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. One month ago, the EEOC filed an amicus brief urging the Court to overrule its prior precedent in Simonton v Runyan, and hold that Title VII protects against sexual orientation discrimination by prohibiting discrimination "because of . . . sex."
The U.S. Department of Justice, filing its amicus brief in Zarda, takes the direct opposite position. The USDOJ argues that the Second Circuit should adhere to Simonton's holding that Title VII does not protect against sexual orientation discrimination. Title VII does not define the term "sex," the USDOJ notes, but it has generally only been applied to mean gender, that is, being "biologically male or female." Under the USDOJ's construction then, an employer cannot intentionally treat men and women differently, but can treat gay and straight employees differently as long as the same treatment is accorded between the sexes.
To support this position, the USDOJ argues that when Congress amended the Civil Rights Act in 1991, it declined to add express protection for sexual orientation, notwithstanding that numerous Courts of Appeals had held that it was not included under Title VII's prohibition on discrimination "because of . . . sex." Likening it to Congress' decision to retain the operative text of the Fair Housing Act after multiple Courts of Appeals had held that the FHA authorized disparate impact claims and thereby ratify those decisions, the USDOJ argues that Congress' failure to amend Title VII to include protection for sexual orientation expressly is evidence that it ratified the Courts of Appeals' interpretations restricting protection under the "because of . . . sex" clause to gender.
The USDOJ, however, points to no legislative history underlying the 1991 amendment to the Civil Rights Act, be it a statement from the sponsors of the bill, debate from the floor, or a statement from the President, to suggest that Congress actually intended to ratify the Courts of Appeals' decisions that sexual orientation was not entitled to protection. With the volumes of legislative history available for each congressional enactment, the USDOJ's failure to come up with any shred of actual evidence to support its ratification theory undercuts its argument.
On the contrary, the USDOJ's ratification argument turns the purpose of the Civil Rights Act of 1991 on its head. As explained by the EEOC, the 1991 amendments were intended to overrule decisions of the Supreme Court that made it more difficult for employees to prove discrimination claims under Title VII. It was a remedial amendment to provide workers with more protection. Accepting the USDOJ's argument to deny LGBT employees protection under Title VII seems contrary to its very purpose.
Further, as Sasha Samberg-Champi, a seasoned civil rights lawyer, pointed out on Twitter (@ssamcham), the USDOJ's analogy to Congress' ratification of Courts of Appeals decisions in the Fair Housing Act amendments is inapt.
Although the USDOJ acknowledges that society is changing, it argues that those changes don't grant the courts license to re-write Title VII to include protections against sexual orientation discrimination. Instead, that role is left to Congress, and Congress has repeatedly declined to change the law.
The Second Circuit is scheduled to hear arguments in Zarda en banc on September 26, 2017 at 2:00 p.m. It will certainly be an interesting argument, and if the Court takes the EEOC's position, it will only further the Circuit split that could lead this case and the issue whether Title VII protects against sexual orientation discrimination to the Supreme Court.
The USDOJ amicus brief can be found here.