On the same day that Donald Trump tweeted that the US military would bar open service by transgender Americans, his Department of Justice let another shoe drop.
In a brief filed July 26 with the New York-based Second Circuit Court of Appeals, the DOJ weighed in on a critical question of LGBTQ equality — whether Title VII of the Civil Rights Act of 1964 bans discrimination because of sexual orientation.
Given the longtime antagonism toward gay rights by Attorney General Jeff Sessions — embattled by his own president though he may be — the government’s position was hardly surprising.
Title VII lists the forbidden grounds for employment discrimination: race or color, religion, national origin, and sex. After it went into effect in July 1965, both the Equal Employment Opportunity Commission, the agency charged with the statute’s enforcement, and the federal courts quickly took the position that people who encountered discrimination because they were gay or transgender could not pursue a claim under this law. Both the EEOC and the federal courts held fast to that position until relatively recently.
That consensus began to break down early in this century, first in response to discrimination claims by transgender people, as courts and then the EEOC (the agency acting in 2012) accepted the argument that discriminating against somebody because they were transitioning or had transitioned was actually discrimination based on sex.
The rationale they adopted originated in a 1989 Supreme Court decision, which recognized that discrimination against people for failing to comply with their employer’s stereotyped view about how people of a particular sex should behave, dress, or otherwise act was in fact discrimination because of their sex. The 1989 case, Price Waterhouse v. Hopkins, involved a woman denied a partnership in the accounting firm because some of the partners thought she was not sufficiently feminine to meet their image of a “lady partner.” Her boss told her she should get her hair styled and start wearing makeup and jewelry if she wanted to be a partner.
By 2015, the EEOC had taken its analysis one step further to cover sexual orientation claims. It recognized that having a same-sex attraction violates gender stereotypes, just as with the transgender cases, but the agency also drew analogies to cases where courts found that discriminating against an employee for being in an interracial relationship was a form of race discrimination known as “associational discrimination.” The EEOC decided that it was really not plausible to distinguish between sexual orientation discrimination and sex discrimination because both involved treating people differently because of their sex.
Until 2017, no federal appellate court had accepted these theories, but on April 4, the full bench of the Chicago-based Seventh Circuit Court of Appeals became the first to rule that Title VII bans sexual orientation discrimination. Reversing its prior precedents, the court accepted the EEOC’s analysis in a lawsuit by Kimberly Hively, a lesbian who had been denied a tenure-track position by an Indiana community college. The college decided not to appeal, taking the position that it had not discriminated at all, so the case was sent back for trial to the district court.
Meanwhile, the same issue was being litigated in other parts of the country. In Atlanta’s 11th Circuit, a sexual orientation discrimination claim by Jameka Evans against a Georgia hospital that had been dismissed by the district court was revived by the court of appeals, but on a narrower theory. In common with several other circuits, the 11th Circuit will accept Title VII claims from gay plaintiffs who allege that they suffered discrimination because of their failure to conform to gender stereotypes — but not, per se, because they are gay.
In the Evans case, while a three-judge panel, in a 2-1 decision, affirmed the trial court in rejecting the plaintiff’s sexual orientation discrimination claim, it sent the case back to the trial court to allow Evans to pursue a sex-stereotyping claim. One member partially dissented, Judge William Pryor (who has been on Trump’s potential Supreme Court list), finding no basis for any Title VII claim. Another member of the court agreed to send the case back on the stereotyping theory, but argued that Title VII should be interpreted to cover sexual orientation claims. The third member found that the panel was bound by circuit precedent to reject the sexual orientation claim, but voted to give the plaintiff a chance to pursue a sex-stereotyping claim.
A few weeks ago, the 11th Circuit denied a petition for the full bench to reconsider the Evans case en banc, and Lambda Legal announced it will petition the Supreme Court to review the three-judge panel decision. Lambda has until the first week of October to file that petition.
Meanwhile, within the Second Circuit, at least two federal district court judges have recently refused to dismiss Title VII sexual orientation claims, finding that the circuit’s embrace of the “associational” theory in a race discrimination case means the court should accept sexual orientation discrimination claims. Several other district judges in the circuit have dismissed such claims, concluding that until the court of appeals explicitly overrules its earlier precedents, the trial judges are bound to follow them.
A few months ago, confronted by petitions for en banc review in three different cases, the circuit announced that it would reconsider the panel decision in Estate of Donald Zarda v. Altitude Express.
In Zarda — a case where the original plaintiff, Donald Zarda, a skydiving instructor, died in a diving accident — the district court dismissed a Title VII claim but allowed the case to go to trial under New York State’s Human Rights Law, which expressly outlaws sexual orientation discrimination. The jury ruled in favor of the employer, although it is questionable whether it was properly instructed about how to weigh the evidence. Zarda’s estate appealed the dismissal of the Title VII claim, and a three-judge panel affirmed the district court’s dismissal, while noting that recent developments in the law could justify reconsideration by the full Second Circuit bench.
In a case decided by a different three-judge panel at around the same time, Christiansen v. Omnicom, the panel also upheld dismissal of a sexual orientation claim, but sent the case back to the district court for reconsideration as a sex-stereotyping claim, and two of the judges joined a concurring opinion suggesting that it was time for the Second Circuit to reconsider the sexual orientation issue en banc in an “appropriate case.”
After granting en banc review in Zarda, however, the circuit court denied a petition for en banc review in Christiansen.
Briefs were due from the plaintiff’s side in the Zarda appeal at the end of June. The EEOC, consistent with its interpretation of the statute, filed a friend of the court brief in support of Zarda. Briefs were due by July 26 from the employer and any amicus parties supporting its position. After some suspense about what the Trump administration might do, the Justice Department filed its brief right at the deadline.
It is somewhat unusual for the government to file an amicus brief in opposition to a position taken by a federal agency (in this case, the EEOC), and it is also unusual for the government to file a brief in a case between private parties (a former employee versus a business), but the federal government has a significant interest in this case and the politics of the EEOC versus the DOJ are based on a timing issue.
Until this month, the majority of the EEOC commissioners have been appointees of President Barack Obama, and they decided the key sexual orientation case two years ago by a vote of 3-2, with the Republican commissioners dissenting. When Trump’s appointees to fill some vacancies are confirmed, control of the EEOC will switch over to Republican hands. But for now, the agency continues to pursue sexual orientation discrimination cases under Title VII, and has even filed some new lawsuits this year despite the January change in administrations.
The Justice Department, under Sessions, reflects the views of the new administration, which are consistent with those expressed by Seventh Circuit Judge Diane Sykes (also on Trump’s potential Supreme Court list), who wrote a dissenting opinion in the Hively case.
Why does the Trump administration have a strong interest in a case between private parties? In part, because Title VII has provisions banning sex discrimination in the federal workforce and also because the president’s political base and the Republicans in Congress stand in opposition to outlawing sexual orientation discrimination. The GOP has blocked the Equality Act, which would amend Title VII to include sexual orientation and gender identity or expression as forbidden grounds for employment discrimination, and, for decades before that, the narrower Employment Non-Discrimination Act.
The Justice Department’s brief stated that “the EEOC is not speaking for the United States and its position about the scope of Title VII is entitled to no deference beyond its power to persuade.” The DOJ goes on to argue that Congress did not intend to ban sexual orientation discrimination in 1964 when it enacted Title VII and that should be the end of the matter. The failure of Congress to approve any effort to add sexual orientation protections to US law is cited as evidence of continuing legislative intent.
The DOJ also argues at length that the theories embraced by the EEOC and the Seventh Circuit are mistaken interpretations of the Supreme Court’s rulings on sex stereotyping and associational discrimination and that there is a distinct difference between sex discrimination and sexual orientation discrimination, despite statements by many federal judges who have had difficulty drawing the line between the two.
The Second Circuit will not be oblivious to the political nature of the Trump administration’s opposition. The concurring opinion in the Christiansen case, written by Second Circuit Chief Judge Robert Katzmann, virtually endorsed the EEOC’s interpretation of the 1964 statute while calling for the circuit to reconsider its earlier precedents. And a majority of the judges who will sit on the en banc panel were appointed by Bill Clinton or Barack Obama and have generally taken a more liberal approach to interpreting Title VII.
The circuit’s earlier precedents being reconsidered were issued by three-judge panels at a time when the arguments for allowing sexual orientation discrimination claims were not nearly as well developed as they have been in recent years. And, as noted, the circuit has accepted the associational discrimination theory in a race discrimination case decided after the earlier sexual orientation cases were. The circuit is likely to appreciate the associational theory’s applicability in Zarda, as the district judges have commented.
Still, if the Supreme Court decides to grant Lambda Legal’s petition to review the 11th Circuit case, the Second Circuit could choose to hold up on deciding the Zarda appeal until the high court has spoken. Timing will be a key factor this fall. The Second Circuit argument is scheduled for late September, before the Supreme Court’s fall term opens and it begins announcing whether it will grant petitions for review filed over the summer, such as Lambda’s.
Altitude Express’ brief in opposition to the appeal raised jurisdictional arguments that could give the Second Circuit a way out of deciding this appeal on the merits, the company noting that when he filed his initial discrimination charge with the EEOC, Donald Zarda expressly disclaimed making a Title VII sexual orientation discrimination claim and instead relied on a sex-stereotyping claim. A federal district judge dismissed that claim, finding that Zarda’s factual allegations were not sufficient to support it. He only pressed a sexual orientation claim under the New York State Human Rights Law. Altitude Express argues that Zarda’s estate cannot now argue for a sexual orientation discrimination claim under Title VII.
There’s no telling how the Second Circuit will respond to these arguments, but one suspects that if they had serious doubts about jurisdiction they would not have granted the en banc petition.
One thing this week’s DOJ filing makes clear, however, is that should the Supreme Court grant review in the 11th Circuit Evans case, the federal government, represented by the solicitor general, will come into the case against the plaintiff, and by then the EEOC will be in Republican control and will probably not be filing a separate brief.
Once again, the Trump Administration is actively disavowing the LGBTQ-supportive stance that the reality TV candidate claimed during the election last year. With the @realDonaldTrump tweets about transgender military service, the brief provided a double-barreled assault on equality.