En banc court takes up Title VII and sexual orientation

The Second Circuit this week heard argument in a rare en banc proceeding, asking whether sexual orientation discrimination is a form of sex discrimination under Title VII of the Civil Rights Act of 1964. Along with Gregory Antollino, I represent the plaintiff.

The case is Zarda v. Altitude Express. The oral argument link is here. The panel decision from April 2017 is at this link. Zarda was a skydiver who was fired after he told a customer that he was gay. The lawsuit asserted claims under Title VII and the state human rights law, which explicitly prohibits discrimination on the basis of sexual orientation. The trial court dismissed the Title VII claim on the basis that the Second Circuit in 2000 held that this form of discrimination is not prohibited under Title VII. That case is Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000). The state law claim went to a jury, which rejected the claim and entered a defense verdict. The reason the Title VII issue survives is the trial court on the state law claim charged the jury under "determining factor" standard, which is more favorable to the defendant than the "motivating factor" test under Title VII.

A 13-judge panel of the Second Circuit -- all active judges plus two senior judges who sat on the panel decision -- heard argument on Sept. 26. Argument lasted two hours, with three lawyers arguing for plaintiff (including to amicus parties) and three lawyers arguing for defendant (including two amicus parties). The federal government argued both sides of the issue, with EEOC arguing for plaintiff and the Department of Justice arguing for defendant. Nearly every judge on the en banc court asked questions, and things got lively when the judges asked the Department of Justice lawyer how exactly it was determined that the federal government would oppose the plaintiff after the EEOC had already filed a brief in favor of the plaintiff.

What are the bases for claiming sexual orientation discrimination is a form of gender discrimination? As the EEOC said in an administrative ruling a few years ago, when a gay male is fired because of his sexual orientation, that's "but-for" discrimination because if the plaintiff were a female, she would not have been fired. In addition, plaintiffs have argued, sexual orientation discrimination derives from the ultimate sex stereotype: men are attracted to women and vice versa. Title VII already rejects gender stereotypes under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In addition, when a gay man is fired, he is being punished over his protected gender association. Other cases hold that Title VII prohibits the termination of a white man over his association with a female fiance. Defendants respond to these arguments by claiming, in part, that Congress did not have sexual orientation in mind when it enacted the Civil Rights Act of 1964 and that Congress had declined to extend protections under Title VII to gays and lesbians. We call this the "legislative inaction" argument.

The Seventh Circuit in 2017 reversed one of its prior cases in holding that Title VII prohibits sexual orientation discrimination. That case is Hively v. Ivy Tech., 853 F.3d 339 (7th Cir. 2017). The Eleventh Circuit this year stood by its older precedents that reject the new thinking. Evans v. Georga Regional Hospital, 850 F.3d 1248 (11th Cir. 2017). The Zarda Court will be the third appellate court to take up this issue since the EEOC decided in 2015 to expand Title VII protections. Someday,  this issue will reach the Supreme Court.

The New York Times covered this argument, reprinted below.

Discrimination Based on Sex Is Debated in Case of Gay Sky Diver

By JOSEPH GOLDSTEIN 

SEPT. 26, 2017

About seven years ago, Donald Zarda, a Long Island sky-diving instructor, shared a bit of personal information with a female student as they prepared for a jump. He was, he told the woman, “100 percent gay.”

He made the disclosure, he later explained, because the woman had seemed uncomfortable with the close physical contact. Her boyfriend was watching and a friend had been teasing her about being strapped in so tightly to another man.

After the woman’s boyfriend called the sky-diving school to complain about the encounter, Mr. Zarda was fired. He sued, setting in motion a legal case that has grown more consequential as it has worked its way through the courts over the past several years.

On Tuesday, Mr. Zarda’s firing was dissected before a panel of 13 federal appellate judges in Manhattan, who were wrestling with whether federal discrimination law provided protection for employees facing discrimination on the basis of their sexual orientation.

But the most curious division was not among the judges, but between lawyers for the federal government who, over two hours of arguments, staked out opposing positions on the reach of federal discrimination law.

A lawyer for the federal Equal Employment Opportunity Commission, Jeremy Horowitz, sided with the sky diver, arguing that federal law did prohibit employers from discriminating against employees because they are gay.

But a deputy assistant attorney general with the Justice Department, Hashim M. Mooppan, explained that, under federal law, employers were absolutely free “to regulate employees’ off-the-job sexual behavior,” meaning they could discriminate against employees for adultery, promiscuity or sexual orientation.

Even as the judges were struggling with the underlying legal question, they seemed unsure of what to make of the two government lawyers, each vigorously arguing opposite points.

The divide within the government emerged in July, when the Justice Department filed a brief in the case, breaking with the E.E.O.C. and telling the court that the commission was “not speaking for the United States.” Filed on the same day President Trump announced on Twitter that transgender people would be banned from serving in the military, the brief fueled concerns among civil rights activists that the Trump administration was trying to roll back lesbian, gay, bisexual and transgender rights secured under previous administrations.

“It’s a little awkward for us to have the federal government on both sides of a case,” one judge, Rosemary S. Pooler, noted, while other judges asked questions about how the rift had developed and whether the Justice Department had originally approved the E.E.O.C. brief. Mr. Mooppan refused to answer, saying, “I don’t believe it’s appropriate” to disclose.

Much of the debate on Tuesday afternoon, before the full United States Court of Appeals for the Second Circuit, revolved around a single word in Title VII of the 1964 Civil Rights Act, which generally prohibits employers from discriminating against employees on the basis of “race, color, religion, sex or national origin.” At issue was the word “sex,” which courts had long understood to mean it was illegal to discriminate against employees because they were male or female, or failed to conform to male or female stereotypes.

Most federal appeals courts in the country have long held that sex discrimination did not encompass discrimination based on sexual orientation. However, a single federal appeals court in Chicago ruled earlier this year that it did.

During the oral arguments on Tuesday, one judge, Reena Raggi, sounded skeptical of the more expansive reading of the law, wondering at one point what would have happened had Mr. Zarda been a lesbian rather than a gay man? If both scenarios would have resulted in a firing, “I’m having trouble understanding how that’s discrimination between men and women,” she said, as opposed to another type of discrimination that was not barred by Title VII protections.

A lawyer for Mr. Zarda, however, said that discrimination on the basis of sexual orientation inherently involved sex distinctions in a way that violated federal law.

“Sexual orientation cannot be extricated from sex, the two are one and the same,” said a lawyer for Mr. Zarda, Gregory Antollino. It was an argument that Mr. Horowitz, the E.E.O.C. lawyer developed further, explaining that “if you change the sex of the individual and the outcome would be different, that’s discrimination.” What he meant, he said, was that if Mr. Zarda had been a heterosexual female sky-diving instructor and had disclosed her sexual orientation, would she have been fired? If the answer was no, then Mr. Zarda had been the victim of sex discrimination.

Mr. Horowitz also argued that gay employees were protected under Title VII because discrimination they faced was for transgressing gender stereotypes, namely that people of one sex should be attracted to members of the opposite sex.

Mr. Mooppan, the Justice Department lawyer, dismissed the notion that sexual orientation was included in the meaning of sex, asking judges to engage in an exercise in name-calling.

If someone opposed interracial marriages, that person would be termed a racist, Mr. Mooppan said. But what about someone opposed to same sex-relationships? “You might call them a lot of things, but you would not call them a sexist,” he said.

New York state law outlaws discrimination on the basis of sexual orientation.

Mr. Zarda died in 2014 on a wingsuit BASE jumping trip in Europe. The lawsuit is being pushed forward by his sister and Bill Moore, a close friend and former partner of Mr. Zarda’s.

In a brief interview before the court hearing on Tuesday, Mr. Moore said that Mr. Zarda had been devastated when Skydive Long Island had fired him and that it led him to lose hope that he would be hired as a commercial pilot, a goal he had long been working toward. “Don always said he felt he had no purpose in the world,” Mr. Moore said. “He now has a major purpose.”