In Zarda v Altitude Express, Inc., the Second Circuit, sitting en banc, is faced with the question of whether to overrule its prior precedent and hold that Title VII protects against sexual orientation discrimination. In Simonton v Runyan, the Court previously held that sexual orientation discrimination is not protected under Title VII’s protection against discrimination “because . . . of sex.” The Court has since recognized, however, gender stereotyping claims and the rule in Simonton has been roundly criticized, including by Chief Judge Katzmann in Christiansen v Omnicom Group.
Appearing as amicus curiae in the en banc hearing of Zarda, the EEOC has now weighed in. In a brief filed Friday, the EEOC argues that Title VII’s protection against sex discrimination includes sexual orientation discrimination. Particularly, the EEOC notes, there are three arguments in favor of finding that sexual orientation discrimination is sex discrimination prohibited by Title VII that were not addressed by the Second Circuit’s opinion in Simonton.
Examining these arguments, the EEOC argues that “sexual orientation discrimination requires the employer to take the employee’s sex into account (in conjunction with the sex of that employee’s actual or desired partner)” (Brf, at 7). That is precisely what Title VII forbids, the EEOC argues. The EEOC also argues that sexual orientation discrimination involves prohibited associational discrimination:
Lastly, the EEOC contends that “[s]exual orientation discrimination necessarily involves sex stereotyping, as it results in the adverse treatment of individuals because they do not conform to the norm that men should be attracted only to women, and women only to men” (Brf, at 13). Thus, the EEOC argues that sexual orientation discrimination is protected by Title VII, and Simonton should be overruled.
The EEOC also points out that the precedent on which Simonton was decided—DeSantis v Pacific Tel. & Tel. Co., 608 F2d 327, 329-32 (9th Cir 1979); Williamson v A.G. Edwards & Sons, Inc., 876 F2d 69, 70 (8th Cir 1989); Wrightson v Pizza Hut of Am., Inc., 99 F3d 138, 143 (4th Cir 1996)—is no longer good law. Two of the cases (Williamson and DeSantis) are no longer followed, and Wrightson was based exclusively on those two decisions.
Finally, the EEOC argues that the Second Circuit’s current distinction between impermissible gender stereotyping and lawful sexual orientation discrimination is unworkable and leads to absurd results. Numerous courts have found that the fine line drawn by the Court in Simonton just simply doesn’t exist. For example, the EEOC points out, the Second Circuit’s precedent “leads to the absurd result that only those gay men who act ‘stereotypically feminine’ and those lesbians who act stereotypically masculine are entitled to protection from discrimination” (Brf, at 21). This can’t be. Indeed, the Second Circuit’s ruling in Simonton would allow a gay employee to be fired for exercising rights the Supreme Court found protected in Obergefell v Hodges (135 S Ct 2584 ) by marrying his spouse. Simonton, therefore, should be overruled, the EEOC argues.
The EEOC’s amicus brief in Zarda can be found here.