRA is worth noting. Reading Gorsuch’s opinion, one might immediately identify this as a potential “poison pill.” A few years ago, in its Hobby Lobby decision, the Supreme Court suddenly discovered that business corporations could argue that a particular policy mandated by another federal law unduly burdened the employer’s free exercise of religion, and they might thereby escape compliance with the law if the government fell short in showing that its policy was the least restrictive alternative to achieve a compelling government interest. (In Harris Funeral Homes, the 6th Circuit interpreted RFRA in this context and found that the government’s compelling interest in preventing sex discrimination could be achieved only by an outright prohibition, without an exception for business owners who had religious objections.) Although Justice Alito’s opinion for the Court in Hobby Lobby rejected the idea that an employer could make such an argument in defense of a race discrimination claim, Justice Ginsburg pointed out in dissent that Alito’s opinion failed to address the issue of sexual orientation, pointing to cases where businesses claimed a religiously-based right to discriminate against gay people. This is an issue that is hardly settled, and Gorsuch’s reference to the possibility of RFRA as a “super statute” to “supplant” Title VII protections in “appropriate cases” is ominous. Where a case does not involve “ministerial employees,” the full weight of Title VII normally applies to the issue of employment discrimination by religious institutions whether because of race or color, sex or national origin. Shortly, the Court will be ruling on some new cases about the scope of this “ministerial” exception, and may issue a decision that bears on cases in which, for example, gay employees of Catholic educational institutions have been terminated for entering same-sex marriages.
In addition, of course, Title VII only applies to employment decisions. It doesn’t affect decisions by companies about hiring people as non-employee independent contractors, and it doesn’t apply to the myriad other ways that LGBT people encounter discrimination through denial of services, housing, and other privileges of living in our society. This decision does not eliminate the need for enactment of the Equality Act, a bill that would amend numerous provisions of federal law to extend anti-discrimination protection to LGBT people, while amending Title VII to make explicit the coverage of sexual orientation and gender identity. Perhaps most importantly in terms of gap-filling, the Equality Act would add “sex” to the prohibited grounds of discrimination in federal public accommodations law while at the same time expanding the concept of a public accommodation, and would also require federal contractors and funding recipients not to discriminate on these grounds.
Alito’s dissent suggested that the reasoning of the Court’s opinion could protect LGBT people from discrimination under all those other federal statutes that address discrimination because of sex. That would fill a significant part of the gap left by this decision, but not all of it, because, as explained in the previous paragraph, the Civil Rights Act provisions on public accommodations do not forbid sex discrimination and small employers are not covered. Alito appended to his dissent a list of more than 100 federal statutory provisions that he claimed would be affected by this decision, among them Title IX of the Education Amendments Act, under which courts have addressed disputes involving transgender students. This provides a useful “to do” list for the LGBT rights litigation groups, finding cases to firmly establish that the Court’s conclusion in Bostock applies to all those other protections. Closing the gaps through passage of the Equality Act and through passage of state and local laws to cover employers not subject to Title VII must be an ongoing project. There also may be an opening to persuade state courts that they should adopt similar interpretations of the prohibition of sex discrimination under their state laws.
An early test may come as courts confront challenges to a new regulation announced by the Department of Health and Human Services, just days before this decision was announced, reversing an Obama Administration rule under the Affordable Care Act’s antidiscrimination provision and “withdrawing” protection against discrimination under that Act for transgender people. Lawsuits were quickly threatened challenging this regulation. The ACA incorporates by reference the sex discrimination ban in Title IX, so federal courts should read this consistentlyly with Bostock and hold that the regulatory action violates the statute.
Another important point to bear in mind is that coverage of a form of discrimination by the statute does not inevitably lead to a ruling on the merits for the employee. Title VII litigation can be very difficult, and many employees lose their cases early in the process due to procedural roadblocks or, in the case of sex discrimination claims, to the courts’ view that sex may be a “bona fide occupational qualification” in a particular case. When plaintiffs attempt to represent themselves, they may be felled by statutes of limitations, shortcomings in their factual pleadings, or limited resources to investigate the facts and articulate a convincing claim as required by federal civil pleading standards. Furthermore, many employers require employees to execute arbitration agreements when they are hired, so plaintiffs seeking to get their proverbial “day in court” may be disappointed to discover that they are relegated to arguing in private before an arbitrator, in many cases carefully selected by the employer based on his or her “track record” in ruling on employee claims. The road to vindication is not always a smooth one.
The Court’s decision was immediately controversial with certain conservative and religious groups, some of which quickly made spurious claims about how this ruling could interfere with their free exercise and free speech rights, but public opinion polls have consistently shown overwhelming support for outlawing employment discrimination against LGBT people for many years now, so there was no startled outcry by the public at large in the days following the ruling. Those who are cynical about the idea of judging by “neutral principals of law” have often exclaimed that the Supreme Court follows the election returns, so they may characterize this opinion as more political than legal, but the “bipartisan” nature of the line-up of justices would rebut that contention. And, notably, many of the court of appeals decisions that have ruled this way in recent years have also been bipartisan. The opinion, in the matter of fact way that Gorsuch writes about “homosexual” and “transgender” people in the opinion, comes across as impassive by comparison to the florid prose of Kennedy, but it gets the job done.
Kavanaugh’s closing paragraph says that “gays and lesbians” should take pride in this victory, which was hard-earned through decades of political, legal and personal struggle. A brief pause to take pride in this ruling is appropriate, but pushing ahead to fill the remaining gaps in full legal equality is essential. A battle has been won, but not yet the war.
Unfortunately, neither Donald Zarda nor Aimee Stephens lived to learn of their victories. Zarda, who had been fired from a job as a sky-diving instructor, died in a sky-diving accident while his case was pending. Stephens was gravely ill by the time of the oral argument (which she attended, although wheelchair bound), and passed away just weeks before the Court’s decision. Gerald Bostock, however, gave delighted interviews to the press, and was looking forward to the remand back to the district court so that he would get his opportunity to prove that he was the victim of unlawful discrimination.
The Court was flooded with amicus briefs in these cases, too numerous to mention individually here. On October 8, 2019, the Court first heard arguments on the sexual orientation issue, with Pamela S. Karlen representing Bostock and the Estate of Zarda, Jeffrey M. Harris representing the Clayton County and Altitude Express, and Solicitor General Noel J. Francisco presenting the Trump Administration’s position in support of the employers. Next the Court heard arguments on the gender identity issue, with David Cole representing Stephens, John J. Bursch representing Harris Funeral Homes, and again Solicitor General Francisco representing the Trump Administration’s position that gender identity discrimination is not covered by Title VII. The EEOC, the respondent in the case, was not separately represented and did not support the government’s position, evidenced by the government’s briefs, which unusually did not list attorneys from the agency.

Alaska Federal Court Says Employer’s Denial of Insurance Coverage for Sex-Reassignment Surgery Violates Federal Law

Posted on: March 10th, 2020 by Art Leonard No Comments

A federal district court in Anchorage, Alaska, has ruled that a public employer’s health benefits plan violates Title VII of the Civil Rights Act of 1964 because it categorically denies to employees, whether male or female, coverage for the surgical procedures used to effect gender transition.  According to the March 6 opinion by Senior U.S. District Judge H. Russel Holland, the employer’s exclusion of this coverage is “discriminatory on its face and is direct evidence of sex discrimination.”  The ruling does not require all employers to provide coverage for gender reassignment surgery, but it requires that they not discriminate because of an employee’s sex in deciding which procedures are covered.

Judge Holland’s decision has potentially wide application because Title VII applies to all employers with 15 or more employees, including both businesses and government employers at the federal, state and local levels.  Although a trial court ruling is not a precedent binding on other courts, Judge Holland’s explanation for his ruling may provide a persuasive precedent both for courts confronting similar claims and for employers deciding how to respond to employees seeking such coverage under their employee benefit plans.

Lambda Legal filed suit on behalf of Jennifer Fletcher, who works as a legislative librarian for the State of Alaska.  Fletcher is enrolled in AlaskaCare, a self-funded employee health care plan that is administered by Aetna Life Insurance Company.  The Plan “provides benefits for medical services and procedures that are medically necessary and not otherwise excluded from the Plan,” according to the State’s written responses to discovery questions posed by Fletcher’s attorney from Lambda Legal, Tara L. Borelli.

During discovery in this case, the State conceded that for “some” transgender individuals, surgical procedures for gender transition may be “medically necessary,” but the plan formally excludes performance of the procedures in question for that purpose.  The procedures in question are covered for employees if they are necessary to address a medical issue other than gender transition.  None of the procedures at issue in this case are used solely in connection with gender transition.

Fletcher was diagnosed with gender dysphoria in 2014 and began the process of social, legal, and medical transition under professional care, starting hormone therapy that year.  By 2016, she and her health care provider agreed that gender transition-related surgery was necessary for her transition.  In her complaint, Fletcher claimed that such treatment was “essential” for her “well-being.”

In November 2016, Fletcher contacted Aetna to discuss coverage for her surgical treatment, but was told that the Plan did not cover it, and would not in 2017.  Although the Plan has since been modified to allow coverage for some aspects of gender transition, hormones and counseling, the express exclusion of surgery continues.

Fletcher’s request for coverage spurred the State to study the cost of eliminating this exclusion, for which it engaged a consultant, who advised that the annual increase in claims on the Plan would be $60,000.  Although there was internal discussion about this within the State government, no further action was taken to change the Plan to cover surgical transition procedures.

Because AlaskaCare would not cover her surgery, Fletcher obtained her surgery in Thailand, where the procedure is less expensive than if it were performed without insurance coverage in the Unites States.  She filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC), alleging that the Plan’s exclusion violates Title VII’s ban on discrimination in “terms and conditions of employment” because of an individual’s sex.  The State’s simplistic response was that because the Plan excludes coverage for any surgical procedure for purposes of gender transition, whether the employee involved was identified as male or female at birth, there was no discrimination “because of sex.”  The EEOC rejected this argument, and issued a finding that the State’s policy violates Title VII.  On May 17, 2019, the EEOC notified Fletcher that its attempt to “conciliate in this matter” with the State was unsuccessful, authorizing her to file a lawsuit.

Fletcher’s complaint alleged that the State discriminated against her because of her “sex” which, she alleged, includes “discrimination on the basis of gender nonconformity, gender identity, transgender status, and gender transition.”  This list covered all the bases of different theories that federal courts have used at various times to evaluate Title VII claims by transgender plaintiffs.  After discovery, Fletcher moved for summary judgment on the question whether the Plan exclusion violates Title VII, while the State moved for summary judgment to dismiss the entire lawsuit on the merits.

As it turned out, the list of alternative coverage theories in Fletcher’s complaint was unnecessary, because Judge Holland concluded that the exclusion was, on its face, discrimination “because of sex.”He based this conclusion on the State’s concession that all the surgical procedures involved in Fletcher’s transition would be covered if they were performed for reasons other than gender transition.

Thus, if Fletcher was identified as female at birth but needed the vaginoplasty procedure for some reason other than transition, she would be covered, and indeed that procedure is employed to deal with some medical conditions experienced by women.  Because she was identified as male at birth, however, coverage for the the procedure was denied, because its only purpose for somebody identified as male at birth would be for gender transition.  To Judge Holland, this was clearly an exclusion specifically because of the sex of the employee, and one had to go no further into theories of gender nonconformity, gender identity or transgender status in order to bring her claim within the coverage of the statute.

Under Title VII, any “disparate treatment” between men and women regarding a particular term or benefit of employment is illegal unless it can be justified as a “bona fide occupational qualification” (BFOQ) that is “reasonably necessary to the normal operation or essence of an employer’s business.”  In this case, Holland commented, “Defendant has not argued, nor could it, that there is any BFOQ for the disparate treatment at issue here.  As such, plaintiff is entitled to summary judgment that defendant violated her rights under Title VII.”

While granting Fletcher’s motion, the court simultaneously denied the State’s summary judgment motion.  Still to be determined is the remedy for the violation.  As Fletcher has already had the surgical treatment, the court needs to decide what to award for compensation for violation of the statute.  In light of the court’s decision on the merits of Fletcher’s claim, it is likely that the parties will negotiate a settlement on damages.

Judge Holland was appointed to the District Court by President Ronald Reagan and took senior status in 2001.

Supreme Court to Decide Whether Discrimination Because of Sexual Orientation or Gender Identity Violates Title VII’s Ban on Discrimination Because of Sex

Posted on: April 22nd, 2019 by Art Leonard No Comments

The U.S. Supreme Court announced on April 22 that it will consider appeals next term in three cases presenting the question whether Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination because of an individual’s sex, covers claims of discrimination because of sexual orientation or gender identity. Because federal courts tend to follow Title VII precedents when interpreting other federal sex discrimination statutes, such as the Fair Housing Act and Title IX of the Education Amendments of 1972, a ruling in these cases could have wider significance than just employment discrimination claims.

The first Petition for certiorari was filed on behalf of Gerald Lynn Bostock, a gay man who claimed he was fired by the Clayton County, Georgia, Juvenile Court System, for which he worked as Child Welfare Services Coordinator, because of his sexual orientation.  Bostock v. Clayton County Board of Commissioners, No. 17-1618 (filed May 25, 2018).  The trial court dismissed his claim, and the Atlanta-based 11th Circuit Court of Appeals affirmed the dismissal, 723 Fed. Appx. 964 (11th Cir., May 10, 2018), petition for en banc review denied, 894 F.3d 1335 (11th Cir., July 18, 2018), reiterating an old circuit precedent from 1979 that Title VII does not forbid discrimination against homosexuals.

The second Petition was filed by Altitude Express, a now-defunct sky-diving company that discharged Donald Zarda, a gay man, who claimed the discharge was at least in part due to his sexual orientation.  Altitude Express v. Zarda, No. 17-1623 (filed May 29, 2018).  The trial court, applying 2nd Circuit precedents, rejected his Title VII claim, and a jury ruled against him on his New York State Human Rights Law claim.  He appealed to the New York-based 2nd Circuit Court of Appeals, which ultimately ruled en banc that the trial judge should not have dismissed the Title VII claim, because that law applies to sexual orientation discrimination.  Zarda v. Altitude Express, 883 F.3d 100 (2nd Cir., Feb. 26, 2018). This overruled numerous earlier 2nd Circuit decisions.

The third petition was filed by R.G. & G.R. Harris Funeral Homes, three establishments located in Detroit and its suburbs, which discharged a funeral director, William Anthony Beasley Stephens, when Stephens informed the proprietor, Thomas Rost, about her planned transition.   R.G. & G.R. Funeral Homes v EEOC, No. 18-107 (filed July 20, 2018).  Rost stated religious objections to gender transition, claiming protection from liability under the Religious Freedom Restoration Act (RFRA) when the Equal Employment Opportunity Commission sued the funeral home under Title VII.  Stephens, who changed her name to Aimee as part of her transition, intervened as a co-plaintiff in the case.  The trial judge found that Title VII had been violated, but that RFRA protected Harris Funeral Homes from liability.  The Cincinnati-based 6th Circuit Court of Appeals affirmed the trial court’s holding that the funeral home violated Title VII, but reversed the RFRA ruling, finding that complying with Title VII would not substantially burden the funeral home’s free exercise of religion.  EEOC v. R.G. & G.R. Harris Funeral Homes, 884 F.3d 560 (6th Cir., March 7, 2018).  The 6th Circuit’s ruling reaffirmed its 2004 precedent in Smith v. City of Salem, 378 F.3d 566, using a gender stereotyping theory, but also pushed forward to hold directly that gender identity discrimination is a form of sex discrimination under Title VII.

In all three cases, the Court has agreed to consider whether Title VII’s ban on discrimination “because of sex” is limited to discrimination against a person because the person is a man or a woman, or whether, as the EEOC has ruled in several federal employment disputes, it extends to sexual orientation and gender identity discrimination claims.

The question whether the Court would consider these cases has been lingering on its docket almost a year, as the petitions in the Bostock and Zarda cases were filed within days of each other last May, and the funeral home’s petition was filed in July.  The Court originally listed the Bostock and Zarda petitions for consideration during its pre-Term “long conference” at the end of September, but then took them off the conference list at the urging of Alliance Defending Freedom, representing the funeral home, which suggested that the Court should wait until briefing on the funeral home was completed and then take up all three cases together.

The Court returned the petitions to its conference list in December, and the cases were listed continuously since the beginning of this year, sparking speculation about why the Court was delaying, including the possibility that it wanted to put off consideration of this package of controversial cases until its next term, beginning in October 2019.  That makes it likely that the cases will not be argued until next winter, with decisions emerging during the heat of the presidential election campaign next spring, as late as the end of June.

Title VII was adopted as part of the Civil Rights Act of 1964 and went into effect in July 1965.  “Sex” was added as a forbidden ground of discrimination in employment in a floor amendment shortly before House passage of the bill.  The EEOC, originally charged with receiving and investigating employment discrimination charges and attempting to conciliate between the parties, quickly determined that it had no jurisdiction over complaints charging sexual orientation or gender identity discrimination, and federal courts uniformly agreed with the EEOC.

The courts’ attitude began to change after the Supreme Court ruled in 1989 that evidence of sex stereotyping by employers could support a sex discrimination charge under Title VII in the case of Price Waterhouse v. Hopkins, 490 U.S. 228 (plurality opinion by Justice William J. Brennan), and in 1998 in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (opinion by Justice Antonin Scalia), the Court suggested that Title VII could apply to a “same-sex harassment” case.   Justice Scalia stated that Title VII’s application was not limited to the concerns of the legislators who voted for it, but would extend to “comparable evils.”

These two rulings were part of a series of cases in which the Supreme Court took an increasingly flexible approach to interpreting discrimination “because of sex,” which in turn led lower federal courts earlier in this century to reconsider their earlier rulings in LGBT discrimination cases.  Federal appeals court rulings finding protection for transgender plaintiffs relied on Price Waterhouse’s sex stereotyping analysis, eventually leading the EEOC to rule in 2012 that a transgender applicant for a federal job, Mia Macy, could bring a Title VII claim against the federal employer.  Macy v. Holder, 2012 WL 1435995. In 2015, the EEOC extended that analysis to a claim brought by a gay air traffic controller, David Baldwin, against the U.S. Transportation Department, Baldwin v. Foxx, 2015 WL 4397641, and the EEOC has followed up these rulings by filing discrimination claims in federal court on behalf of LGBT plaintiffs and appearing as amicus curiae in such cases as Zarda v. Altitude Express.

In the Harris Funeral Homes case, the 6th Circuit became the first federal appeals court to go beyond the sex stereotype theory for gender identity discrimination claims, agreeing with the EEOC that discrimination because of gender identity is always discrimination because of sex, as it involves the employer taking account of the sex of the individual in making a personnel decision.  The EEOC’s argument along the same lines for sexual orientation discrimination was adopted by the Chicago-based 7th Circuit Court of Appeals in 2017 in Hively v. Ivy Tech Community College, 853 F.3d 339 (7th Cir. en banc), a case that the losing employer did not appeal to the Supreme Court.  In 2018, the 2nd Circuit endorsed the EEOC’s view in the Zarda case.

During the oral argument of Zarda in the 2nd Circuit, the judges expressed some amusement and confusion when an attorney for the EEOC argued in support of Zarda’s claim, and an attorney for the Justice Department argued in opposition.  When the case was argued in September 2017, the EEOC still had a majority of commissioners appointed by President Obama who continued to support the Baldwin decision, but Attorney General Jeff Sessions took the position on behalf of the Justice Department that federal sex discrimination laws do not apply to sexual orientation or gender identity discrimination claims.

Due to the Trump Administration’s failure to fill vacancies on the EEOC, the Commission currently lacks a quorum and cannot decide new cases.  Thus, the Solicitor General’s response for the government to Harris Funeral Home’s petition for review did not really present the position of the Commission, although the Solicitor General urged the Court to take up the sexual orientation cases and defer deciding the gender identity case.  Perhaps this was a strategic recognition that unless the Court was going to back away from or narrow the Price Waterhouse ruling on sex stereotyping, it was more likely to uphold the 6th Circuit’s gender identity ruling than the 2nd Circuit’s sexual orientation ruling in Zarda, since the role of sex stereotyping in a gender identity case seems more intuitively obvious to federal judges, at least as reflected in many district and appeals court decisions in recent years.

The Court sometimes tips its hand a bit when granting certiorari by reframing the questions posed by the Petitioner.  It did not do this regarding sexual orientation, merely stating that it would consolidate the two cases and allot one hour for oral argument.  Further instructions will undoubtedly come from the Court about how many attorneys will be allotted argument time, and whether the Solicitor General or the EEOC will argue on the sexual orientation issue as amicus curiae.

The Court was more informative as to Harris Funeral Homes, slightly rephrasing the question presented in the Petition.  The Court said that the Petition “is granted limited to the following question: Whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins.”  One wonders why the Supreme Court used the phrase “status as transgender” rather than “gender identity” in describing the first part of the question, since “gender identity” fits more neatly into the terminology of Title VII than a reference to “status.”

None of the members of the Court have addressed the questions presented in these three cases during their judicial careers up to this point, so venturing predictions about how these cases will be decided is difficult lacking pertinent information.  The four most recent appointees to the Court with substantial federal judicial careers prior to their Supreme Court appointment – Samuel Alito, Sonia Sotomayor, Neil Gorsuch, and Brett Kavanaugh – have never written a published opinion on sexual orientation or gender identity discrimination, and neither did Chief Justice John Roberts during his brief service on the D.C. Circuit Court of Appeals.  However, it seems predictable that the justices most committed to construing civil rights laws narrowly in the context of the time when they were adopted will be skeptical about the argument that the 1964 statute can be interpreted to extend to sexual orientation or gender identity discrimination.

The counsel of record for Bostock is Brian J. Sutherland of Buckley Beal LLP, Atlanta.  Clayton County, Georgia, retained Jack R. Hancock of Freeman Mathis & Gary LLP, of Forest Park, Georgia, to submit its response to the Bostock Petition.  Counsel of record for Altitude Express is Saul D. Zabell of Bohemia, New York.  The brief in opposition was filed on behalf of the Zarda Estate by Gregory Antollino of New York City.  Zabell and Antollino were both trial counsel in the case and have pursued it through the appellate process.  Several attorneys from Alliance Defending Freedom, the Scottsdale, Arizona, based conservative religious liberty litigation group, represent Harris Funeral Home, and Solicitor General Noel J. Francisco’s office represents the EEOC.   John A. Knight of the ACLU Foundation, Chicago, is counsel of record for Aimee Stephens.  It is not unusual when the Supreme Court grants review for private parties to seek out experienced Supreme Court advocates to present their arguments to the Court, so some of these attorneys listed on the Petitions and other Briefs will likely not be appearing before the Court when the cases are argued next winter.

 

 

 

 

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.

 

 

11th Circuit Panel Splinters Over Lesbian’s Appeal of Title VII Dismissal

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

A three-judge panel of the Atlanta-based U.S. Court of Appeals for the 11th Circuit issued a divided ruling on March 10 holding that a lesbian plaintiff suing for discrimination under Title VII of the Civil Rights Act of 1964 could file an amended complaint alleging that she suffered discrimination because of sex stereotyping, but upholding the district court’s dismissal of her claim that sexual orientation discrimination violates the statute.  A dissenting judge, agreeing with the Equal Employment Opportunity Commission (EEOC), which submitted an amicus brief in the case, and Lambda Legal, which was appointed to represent the plaintiff on appeal, argued that the plaintiff should be allowed to pursue her sexual orientation discrimination claim as well.  Lambda Legal, representing the appellant, immediately announced that it would petition for rehearing “en banc” before the entire 11th Circuit bench.

Unsurprisingly, the judges rejecting the sexual orientation claim, Circuit Judge William Pryor and Florida District Judge Jose Martinez, were appointed by President George W. Bush.  The dissenter, Circuit Judge Robin Rosenbaum, was appointed by President Barack Obama.

This case is one of appeals recently argued in three different federal circuits presenting the question whether sexual orientation discrimination claims are covered as “discrimination because of sex” under Title VII.  The Chicago-based 7th Circuit heard argument “en banc” on November 30, and the New York-based 2nd Circuit heard three-judge panel argument in two different appeals in January. So far, no federal circuit court has ruled favorably on such a claim, although many have ruled that gay plaintiffs can sue under Title VII on gender-based sex stereotyping claims, depending on their factual allegations.  There are older court of appeals precedents in most circuits rejecting sexual orientation discrimination claims, as such, under Title VII.  The Supreme Court has never directly ruled on the question.

In this case, Evans v. Georgia Regional Hospital, plaintiff Jameka Evans claimed that she was discriminated against in her position as a security officer at the hospital because of both gender non-conformity and sexual orientation.  Evans is a “butch” lesbian who claims she was discriminated against because she failed to carry herself in a “traditional womanly manner” and that “it was ‘evident’ that she identified with the male gender, because of how she presented herself – ‘(male uniform, low male haircut, shoes, etc.’),” wrote Judge Martinez.

She filed her case in federal district court in Savanah, Georgia, without a lawyer (“pro se”). The district judge, J. Randal Hall, referred her case to a magistrate judge to rule on procedural issues and “screen” the claim, as is usually done with “pro se” cases.  Magistrate Judge George R. Smith found procedural problems and, applying old circuit precedent, held that the claim of sexual orientation discrimination could not be brought under Title VII.  Smith recommended dismissal of the case. Lambda Legal submitted an amicus brief, urging Judge Hall to reject the Magistrate’s recommendation, but Hall dismissed without reference to Lambda’s arguments.  However, Hall then appointed Lambda to represent Evans on appeal to the 11th Circuit, and Gregory Nevins from Lambda’s Atlanta office argued the appeal.  The hospital never responded to the complaint and was not represented at the one-sided argument before the court of appeals.

At the heart of this appeal and of the other pending cases on the same question is the effect of two Supreme Court rulings, Price Waterhouse v. Hopkins and Oncale v. Sundowner Offshore Services. In the first of these, the Court ruled that an employer’s denial of a partnership to a woman because of her failure to conform to the employer’s stereotyped view of how women should behave and present themselves was evidence of discrimination “because of sex” in violation of Title VII.  In the second, the Supreme Court overturned the lower court’s dismissal of a same-sex harassment case in a unanimous opinion authored by Justice Antonin Scalia holding that the interpretation of discrimination “because of sex” was not limited based on the intentions of Congress when it enacted the statute in 1964.  Scalia commented that “comparable evils” to those that Congress sought to address might be covered by the statute, and that we are governed by the language of our statutes as adopted by Congress, not by the presumed intentions expressed by individual legislators or committees as reflected in the legislative history.  Thus, a claim by a man that he was subjected to sexual harassment by male co-workers could be dealt with under Title VII, even if members of Congress did not anticipate or intend that such cases could be brought under Title VII.

LGBT rights advocates have used these two Supreme Court cases to argue that gay and transgender plaintiffs who suffer discrimination because of their sexual orientation or gender identity should be able to bring sex discrimination claims under Title VII. Sex stereotyping is arguably present to some extent in all such cases and, at a more fundamental level, anti-gay and anti-trans discrimination is “necessarily” because of sex.  These arguments persuaded the EEOC during the Obama Administration, resulting in administrative rulings in cases raised by LGBT federal employees, and have also persuaded some federal district judges.  Several federal courts of appeals have accepted the sex stereotyping argument, but only to a limited extent, according to the extensive concurring opinion in Evans’s case by Judge Pryor.  So far, no federal circuit court has accepted the argument that an otherwise gender-conforming gay person can bring a sex discrimination claim under Title VII.

Judge Martinez premised his vote to reject the sexual orientation discrimination claim on a 1979 decision by the 5th Circuit, Blum v. Gulf Oil Corporation, 597 F.2d 936, in which that court said that “discharge for homosexuality is not prohibited by Title VII” as an alternative basis for its ruling.  Effective on September 30, 1981, a statute divided the old 5th Circuit in half, assigning Georgia to the newly-created 11th Circuit. At that time, the 11th Circuit ruled that former 5th Circuit cases would be treated as precedent in the new 11th Circuit, so this case counts as a binding circuit precedent.  Lambda argued that the 1979 ruling is no longer valid in light of the 1989 Price Waterhouse decision and the 1999 Oncale decision.  Martinez and Pryor both rejected that argument, but dissenting Judge Rosenbaum embraced it.  At the oral argument, Judge Pryor had observed that in light of the Blum precedent, the three judge panel most likely could not rule in favor of Evans on this point, as only an en banc panel could reverse circuit precedents.

As to the sex stereotyping claim, Martinez asserted that Evans’ pro se complaint “failed to plead facts sufficient to create a plausible inference that she suffered discrimination. In other words, Evans did not provide enough factual matter to plausibly suggest that her decision to present herself in a masculine manner led to the alleged adverse employment actions.”  However, he wrote, it was inappropriate for the district judge to dismiss her case outright rather than allowing her to file an amended complaint, since her theory of sex stereotyping discrimination was a theory accepted in the 11th Circuit and it was possible that, in light of the court’s discussion of her claim, she might be able to meet these pleading deficiencies in an amended complaint.  It is customary in pro se cases to allow the plaintiff to file an amended complaint if she is asserting a claim under a valid legal theory and there is a possibility that a better framed complaint could survive screening.

Pryor’s concurring opinion agreed that the magistrate erred in asserting that a sex stereotyping argument by a lesbian plaintiff was just “another way to claim discrimination based on sexual orientation,” and thus Evans should get a second chance to frame a complaint that might survive review. However, he argued at length to refute the arguments by the EEOC and Judge Rosenbaum that sexual orientation discrimination claims were “necessarily” sex discrimination claims.  Pryor insisted on a strict distinction between “status” and “conduct,” arguing that sex stereotyping claims were tied to the plaintiff’s conduct in failing to conform to gender stereotypes.  Thus, a claim of sexual orientation discrimination not accompanied by factual allegations about the plaintiff’s gender non-conformity fell short, in his view, of coming within the compass of discrimination “because of sex.”  He was not willing to accept the argument that being sexually attracted to members of the same-sex would suffice to constitute non-conformity with sexual stereotypes.

Judge Rosenbaum took a diametrically opposite approach, embracing a theoretical description of how Price Waterhouse had changed Title VII law by extending prior sex stereotyping cases to adopt a “prescriptive stereotyping” model. In prior cases, the Supreme Court had condemned “ascriptive stereotyping,” situations where an employer discriminated against a class of employees because of a stereotype about the class.  For example, an employer required women to contribute more to its pension plan than men in order to get the same monthly benefits upon retirement, based on the stereotype that women live longer than men so it would all “even out” in the end.  The Supreme Court condemned this practice as sex discrimination, finding that the statute protects individuals from being treated based on class-based stereotypes.  In Price Waterhouse, the Court for the first time condemned “prescriptive stereotyping,” where an employer discriminated against an employee because she failed to conform to a sexual stereotype, presenting a demeanor which was not traditionally feminine.

Applying this to the sexual orientation case, Rosenbaum accepted the argument that in such cases the employer was discriminating because the employee violated the stereotypical view that men are supposed to be attracted to women, not to men, and vice versa. Furthermore, she found that it was clearly sex discrimination to treat a woman differently based on whether she was attracted to men or women.

Judge Rosenbaum argued that Pryor’s opinion was “at war” with his vote a decade ago that allowed a sex discrimination claim under the Equal Protection Clause by a transgender employee of the Georgia legislature. Indeed, Pryor’s vote in the former case, Glenn v. Brumby, had given the plaintiff hope in this case that the panel might rule in her favor.  Pryor devoted considerable effort in his concurring opinion to explaining why he found this case to be different, once again relying on the “status” and “conduct” distinction.  Cross-dressing and announcing plans to transition were “conduct,” in his view, while having a sexual orientation was “status.”  He argued that sex stereotyping theory was concerned with conduct, not status, in its focus on gender non-conformity.

The sharp division among the judges may lead the 11th Circuit to agree to hear the case en banc, especially noting that one member of the panel was a district judge.  The federal judiciary is so short-handed as a result of the Republican-controlled Senate’s stonewalling of President Obama’s court of appeals nominees during his second term that it has become increasingly common for some particularly short-staffed circuits to fill-out three-judge panels by “designating” district court judges to provide the third member to make up a panel.  These district judges do not participate if the case is reargued en banc.  Furthermore, with the 7th Circuit having held en banc argument on this question recently, it seems clear that many federal judges believe it is time to reconsider the issue.  Meanwhile, decisions from the 7th and 2nd Circuits are eagerly awaited, especially if they create a “circuit split” that would entice the Supreme Court to agree to take up the issue.