The case is Zarda v. Altitude Express, issued on February 26. I helped write the brief in the Second Circuit. Title VII does not mention sexual orientation as a protected class. But it does prohibit gender discrimination. For years, the federal courts declined to hold that discrimination against gays and lesbians violated Title VII. Congress also rejected efforts to amend Title VII to add sexual orientation as a protected class. But after the EEOC in 2015 decided that this form of discrimination does violate Title VII, the federal courts took a fresh look at this issue, and in 2017, the Seventh Circuit held in the Hively case that this form of discrimination violates Title VII. Hively was an en banc ruling. So is the Zarda ruling.
Writing for the majority, Chief Judge Katzmann says the following: (1) sexual orientation discrimination is discrimination "because of sex" "because one cannot fully define a person's sexual orientation without identifying his or her sex" and "sexual orientation is doubly delineated by sex because it is a function of both a person's sex and the sex of those to whom he or she is attracted." (2) discriminating against an employee because he is gay necessarily takes into account that employee's sex, because sexual orientation is a "proxy" for sex. In other words, "a woman who is subject to an adverse employment action because she is attracted to women 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." (3) Gender stereotyping also factors into the analysis. Title VII already prohibits stereotyping. In this instance, discrimination on the basis of gender is rooted in stereotypes about how men and women should live their lives. Stereotypical male behavior has the man attracted to women. Gays and lesbians undercut that stereotype. (4) This form of discrimination also constitutes associational discrimination. The Second Circuit has already deemed it illegal to fire a man because he is engaged to a black woman. The reasoning is that the man is punished for his interracial association. The same logic applies to gays who are fired because they associate with men.
Judge Katzmann is an authority of statutory construction, having written scholarly books on the subject. His 69-page ruling parses Title VII and its objectives. The conclusion of the majority ruling rejects the argument that Title VII cannot reach this far because Congress has rejected efforts over the years to add sexual orientation as a protected class. But, as Judge Katzmann notes, reading tea leaves into congressional inaction is tricky because bills die in Congress for many reasons. It is also not enough for defendants to argue that Congress did not have sexual orientation discrimination in mind in 1964 when the Act was passed. As the majority notes, courts have interpreted Title VII to cover subsets of gender discrimination even though Congress did not endeavor to outlaw that behavior, including sexual harassment, which the Supreme Court held violates Title VII in 1986, more than 20 years after Title VII was enacted.
Justice Cabranes issues a concurring opinion (along with some of the other judges). His is brief, writing:
This is a straightforward case of statutory construction. Title VII of the Civil Rights Act of 1964 prohibits discrimination “because of . . . sex.” 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.
The en banc decision was resolved in a 10-3 vote. Judge Lynch writes the principle dissent, devoting 74 pages of legal analysis to the debate. Judge Lynch opens the ruling by wishing that Congress had already resolved this issue, but he goes on to say the courts have no role in extending Title VII's protections to include sexual orientation. He writes:
Speaking solely as a citizen, I would be delighted to awake one morning and learn that Congress had just passed legislation adding sexual orientation to the list of grounds of employment discrimination prohibited under Title VII of the Civil Rights Act of 1964. I am confident that one day — and I hope that day comes soon — I will have that pleasure.For now, the Second and Seventh Circuits interpret Title VII this way. The Eleventh Circuit recently held that Title VII not prohibit sexual orientation discrimination. The other circuits held years ago that Title VII does not reach this far, but they have not had the opportunity to reexamine their precedents in light of the new analyses that have been making the rounds on this issue, primarily by the EEOC. Whether the Supreme Court will take up this issue, for now, is speculation.
I would be equally pleased to awake to learn that Congress had secretly passed such legislation more than a half century ago — until I actually woke up and realized that I must have been still asleep and dreaming. Because we all know that Congress did no such thing.