En Banc Second Circuit Hears Arguments Whether Sexual Orientation Discrimination is Discrimination Because of Sex Under Title VII

The full Second Circuit yesterday heard arguments in Zarda v Altitude Express, which involves the hot button legal question whether Title VII offers protection for sexual orientation discrimination under the clause prohibiting discrimination “because . . . of sex.” In a nearly two-hour argument, with three attorneys arguing on each side, the Court was fairly active in questioning the parties, trying to drive each of them to address the weakest parts of their arguments and help the Court draw a line for what Title VII protects and what it doesn’t.

After a lackluster start by counsel for Plaintiffs, where it took him a great while of stumbling to get into the statutory interpretation question, counsel for the EEOC picked up the mantle for why the agency believes that Title VII does protect against sexual orientation discrimination and ran with it.  As the EEOC amicus brief laid out, there are three theories of interpretation to get there: first, 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; second, that sexual orientation discrimination is a form of sex stereotyping prohibited under Title VII by the Supreme Court’s decision in Price Waterhouse v Hopkins; and, third, that it is gender-based associational discrimination treating LGBTQ individuals disparately because of with whom they romantically or sexually associate.

The EEOC counsel was by far, I thought, the most polished of the three on Plaintiffs’ side, and adeptly maneuvered the Judges’ hypotheticals like “how can the discrimination be based on sex if a woman could presumably also be fired for her sexual orientation?”  To that the EEOC’s counsel responded, under that scenario, “both a man and a woman would be fired for not comporting with proper gender roles,” which is prohibited under the Price Waterhouse sex stereotyping theory.

What was most interesting to me was the Judges pushed the EEOC to explain its change in position over the years to now argue that Title VII offers protection against sexual orientation discrimination.  The EEOC’s counsel explained that following the Supreme Court’s decisions over the last 15 or so years concerning LGBTQ rights, the agency undertook a “fresh look” and sought input from both employers and employees on what protections they believed Title VII offered.  This “fresh look,” the EEOC counsel advised the Judges, resulted in the new view on the statutory interpretation question, like the en banc Seventh Circuit undertook in Hively and Chief Judge Katzmann did in his concurrence in Christiansen v Omnicom Group.

The strangeness of the USDOJ’s contrary position certainly was not lost on the Judges during the argument either. As Judge Rosemary Pooler put it, “You know we love to hear from the federal government, but it’s a bit awkward to hear from them on both sides.”  To that, the EEOC counsel could only respond, “Indeed, your Honor.”

That was not the end of the issue. As soon as the USDOJ attorney got up to the lectern, the Judges started in on him.  In fact, the first question before the USDOJ even got out his first sentence was: “Can I interrupt and ask a question about why you’re here?  Doesn’t DOJ ordinarily defer to the EEOC on Title VII questions?” Ouch. The best he could come up with is that the USDOJ is the nation’s largest employer and the interpretation of Title VII would have an impact on it.

And the questions about USDOJ’s participation kept coming in rapid succession. Next, “Who is the representative from the Civil Rights Division on this brief?”  Then, “So in Hively, the EEOC filed an amicus brief, but DOJ did not. Is there some reason why a brief wasn’t filed then, but one is filed now?” And, “With respect to the EEOC and Department of Justice, what is the process that is entered into in terms of filing a brief?  Can the EEOC file its own brief without consultation with the Department of Justice?”  The USDOJ lawyer eventually got so uncomfortable with the questions that he repeated, multiple times, that he didn’t believe it was appropriate to disclose the internal processes of the DOJ as to when and how a brief contradicting the EEOC is filed.

The argument went downhill from there.  The USDOJ reiterated its arguments that men and women are treated the same for the context of their sexual relationships and, thus, sexual orientation discrimination is not discrimination because of sex.  The Judges, however, just didn’t seem to be buying it.

This is a fascinating argument to hear, made even more so because of the Court’s interest in issues other than the pure statutory interpretation of Title VII.  If you have a free two hours, I strongly recommend listening.  The audio is available on the Second Circuit’s website here.