By Timothy Palmer
Abraham Lincoln famously declared “a house divided against itself cannot stand.” That truism is no less politically sound today than it was in Lincoln’s time. Unfortunately, the federal government’s current position on whether sexual orientation discrimination is prohibited by Title VII of the Civil Rights Act can only be described as a house divided.
On September 26, 2017 the United States Court of Appeals for the Second Circuit, seated en banc in Manhattan, heard oral arguments in the case of Zarda v. Altitude Express. Mr. Zarda filed suit claiming he was illegally fired from his job as a skydiving instructor because he was gay. The lower court held that Title VII does not prohibit discrimination based on sexual orientation and dismissed that portion of his claim. In keeping with established precedent, a three judge panel of the Second Circuit Court of Appeals affirmed that dismissal. However, the full court of appeals decided to review the issue. The Department of Justice appearing at the oral argument on behalf of the United States argued in favor of dismissing the claim. The Equal Employment Opportunity Commission appearing in support of Mr. Zarda argued in favor of reversing the dismissal.
The Federal Government is on Both Sides of the Case.
During oral argument before the full court, Judge Rosemary Pooler inquired of the EEOC how the agency came to adopt its current position on the issue. Prior to 2015, the EEOC had been very clear that sexual orientation itself was not protected by Title VII. In response to Judge Pooler’s inquiry, the EEOC lawyer said the agency decided to take a “fresh look” at the issue after recent Supreme Court rulings and comments from the public. Judge Pooler followed up by asking whether the EEOC also obtained input from the Department of Justice, but the EEOC lawyer was not aware whether the agency had. “It’s a little bit awkward for us to have the federal government on both sides of the case,” Judge Pooler said. “Indeed your honor” was the EEOC’s only reply.
A comparison of the opposing arguments advanced by the Department of Justice and the EEOC in their briefs demonstrates just how deep the divide on this issue is, starting with a turf war over who speaks for the government. The Department of Justice’s brief made the Attorney General’s interest clear (citations in the parties’ brief excerpts have been omitted).
The United States, through the Attorney General, enforces Title VII against state or local government employers and the United States is also subject to Title VII in its capacity as the Nation’s largest employer. . . Although the Equal Employment Opportunity Commission (EEOC) enforces Title VII against private employers, and it has filed an amicus brief in support of the employee here, 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 EEOC relied primarily upon its responsibility for enforcing the law as the basis for its interest.
The Equal Employment Opportunity Commission is the primary agency charged by Congress with interpreting and enforcing Title VII of the Civil Rights Act of 1964 . . . In furtherance of its strong interest in the interpretation of the federal anti-discrimination employment law . . . the EEOC offers its views to the Court.
The Arguments of the Justice Department and the EEOC are Polar Opposites.
The two sides’ views of the issue could not be more at odds.
The Department of Justice argues that decades of precedent and Congress’s steadfast refusal to amend Title VII to include protections against sexual orientation discrimination support its conclusion that the question should be decided by the legislative branch — not the judiciary. The Department’s brief states as follows,
As the Courts of Appeals and the EEOC had long interpreted Title VII until recently, when Congress prohibited sex discrimination, it did not also prohibit sexual orientation discrimination. * * * To be sure, there have since been notable changes in societal and cultural attitudes about such discrimination, but Congress has consistently declined to amend Title VII in light of those changes, despite having been repeatedly presented with opportunities to do so. . . [T]he Supreme Court has resoundingly reaffirmed that the proper role of the judiciary is to apply, not amend, the work of the People’s representatives.
The EEOC counters these arguments by noting that statutes are often interpreted to prohibit “reasonably comparable evils” to those prohibited in the actual text of legislation and that Congressional inaction on an issue is not determinative of a proper interpretation. The Commission’s brief argues as follows:
[S]ome have argued that Title VII would not have been reasonably understood to protect against sexual orientation discrimination when Congress enacted it in 1964. But as the Supreme Court clearly held when discussing Title VII, statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.
Beyond the issue of Congress’ intent, the EEOC has advanced three arguments in support of its contention that “sex discrimination” under Title VII includes sexual orientation discrimination. First, the Commission argues that sexual orientation discrimination treats otherwise similarly situated people differently solely because of their sex. Under this argument, if an employer would not discriminate against a woman who dates a man, then the employer cannot discriminate against a man who dates a man. The Department of Justice rejects this analysis because controlling precedent provides when drawing such comparisons the employees must be identical in all relevant respects holding everything constant except the employee’s sex. For a man to be dating a man in the EEOC’s hypothetical, both the sex and sexual orientation in the comparison were changed. Under the Department’s argument, a legally relevant hypothetical must compare an employer’s treatment of a man dating a man to its treatment of a woman who dates a woman such that both couples’ homosexuality is constant. So long as both were treated equally there could be no sex discrimination.
Second, the EEOC argues that sexual orientation discrimination violates Title VII’s prohibition against discrimination based on the sex of those with whom one associates. Here the Commission relies upon precedent from the Second Circuit and other circuits finding it a violation of Title VII to discriminate against employees in interracial relationships. The Department of Justice counters that these cases are not controlling because they arise from discrimination based upon an employee’s own race. For instance a black employee who is discriminated against for marrying a white person would not have been discriminated against if he or she was white. It is the employee’s own race that gives rise to a claim. By contrast, in the Justice Department’s view, an employer who discriminates against an employee in a same-sex relationship regardless of sex is engaged in sex-neutral treatment of homosexual men and women alike.
Finally, the EEOC argues that “sexual orientation discrimination involves sex stereotyping because the employees involved do not conform to the norm that men should be attracted only to women and women only to men.” The EEOC argues that “such discrimination is at heart based on gender stereotypes” and under relevant Supreme Court precedent is therefore a violation of Title VII’s prohibition against sex discrimination. However, the Department of Justice responds that allegations of such a stereotype still do not “result in a disparate treatment of the sexes because men are treated no better or worse than similarly situated women.” The Department also notes that sexual orientation discrimination may sometimes be based on moral or familial biases that have nothing to do with the gender of the employee involved. Therefore the discrimination is not because of sex and thus not prohibited by Title VII.
The Ultimate Outcome
After Lincoln said a house divided cannot stand, he observed that “I do not expect the house to fall — but I do expect it will cease to be divided.” One can harbor the same expectation here.
In March of 2017, the United States Court of Appeals for the Eleventh Circuit ruled in the case of Evans v. Georgia Regional Hospital that Title VII’s prohibition on sex discrimination does not include sexual orientation discrimination. In so holding, the Eleventh Circuit relied on its own precedent as well as cases from ten other circuit courts of appeals holding that sexual orientation discrimination is not actionable under Title VII. A month later, the Seventh Circuit Court of Appeals, overruling its own precedent, found in Hively v. Ivy Tech Community College that discrimination on the basis of sexual orientation is sex discrimination under Title VII. In so holding the Seventh Circuit became the highest court to ever adopt such a position. Whatever the Second Circuit decides in Zarda, a split in the federal circuits exists that invites the United States Supreme Court to intervene. Only then, will the house cease to be divided.