15-3775 (en banc)
Zarda v. Altitude Express, Inc.
15‐3775 (en banc)
Zarda v. Altitude Express, Inc.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
_______________
August Term, 2017
(Argued: September 26, 2017 Decided: February 26, 2018)
Docket No. 15‐3775
______________
MELISSA ZARDA, co‐independent executor of the estate of Donald Zarda, and
WILLIAM ALLEN MOORE, JR., co‐independent executor of the estate of Donald
Zarda,
Plaintiffs‐Appellants,
– v. –
ALTITUDE EXPRESS, INC., doing business as SKYDIVE LONG ISLAND, and RAY
MAYNARD,
Defendants‐Appellees.
_______________
B e f o r e:
KATZMANN, Chief Judge, JACOBS, CABRANES, POOLER, SACK, RAGGI, HALL,
LIVINGSTON, LYNCH, CHIN, LOHIER, CARNEY, and DRONEY, Circuit Judges.*
Judge Sack and Judge Lynch, who are senior judges, are eligible to participate in this en
*
banc pursuant to 28 U.S.C. § 46(c)(1) and 28 U.S.C. § 294(c).
1
KATZMANN, C.J., filed the majority opinion in which HALL, CHIN, CARNEY,
and DRONEY, JJ., joined in full, JACOBS, J., joined as to Parts I and II.B.3, POOLER,
J., joined as to all but Part II.B.1.b, SACK, J., joined as to Parts I, II.A, II.B.3, and
II.C, and LOHIER, J., joined as to Parts I, II.A, and II.B.1.a.
JACOBS, J., filed a concurring opinion.
CABRANES, J., filed an opinion concurring in the judgment.
SACK, J., filed a concurring opinion.
LOHIER, J., filed a concurring opinion.
LYNCH, J., filed a dissenting opinion in which LIVINGSTON, J., joined as to
Parts I, II, and III.
LIVINGSTON, J., filed a dissenting opinion.
RAGGI, J., filed a dissenting opinion.
_______________
Donald Zarda brought this suit against his former employer alleging, inter
alia, sex discrimination in violation of Title VII of the Civil Rights Act of 1964
(“Title VII”), 42 U.S.C. § 2000e, et seq. In particular, Zarda claimed that he was
fired after revealing his sexual orientation to a client. The United States District
Court for the Eastern District of New York (Bianco, J.) granted summary
judgment to the defendants on the ground that Zarda had failed to show that he
had been discriminated against on the basis of his sex. After the Equal
Employment Opportunity Commission (“EEOC”) decided Baldwin v. Foxx, EEOC
Decision No. 0120133080, 2015 WL 4397641 (July 15, 2015), holding that sex
discrimination includes sexual orientation discrimination, Zarda asked the
district court to reinstate his Title VII claim. The district court, citing our decision
in Simonton v. Runyon, 232 F.3d 33, 35 (2d Cir. 2000), declined to do so. Zarda
appealed and a panel of this Court affirmed.
We convened this rehearing en banc to consider whether Title VII
prohibits discrimination on the basis of sexual orientation such that our
2
precedents to the contrary should be overruled. We now hold that sexual
orientation discrimination constitutes a form of discrimination “because of . . .
sex,” in violation of Title VII, and overturn Simonton and Dawson v. Bumble &
Bumble, 398 F.3d 211, 217–23 (2d Cir. 2005), to the extent they held otherwise. We
therefore VACATE the district court’s judgment on the Title VII claim and
REMAND for further proceedings consistent with this opinion. We AFFIRM the
judgment of the district court in all other respects.
_______________
GREGORY ANTOLLINO, New York, NY (Stephen Bergstein, Bergstein
& Ullrich, LLP, Chester, NY, on the brief), for Plaintiffs‐
Appellants.
SAUL D. ZABELL, Zabell & Associates, P.C., Bohemia, NY, for
Defendants‐Appellees.
JEREMY HOROWITZ (James L. Lee, Deputy General Counsel, Jennifer
S. Goldstein, Associate General Counsel, and Anne Noel
Occhialino, Senior Appellate Attorney, on the brief), Equal
Employment Opportunity Commission, Washington, DC, for
Amicus Curiae Equal Employment Opportunity Commission,
in support of Plaintiffs‐Appellants.
GREGORY R. NEVINS (Michael D.B. Kavey, Attorney at Law,
Brooklyn, NY; Omar Gonzalez‐Pagan and Sharon M.
McGowan, on the brief), Lambda Legal Defense and Education
Fund, Inc., New York, NY, for Amicus Curiae Lambda Legal
Defense and Education Fund, Inc., Atlanta, GA, in support of
Plaintiffs‐Appellants.
HASHIM M. MOOPPAN (Chad A. Readler and Tom Wheeler, Acting
Assistant Attorneys General, Charles W. Scarborough and
Stephen R. Marcus, Attorneys, on the brief), United States
Department of Justice, Washington, DC, for Amicus Curiae
United States of America, in support of Defendants‐Appellees.
ADAM K. MORTARA, Bartlit Beck Herman Palenchar & Scott LLP,
3
Chicago, IL, court‐appointed Amicus Curiae in support of
Defendants‐Appellees.
Erin Beth Harrist and Christopher Dunn, New York Civil Liberties
Union Foundation, New York, NY; Fatima Goss Graves,
National Women’s Law Center, Washington, DC; Ria Tabacco
Mar, Leslie Cooper, James D. Esseks, Lenora M. Lapidus, and
Gillian L. Thomas, American Civil Liberties Union
Foundation, New York, NY, for Amici Curiae American Civil
Liberties Union; New York Civil Liberties Union; National
Women’s Law Center; 9to5, National Association of Working
Women; A Better Balance; California Women’s Law Center;
Equal Rights Advocates; Feminist Majority Foundation;
Gender Justice; Legal Voice; National Organization for
Women (NOW) Foundation; National Partnership for Women
& Families; Southwest Women’s Law Center; Women
Employed; Women’s Law Center of Maryland, Inc.; and
Women’s Law Project, in support of Plaintiffs‐Appellants.
Richard E. Casagrande, Robert T. Reilly, Wendy M. Star, and
Christopher Lewis, New York State United Teachers, Latham,
NY, for Amicus Curiae New York State United Teachers, in
support of Plaintiffs‐Appellants.
Richard Blum and Heidi Cain, The Legal Aid Society, New York,
NY, for Amicus Curiae The Legal Aid Society, in support of
Plaintiffs‐Appellants.
Alice O’Brien, Eric A. Harrington, and Mary E. Deweese, National
Education Association, Washington, DC, for Amicus Curiae The
National Education Association, in support of Plaintiffs‐
Appellants.
Mary Bonauto, GLBTQ Legal Advocates & Defenders, Boston, MA;
Christopher Stoll, National Center for Lesbian Rights, San
Francisco, CA; Alan E. Shoenfeld, David M. Lehn, and
Christopher D. Dodge, Wilmer Cutler Pickering Hale and
4
Dorr LLP, New York, NY, Washington, DC, and Boston, MA,
for Amici Curiae GLBTQ Legal Advocates & Defenders
(“GLAD”) and National Center for Lesbian Rights (“NCLR”),
in support of Plaintiffs‐Appellants.
Thomas W. Burt, Microsoft Corporation, Redmond, WA; Sigismund
L. Sapinski, Jr., Sun Life Financial (U.S.) Services Company,
Inc., Windsor, CT; Todd Anten, Justin T. Reinheimer, and
Cory D. Struble, Quinn Emanuel Urquhart & Sullivan, LLP,
New York, NY, for Amici Curiae AdRoll, Inc.; Ben & Jerry’s;
Beterment; Boston Community Capital; Brandwatch; CBS
Corporation; Citrix Systems, Inc.; City Winery; Davis
Steadman Ford & Mace, LLC; DoorDash, Inc.; Dropbox, Inc.;
Eastern Bank; Edelman; FiftyThree, Inc.; Freedom for All
Americans Education Fund; Google Inc.; Greater Burlington
Industrial Corporation; Gusto; Harvard Pilgrim Health Care,
Inc.; IAC/InterActiveCorp; IHS Markit Ltd.; Indiegogo; INUS
Group LLC; Johnston, Kinney & Zulaica LLP; Kargo; KEO
Marketing Inc.; Kickstarter, PBC; Levi Strauss & Co.; Linden
Lab; Lyft, Inc.; Mapbox, Inc.; National Gay & Lesbian
Chamber of Commerce; OBOX Solutions; On 3 Public
Relations; Physician’s Computer Company; Pinterest; Puma
Springs Vineyards; Quora Inc.; S&P Global Inc.; Salesforce;
Shutterstock, Inc.; Spotify; Thumbtack; TodayTix; Trust
Company of Vermont; Vermont Gynecology; Viacom, Inc.;
and Wealthfront Inc., in support of Plaintiffs‐Appellants.
Peter T. Barbur, Cravath, Swaine & Moore LLP, New York, NY, for
Amici Curiae Sen. Jeffrey A. Merkley, Sen. Tammy Baldwin,
Sen. Cory A. Booker, and Rep. David N. Cicilline, in support of
Plaintiffs‐Appellants.
Matthew Skinner, LGBT Bar Association of Greater New York
(“LeGaL”), New York, NY, for Amici Curiae LGBT Bar
Association of Greater New York (“LeGaL”), Anti‐Defamation
League, Asian American Bar Association of New York,
5
Association of the Bar of the City of New York, Bay Area
Lawyers for Individual Freedom, Hispanic National Bar
Association, Legal Aid at Work, National Queer Asian Pacific
Islander Alliance, New York County Lawyers’ Association,
and Women’s Bar Association of the State of New York, in
support of Plaintiffs‐Appellants.
Eric T. Schneiderman, Attorney General, Barbara D. Underwood,
Solicitor General, Steven C. Wu, Deputy Solicitor General,
Andrew W. Amend, Senior Assistant Solicitor General of
Counsel, State of New York, New York, NY; George Jepsen,
Attorney General, State of Connecticut, Hartford, CT; Thomas
J. Donovan, Jr., Attorney General, State of Vermont,
Montpelier, VT, for Amici Curiae State of New York, State of
Connecticut, and State of Vermont, in support of Plaintiffs‐
Appellants.
Joseph W. Miller, U.S. Justice Foundation, Ramona, CA; William J.
Olson, Herbert W. Titus, Robert J. Olson, and Jeremiah L.
Morgan, William J. Olson, P.C., Vienna, VA, for Amici Curiae
Conservative Legal Defense and Education Fund, Public
Advocate of the United States, and United States Justice
Foundation, in support of Defendants‐Appellees.
Kimberlee Wood Colby, Christian Legal Society, Springfield, VA, for
Amici Curiae Christian Legal Society and National Association
of Evangelicals, in support of Defendants‐Appellees.
_______________
KATZMANN, Chief Judge:
Donald Zarda,1 a skydiving instructor, brought a sex discrimination claim
Zarda died in a BASE jumping accident after the district court awarded partial
1
summary judgment but prior to trial on the remaining claims. The executors of his estate have
6
under Title VII of the Civil Rights Act of 1964 (“Title VII”) alleging that he was
fired from his job at Altitude Express, Inc., because he failed to conform to male
sex stereotypes by referring to his sexual orientation. Although it is well‐settled
that gender stereotyping violates Title VII’s prohibition on discrimination
“because of . . . sex,” we have previously held that sexual orientation
discrimination claims, including claims that being gay or lesbian constitutes
nonconformity with a gender stereotype, are not cognizable under Title VII.2 See
Simonton v. Runyon, 232 F.3d 33, 35 (2d Cir. 2000); see also Dawson v. Bumble &
Bumble, 398 F.3d 211, 217–23 (2d Cir. 2005).
At the time Simonton and Dawson were decided, and for many years since,
this view was consistent with the consensus among our sister circuits and the
position of the Equal Employment Opportunity Commission (“EEOC” or
“Commission”). See, e.g., Kalich v. AT&T Mobility, LLC, 679 F.3d 464, 471 (6th Cir.
2012); Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285, 289 (3d Cir. 2009); Medina v.
been substituted as plaintiffs. Zarda and the executors of his estate are referred to collectively as
“Zarda” throughout this opinion.
2 This opinion assumes arguendo that “sex” in Title VII “means biologically male or
female,” Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339, 362 (7th Cir. 2017) (en banc) (Sykes, J.,
dissenting), and uses the terms “sex” and “gender” interchangeably, as do the Supreme Court
and other circuits cited herein.
7
Income Support Div., 413 F.3d 1131, 1135 (10th Cir. 2005); Hamner v. St. Vincent
Hosp. & Health Care Ctr., Inc., 224 F.3d 701, 704 (7th Cir. 2000); Higgins v. New
Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Cir. 1999);3 Wrightson v. Pizza Hut
of Am., Inc., 99 F.3d 138, 143 (4th Cir. 1996); Williamson v. A.G. Edwards & Sons,
Inc., 876 F.2d 69, 70 (8th Cir. 1989) (per curiam); Blum v. Gulf Oil Corp., 597 F.2d
936, 938 (5th Cir. 1979) (per curiam); see also Johnson v. Frank, EEOC Decision No.
01911827, 1991 WL 1189760, at *3 (Dec. 19, 1991). But legal doctrine evolves and
in 2015 the EEOC held, for the first time, that “sexual orientation is inherently a
‘sex‐based consideration;’ accordingly an allegation of discrimination based on
sexual orientation is necessarily an allegation of sex discrimination under Title
VII.” Baldwin v. Foxx, EEOC Decision No. 0120133080, 2015 WL 4397641, at *5
(July 15, 2015) (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 242 (1989)
(plurality opinion)). Since then, two circuits have revisited the question of
whether claims of sexual orientation discrimination are viable under Title VII. In
March 2017, a divided panel of the Eleventh Circuit declined to recognize such a
3 The First Circuit has since qualified Higgins, holding that a plaintiff may “bring[] sex‐
plus claims under Title VII where, in addition to the sex‐based charge, the ‘plus’ factor is the
plaintiff’s status as a gay or lesbian individual.” Franchina v. City of Providence, 881 F.3d 32, 54
(1st Cir. 2018).
8
claim, concluding that it was bound by Blum, 597 F.2d at 938, which “ha[s] not
been overruled by a clearly contrary opinion of the Supreme Court or of [the
Eleventh Circuit] sitting en banc.” Evans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1257
(11th Cir.), cert. denied, 138 S. Ct. 557 (2017). One month later, the Seventh Circuit,
sitting en banc, took “a fresh look at [its] position in light of developments at the
Supreme Court extending over two decades” and held that “discrimination on
the basis of sexual orientation is a form of sex discrimination.” Hively, 853 F.3d at
340–41. In addition, a concurring opinion of this Court recently called “for the
Court to revisit” this question, emphasizing the “changing legal landscape that
has taken shape in the nearly two decades since Simonton issued,” and
identifying multiple arguments that support the conclusion that sexual
orientation discrimination is barred by Title VII. Christiansen v. Omnicom Grp.,
Inc., 852 F.3d 195, 202 (2d Cir. 2017) (Katzmann, C.J., concurring) (“Christiansen
and amici advance three arguments, none previously addressed by this Court
. . . .”); see also id. at 204 (“Neither Simonton nor Dawson addressed [the but‐for]
argument.”).
Taking note of the potential persuasive force of these new decisions, we
convened en banc to reevaluate Simonton and Dawson in light of arguments not
9
previously considered by this Court. Having done so, we now hold that Title VII
prohibits discrimination on the basis of sexual orientation as discrimination
“because of . . . sex.” To the extent that our prior precedents held otherwise, they
are overruled.
We therefore VACATE the district court’s judgment on Zarda’s Title VII
claim and REMAND for further proceedings consistent with this opinion. We
AFFIRM the judgment of the district court in all other respects.
BACKGROUND
The facts and procedural history of this case are discussed in detail in our
prior panel decision. See Zarda v. Altitude Express, 855 F.3d 76, 79–81 (2d Cir.
2017). We recite them only as necessary to address the legal question under
consideration.
In the summer of 2010, Donald Zarda, a gay man, worked as a sky‐diving
instructor at Altitude Express. As part of his job, he regularly participated in
tandem skydives, strapped hip‐to‐hip and shoulder‐to‐shoulder with clients. In
an environment where close physical proximity was common, Zarda’s co‐
workers routinely referenced sexual orientation or made sexual jokes around
clients, and Zarda sometimes told female clients about his sexual orientation to
10
assuage any concern they might have about being strapped to a man for a
tandem skydive. That June, Zarda told a female client with whom he was
preparing for a tandem skydive that he was gay “and ha[d] an ex‐husband to
prove it.” J.A. 400 ¶ 23. Although he later said this disclosure was intended
simply to preempt any discomfort the client may have felt in being strapped to
the body of an unfamiliar man, the client alleged that Zarda inappropriately
touched her and disclosed his sexual orientation to excuse his behavior. After the
jump was successfully completed, the client told her boyfriend about Zarda’s
alleged behavior and reference to his sexual orientation; the boyfriend in turn
told Zarda’s boss, who fired shortly Zarda thereafter. Zarda denied
inappropriately touching the client and insisted he was fired solely because of his
reference to his sexual orientation.
One month later, Zarda filed a discrimination charge with the EEOC
concerning his termination. Zarda claimed that “in addition to being
discriminated against because of [his] sexual orientation, [he] was also
discriminated against because of [his] gender.” Special Appendix (“S.A.”) 3. In
particular, he claimed that “[a]ll of the men at [his workplace] made light of the
intimate nature of being strapped to a member of the opposite sex,” but that he
11
was fired because he “honestly referred to [his] sexual orientation and did not
conform to the straight male macho stereotype.” S.A. 5.
In September 2010, Zarda brought a lawsuit in federal court alleging, inter
alia, sex stereotyping in violation of Title VII and sexual orientation
discrimination in violation of New York law. Defendants moved for summary
judgment arguing that Zarda’s Title VII claim should be dismissed because,
although “Plaintiff testifie[d] repeatedly that he believe[d] the reason he was
terminated [was] because of his sexual orientation . . . [,] under Title VII, a gender
stereotype cannot be predicated on sexual orientation.” Dist. Ct. Dkt. No. 109 at 3
(citing Simonton, 232 F.3d at 35). In March 2014, the district court granted
summary judgment to the defendants on the Title VII claim. As relevant here, the
district court concluded that, although there was sufficient evidence to permit
plaintiff to proceed with his claim for sexual orientation discrimination under
New York law, plaintiff had failed to establish a prima facie case of gender
stereotyping discrimination under Title VII.
While Zarda’s remaining claims were still pending, the EEOC decided
Baldwin, holding that “allegations of discrimination on the basis of sexual
orientation necessarily state a claim of discrimination on the basis of sex.” 2015
12
WL 4397641 at *10. The Commission identified three ways to illustrate what it
described as the “inescapable link between allegations of sexual orientation
discrimination and sex discrimination.” Id. at *5. First, sexual orientation
discrimination, such as suspending a lesbian employee for displaying a photo of
her female spouse on her desk while not suspending a man for displaying a
photo of his female spouse, “is sex discrimination because it necessarily entails
treating an employee less favorably because of the employee’s sex.” Id. Second, it
is “associational discrimination” because “an employee alleging discrimination
on the basis of sexual orientation is alleging that his or her employer took his or
her sex into account by treating him or her differently for associating with a
person of the same sex.” Id. at *6. Lastly, sexual orientation discrimination
“necessarily involves discrimination based on gender stereotypes,” most
commonly “heterosexually defined gender norms.” Id. at *7–8 (internal quotation
marks omitted). Shortly thereafter, Zarda moved to have his Title VII claim
reinstated based on Baldwin. But, the district court denied the motion, concluding
that Simonton remained binding precedent.
Zarda’s surviving claims, which included his claim for sexual orientation
discrimination under New York law, went to trial, where defendants prevailed.
13
After judgment was entered for the defendants, Zarda appealed. As relevant
here, Zarda argued that Simonton should be overturned because the EEOC’s
reasoning in Baldwin demonstrated that Simonton was incorrectly decided. By
contrast, defendants argued that the court did not need to reach that issue
because the jury found that they had not discriminated based on sexual
orientation.
The panel held that “Zarda’s [federal] sex‐discrimination claim [was]
properly before [it] because [his state law claim was tried under] a higher
standard of causation than required by Title VII.” Zarda, 855 F.3d at 81. However,
the panel “decline[d] Zarda’s invitation to revisit our precedent,” which “can
only be overturned by the entire Court sitting in banc.” Id. at 82. The Court
subsequently ordered this rehearing en banc to revisit Simonton and Dawson’s
holdings that claims of sexual orientation discrimination are not cognizable
under Title VII.
DISCUSSION
I. Jurisdiction
We first address the defendants’ challenge to our jurisdiction. Article III of
the Constitution grants federal courts the authority to hear only “Cases” and
14
“Controversies.” U.S. Const. art. III, § 2, cl. 1. As a result, “a federal court has
neither the power to render advisory opinions nor ‘to decide questions that
cannot affect the rights of litigants in the case before them.’” Preiser v. Newkirk,
422 U.S. 395, 401 (1975) (quoting North Carolina v. Rice, 404 U.S. 244, 246 (1971)).
The defendants argue that any decision on the merits would be an advisory
opinion because Zarda did not allege sexual orientation discrimination in his
EEOC charge or his federal complaint and therefore the question of whether Title
VII applies to sexual orientation discrimination is not properly before us.
Irrespective of whether defendants’ argument is actually jurisdictional,4 its
factual premises are patently contradicted by both the record and the position
defendants advanced below. Zarda’s EEOC complaint explained that he was
“making this charge because, in addition to being discriminated against because
of [his] sexual orientation, [he] was also discriminated against because of [his]
gender.” S.A. 3.5 Zarda specified that his supervisor “was hostile to any
4 This Court has squarely held that failure to present a Title VII claim to the EEOC before
filing suit in federal court “is not a jurisdictional prerequisite, but only a precondition to
bringing a Title VII action that can be waived by the parties or the court.” Francis v. City of New
York, 235 F.3d 763, 768 (2d Cir. 2000) (alterations and internal quotation marks omitted).
5 The full quotation is, “I am not making this charge on the grounds that I was
discriminated on the grounds of my sexual orientation. Rather, I am making this charge
because, in addition to being discriminated against because of my sexual orientation, I was also
15
expression of [his] sexual orientation that did not conform to sex stereotypes,”
and alleged that he “was fired . . . because . . . [he] honestly referred to [his]
sexual orientation and did not conform to the straight male macho stereotype.”
S.A. 3, 5. Zarda repeated this claim in his federal complaint, contending that he
was “an openly gay man” who was “discharge[ed] because of a homophobic
customer” and “because his behavior did not conform to sex stereotypes,” in
violation of Title VII. J.A. 65, 69, 75.
Defendants plainly understood Zarda’s complaint to have raised a claim
for sexual orientation discrimination under Title VII. In their motion for
summary judgment, defendants argued that Zarda’s claim “relies on the fact that
Plaintiff is homosexual, not that he failed to comply with male gender norms.
Thus, Plaintiff[] merely attempts to bring a defective sexual orientation claim
discriminated against because of my gender.” S.A. 3. Although inartful and perhaps even
confusing, the best interpretation of this statement, read in the context of the entire charge, is
that Zarda alleged that the sexual orientation discrimination he experienced was a subset of
gender discrimination. Even if otherwise, the governing rule is that “[c]laims not raised in an
EEOC complaint . . . may be brought in federal court if they are reasonably related to the claim
filed with the agency.” Williams v. N.Y.C. Hous. Auth., 458 F.3d 67, 70 (2d Cir. 2006) (internal
quotation marks omitted). A claim is considered reasonably related if the alleged conduct
“would fall within the scope of the EEOC investigation which can reasonably be expected to
grow out of the charge that was made.” Id. (internal quotation marks omitted). Because Zarda’s
charge gave the Commission “adequate notice to investigate discrimination on both bases,” it is
irrelevant whether Zarda’s EEOC complaint unequivocally alleged sexual orientation
16
under Title VII, which is legally invalid.” Dist. Ct. Dkt. No. 109 at 9 (citing
Dawson, 398 F.3d at 221). The district court ultimately agreed.
Having interpreted Zarda’s Title VII claim as one for sexual orientation
discrimination for purposes of insisting that the claim be dismissed, defendants
cannot now argue that there is no sexual orientation claim to prevent this Court
from reviewing the basis for the dismissal. Both defendants and the district court
clearly understood that Zarda had alleged sexual orientation discrimination
under Title VII. As a result, Zarda’s Title VII claim is neither unexhausted nor
unpled, and so it may proceed.6
II. Sexual Orientation Discrimination
A. The Scope of Title VII
“In passing Title VII, Congress made the simple but momentous
announcement that sex, race, religion, and national origin are not relevant to the
discrimination. Id. (internal quotation marks omitted).
6 Defendants’ additional argument, which is that the executors of Zarda’s estate lack
standing to pursue this action, is premised on the representation that the sexual orientation
claim under Title VII was not raised before the district court so the estate may not now raise
that claim on the deceased plaintiff’s behalf. Because we find that the sexual orientation claim
was properly raised, we need not address this argument.
17
selection, evaluation, or compensation of employees.” Price Waterhouse, 490 U.S.
at 239. The text of Title VII provides, in relevant part:
It shall be an unlawful employment practice for an employer . . . to
fail or refuse to hire or to discharge . . . or otherwise to discriminate
against any individual with respect to his [or her] compensation,
terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin . . . .
42 U.S.C. § 2000e‐2(a)(1). This “broad rule of workplace equality,” Harris v.
Forklift Sys., Inc., 510 U.S. 17, 22 (1993), “strike[s] at the entire spectrum of
disparate treatment” based on protected characteristics, L.A. Dep’t of Water &
Power v. Manhart, 435 U.S. 702, 707 n.13 (1978) (quoting Sprogis v. United Air Lines,
Inc., 444 F.2d 1194, 1198 (7th Cir. 1971)), “regardless of whether the
discrimination is directed against majorities or minorities,” Trans World Airlines,
Inc. v. Hardison, 432 U.S. 63, 71–72 (1977). As a result, we have stated that “Title
VII should be interpreted broadly to achieve equal employment opportunity.”
Huntington Branch, N.A.A.C.P. v. Town of Huntington, 844 F.2d 926, 935 (2d Cir.
1988) (citing Griggs v. Duke Power Co., 401 U.S. 424, 429–36 (1971)).
In deciding whether Title VII prohibits sexual orientation discrimination,
we are guided, as always, by the text and, in particular, by the phrase “because
of . . . sex.” However, in interpreting this language, we do not write on a blank
18
slate. Instead, we must construe the text in light of the entirety of the statute as
well as relevant precedent. As defined by Title VII, an employer has engaged in
“impermissible consideration of . . . sex . . . in employment practices” when “sex
. . . was a motivating factor for any employment practice,” irrespective of
whether the employer was also motivated by “other factors.” 42 U.S.C. § 2000e‐
2(m). Accordingly, the critical inquiry for a court assessing whether an
employment practice is “because of . . . sex” is whether sex was “a motivating
factor.” Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 23 (2d Cir.
2014).
Recognizing that Congress intended to make sex “irrelevant” to
employment decisions, Griggs, 401 U.S. at 436, the Supreme Court has held that
Title VII prohibits not just discrimination based on sex itself, but also
discrimination based on traits that are a function of sex, such as life expectancy,
Manhart, 435 U.S. at 711, and non‐conformity with gender norms, Price
Waterhouse, 490 U.S. at 250–51. As this Court has recognized, “any meaningful
regime of antidiscrimination law must encompass such claims” because, if an
employer is “‘[f]ree to add non‐sex factors, the rankest sort of discrimination’”
could be worked against employees by using traits that are associated with sex as
19
a proxy for sex. Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 119
n.9 (2d Cir. 2004) (quoting Phillips v. Martin Marietta Corp., 416 F.2d 1257, 1260
(5th Cir. 1969) (Brown, C.J., dissenting from denial of rehearing en banc)).
Applying Title VII to traits that are a function of sex is consistent with the
Supreme Court’s view that Title VII covers not just “the principal evil[s]
Congress was concerned with when it enacted” the statute in 1964, but also
“reasonably comparable evils” that meet the statutory requirements. Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998).
With this understanding in mind, the question before us is whether an
employee’s sex is necessarily a motivating factor in discrimination based on
sexual orientation. If it is, then sexual orientation discrimination is properly
understood as “a subset of actions taken on the basis of sex.” Hively, 853 F.3d at
343.7
B. Sexual Orientation Discrimination as a Subset of Sex Discrimination
We now conclude that sexual orientation discrimination is motivated, at
Importantly, Title VII protection does not hinge on whether sexual orientation
7
discrimination is “synonymous with sex discrimination.” Hively, 853 F.3d at 363 (Sykes, J.,
dissenting). While synonyms are coextensive, sex discrimination obviously encompasses more
than sexual orientation discrimination, including sexual harassment and other recognized
20
least in part, by sex and is thus a subset of sex discrimination. Looking first to the
text of Title VII, the most natural reading of the statute’s prohibition on
discrimination “because of . . . sex” is that it extends to sexual orientation
discrimination because sex is necessarily a factor in sexual orientation. This
statutory reading is reinforced by considering the question from the perspective
of sex stereotyping because sexual orientation discrimination is predicated on
assumptions about how persons of a certain sex can or should be, which is an
impermissible basis for adverse employment actions. In addition, looking at the
question from the perspective of associational discrimination, sexual orientation
discrimination—which is motivated by an employer’s opposition to romantic
association between particular sexes—is discrimination based on the employee’s
own sex.
1. Sexual Orientation as a Function of Sex
a. “Because of . . . sex”
We begin by considering the nature of sexual orientation discrimination.
The term “sexual orientation” refers to “[a] person’s predisposition or inclination
toward sexual activity or behavior with other males or females” and is
subsets of sex discrimination.
21
commonly categorized as “heterosexuality, homosexuality, or bisexuality.” See
Sexual Orientation, Black’s Law Dictionary (10th ed. 2014). To take one example,
“homosexuality” is “characterized by sexual desire for a person of the same sex.”
Homosexual, id.; see also Heterosexual, id. (“Of, relating to, or characterized by
sexual desire for a person of the opposite sex.”); Bisexual, id. (“Of, relating to, or
characterized by sexual desire for both males and females.”). To operationalize
this definition and identify the sexual orientation of a particular person, we need
to know the sex of the person and that of the people to whom he or she is
attracted. Hively, 853 F.3d at 358 (Flaum, J., concurring) (“One cannot consider a
person’s homosexuality without also accounting for their sex: doing so would
render ‘same’ [sex] . . . meaningless.”). Because one cannot fully define a person’s
sexual orientation without identifying his or her sex, sexual orientation is a
function of sex. Indeed sexual orientation is doubly delineated by sex because it
is a function of both a person’s sex and the sex of those to whom he or she is
attracted. Logically, because sexual orientation is a function of sex and sex is a
protected characteristic under Title VII, it follows that sexual orientation is also
protected. See id. (“[D]iscriminating against [an] employee because they are
22
homosexual constitutes discriminating against an employee because of (A) the
employee’s sex, and (B) their sexual attraction to individuals of the same sex.”).8
Choosing not to acknowledge the sex‐dependent nature of sexual
orientation, certain amici contend that employers discriminating on the basis of
sexual orientation can do so without reference to sex.9 In support of this
assertion, they point to Price Waterhouse, where the Supreme Court observed that
one way to discern the motivation behind an employment decision is to consider
whether, “if we asked the employer at the moment of the decision what its
reasons were and if we received a truthful response, one of those reasons would
be” the applicant or employee’s sex. 490 U.S. at 250. Relying on this language,
these amici argue that a “truthful” response to an inquiry about why an
employee was fired would be “I fired him because he is gay,” not “I fired him
because he is a man.” But this semantic sleight of hand is not a defense; it is a
8 The lead dissent rejects this “linguistic argument,“ Lynch, J., Dissenting Op. at 29
(hereinafter “Lead Dissent”), and advocates that Title VII’s prohibition must be understood in
the context of the prejudices and popular movements animating national politics at the time the
statute was enacted, particularly concerns about the sexual exploitation of women, id. at 15–28.
But the dissent’s account does not and cannot rebut the fact that sexual orientation is a sex‐
dependent trait.
9 Notably, the government concedes that “as a logical matter . . . [y]ou could view sexual
orientation as a subset of sex,” however the government also insists that it could be
“view[ed] . . . as a distinct category.” Oral Arg. Tr. at 53:17‐20.
23
distraction. The employer’s failure to reference gender directly does not change
the fact that a “gay” employee is simply a man who is attracted to men. For
purposes of Title VII, firing a man because he is attracted to men is a decision
motivated, at least in part, by sex. More broadly, were this Court to credit amici’s
argument, employers would be able to rebut a discrimination claim by merely
characterizing their action using alternative terminology. Title VII instructs
courts to examine employers’ motives, not merely their choice of words. See 42
U.S.C. § 2000e‐2(m). As a result, firing an employee because he is “gay” is a form
of sex discrimination.10
The argument has also been made that it is not “even remotely plausible
that in 1964, when Title VII was adopted, a reasonable person competent in the
English language would have understood that a law banning employment
discrimination ‘because of sex’ also banned discrimination because of sexual
orientation[.]” Hively, 853 F.3d at 362 (Sykes, J., dissenting). Even if that were so,
the same could also be said of multiple forms of discrimination that are
indisputably prohibited by Title VII, as the Supreme Court and lower courts
10 Lest there be any doubt, this Court’s holding that sexual orientation discrimination is a
subset of sex discrimination encompasses discrimination based on a person’s attraction to
24
have determined. Consider, for example, sexual harassment and hostile work
environment claims, both of which were initially believed to fall outside the
scope of Title VII’s prohibition.
In 1974, a district court dismissed a female employee’s claim for sexual
harassment reasoning that “[t]he substance of [her] complaint [was] that she was
discriminated against, not because she was a woman, but because she refused to
engage in a sexual affair with her supervisor.” Barnes v. Train, No. 1828‐73, 1974
WL 10628, at *1 (D.D.C. Aug. 9, 1974). The district court concluded that this
conduct, although “inexcusable,” was “not encompassed by [Title VII].” Id. The
D.C. Circuit reversed. Unlike the district court, it recognized that the plaintiff
“became the target of her supervisor’s sexual desires because she was a woman.”
Barnes v. Costle, 561 F.2d 983, 990 (D.C. Cir. 1977) (emphasis added). As a result
the D.C. Circuit held that “gender cannot be eliminated from [plaintiff’s
formulation of her claim] and that formulation advances a prima facie case of sex
discrimination within the purview of Title VII” because “it is enough that gender
is a factor contributing to the discrimination.” Id. Today, the Supreme Court and
lower courts “uniformly” recognize sexual harassment claims as a violation of
people of the opposite sex, same sex, or both.
25
Title VII, see, e.g., Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66–67 (1986),
notwithstanding the fact that, as evidenced by the district court decision in
Barnes, this was not necessarily obvious from the face of the statute.
The Supreme Court has also acknowledged that a “hostile work
environment,” although it “do[es] not appear in the statutory text,” Burlington
Indus., Inc. v. Ellerth, 524 U.S. 742, 752 (1998), violates Title VII by affecting the
“psychological aspects of the workplace environment,” Meritor, 477 U.S. at 64
(internal quotation marks omitted). As Judge Goldberg, one of the early
proponents of hostile work environment claims, explained in a case involving
national origin discrimination,
[Title VII’s] language evinces a Congressional intention to define
discrimination in the broadest possible terms. Congress chose
neither to enumerate specific discriminatory practices, nor to
elucidate in extenso the parameter of such nefarious activities.
Rather, it pursued the path of wisdom by being unconstrictive,
knowing that constant change is the order of our day and that the
seemingly reasonable practices of the present can easily become the
injustices of the morrow.
Rogers v. E.E.O.C., 454 F.2d 234, 238 (5th Cir. 1971). Stated differently, because
Congress could not anticipate the full spectrum of employment discrimination
that would be directed at the protected categories, it falls to courts to give effect
to the broad language that Congress used. See Pullman‐Standard v. Swint, 456 U.S.
26
273, 276 (1982) (“Title VII is a broad remedial measure, designed ‘to assure
equality of employment opportunities.’” (quoting McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 800 (1973))).
The Supreme Court gave voice to this principle of construction when it
held that Title VII barred male‐on‐male sexual harassment, which “was
assuredly not the principal evil Congress was concerned with when it enacted
Title VII,” Oncale, 523 U.S. at 79–80, and which few people in 1964 would likely
have understood to be covered by the statutory text. But the Court was
untroubled by these facts. “[S]tatutory prohibitions,” it explained, “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.” Id. Applying this reasoning to the
question at hand, the fact that Congress might not have contemplated that
discrimination “because of . . . sex” would encompass sexual orientation
discrimination does not limit the reach of the statute.
The dissent disagrees with this conclusion. It does not dispute our
definition of the word “sex,” Lead Dissent at 21, nor does it argue that this word
had a different meaning in 1964. Instead, it charges us with “misconceiv[ing] the
27
fundamental public meaning of the language of” Title VII. Id. at 16 (emphasis
omitted). According to the dissent, the drafters included “sex” in Title VII to
“secure the rights of women to equal protection in employment,” id. at 20, and
had no intention of prohibiting sexual orientation discrimination, id. at 14–15. We
take no position on the substance of the dissent’s discussion of the legislative
history or the zeitgeist of the 1960s, but we respectfully disagree with its
approach to interpreting Title VII as well as its conclusion that sexual orientation
discrimination is not a “reasonably comparable evil,” Oncale, 523 U.S. at 79, to
sexual harassment and male‐on‐male harassment. Although legislative history
most certainly has its uses, in ascertaining statutory meaning in a Title VII case,
Oncale specifically rejects reliance on “the principal concerns of our legislators,”
id. at 79–80—the centerpiece of the dissent’s statutory analysis. Rather, Oncale
instructs that the text is the lodestar of statutory interpretation, emphasizing that
we are governed “by the provisions of our laws.” Id. The text before us uses
broad language, prohibiting discrimination “because of . . . sex,” which Congress
defined as making sex “a motivating factor.” 42 U.S.C. §§ 2000e‐2(a)(1), 2000e‐
2(m). We give these words their full scope and conclude that, because sexual
orientation discrimination is a function of sex, and is comparable to sexual
28
harassment, gender stereotyping, and other evils long recognized as violating
Title VII, the statute must prohibit it.11
b. “But for” an Employee’s Sex
Our conclusion is reinforced by the Supreme Court’s test for determining
whether an employment practice constitutes sex discrimination. This approach,
which we call the “comparative test,” determines whether the trait that is the
basis for discrimination is a function of sex by asking whether an employee’s
treatment would have been different “but for that person’s sex.” Manhart, 435
U.S. at 711 (internal quotation marks omitted). To illustrate its application to
sexual orientation, consider the facts of the recent Seventh Circuit case
addressing a Title VII claim brought by Kimberly Hively, a lesbian professor
who alleged that she was denied a promotion because of her sexual orientation.
Hively, 853 F.3d at 341 (majority). Accepting that allegation as true at the motion‐
to‐dismiss stage, the Seventh Circuit compared Hively, a female professor
11 This holding is easily operationalized. A standard jury instruction in a Title VII case
alleging sex discrimination informs the jury that a plaintiff has the burden of proving, by a
preponderance of the evidence, that the defendant intentionally discriminated against the
plaintiff because of sex, meaning that the plaintiff’s sex was a motivating factor in the
defendant’s decision to take the alleged adverse employment action against the plaintiff. See 42
U.S.C. §§ 2000e‐2(a)(1), 2000e‐2(m). In a case alleging sexual orientation discrimination under
29
attracted to women (who was denied a promotion), with a hypothetical scenario
in which Hively was a male who was attracted to women (and received a
promotion). Id. at 345. Under this scenario, the Seventh Circuit concluded that, as
alleged, Hively would not have been denied a promotion but for her sex, and
therefore sexual orientation is a function of sex. From this conclusion, it follows
that sexual orientation discrimination is a subset of sex discrimination. Id.
The government,12 drawing from the dissent in Hively, argues that this is
an improper comparison. According to this argument, rather than “hold[ing]
everything constant except the plaintiff’s sex” the Hively majority’s comparison
changed “two variables—the plaintiff’s sex and sexual orientation.” 853 F.3d at
366 (Sykes, J., dissenting). In other words, the Seventh Circuit compared a lesbian
woman with a heterosexual man. As an initial matter, this observation helpfully
illustrates that sexual orientation is a function of sex. In the comparison,
changing Hively’s sex changed her sexual orientation. Case in point.
Title VII, an instruction should add that “because of sex” includes actions taken because of
sexual orientation.
12 Both the Department of Justice and the EEOC have filed amicus briefs in this case, the
former in support of defendants and the latter in support of Zarda. Because EEOC attorneys
represent only the Commission, 42 U.S.C. § 2000e‐4(b)(2), while the Department of Justice has
litigating authority on behalf of the United States, 28 U.S.C. § 517, this opinion refers to the
Department of Justice as “the government.”
30
But the real issue raised by the government’s critique is the proper
application of the comparative test. In the government’s view, the appropriate
comparison is not between a woman attracted to women and a man attracted to
women; it’s between a woman and a man, both of whom are attracted to people
of the same sex. Determining which of these framings is correct requires
understanding the purpose and operation of the comparative test. Although the
Supreme Court has not elaborated on the role that the test plays in Title VII
jurisprudence, based on how the Supreme Court has employed the test, we
understand that its purpose is to determine when a trait other than sex is, in fact,
a proxy for (or a function of) sex. To determine whether a trait is such a proxy,
the test compares a female and a male employee who both exhibit the trait at
issue. In the comparison, the trait is the control, sex is the independent variable,
and employee treatment is the dependent variable.
To understand how the test works in practice, consider Manhart. There, the
Supreme Court evaluated the Los Angeles Department of Water’s requirement
that female employees make larger pension contributions than their male
colleagues. 435 U.S. at 704–05. This requirement was based on mortality data
indicating that female employees outlived male employees by several years and
31
the employer insisted that “the different contributions exacted from men and
women were based on the factor of longevity rather than sex.” Id. at 712.
Applying “the simple test of whether the evidence shows treatment of a person
in a manner which but for that person’s sex would be different,” the Court
compared a woman and a man, both of whose pension contributions were based
on life expectancy, and asked whether they were required to make different
contributions. Id. at 711 (internal quotation marks omitted). Importantly, because
life expectancy is a sex‐dependent trait, changing the sex of the employee (the
independent variable) necessarily affected the employee’s life expectancy and
thereby changed how they were impacted by the pension policy (the dependent
variable). After identifying this correlation, the Court concluded that life
expectancy was simply a proxy for sex and therefore the pension policy
constituted discrimination “because of . . . sex.” Id.
We can also look to the Supreme Court’s decision in Price Waterhouse.
Although that case did not quote Manhart’s “but for” language, it involved a
similar inquiry: in determining whether discrimination based on particular traits
was rooted in sex stereotypes, the Supreme Court asked whether a female
accountant would have been denied a promotion based on her aggressiveness
32
and failure to wear jewelry and makeup “if she had been a man.” 490 U.S. at 258.
Otherwise said, the Supreme Court compared a man and a woman who
exhibited the plaintiff’s traits and asked whether they would have experienced
different employment outcomes. Notably, being aggressive and not wearing
jewelry or makeup is consistent with gender stereotypes for men. Therefore, by
changing the plaintiff’s gender, the Supreme Court also changed the plaintiff’s
gender non‐conformity.
The government’s proposed approach to Hively, which would compare a
woman attracted to people of the same sex with a man attracted to people of the
same sex, adopts the wrong framing. To understand why this is incorrect,
consider the mismatch between the facts in the government’s comparison and
the allegation at issue: Hively did not allege that her employer discriminated
against women with same‐sex attraction but not men with same‐sex attraction. If
she had, that would be classic sex discrimination against a subset of women. See
Lead Dissent at 37 n.20. Instead, Hively claimed that her employer discriminated
on the basis of sexual orientation. To address that allegation, the proper question
is whether sex is a “motivating factor” in sexual orientation discrimination, see 42
U.S.C. § 2000e‐2(m), or, said more simply, whether sexual orientation is a
33
function of sex.13 But, contrary to the government’s suggestion, this question
cannot be answered by comparing two people with the same sexual orientation.
That would be equivalent to comparing the gender non‐conforming female
plaintiff in Price Waterhouse to a gender non‐conforming man; such a comparison
would not illustrate whether a particular stereotype is sex dependent but only
whether the employer discriminates against gender non‐conformity in only one
gender. Instead, just as Price Waterhouse compared a gender non‐conforming
woman to a gender conforming man, both of whom were aggressive and did not
wear makeup or jewelry, the Hively court properly determined that sexual
orientation is sex dependent by comparing a woman and a man with two
different sexual orientations, both of whom were attracted to women.
The government further counters that the comparative test produces false
positives in instances where it is permissible to impose different terms of
employment on men and women because “the sexes are not similarly situated.”
13 The lead dissent trivializes the role of sex as a motivating factor by suggesting that an
employer who discriminates on the basis of sexual orientation is merely “noticing” an
employee’s gender. Lead Dissent at 46. This argument, which implies that an employee’s sexual
orientation is the primary motivating factor while his or her sex is merely collateral, cannot be
squared with the Supreme Court’s case law. For example, in Manhart, the employer’s argument
that it was motivated by employee’s life expectancy could not save its policy because,
34
Gov. Br. at 16–17 (quoting Michael M. v. Superior Court of Sonoma Cty., 450 U.S.
464, 469 (1981)).14 For example, the government posits that courts have rejected
the comparative test when assessing employer policies regarding sex‐segregated
bathrooms and different grooming standards for men and women. Similarly, the
lead dissent insists that our holding would preclude such policies if “[t]aken to
its logical conclusion.” Lead Dissent at 35. Both criticisms are misplaced.
A plaintiff alleging disparate treatment based on sex in violation of Title
VII must show two things: (1) that he was “discriminate[d] against . . . with
respect to his compensation, terms, conditions, or privileges of employment,”
and (2) that the employer discriminated “because of . . . sex.” 42 U.S.C. § 2000e‐
2(a)(1). The comparative test addresses the second prong of that test; it reveals
whether an employment practice is “because of . . . sex” by asking whether the
irrespective of the employer’s intention or what it claimed to notice, life expectancy was a
function of sex. 435 U.S. at 712–13.
14 Ironically, the quoted language from Michael M. references instances where men and
women are differently situated because of the discrimination borne by women—the fact that they
are assigned parental responsibility at the moment an infant is born, are generally paid less than
men, and are excluded from positions that are necessary for subsequent promotions. 450 U.S. at
469 (collecting cases reflecting “the special problems of women” (internal quotation marks
omitted)). The Michael M. Court acknowledged that, when the sexes are not similarly situated
because of discrimination, statutes may impose different standards in the interest of leveling the
playing field. Id. However, Title VII commands equal treatment of sexes and neither the text of
the statute nor Michael M. creates an exception permitting employers to engage in disparate
35
trait at issue (life expectancy, sexual orientation, etc.) is a function of sex. In
contrast, courts that have addressed challenges to the sex‐specific employment
practices identified by the government have readily acknowledged that the
policies are based on sex and instead focused their analysis on the first prong:
whether the policies impose “disadvantageous terms or conditions of
employment.”15 Harris, 510 U.S. at 25 (Ginsburg, J., concurring); see, e.g., Jespersen
v. Harrah’s Operating Co., 444 F.3d 1104, 1109–10 (9th Cir. 2006) (upholding
grooming standards that do not “place[] a greater burden on one gender than the
other”); Knott v. Mo. Pac. R.R. Co., 527 F.2d 1249, 1252 (8th Cir. 1975) (concluding
that “slight differences in the appearance requirements for males and females
have only a negligible effect on employment opportunities”); Willingham v.
Macon Tel. Publ’g Co., 507 F.2d 1084, 1092 (5th Cir. 1975) (same); Dodge v. Giant
Food, Inc., 488 F.2d 1333, 1336–37 (D.C. Cir. 1973) (holding that hair‐length
regulations, like “the requirement that men and women use separate toilet
treatment of men and women simply because they exhibit biological differences.
15 As alleged, Zarda’s termination was plainly an adverse employment action that is
covered by Title VII. See 42 U.S.C. § 2000e‐2(a)(1) (“It shall be an unlawful employment practice
for an employer . . . to discharge . . . any individual because of such individual’s . . . sex . . . .”).
36
facilities[,] . . . do not pose distinct employment disadvantages for one sex”).16
Whether sex‐specific bathroom and grooming policies impose disadvantageous
terms or conditions is a separate question from this Court’s inquiry into whether
sexual orientation discrimination is “because of . . . sex,” and has no bearing on
the efficacy of the comparative test.
Having addressed the proper application of the comparative test, we
conclude that the law is clear: To determine whether a trait operates as a proxy
for sex, we ask whether the employee would have been treated differently “but
for” his or her sex. In the context of sexual orientation, a woman who is subject to
an adverse employment action because she is attracted to women would have
been treated differently if she had been a man who was attracted to women. We
can therefore conclude that sexual orientation is a function of sex and, by
extension, sexual orientation discrimination is a subset of sex discrimination.17
16 Arguably this approach is consistent with the Supreme Court’s analysis in Oncale,
which, after acknowledging that male‐on‐male harassment can be “because of . . . sex,”
qualified that not all remarks with “sexual content or connotations” rise to the level of
discrimination. 523 U.S. at 79–80.
17 The lead dissent argues that this conclusion is out of sync with precedents prohibiting
sexual harassment and hostile work environments because, while those cases addressed
particular employment “practice[s],” today’s decision extends protection to “an entirely
different category of people.” Lead Dissent at 22. But “persons discriminated against based on
sexual orientation” is no more a new category than “persons discriminated against based on
37
2. Gender Stereotyping
Viewing the relationship between sexual orientation and sex through the
lens of gender stereotyping provides yet another basis for concluding that sexual
orientation discrimination is a subset of sex discrimination. Specifically, this
framework demonstrates that sexual orientation discrimination is almost
invariably rooted in stereotypes about men and women.
Since 1978, the Supreme Court has recognized that “employment decisions
cannot be predicated on mere ‘stereotyped’ impressions about the characteristics
of males or females,” because Title VII “strike[s] at the entire spectrum of
disparate treatment of men and women resulting from sex stereotypes.” Manhart,
435 U.S. at 707 & n.13. This is true of stereotypes about both how the sexes are
and how they should be. Price Waterhouse, 490 U.S. at 250 (“[A]n employer who
acts on the basis of a belief that a woman cannot . . . or must not [possess certain
traits] has acted on the basis of gender.”); see also Zachary R. Herz, Note, Price’s
Progress: Sex Stereotyping and Its Potential for Antidiscrimination Law, 124 Yale L.J.
396, 405–06 (2014) (distinguishing between ascriptive stereotypes that “treat[] a
gender stereotypes.” In both instances, a man or woman is discriminated against based on a
trait that is a function of sex and their claims fall squarely within the ambit of a well‐recognized
38
large group of people alike” and prescriptive stereotypes that speak to how
members of a group should be).
In Price Waterhouse, the Supreme Court concluded that adverse
employment actions taken based on the belief that a female accountant should
walk, talk, and dress femininely constituted impermissible sex discrimination.
See 490 U.S. at 250–52 (plurality); see also id. at 259 (White, J., concurring in the
judgment); id. at 272–73 (O’Connor, J., concurring in the judgment).18 Similarly,
Manhart stands for the proposition that “employment decisions cannot be
predicated on mere ‘stereotyped’ impressions about the characteristics of males
or females,” and held that female employees could not, by virtue of their status
as women, be discriminated against based on the gender stereotype that women
generally outlive men. 435 U.S. at 707–08, 711. Under these principles, employees
category: “persons discriminated against based on sex.”
18 One amicus and the lead dissent interpret dicta in Price Waterhouse as establishing that
sex stereotyping is discriminatory only when it pertains to traits that are required for the
employee’s job. See 490 U.S. at 251 (observing that “[a]n employer who objects to aggressiveness
in women but whose positions require this trait places women in an intolerable and
impermissible catch 22: out of a job if they behave aggressively and out of a job if they do not”).
We think this narrow reading is an inaccurate statement of Price Waterhouse, which did not
indicate that stereotyping is impermissible only when the stereotyped trait is required for the
plaintiff’s job, and it is directly contradicted by Manhart’s holding that discriminating against
women based on their longer life expectancy, which was certainly not an employment
requirement, violated Title VII. 435 U.S. at 710–11.
39
who experience adverse employment actions as a result of their employer’s
generalizations about members of their sex, id. at 708, or “as a result of their
employer’s animus toward their exhibition of behavior considered to be
stereotypically inappropriate for their gender may have a claim under Title VII,”
Dawson, 398 F.3d at 218.
Accepting that sex stereotyping violates Title VII, the “crucial question” is
“[w]hat constitutes a gender‐based stereotype.” Back, 365 F.3d at 119–20. As
demonstrated by Price Waterhouse, one way to answer this question is to ask
whether the employer who evaluated the plaintiff in “sex‐based terms would
have criticized her as sharply (or criticized her at all) if she had been a man.” 490
U.S. at 258. Similarly, this Court has observed that the question of whether there
has been improper reliance on sex stereotypes can sometimes be answered by
considering whether the behavior or trait at issue would have been viewed more
or less favorably if the employee were of a different sex. See Back, 365 F.3d at 120
n.10 (quoting Doe ex rel. Doe v. City of Belleville, 119 F.3d 563, 581–82 (7th Cir.
1997)).19
In this respect, discerning whether a stereotype is based on sex is closely aligned with
19
the comparative test articulated in Manhart, which can illustrate both (1) whether a trait is a
40
Applying Price Waterhouse’s reasoning to sexual orientation, we conclude
that when, for example, “an employer . . . acts on the basis of a belief that [men]
cannot be [attracted to men], or that [they] must not be,” but takes no such action
against women who are attracted to men, the employer “has acted on the basis of
gender.” Cf. 490 U.S. at 250.20 This conclusion is consistent with Hively’s holding
that same‐sex orientation “represents the ultimate case of failure to conform” to
gender stereotypes, 853 F.3d at 346 (majority), and aligns with numerous district
courts’ observation that “stereotypes about homosexuality are directly related to
our stereotypes about the proper roles of men and women. . . . The gender
stereotype at work here is that ‘real’ men should date women, and not other
men,” Centola v. Potter, 183 F. Supp. 2d 403, 410 (D. Mass. 2002); see also, e.g.,
function of sex and (2) whether assumptions about that trait reflect a gender stereotype.
20 Some amici insist that stereotypes are mere evidence of discrimination and that
stereotyping does not, by itself, constitute sex discrimination. Beyond establishing an adverse
employment action, a Title VII plaintiff must always adduce evidence that an employer
discriminated “because of” a protected trait and the Court agrees that sex stereotyping is legally
relevant as “evidence that gender played a part” in a particular employment decision. Price
Waterhouse, 490 U.S. at 251 (emphasis omitted). But, Price Waterhouse’s reference to the
evidentiary value of stereotyping in no way undercuts it conclusion that an employer may not
“evaluate employees by assuming or insisting that they match[] the stereotype associated with
their group.” Id. And, just as the Supreme Court concluded that “an employer who acts on the
basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the
basis of gender,” id. at 250, this Court concludes that an employer who acts on the basis of a
belief that an employee cannot or should not have a particular sexual orientation has acted on
the basis of sex.
41
Boutillier v. Hartford Pub. Sch., 221 F. Supp. 3d 255, 269 (D. Conn. 2016); Videckis v.
Pepperdine Univ., 150 F. Supp. 3d 1151, 1160 (C.D. Cal. 2015); Terveer v. Billington,
34 F. Supp. 3d 100, 116 (D.D.C. 2014); Heller v. Columbia Edgewater Country Club,
195 F. Supp. 2d 1212, 1224 (D. Or. 2002).21
This conclusion is further reinforced by the unworkability of Simonton and
Dawson’s holding that sexual orientation discrimination is not a product of sex
stereotypes. Lower courts operating under this standard have long labored to
distinguish between gender stereotypes that support an inference of
impermissible sex discrimination and those that are indicative of sexual
orientation discrimination. See generally Hively v. Ivy Tech Cmty. Coll., S. Bend, 830
F.3d 698, 705–09 (7th Cir. 2016) (panel op.) (collecting cases), vacated by Hively,
853 F.3d 339 (en banc). Under this approach “a woman might have a Title VII
claim if she was harassed or fired for being perceived as too ‘macho’ but not if
she was harassed or fired for being perceived as a lesbian.” Fabian v. Hosp. of
Cent. Conn., 172 F. Supp. 3d 509, 524 n.8 (D. Conn. 2016). In parsing the evidence,
21 The Sixth Circuit has expressed the same observation, albeit in a decision declining to
apply Price Waterhouse to sexual orientation discrimination. See Vickers v. Fairfield Med. Ctr., 453
F.3d 757, 764 (6th Cir. 2006) (“[A]ll homosexuals, by definition, fail to conform to traditional
gender norms in their sexual practices.”).
42
courts have resorted to lexical bean counting, comparing the relative frequency
of epithets such as “ass wipe,” “fag,” “gay,” “queer,” “real man,” and “fem” to
determine whether discrimination is based on sex or sexual orientation. See, e.g.,
Kay v. Indep. Blue Cross, 142 F. App’x 48, 51 (3d Cir. 2005). Claims of gender
discrimination have been “especially difficult for gay plaintiffs to bring,”
Maroney v. Waterbury Hosp., No. 3:10‐CV‐1415, 2011 WL 1085633, at *2 n.2 (D.
Conn. Mar. 18, 2011), because references to a plaintiff’s sexual orientation are
generally excluded from the evidence, Boutillier, 221 F. Supp. 3d at 269, or
permitted only when “the harassment consists of homophobic slurs directed at a
heterosexual,” Estate of D.B. by Briggs v. Thousand Islands Cent. Sch. Dist., 169 F.
Supp. 3d 320, 332–33 (N.D.N.Y. 2016) (emphasis added). But see Franchina, 881
F.3d at 53 (holding that jury may consider evidence referencing plaintiff’s sexual
orientation for purposes of a sex discrimination claim). Unsurprisingly, many
courts have found these distinctions unworkable, admitting that the doctrine is
“illogical,” Philpott v. New York, No. 1:16‐CV‐6778, 2017 WL 1750398, at *2
(S.D.N.Y. May 3, 2017), and produces “untenable results,” Boutillier, 221 F. Supp.
3d at 270. In the face of this pervasive confusion, we are persuaded that “the line
between sex discrimination and sexual orientation discrimination is ‘difficult to
43
draw’ because that line does not exist save as a lingering and faulty judicial
construct.” Videckis, 150 F. Supp. 3d at 1159 (quoting Prowel, 579 F.3d at 291). We
now conclude that sexual orientation discrimination is rooted in gender
stereotypes and is thus a subset of sex discrimination.
The government resists this conclusion, insisting that negative views of
those attracted to members of the same sex may not be based on views about
gender at all, but may be rooted in “moral beliefs about sexual, marital and
familial relationships.” Gov. Br. at 19. But this argument merely begs the
question by assuming that moral beliefs about sexual orientation can be
dissociated from beliefs about sex. Because sexual orientation is a function of sex,
this is simply impossible. Beliefs about sexual orientation necessarily take sex
into consideration and, by extension, moral beliefs about sexual orientation are
necessarily predicated, in some degree, on sex. For this reason, it makes no
difference that the employer may not believe that its actions are based in sex. In
Manhart, for example, the employer claimed its policy was based on longevity,
not sex, but the Supreme Court concluded that, irrespective of the employer’s
belief, the longevity metric was predicated on assumptions about sex. 435 U.S. at
712–13. The same can be said of sexual orientation discrimination.
44
To be clear, our conclusion that moral beliefs regarding sexual orientation
are based on sex does not presuppose that those beliefs are necessarily animated
by an invidious or evil motive. For purposes of Title VII, any belief that depends,
even in part, on sex, is an impermissible basis for employment decisions.22 This is
true irrespective of whether the belief is grounded in fact, as in Manhart, id. at
704–05, 711, or lacks “a malevolent motive,” Intʹl Union, United Auto., Aerospace &
Agric. Implement Workers of Am., UAW v. Johnson Controls, Inc., 499 U.S. 187, 199
(1991). Indeed, in Johnson Controls, the Supreme Court concluded that an
employer violated Title VII by excluding fertile women from jobs that involved
exposure to high levels of lead, which can adversely affect the development of a
fetus. 499 U.S. at 190, 200. As the Court emphasized, “[t]he beneficence of an
employer’s purpose does not undermine the conclusion that an explicit gender‐
based policy is sex discrimination” under Title VII. Id. at 200. Here, because
sexual orientation is a function of sex, beliefs about sexual orientation, including
moral ones, are, in some measure, “because of . . . sex.”
22 We express no view on whether some exception, either under a different provision of
Title VII or under the Religious Freedom Restoration Act, might immunize from liability
discriminatory conduct rooted in religious beliefs.
45
The government responds that, even if discrimination based on sexual
orientation reflects a sex stereotype, it is not barred by Price Waterhouse because it
treats women no worse than men.23 Gov. Br. at 19–20. We believe the government
has it backwards. Price Waterhouse, read in conjunction with Oncale, stands for the
proposition that employers may not discriminate against women or men who fail
to conform to conventional gender norms. See Oncale, 523 U.S. at 78 (holding that
Title VII “protects men as well as women”); Price Waterhouse, 490 U.S. at 251
(“We are beyond the day when an employer could evaluate employees by
assuming or insisting that they matched the stereotype associated with their
23 The lead dissent offers a variation on this argument, reasoning that prescriptive views
about sexual orientation rest not on “a belief about what men or women ought to be or do,” but
“a belief about what all people ought to be or do,” Lead Dissent at 52, which is to say, a belief
that all people should be attracted to the opposite sex. See also Hively, 853 F.3d at 370 (Sykes, J.,
dissenting) (“To put the matter plainly, heterosexuality is not a female stereotype; it is not a
male stereotype; it is not a sex‐specific stereotype at all.”). It invokes the same idea when it
contends that sexual orientation discrimination is not a function of sex because it “does not
differentially disadvantage employees or applicants of either sex.” Lead Dissent at 37. We think
the dissent goes astray by getting off on the wrong foot. The dissent views the “key element” as
whether “one sex is systematically disadvantaged in a particular workplace.” Id. at 51. But Title
VII does not ask whether a particular sex is discriminated against; it asks whether a particular
“individual” is discriminated against “because of such individual’s . . . sex.” See 42 U.S.C. § 2000e‐
2(a)(1) (emphasis added); see also Manhart, 435 U.S. at 708 (“The statute’s focus on the individual
is unambiguous.”). Taking individuals as the unit of analysis, the question is not whether
discrimination is borne only by men or only by women or even by both men and women;
instead, the question is whether an individual is discriminated against because of his or her sex.
And this means that a man and a woman are both entitled to protection from the same type of
discrimination, provided that in each instance the discrimination is “because of such
46
group.”). It follows that the employer in Price Waterhouse could not have
defended itself by claiming that it fired a gender‐non‐conforming man as well as
a gender‐non‐conforming woman any more than it could persuasively argue that
two wrongs make a right. To the contrary, this claim would merely be an
admission that the employer has doubly violated Title VII by using gender
stereotypes to discriminate against both men and women. By the same token, an
employer who discriminates against employees based on assumptions about the
gender to which the employees can or should be attracted has engaged in sex‐
discrimination irrespective of whether the employer uses a double‐edged sword
that cuts both men and women.24
individual’s . . . sex.” As we have endeavored to explain, sexual orientation discrimination is
because of sex.
24 The Hively dissent also argued that sexual orientation discrimination is not a form of
sex discrimination because it does not discriminate comprehensively within a sex. In particular,
the dissent suggested that in cases where a fired lesbian employee was replaced by a
heterosexual woman a jury would not be able to understand that sexual orientation
discrimination is a subset of sex discrimination. See 853 F.3d at 373. We think that jurors are
capable of understanding that an employer might discriminate against some members of a sex
but not others. To wit, the intuitive principle that “Title VII does not permit the victim of
[discrimination] to be told that he [or she] has not been wronged because other persons of his or
her race or sex were hired” is well established in the law. Connecticut v. Teal, 457 U.S. 440, 455
(1982). By way of illustration, had the plaintiff in Price Waterhouse been denied a promotion
while a gender‐conforming woman was made a partner, this would have strengthened rather
than weakened the plaintiff’s case that she was discriminated against for failing to conform to
sex stereotypes. We see no more difficulty with the concept that an employer cannot
47
3. Associational Discrimination
The conclusion that sexual orientation discrimination is a subset of sex
discrimination is further reinforced by viewing this issue through the lens of
associational discrimination. Consistent with the nature of sexual orientation, in
most contexts where an employer discriminates based on sexual orientation, the
employer’s decision is predicated on opposition to romantic association between
particular sexes. For example, when an employer fires a gay man based on the
belief that men should not be attracted to other men, the employer discriminates
based on the employee’s own sex. See Baldwin, 2015 WL 4397641, at *6.
This Court recognized associational discrimination as a violation of Title
VII in Holcomb v. Iona College, 521 F.3d 130, 139 (2d Cir. 2008), a case involving
allegations of racial discrimination. Holcomb, a white man, alleged that he was
fired from his job as the assistant coach of a college basketball team because his
employer disapproved of his marriage to a black woman. This Court concluded
that Holcomb had stated a viable claim, holding that “an employer may violate
Title VII if it takes action against an employee because of the employee’s
discriminate on the basis of sexual orientation than with the concept that one cannot
discriminate based on an employee’s gender non‐conformity.
48
association with a person of another race.” Id. at 138. Although the Court
considered the argument that the alleged discrimination was based on the race of
Holcomb’s wife rather than his own, it ultimately concluded that “where an
employee is subjected to adverse action because an employer disapproves of
interracial association, the employee suffers discrimination because of the
employee’s own race.” Id. at 139; see also Whitney v. Greater N.Y. Corp. of Seventh
Day Adventists, 401 F. Supp. 1363, 1366 (S.D.N.Y. 1975) (“[I]f [plaintiff] was
discharged because, as alleged, the defendant disapproved of a social
relationship between a white woman and a black man, the plaintiff’s race was as
much a factor in the decision to fire her as that of her friend.”).
Applying similar reasoning, the Fifth, Sixth, and Eleventh Circuits have
reached the same conclusion in racial discrimination cases. See Tetro v. Elliott
Popham Pontiac, Oldsmobile, Buick, & GMC Trucks, Inc., 173 F.3d 988, 994–95 (6th
Cir. 1999) (holding that plaintiff had alleged discrimination where the employer
was “charged with reacting adversely to [plaintiff] because of [his] race in
relation to the race of his daughter”); Deffenbaugh‐Williams v. Wal‐Mart Stores,
Inc., 156 F.3d 581, 589 (5th Cir. 1998) (“[A] reasonable juror could find that
[plaintiff] was discriminated against because of her race (white), if that
49
discrimination was premised on the fact that she, a white person, had a
relationship with a black person.”), vacated in part on other grounds by Williams v.
Wal‐Mart Stores, Inc., 182 F.3d 333 (5th Cir. 1999) (en banc); Parr v. Woodmen of the
World Life Ins. Co., 791 F.2d 888, 892 (11th Cir. 1986) (“Where a plaintiff claims
discrimination based upon an interracial marriage or association, he alleges, by
definition, that he has been discriminated against because of his race.”). Other
circuits have indicated that associational discrimination extends beyond race to
all of Title VII’s protected classes. See Hively, 853 F.3d at 349 (majority) (holding
that Title VII prohibits associational discrimination on the basis of race as well as
color, national origin, religion, and sex); Barrett v. Whirlpool Corp., 556 F.3d 502,
512 (6th Cir. 2009) (stating, in the context of a race discrimination case, that “Title
VII protects individuals who, though not members of a protected class, are victims
of discriminatory animus toward protected third persons with whom the
individuals associate” (internal quotation marks omitted) (emphasis added)).25
25 In addition, numerous district courts throughout the country have recognized that
employers violate Title VII when they discriminate against employees on the basis of
association with people of another national origin or sex, not only with people of another race.
See, e.g., Montes v. Cicero Pub. Sch. Dist. No. 99, 141 F. Supp. 3d 885, 900 (N.D. Ill. 2015) (national
origin); Morales v. NYS Dep’t of Labor, 865 F. Supp. 2d 220, 242–43 (N.D.N.Y. 2012), aff’d, 530 F.
App’x 13 (2d Cir. 2013) (summary order) (race and national origin); Kauffman v. Maxim
Healthcare Servs., Inc., No. 04‐CV‐2869, 2006 WL 1983196, at *4 (E.D.N.Y. July 13, 2006) (sex and
50
We agree and we now hold that the prohibition on associational discrimination
applies with equal force to all the classes protected by Title VII, including sex.
This conclusion is consistent with the text of Title VII, which “on its face
treats each of the enumerated categories exactly the same” such that
“principles . . . announce[d]” with respect to sex discrimination “apply with
equal force to discrimination based on race, religion, or national origin,” and vice
versa.26 Price Waterhouse, 490 U.S. at 243 n.9. It also accords with the Supreme
Court’s application of theories of discrimination developed in Title VII race
discrimination cases to claims involving discrimination based on sex. See Meritor,
477 U.S. at 63–67 (concluding that claims of hostile work environment, a theory
of discrimination developed in the context of race, were equally applicable in the
context of sex); see also William N. Eskridge, Jr., Title VII’s Statutory History and the
Sex Discrimination Argument for LGBT Workplace Protections, 127 Yale L.J. 322, 349
(2017) (explaining that the 1972 amendments to Title VII “repeatedly equated the
evils of sex discrimination with those of race discrimination”).
race); Reiter v. Ctr. Consol. Sch. Dist. No. 26‐JT, 618 F. Supp. 1458, 1460 (D. Colo. 1985) (race and
national origin).
26 The only exception, not relevant here, is for a “bona fide occupational qualification,”
which permits some differential treatment based on religion, sex, or national origin, but not
51
As was observed in Christiansen, “[p]utting aside romantic associations,”
the notion that employees should not be discriminated against because of their
association with persons of a particular sex “is not controversial.” 852 F.3d at 204
(Katzmann, C.J., concurring). If an employer disapproves of close friendships
among persons of opposite sexes and fires a female employee because she has
male friends, the employee has been discriminated against because of her own
sex. “Once we accept this premise, it makes little sense to carve out same‐sex
[romantic] relationships as an association to which these protections do not
apply.” Id. Applying the reasoning of Holcomb, if a male employee married to a
man is terminated because his employer disapproves of same‐sex marriage, the
employee has suffered associational discrimination based on his own sex because
“the fact that the employee is a man instead of a woman motivated the
employer’s discrimination against him.” Baldwin, 2015 WL 4397641, at *6.
In this scenario, it is no defense that an employer requires both men and
women to refrain from same‐sex attraction or relationships. In Holcomb, for
example, the white plaintiff was fired for his marriage to a black woman. See 521
F.3d at 138. If the facts of Holcomb had also involved a black employee fired for
based on race. 42 U.S.C. § 2000e‐2(e).
52
his marriage to a white woman, would we have said that because both the white
employee and black employee were fired for their marriages to people of
different races, there was no discrimination “because of . . . race”? Of course
not.27 It is unthinkable that “tak[ing] action against an employee because of the
employee’s association with a person of another race,” id. at 139, would be
excused because two employees of different races were both victims of an anti‐
miscegenation workplace policy. The same is true of discrimination based on
sexual orientation.28
Although this conclusion can rest on its own merits, it is reinforced by the
reasoning of Loving v. Virginia, 388 U.S. 1 (1967). In Loving, the Commonwealth of
Virginia argued that anti‐miscegenation statutes did not violate the Equal
27 Indeed, if this were the case, the white employee and the black employee would have
cognizable Title VII claims. Cf. Hively, 853 F.3d at 359 n.2 (Flaum, J., concurring) (noting that
“even if an employer allegedly discriminates against all homosexual employees,” the
“employer’s discrimination across sexes does not demonstrate that sex is irrelevant, but rather
that each individual has a plausible sex‐based discrimination claim” (emphasis added)).
28 The lead dissent seeks to distinguish Holcomb by arguing that the employer in Holcomb
was prejudiced against black people, whereas here the employer is “hostile to gay men, not men
in general.” Lead Dissent at 57. But, this distorts the comparison by misattributing the prejudice
at issue in Holcomb. The basis of the Title VII claim in Holcomb was not the race of the plaintiff’s
wife; rather, the plaintiff, who was white, “suffer[ed] discrimination because of his own race” as
a result of the employer’s “disapprov[al] of interracial association.” 521 F.3d at 139.
Accordingly, the prejudice was not against all black people (or all white people) but against
people marrying persons of a different race. That maps squarely onto this case where the
prejudice is not against all men, but people being attracted to persons of the same sex.
53
Protection Clause because such statutes applied equally to white and black
citizens. See id. at 7–8. The Supreme Court disagreed, holding that “equal
application” could not save the statute because it was based “upon distinctions
drawn according to race.” Id. at 10–11. Constitutional cases like Loving “can
provide helpful guidance in [the] statutory context” of Title VII. Ricci v.
DeStefano, 557 U.S. 557, 582 (2009); see also Reva B. Siegel, She the People: The
Nineteenth Amendment, Sex Equality, Federalism, and the Family, 115 Harv. L. Rev.
947, 949 (2002) (arguing that, in the constitutional context, “the Supreme Court
developed the law of sex discrimination by means of an analogy between sex and
race discrimination”). Accordingly, we find that Loving’s insight—that policies
that distinguish according to protected characteristics cannot be saved by equal
application—extends to association based on sex.
Certain amici supporting the defendants disagree, arguing that applying
Holcomb and Loving to same‐sex relationships is not warranted because anti‐
miscegenation policies are motivated by racism, while sexual orientation
discrimination is not rooted in sexism. Although these amici offer no empirical
support for this contention, amici supporting Zarda cite research suggesting that
sexual orientation discrimination has deep misogynistic roots. See, e.g., Andrew
54
Koppelman, Why Discrimination Against Lesbians and Gay Men is Sex
Discrimination, 69 N.Y.U. L. Rev. 197 (1994). But the Court need not resolve this
dispute because the amici supporting defendants identify no cases indicating that
the scope of Title VII’s protection against sex discrimination is limited to
discrimination motivated by what would colloquially be described as sexism. To
the contrary, this approach is squarely foreclosed by the Supreme Court’s
precedents. In Oncale, the Court explicitly rejected the argument that Title VII did
not protect male employees from sexual harassment by male co‐workers, holding
that “Title VII’s prohibition on discrimination ‘because of . . . sex’ protects men as
well as women” and extends to instances where the “plaintiff and the defendant
. . . are of the same sex.” 523 U.S. at 78–79. This male‐on‐male harassment is well‐
outside the bounds of what is traditionally conceptualized as sexism. Similarly,
as we have discussed, in Manhart the Court invalidated a pension scheme that
required female employees to contribute more than their male counterparts
because women generally live longer than men. 435 U.S. at 711. Again, the Court
reached this conclusion notwithstanding the fact that some people might not
describe this policy as sexist. By extension, even if sexual orientation
discrimination does not evince conventional notions of sexism, this is not a
55
legitimate basis for concluding that it does not constitute discrimination “because
of . . . sex.”29
The fallback position for those opposing the associational framework is
that associational discrimination can be based only on acts—such as Holcomb’s
act of getting married—whereas sexual orientation is a status. As an initial
matter, the Supreme Court has rejected arguments that would treat acts as
separate from status in the context of sexual orientation. In Lawrence v. Texas, the
state argued that its “sodomy law [did] not discriminate against homosexual
persons,” but “only against homosexual conduct.” 539 U.S. 558, 583 (2003)
(O’Connor, J., concurring). Justice O’Connor refuted this argument, reasoning
that laws that target “homosexual conduct” are “an invitation to subject
homosexual persons to discrimination.” Id. More recently, in a First Amendment
case addressing whether a public university could require student organizations
to be open to all students, a religious student organization claimed that it should
be permitted to exclude anyone who engaged in “unrepentant homosexual
29 To the extent that amici are arguing that racism and sexism are necessary elements of a
Title VII claim because these beliefs are invidious or malicious, we think their contentions are
misguided. Malice, which the Supreme Court has described as an “evil motive,” is not required
56
conduct,” because such individuals were being excluded “on the basis of a
conjunction of [their] conduct and [their] belief that the conduct is not wrong,”
not because of their sexual orientation. Christian Legal Soc. Chapter of Univ. of Cal.,
Hastings Coll. of Law v. Martinez, 561 U.S. 661, 672, 689 (2010) (internal quotation
marks omitted). Drawing on Lawrence and Bray v. Alexandria Women’s Health
Clinic, 506 U.S. 263 (1993), a case brought under 42 U.S.C. § 1985(3), the Supreme
Court rejected the invitation to treat discrimination based on acts as separate
from discrimination based on status. Christian Legal Soc., 561 U.S. at 689; see also
Bray, 506 U.S. at 270 (rejecting the act‐status distinction by observing that “[a] tax
on wearing yarmulkes is a tax on Jews”). Although amici’s argument inverts the
previous defenses of policies targeting individuals attracted to persons of the
same sex by arguing that Title VII’s prohibition of associational discrimination
protects only acts, not status, their proposed distinction is equally unavailing.
More fundamentally, amici’s argument is an inaccurate characterization of
associational discrimination. First, the source of the Title VII claim is not the
employee’s associational act but rather the employer’s discrimination, which is
by Title VII, Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 530 (1999); to the contrary, it is merely a
basis on which an aggrieved employee may seek punitive damages, see 42 U.S.C. § 1981a(b)(1).
57
motivated by “disapprov[al] of [a particular type of] association.” See Holcomb,
521 F.3d at 139; see also 42 U.S.C. § 2000e‐2(m) (asking whether the protected trait
was “a motivating factor”). In addition, as it pertains to the employee, what is
protected is not the employee’s act but rather the employee’s protected
characteristic, which is a status. Holcomb, 521 F.3d at 139; Univ. of Tex. Sw. Med.
Ctr. v. Nassar, 133 S. Ct. 2517, 2522 (2013) (defining “status‐based discrimination,”
which is “prohibited by Title VII,” as “discrimination on the basis of race, color,
religion, sex, or national origin”). Accordingly, associational discrimination is not
limited to acts; instead, as with all other violations of Title VII, associational
discrimination runs afoul of the statute by making the employee’s protected
characteristic a motivating factor for an adverse employment action. See 42 U.S.C.
§ 2000e‐2(m).30
30 Because associational discrimination is premised on the employer’s motivation and an
employee’s status, an associational discrimination claim does not require an act that
consummates an association. For example, consider a scenario in which Holcomb had not been
married to a black woman but merely expressed an interest in dating black women. If the
employer terminated Holcomb merely on the basis of his desire to date black women, this
would still be an instance “where an employee is subjected to adverse action because an
employer disapproves of interracial association,” and “the employee suffers discrimination
because of the employee’s own race.” Holcomb, 521 F.3d at 139. The same is true in the context of
sexual orientation.
58
In sum, we see no principled basis for recognizing a violation of Title VII
for associational discrimination based on race but not on sex. Accordingly, we
hold that sexual orientation discrimination, which is based on an employer’s
opposition to association between particular sexes and thereby discriminates
against an employee based on their own sex, constitutes discrimination “because
of . . . sex.” Therefore, it is no less repugnant to Title VII than anti‐miscegenation
policies.
C. Subsequent Legislative Developments
Although the conclusion that sexual orientation discrimination is a subset
of sex discrimination follows naturally from existing Title VII doctrine, the amici
supporting the defendants place substantial weight on subsequent legislative
developments that they argue militate against interpreting “because of . . . sex” to
include sexual orientation discrimination.31 Having carefully considered each of
amici’s arguments, we find them unpersuasive.
First, the government points to the Civil Rights Act of 1991, Pub. L. No.
102–166, 105 Stat. 1071 (1991), arguing that this amendment to Title VII ratified
31 Because “[t]he prohibition against discrimination based on sex was added to Title VII
at the last minute on the floor of the House of Representatives,” we have “little legislative
59
judicial decisions construing discrimination “because of . . . sex” as excluding
sexual orientation discrimination. Among other things, the 1991 amendment
expressly “codif[ied] the concepts of ‘business necessity’ and ‘job related’” as
articulated in Griggs, 401 U.S. at 429–31, and rejected the Supreme Court’s prior
decision on that topic in Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989). See
Civil Rights Act of 1991 §§ 2(2), 3(2), 105 Stat. at 1071. According to the
government, this amendment also implicitly ratified the decisions of the four
courts of appeals that had, as of 1991, held that Title VII does not bar
discrimination based on sexual orientation.
In advancing this argument, the government attempts to analogize the
1991 amendment to the Supreme Court’s recent discussion of an amendment to
the Fair Housing Act (“FHA”). In Texas Department of Housing & Community
Affairs v. Inclusive Communities Project, Inc., the Court considered whether
disparate‐impact claims were cognizable under the FHA by looking to, inter alia,
a 1988 amendment to the statute. 135 S. Ct. 2507 (2015). The Court found it
relevant that “all nine Courts of Appeals to have addressed the question” by
1988 “had concluded [that] the [FHA] encompassed disparate‐impact claims.” Id.
history to guide us in interpreting” it. Meritor, 477 U.S. at 63–64.
60
at 2519. When concluding that Congress had implicitly ratified these holdings,
the Court considered (1) the amendment’s legislative history, which confirmed
that “Congress was aware of this unanimous precedent,” id., and (2) the fact that
the precedent was directly relevant to the amendment, which “included three
exemptions from liability that assume the existence of disparate‐impact claims,”
id. at 2520.
The statutory history of Title VII is markedly different. When we look at
the 1991 amendment, we see no indication in the legislative history that Congress
was aware of the circuit precedents identified by the government and, turning to
the substance of the amendment, we have no reason to believe that the new
provisions it enacted were in any way premised on or made assumptions about
whether sexual orientation was protected by Title VII. It is also noteworthy that,
when the statute was amended in 1991, only three of the thirteen courts of
appeals had considered whether Title VII prohibited sexual orientation
discrimination.32 See Williamson, 876 F.2d 69; DeSantis v. PT&T Co., 608 F.2d 327
32 The fourth case cited by the government involved allegations of discrimination against
a transgender individual, a distinct question not at issue here. See Ulane v. E. Airlines, Inc., 742
F.2d 1081, 1084–87 (7th Cir. 1984). In addition, of the three cases actually on point, two predate
Price Waterhouse, which was decided in May 1989, while the third was issued one month after
61
(9th Cir. 1979); Blum, 597 F.2d 936. Mindful of this important context, this is not
an instance where we can conclude that Congress was aware of, much less relied
upon, the handful of Title VII cases discussing sexual orientation. Indeed, the
inference suggested by the government is particularly suspect given that the text
of the 1991 amendment emphasized that it was “respond[ing] to Supreme Court
decisions by expanding the scope of relevant civil rights statutes in order to
provide adequate protection to victims of discrimination.” Civil Rights Act of
1991 §§ 2(2), 3(2), 105 Stat. at 1071 (emphasis added). For these reasons, we do
not consider the 1991 amendment to have ratified the interpretation of Title VII
as excluding sexual orientation discrimination.
Next, certain amici argue that by not enacting legislation expressly
prohibiting sexual orientation discrimination in the workplace Congress has
implicitly ratified decisions holding that sexual orientation was not covered by
Title VII. According to the government’s amicus brief, almost every Congress
since 1974 has considered such legislation but none of these bills became law.
Price Waterhouse but made no mention of it. Given that these cases did not have the opportunity
to apply a relevant Supreme Court precedent, even if Congress was aware of them, there was
reason for Congress to regard the weight of these cases with skepticism.
62
This theory of ratification by silence is in direct tension with the Supreme
Court’s admonition that “subsequent legislative history is a hazardous basis for
inferring the intent of an earlier Congress,” particularly when “it concerns, as it
does here, a proposal that does not become law.” Pension Benefit Guar. Corp. v.
LTV Corp., 496 U.S. 633, 650 (1990) (citations and internal quotation marks
omitted). This is because “[i]t is impossible to assert with any degree of
assurance that congressional failure to act represents affirmative congressional
approval of [a particular] statutory interpretation.” Patterson v. McLean Credit
Union, 491 U.S. 164, 175 n.1 (1989) (internal quotation marks omitted). After all,
“[t]here are many reasons Congress might not act on a decision . . . , and most of
them have nothing at all to do with Congress’ desire to preserve the decision.”
Michigan v. Bay Mills Indian Cmty., 134 S. Ct. 2024, 2052 (2014) (Thomas, J.,
dissenting). For example, Congress may be unaware of or indifferent to the
status quo, or it may be unable “to agree upon how to alter the status quo.”
Johnson v. Transp. Agency, 480 U.S. 616, 672 (1987) (Scalia, J., dissenting). These
concerns ring true here. We do not know why Congress did not act and we are
thus unable to choose among the various inferences that could be drawn from
Congress’s inaction on the bills identified by the government. See LTV Corp., 496
63
U.S. at 659 (“Congressional inaction lacks persuasive significance because several
equally tenable inferences may be drawn from such inaction, including the
inference that the existing legislation already incorporated the offered change.”
(internal quotation marks omitted)). Accordingly, we decline to assign
congressional silence a meaning it will not bear.
Drawing on the dissent in Hively, the government also argues that
Congress considers sexual orientation discrimination to be distinct from sex
discrimination because it has expressly prohibited sexual orientation
discrimination in certain statutes but not Title VII. See 853 F.3d at 363–64 (Sykes,
J., dissenting). While it is true that Congress has sometimes used the terms “sex”
and “sexual orientation” separately, this observation is entitled to minimal
weight in the context of Title VII.
The presumptions that terms are used consistently and that differences in
terminology denote differences in meaning have the greatest force when the
terms are used in “the same act.” See Envtl. Def. v. Duke Energy Corp., 549 U.S.
561, 574 (2007). By contrast, when drafting separate statutes, Congress is far less
likely to use terms consistently, see Abbe R. Gluck & Lisa Schultz Bressman,
Statutory Interpretation from the Inside—An Empirical Study of Congressional
64
Drafting, Delegation, and the Canons: Part I, 65 Stan. L. Rev. 901, 936 (2013), and
these presumptions are entitled to less force where, as here, the government
points to terms used in different statutes passed by different Congresses in
different decades. See Violence Against Women Reauthorization Act of 2013, Pub
L. No. 113‐4, § 3(b)(4), 127 Stat. 54, 61 (2013); Patient Protection and Affordable
Care Act, Pub. L. No. 111‐148, § 5306(a)(3), 124 Stat. 119, 626 (2010); Matthew
Shepard and James Byrd, Jr. Hate Crimes Prevention Act, Pub. L. No. 111‐84, §§
4704(a)(1)(C), § 4704(a), 123 Stat. 2835, 2837, 2839 (2009); Higher Education
Amendments of 1998, Pub. L. No. 105‐244, § 486(e)(1)(A), 112 Stat. 1581, 1743
(1998).
Moreover, insofar as the government argues that mention of “sexual
orientation” elsewhere in the U.S. Code is evidence that “because of . . . sex”
should not be interpreted to include “sexual orientation,” our race discrimination
jurisprudence demonstrates that this is not dispositive. We have held that Title
VII’s prohibition on race discrimination encompasses discrimination on the basis
of ethnicity, see Vill. of Freeport v. Barrella, 814 F.3d 594, 607 (2d Cir. 2016),
notwithstanding the fact that other federal statutes now enumerate race and
ethnicity separately, see, e.g., 20 U.S.C. § 1092(f)(1)(F)(ii); 42 U.S.C. § 294e‐1(b)(2).
65
The same can be said of sex and sexual orientation because discrimination based
on the former encompasses the latter.
In sum, nothing in the subsequent legislative history identified by the amici
calls into question our conclusion that sexual orientation discrimination is a
subset of sex discrimination and is thereby barred by Title VII.
III. Summary
Since 1964, the legal framework for evaluating Title VII claims has evolved
substantially.33 Under Manhart, traits that operate as a proxy for sex are an
impermissible basis for disparate treatment of men and women. Under Price
Waterhouse, discrimination on the basis of sex stereotypes is prohibited. Under
Holcomb, building on Loving, it is unlawful to discriminate on the basis of an
employee’s association with persons of another race. Applying these precedents
to sexual orientation discrimination, it is clear that there is “no justification in the
statutory language . . . for a categorical rule excluding” such claims from the
33 We also note that there has been a sea change in the constitutional framework
governing same‐sex marriage. See generally Obergefell v. Hodges, 135 S. Ct. 2584 (2015); United
States v. Windsor, 133 S. Ct. 2675 (2013). In the wake of this transformation, the intersection of the
modern constitutional framework and decades‐old precedents regarding sexual orientation
discrimination under Title VII created a “paradoxical legal landscape” in which a man could
exercise his constitutional right to marry his same‐sex partner on Saturday and “then be fired
66
reach of Title VII. Oncale, 523 U.S. at 80; see also Baldwin, 2015 WL 4397641, at *9
(“Interpreting the sex discrimination prohibition of Title VII to exclude coverage
of lesbian, gay, or bisexual individuals who have experienced discrimination on
the basis of sex inserts a limitation into the text that Congress has not included.”).
Title VII’s prohibition on sex discrimination applies to any practice in
which sex is a motivating factor. 42 U.S.C. § 2000e‐2(m). As explained above,
sexual orientation discrimination is a subset of sex discrimination because sexual
orientation is defined by one’s sex in relation to the sex of those to whom one is
attracted, making it impossible for an employer to discriminate on the basis of
sexual orientation without taking sex into account. Sexual orientation
discrimination is also based on assumptions or stereotypes about how members
of a particular gender should be, including to whom they should be attracted.
Finally, sexual orientation discrimination is associational discrimination because
an adverse employment action that is motivated by the employer’s opposition to
association between members of particular sexes discriminates against an
employee on the basis of sex. Each of these three perspectives is sufficient to
on Monday for just that act.” Hively, 830 F.3d at 714 (majority). This decision frees this circuit’s
jurisprudence regarding sexual orientation from that paradox.
67
support this Court’s conclusion and together they amply demonstrate that sexual
orientation discrimination is a form of sex discrimination.
Although sexual orientation discrimination is “assuredly not the principal
evil that Congress was concerned with when it enacted Title VII,” “statutory
prohibitions often go beyond the principal evil to cover reasonably comparable
evils.” Oncale, 523 U.S. at 80. In the context of Title VII, the statutory prohibition
extends to all discrimination “because of . . . sex” and sexual orientation
discrimination is an actionable subset of sex discrimination. We overturn our
prior precedents to the contrary to the extent they conflict with this ruling. See
Simonton, 232 F.3d at 35; Dawson, 398 F.3d at 218–20.
***
Zarda has alleged that, by “honestly referr[ing] to his sexual orientation,”
he failed to “conform to the straight male macho stereotype.” J.A. 72. For this
reason, he has alleged a claim of discrimination of the kind we now hold
cognizable under Title VII. The district court held that there was sufficient
evidence of sexual orientation discrimination to survive summary judgment on
Zarda’s state law claims. Even though Zarda lost his state sexual orientation
discrimination claim at trial, that result does not preclude him from prevailing
68
on his federal claim because his state law claim was tried under “a higher
standard of causation than required by Title VII.” Zarda, 855 F.3d at 81. Thus, we
hold that Zarda is entitled to bring a Title VII claim for discrimination based on
sexual orientation.
CONCLUSION
Based on the foregoing, we VACATE the district court’s judgment on the
Title VII claim and REMAND for further proceedings consistent with this
opinion. We AFFIRM the judgment of the district court in all other respects.
69
DENNIS JACOBS, Circuit Judge, concurring:
I concur in Parts I and II.B.3 of the opinion of the Court (Associational
Discrimination) and I therefore concur in the result. Mr. Zarda does have a sex
discrimination claim under Title VII based on the allegation that he was fired
because he was a man who had an intimate relationship with another man. I
write separately because, of the several justifications advanced in that opinion, I
am persuaded by one; and as to associational discrimination, the opinion of the
Court says somewhat more than is necessary to justify it. Since a single
justification is sufficient to support the result, I start with associational
discrimination, and very briefly explain thereafter why the other grounds leave
me unconvinced.
I
Supreme Court law and our own precedents on race discrimination
militate in favor of the conclusion that sex discrimination based on one’s choice
of partner is an impermissible basis for discrimination under Title VII. This view
is an extension of existing law, perhaps a cantilever, but not a leap.
First: this Circuit has already recognized associational discrimination as a
Title VII violation. In Holcomb v. Iona Coll., 521 F.3d 130 (2d Cir. 2008), we
1
considered a claim of discrimination under Title VII by a white man who alleged
that he was fired because of his marriage to a black woman. We held that “an
employer may violate Title VII if it takes action against an employee because of
the employee’s association with a person of another race . . . The reason is simple:
where an employee is subjected to adverse action because an employer
disapproves of interracial association, the employee suffers discrimination
because of the employee’s own race.” Id. at 139 (emphasis in original).
Second: the analogy to same‐sex relationships is valid because Title VII “on
its face treats each of the enumerated categories exactly the same”; thus
principles announced in regard to sex discrimination “apply with equal force to
discrimination based on race, religion, or national origin.” Price Waterhouse v.
Hopkins, 490 U.S. 228, 243 n.9 (1989) (plurality opinion). And, presumably, vice
versa.
Third: There is no reason I can see why associational discrimination based
on sex would not encompass association between persons of the same sex. In
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998), a case in which a
man alleged same‐sex harassment, the Supreme Court stated that Title VII
2
prohibits “‘discriminat[ion] . . . because of . . . sex’” and that Title VII “protects
men as well as women.” Id. at 79–80.
This line of cases, taken together, demonstrates that discrimination based
on same‐sex relationships is discrimination cognizable under Title VII
notwithstanding that the sexual relationship is homosexual.
Zarda’s complaint can be fairly read to allege discrimination based on his
relationship with a person of the same sex. The allegation is analogous to the
claim in Holcomb, in which a person of one race was discriminated against on
the basis of race because he consorted with a person of a different race. In each
instance, the basis for discrimination is disapproval and prejudice as to who is
permitted to consort with whom, and the common feature is the sorting: one is
the mixing of race and the other is the matching of sex.
This outcome is easy to analogize to Loving v. Virginia, 388 U.S. 1 (1967).
While Loving was an Equal Protection challenge to Virginia’s miscegenation law,
the law was held unconstitutional because it impermissibly drew distinctions
according to race. Id. at 10–11. In the context of a person consorting with a
person of the same sex, the distinction is similarly drawn according to sex, and is
therefore unlawful under Title VII.
3
Amicus Mortara argues that race discrimination aroused by couples of
different race is premised on animus against one of the races (based on the idea
of white supremacy), and that discrimination against homosexuals is obviously
not driven by animus against men or against women. But it cannot be that the
protections of Title VII depend on particular races; there are a lot more than two
races, and Title VII likewise protects persons who are multiracial. Mr. Mortara
may identify analytical differences; but to persons who experience the racial
discrimination, it is all one.
Mr. Mortara also argues that discrimination based on homosexual acts and
relationships is analytically distinct from discrimination against homosexuals,
who have a proclivity on which they may or may not act. Academics may seek
to know whether discrimination is illegal if based on same‐sex attraction itself:
they have jurisdiction over interesting questions, and we do not. But the
distinction is not decisive. See Christian Legal Soc. Chapter of Univ. of Cal.,
Hastings Coll. of Law v. Martinez, 561 U.S. 661, 689 (2010) (“Our decisions have
declined to distinguish between status and conduct in” the context of sexual
orientation.). In any event, the distinction between act and attraction does not
4
arise in this case because Mr. Zarda’s termination was sparked by his avowal of a
same‐sex relationship.
A ruling based on Mr. Zarda’s same‐sex relationship resolves this appeal;
good craft counsels that we go no further. Much of the rest of the Court’s
opinion amounts to woke dicta.
II
The opinion of the Court characterizes its definitional analysis as “the most
natural reading of Title VII.” Maj. Op. at 21. Not really. “Sex,” which is used in
series with “race” and “religion,” is one of the words least likely to fluctuate in
meaning. I do not think I am breaking new ground in saying that the word “sex”
as a personal characteristic refers to the male and female of the species. Nor can
there be doubt that, when Title VII was drafted in 1964, “sex” drew the
distinction between men and women. “A fundamental canon of statutory
construction is that, unless otherwise defined, words will be interpreted as
taking their ordinary, contemporary, common meaning.” Perrin v. United States,
444 U.S. 37, 42 (1979).
In the opinion of the Court, the word “sex” undergoes modification and
expansion. Thus the opinion reasons: “[l]ogically, because sexual orientation is a
5
function of sex and sex is a protected characteristic under Title VII, it follows that
sexual orientation is also protected.” Maj. Op. at 22. It is undeniable that sexual
orientation is a “function of sex” in the (unhelpful) sense that it cannot be
defined or understood without reference to sex. But surely that is because it has
to do with sex‐‐as so many things do. Everything that cannot be understood
without reference to sex does not amount to sex itself as a term in Title VII. So it
seems to me that all of these arguments are circular as well as unnecessary.
III
The opinion of the Court relies in part on a comparator test, asking
whether the employee would have been treated differently “but for” the
employee’s sex. But the comparator test is an evidentiary technique, not a tool
for textual interpretation. “[T]he ultimate issue” for a court to decide in a Title
VII case “is the reason for the individual plaintiff’s treatment, not the relative
treatment of different groups within the workplace.” Back v. Hastings on
Hudson Union Free Sch. Dist., 365 F.3d 107, 121 (2d Cir. 2004). The opinion of
the Court builds on the concept of homosexuality as a subset of sex, and this
analysis thus merges in a fuzzy way with the definitional analysis. But when the
comparator test is used for textual interpretation, it carries in train ramifications
6
that are sweeping and unpredictable: think fitness tests for different
characteristics of men and women, not to mention restrooms.
IV
The opinion of the Court relies on the line of cases that bars discrimination
based on sexual stereotype: the manifestation of it or the failure to conform to it.
There are at least three reasons I am unpersuaded.
Anti‐discrimination law should be explicable in terms of evident fairness
and justice, whereas the analysis employed in the opinion of the Court is certain
to be baffling to the populace.
The Opinion posits that heterosexuality is just another sexual convention,
bias, or stereotype‐‐like pants and skirts, or hairdos. This is the most arresting
notion in the opinion of the Court. Stereotypes are generalizations that are
usually unfair or defective. Heterosexuality and homosexuality are both traits
that are innate and true, not stereotypes of anything else.
If this case did involve discrimination on the basis of sexual stereotype, it
would have been remanded to the District Court on that basis, as was done in
Christiansen v. Omnicom Grp., Inc., 852 F.3d 195 (2d Cir. 2017) (per curiam). The
reason it could not be remanded on that basis is that the record does not
7
associate Mr. Zarda with any sexual stereotyping. The case arises from his
verbal disclosure of his sexual orientation during his employment as a skydiving
instructor, and that is virtually all we know about him. It should not be
surprising that a person of any particular sexual orientation would earn a living
jumping out of airplanes; but Mr. Zarda cannot fairly be described as evoking
somebody’s sexual stereotype of homosexual men. So this case does not present
the (settled) issue of sexual stereotype, which I think is the very reason we had to
go in banc in order to decide this case. As was made clear as recently as March
2017, “being gay, lesbian, or bisexual, standing alone, does not constitute
nonconformity with a gender stereotype that can give rise to a cognizable gender
stereotyping claim.” Id. at 201.
8
JOSÉ A. CABRANES, Circuit Judge, concurring in the judgment:
I concur only in the judgment of the Court. It will take the courts years to
sort out how each of the theories presented by the majority applies to other Title
VII protected classes: “race, color, religion, . . . [and] national origin.” 42 U.S.C. §
2000e‐2(a)(1).
This is a straightforward case of statutory construction. Title VII of the Civil
Rights Act of 1964 prohibits discrimination “because of . . . sex.” Id. Zarda’s sexual
orientation is a function of his sex. Discrimination against Zarda because of his
sexual orientation therefore is discrimination because of his sex, and is prohibited
by Title VII.
That should be the end of the analysis.1
Cf. 1 Callimachus fr. 465, at 353 (Rudolfus Pfeiffer ed., 1949) (3d century B.C.) (μέγα
1
βιβλίον . . . μ[έ]γ[α] κακ[όν]).
SACK, Circuit Judge, concurring in the judgment, and in parts I
(Jurisdiction), II.A (The Scope of Title VII), II:B.3 (Associational Discrimination),
and II:C (Subsequent Legislative Developments) of the opinion for the Court.
We decide this appeal in the context of something of a revolution1 in
American law respecting gender and sex. It appears to reflect, inter alia, many
Americansʹ evolving regard for and social acceptance of gay and lesbian persons.
We are now called upon to address questions dealing directly with sex, sexual
behavior, and sexual taboos, a discussion fraught with moral, religious, political,
psychological, and other highly charged issues. For those reasons (among
others), I think it is in the best interests of us all to tread carefully; to say no more
than we must; to decide no more than is necessary to resolve this appeal. This is
not for fear of offending, but for fear of the possible consequences of being
mistaken in one unnecessary aspect or another of our decision.
In my view, the law of this Circuit governing what is referred to in the
majority opinion as ʺassociational discriminationʺ – discrimination against a
person because of his or her association with another – is unsettled. What was
1 Welcomed by some, denounced by others, to be sure.
embraced by this Court in Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000)
(holding, by implication, that associational discrimination on the basis of sex is
not cognizable under Title VII), seems to have both been overtaken by, and to be
inconsistent with, our later panel decision in Holcomb v. Iona College, 521 F.3d 130
(2d Cir. 2008) (holding directly that associational discrimination on account of
race is unlawful under Title VII).2 Choosing between the two approaches, as I
think we must, I agree with the majority that Holcomb is right and that Simonton
is therefore wrong.3 It is principally on that basis that I concur in the judgment of
the Court.
My declination to join other parts of the majority opinion does not signal
my disagreement with them. Rather, inasmuch as, in my view, this appeal can
I find it hard to interpret the law to prohibit associational race discrimination but
2
not associational sex discrimination. See Price Waterhouse v. Hopkins, 490 U.S. 228, 243
n.9 (1989) (plurality opinion) (ʺ[T]he statute on its face treats each of the enumerated
categories exactly the same.ʺ). If it werenʹt for Simonton, therefore, I would think
Holcomb stands for the proposition that ʺwhere an employee is subjected to adverse
action because an employer disapproves of [a same‐sex] association, the employee
suffers discrimination because of the employeeʹs own [sex].ʺ Holcomb, 521 F.3d at 139
(emphasis in original).
3 Holcomb modified this Circuitʹs understanding of Title VII, and represents an
ʺintervening development in the lawʺ that justifies reconsideration of our prior
precedent. See Crown Coat Front Co. v. United States, 363 F.2d 407, 414 (2d Cir. 1966)
(Friendly, J., concurring) (quoting Miss. River Fuel Corp. v. United States, 314 F.2d 953,
958 (Ct. Cl. 1963) (Davis, J., concurring)), revʹd, 386 U.S. 503 (1967).
2
be decided on the simpler and less fraught theory of associational discrimination,
I think it best to stop there without then considering other possible bases for our
judgment.
3
RAYMOND J. LOHIER, JR., Circuit Judge, concurring:
I agree with the majority opinion that there is no reasonable way to
disentangle sex from sexual orientation in interpreting the plain meaning of the
words “because of . . . sex.” The first term clearly subsumes the second, just as
race subsumes ethnicity.1 Oral Arg. Tr. at 53:5‐6 (Government conceding that
“ethnicity can be viewed as a subset of race”). From this central holding, the
majority opinion explores the comparative approach, the stereotyping rationale,
and the associational discrimination rationale to help determine “when a trait
other than sex is . . . a proxy for (or function of) sex.” Maj. Op. at 31. But in my
view, these rationales merely reflect nonexclusive “evidentiary technique[s],”
Jacobs, J., Concurring Op. at 6, frameworks, or ways to determine whether sex is
a motivating factor in a given case, rather than interpretive tools that apply
necessarily across all Title VII cases. Zarda himself has described these three
rationales as “evidentiary theories” or “routes.” Oral Arg. Tr. at 4:17‐18. On this
understanding, I join the majority opinion as to Parts II.A and II.B.1.a, which
reflect the textualist’s approach, and join the remaining parts of the opinion only
insofar as they can be said to apply to Zarda’s particular case.
1 In that sense, I agree with Judge Cabranes that the inquiry could end there.
A word about the dissents. My dissenting colleagues focus on what they
variously describe as the “ordinary, contemporary, common meaning” of the
words “because of . . . sex,” Lynch, J., Dissenting Op. at 19 n.8; Livingston, J.,
Dissenting Op. at 2, or the “public meaning of [those] words adopted by
Congress in light of the social problem it was addressing when it chose those
words,” Lynch, J., Dissenting Op. at 61. There are at least two problems with this
position. First, as the majority opinion points out, cabining the words in this way
makes little or no sense of Oncale or, for that matter, Price Waterhouse. See Maj.
Op. at 24‐25 . Second, their hunt for the “contemporary” “public” meaning of the
statute in this case seems to me little more than a roundabout search for
legislative history. Judge Lynch’s laudable call (either as a way to divine
congressional intent or as an interpretive check on the plain text approach) to
consider what the legislature would have decided if the issue had occurred to the
legislators at the time of enactment is, unfortunately, no longer an interpretive
option of first resort. Time and time again, the Supreme Court has told us that
the cart of legislative history is pulled by the plain text, not the other way
around. The text here pulls in one direction, namely, that sex includes sexual
orientation.
2
GERARD E. LYNCH, Circuit Judge, with whom Judge LIVINGSTON joins as to
Parts I, II, and III, dissenting:
Speaking solely as a citizen, I would be delighted to awake one morning
and learn that Congress had just passed legislation adding sexual orientation to
the list of grounds of employment discrimination prohibited under Title VII of
the Civil Rights Act of 1964. I am confident that one day — and I hope that day
comes soon — I will have that pleasure.
I would be equally pleased to awake to learn that Congress had secretly
passed such legislation more than a half century ago — until I actually woke up
and realized that I must have been still asleep and dreaming. Because we all
know that Congress did no such thing.
I
Of course, today’s majority does not contend that Congress literally
prohibited sexual orientation discrimination in 1964. It is worth remembering the
historical context of that time to understand why any such contention would be
indefensible.
The Civil Rights Act as a whole was primarily a product of the movement
for equality for African-Americans. It grew out of the demands of that
movement, and was opposed by segregationist white members of Congress who
opposed racial equality. Although the bill, even before it included a prohibition
against sex discrimination, went beyond race to prohibit discrimination based on
religion and national origin, there is no question that it would not have been
under consideration at all but for the national effort to reckon to some degree
with America’s heritage of race-based slavery and government-enforced
segregation.
It is perhaps difficult for people not then alive to understand that before
the Civil Rights Act of 1964 became law, an employer could post a sign saying
“Help Wanted; No Negroes Need Apply” without violating any federal law —
and many employers did. Even the original House bill, introduced with the
support of President Kennedy’s Administration in 1963, did not prohibit racial
discrimination by private employers. Language prohibiting employment
discrimination by private employers on the grounds of “race, color, religion or
national origin” was added later by a House subcommittee. See Francis J. Vaas,
Title VII: Legislative History, 7 B.C. Indus. & Comm. L. Rev. 431, 434–35 (1966);
Chuck Henson, Title VII Works–That’s Why We Don’t Like It, 2 U. Miami Race &
Soc. Just. L. Rev. 41, 62–63, 64 n.103 (2012).
Movement on the bill was slow. It was only after the March on Washington
2
in the summer of 1963, the assassination of President Kennedy in November of
that year, and President Johnson’s strong support for a civil rights bill that
prohibited racial discrimination in employment, that the legislation made
progress in Congress. Todd. S. Purdum, An Idea Whose Time Has Come 111–13, 151
(2014). But the private employment discrimination provision, like other sections
of the bill prohibiting racial discrimination in public accommodations and
federally funded programs, was openly and bitterly opposed by a large
contingent of southern members of Congress. See Louis Menand, The Sex
Amendment, The New Yorker (July 21, 2014), http://www.newyorker
.com/magazine/2014/07/21/sex-amendment. Its passage was by no means assured
when the floor debates in the House began.
From the moment President Kennedy proposed the Civil Rights Act in
1963, women’s rights groups, with the support of some members of Congress,
had urged that sex discrimination be included as a target of the legislation.
Purdum, supra, at 196. The movements in the United States for gender and racial
equality have not always marched in tandem — although there was some
overlap between abolitionists and supporters of women’s suffrage, suffragists
often relied on the racially offensive argument that it was outrageous that white
3
women could not vote when black men could.1 But by the 1960s, many feminist
advocates consciously adopted arguments parallel to those of the civil rights
movement, and there was growing recognition that the two causes were linked in
fundamental ways.2
1
For example, Susan B. Anthony herself stated, in a dialogue with Frederick Douglass:
The old anti-slavery school say [sic] women must stand back and
wait until the negroes shall be recognized. But we say, if you will
not give the whole loaf of suffrage to the entire people, give it to
the most intelligent first. If intelligence, justice, and morality are
to have precedence in the Government, let the question of woman
be brought up first and that of the negro last.
Transcript of Annual Meeting of American Equal Rights Association (1869), reprinted in
History of Woman Suffrage: 1861–1876, 383 (Elizabeth Cady Stanton et al. eds.) (1882). During the
debate over the addition of “sex” to Title VII, it was similarly argued that if sex was not added
to the prohibited categories of discrimination, white women would have fewer protections
than black men. As Representative Martha Griffiths, an early supporter of the amendment,
warned during congressional hearings, “A vote against this amendment today by a white man
is a vote against his wife, or his widow, or his daughter, or his sister.” Gillian Thomas, Because
of Sex 2 (2016). And both the civil rights and the women’s movements have persistently
overlooked the intersectional existence of black women and other women of color. See
Kimberlé Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against
Women of Color, 43 Stanford L. Rev. 1241, 1242–43 & n.3 (1991).
2
Pauli Murray and Mary O. Eastwood, lawyers and women’s rights activists,
exemplified that recognition, writing:
[I]n matters of discrimination, the problems of women are not as
unique as has been generally assumed. That manifestations of
racial prejudice have been more brutal than the more subtle
manifestations of prejudice by reason of sex in no way diminishes
the force of the equally obvious fact that the rights of women and
the rights of Negroes are only different phases of the fundamental
and indivisible issue of human rights.
4
Women’s rights groups had been arguing for laws prohibiting sex
discrimination since at least World War II, and had been gaining recognition for
the agenda of the women’s rights movement in other arenas. In addition to
supporting (at least rhetorically) civil rights for African-Americans, President
Kennedy had taken tentative steps towards support of women’s rights as well. In
December 1961, he created the President’s Commission on the Status of Women,
chaired until her death by Eleanor Roosevelt. Exec. Order No. 10980, 26 Fed. Reg.
12,059 (Dec. 14, 1961). Among other goals, the Commission was charged with
developing recommendations for “overcoming discriminations in . . .
employment on the basis of sex,” and suggesting “services which will enable
women to continue their role []as wives and mothers while making a maximum
contribution to the world around them.” Id.
The Commission’s report highlighted the increasing role of women in the
workplace, noting (in an era when the primacy of women’s role in child-rearing
and home-making was taken for granted) that even women with children
generally spent no more than a decade or so of their lives engaged in full-time
Pauli Murray & Mary O. Eastwood, Jane Crow and the Law: Sex Discrimination and Title VII, 34
Geo. Wash. L. Rev. 232, 235 (1965) (footnote omitted).
5
child care, allowing a significant portion of women’s lives to be dedicated to
education and employment. American Women: Report of The President’s Commission
on the Status of Women 6–7 (1963). Accordingly, the Commission advocated a
variety of steps to improve women’s economic position. Id. at 6–7, 10. While
those recommendations did not include federal legislation prohibiting
employment discrimination on the basis of sex, they did include a commitment to
equal opportunity in employment by federal contractors and proposed such
equality as a goal for private employers — as well as proposing other
innovations, such as paid maternity leave and universal high-quality public child
care, that have yet to become the law of the land. Id. at 20, 30, 43.
Nevertheless, the notion that women should be treated equally at work
remained controversial. By 1964, only two states, Hawaii and Wisconsin,
prohibited sex discrimination in employment. Purdum, supra, at 196. Although
decades had passed since the Supreme Court announced in Muller v. Oregon, 208
U.S. 412 (1908), that laws limiting the hours that women could work did not
violate the Fourteenth Amendment, but rather were an appropriate
accommodation for women’s fragile constitutions and more pressing maternal
obligations, id. at 420–21, state laws “protecting” women from the rigors of the
6
workplace remained commonplace. Purdum, supra, at 196; see also Hoyt v. Florida,
368 U.S. 57, 62 (1961) (upholding a law requiring women, specifically, to opt in to
jury service, in part because “woman is still regarded as the center of home and
family life”).
Accordingly, when Representative Howard W. Smith of Virginia, a die-
hard opponent of integration and federal legislation to enforce civil rights for
African-Americans, proposed that “sex” be added to the prohibited grounds of
discrimination in the Civil Rights Act, there was reason to suspect that his
amendment was an intentional effort to render the Act so divisive and
controversial that it would be impossible to pass. See, e.g., Ulane v. E. Airlines, Inc.,
742 F.2d 1081, 1085 (7th Cir. 1984) (suggesting that the “sex amendment was the
gambit of a congressman seeking to scuttle adoption of the Civil Rights Act”);
Comment, Sex Discrimination in Employment, 35 Fordham L. Rev. 503, 504 n.16
(1967). That might not have been the case, however. Like those early suffragettes
who were ambivalent about, or hostile to, racial equality, Smith also had a prior
history of support for (presumably white) women’s equality. For example, he
had been a longstanding supporter of a constitutional amendment guaranteeing
equal rights to women. Purdum, supra, at 196; see also Gillian Thomas, Because of
7
Sex 2 (2016).
Whatever Smith’s subjective motivations for proposing it, the amendment
was adamantly opposed by many northern liberals on the ground that it would
undermine support for the Act as a whole. Purdum, supra, at 197; Menand, supra.
Indeed, the New York Times ridiculed the amendment, suggesting that, among
other alleged absurdities, it would require Radio City Music Hall to hire male
Rockettes, and concluding that “it would have been better if Congress had just
abolished sex itself.” Editorial, De-Sexing the Job Market, N.Y. Times, August 21,
1965.
But despite its contested origins, the adoption of the amendment
prohibiting sex discrimination was not an accident or a stunt. Once the
amendment was on the floor, it was aggressively championed by a coalition
comprising most of the (few) women members of the House. Purdum, supra, at
197. Its subsequent adoption was consistent with a long history of women’s
rights advocacy that had increasingly been gaining mainstream recognition and
acceptance.
Discrimination against gay women and men, by contrast, was not on the
table for public debate. In those dark, pre-Stonewall days, same-sex sexual
8
relations were criminalized in nearly all states. Only three years before the
passage of Title VII, Illinois, under the influence of the American Law Institute’s
proposed Model Penal Code, had become the first state to repeal laws prohibiting
private consensual adult relations between members of the same sex. Salvatore J.
Licata, The Homosexual Rights Movement in the United States: A Traditionally
Overlooked Area of American History, 6 J. Homosexuality 161, 171 (1981).
In addition to criminalization, gay men and women were stigmatized as
suffering from mental illness. In 1964, both the American Psychiatric Association
and the American Psychological Association regrettably classified homosexuality
as a mental illness or disorder. As the Supreme Court recently explained, “[f]or
much of the 20th century . . . homosexuality was treated as an illness. When the
American Psychiatric Association published the first Diagnostic and Statistical
Manual of Mental Disorders in 1952, homosexuality was classified as a mental
disorder, a position adhered to until 1973.” Obergefell v. Hodges, 135 S. Ct. 2584,
2596 (2015), citing Position Statement on Homosexuality and Civil Rights, 1973,
in 131 Am. J. Psychiatry 497 (1974). It was not until two years later, in 1975, that
the American Psychological Association followed suit and “adopted the same
position [as the American Psychiatric Association], urging all mental health
9
professionals to work to dispel the stigma of mental illness long associated with
homosexual orientation.” Brief of Am. Psychological Ass’n as Amicus Curiae, Boy
Scouts of Am. v. Dale, 530 U.S. 640, 2000 WL 339884, at *8 (2000), citing Am.
Psychological Ass’n, Minutes of the Annual Meeting of the Council of Representatives,
in 30 Am. Psychologist 620, 633 (1975). Because gay identity was viewed as a
mental illness and was, in effect, defined by participation in a criminal act, the
employment situation for openly gay Americans was bleak.
Consider the rules regarding employment by the federal government.
Starting in the 1940s and continuing through the 1960s, thanks to a series of
executive orders repealing long-standing discriminatory policies, federal
employment opportunities for African-Americans began to open up significantly.
See, e.g., Exec. Order No. 9980, 13 Fed. Reg. 4,311 (July 26, 1948) (prohibiting
racial discrimination in civilian agencies); Exec. Order No. 10308, 16 Fed. Reg.
12,303 (December 3, 1951) (creating the Committee on Government Compliance
to enforce the prohibition against racial discrimination by firms contracting with
the government); Exec. Order No. 11114, 28 Fed. Reg. 6,485 (June 22, 1963)
(extending prohibition against discrimination to all federally-funded construction
projects). In sharp contrast, in 1953 President Eisenhower signed an executive
10
order excluding persons guilty of “sexual perversion” from government
employment. Exec. Order No. 10450, 18 Fed. Reg. 2,489 (April 27, 1953); see also
Licata, supra, at 167–68. During the same period, gay federal employees, or
employees even suspected of being gay, were systematically hounded out of the
service as “security risks” during Cold-War witchhunts. Licata, supra, at 167–68.
Civil rights and civil liberties organizations were largely silent.3 Licata,
supra, at 168. In an influential book about the political plight of gay people,
Edward Sagarin, writing under the pseudonym Donald Webster Cory, sharply
criticized the silence of the bar. Donald Webster Cory, The Homosexual in America:
A Subjective Approach (1951). For instance, he described the response to the
abusive tactics used against members of the military discharged for homosexual
conduct as follows: “And who raises a voice in protest against such
3
In fact, many civil rights and women’s rights organizations were reluctant to support
gay rights. See, e.g., Bhaskar A. Shukla, Feminism: From Mary Wollstonecraft to Betty Friedan 111
(2007) (describing how Betty Friedan had opposed “equating feminism with lesbianism,” and
is said to have coined the anti-lesbian phrase “Lavender Menace” during a 1969 National
Organization for Women meeting). Similarly, some civil rights leaders were uncomfortable
with according public prominence to Bayard Rustin, a gay black man, despite his formidable
organizing skills. Rustin was a leading strategist of the civil rights movement, and was the
chief organizer of the 1963 March on Washington. John D’Emilio, Lost Prophet: The Life and
Times of Bayard Rustin 2–3 (2003). Although Rustin spent most of his life fighting for civil rights
for African-Americans, “[p]rejudice of another sort, still not named as such in mid century
America, had curtailed his opportunities and limited his effectiveness.” Id. at 326–27 (2003).
11
discrimination? No one. Where was the American Civil Liberties Union?
Nowhere.” Id. at 45. To the extent that civil rights organizations did begin to
engage with gay rights during the early 1960s, they did so through the lens of
sexual liberty, rather than equality, grouping the prohibition of laws against
same-sex relations with prohibitions of birth control, abortion, and adultery.4
Even by the mid-1960s, the ACLU was identified by Newsweek as the only group
“apart from the homophile organizations” that opposed laws criminalizing
homosexual acts. Leigh Ann Wheeler, How Sex Became a Civil Liberty 155 (2013).
Given the criminalization of same-sex relationships and arbitrary and
abusive police harassment of gay and lesbian citizens, nascent gay rights
organizations had more urgent concerns than private employment
discrimination. As late as 1968, four years after the passage of Title VII, the North
4
For example, at the ACLU’s Biennial Conference in 1964, in a speech tellingly titled
“Civil Liberties and the War on Crime,” activist lawyer Harriet Pilpel advocated a
constitutionally protected right to privacy as a necessary corrective to the civil liberties abuses
perpetuated by laws “relating to birth control, abortion, compulsory sterilization, prostitution,
miscegenation, homosexuality, fornication and adultery.” Allison Day, Guiding Griswold:
Reevaluating National Organizations’ Role in the Connecticut Birth Control Cases, 22 Cardozo J. L. &
Gender 191, 216–18 & n.204 (2016); see also Samuel Walker, In Defense of American Liberties: A
History of the ACLU 312 (1990) (crediting Pilpel’s speech as the first substantive introduction of
gay rights to the ACLU’s agenda). Pilpel’s argument was not based on equal protection, and
made no claim that the criminalization of same-sex relations constituted a form of sex
discrimination or gender bias.
12
American Conference of Homophile Organizations proposed a “Homosexual Bill
of Rights” that demanded five fundamental rights: that private consensual sex
between adults not be a crime; that solicitation of sex acts not be prosecuted
except on a complaint by someone other than an undercover officer; that sexual
orientation not be a factor in granting security clearances, visas, or citizenship;
that homosexuality not be a barrier to service in the military; and that sexual
orientation not affect eligibility for employment with federal, state, or local
governments. Licata, supra, at 177 (emphasis added). Those proposals, which
pointedly did not include a ban on private sector employment discrimination
against gays, evidently had little traction with many Americans at the time. The
first state to prohibit employment discrimination on the basis of sexual
orientation even in the public sector was Pennsylvania, by executive order of the
governor, in 1975 — more than a decade after the Civil Rights Act had become
law. James W. Button et al., The Politics of Gay Rights at the Local and State Level, in
The Politics of Gay Rights 269, 272 (Craig A. Rimmerman et al. eds., 2000). It was
not until 1982 that Wisconsin became the first state to ban both public and private
sector discrimination based on sexual orientation. Id. at 273; see also Linda A.
Mooney et al., Understanding Social Problems 467 (6th ed. 2009). Massachusetts
13
followed in 1989. Button et al., supra, at 273. Notably, as discussed more fully
below, these states did so by explicit legislative action adding “sexual
orientation” to pre-existing anti-discrimination laws that already prohibited
discrimination based on sex; they did not purport to “recognize” that sexual
orientation discrimination was merely an aspect of already-prohibited
discrimination based on sex.
In light of that history, it is perhaps needless to say that there was no
discussion of sexual orientation discrimination in the debates on Title VII of the
Civil Rights Act. If some sexist legislators considered the inclusion of sex
discrimination in the bill something of a joke, or perhaps a poison pill to make
civil rights legislation even more controversial, evidently no one thought that
adding sexual orientation to the list of forbidden categories was worth using
even in that way. Nor did those who opposed the sex provision in Title VII
include the possibility that prohibiting sex discrimination would also prevent
sexual orientation discrimination in their parade of supposed horribles. When
Representative Emanuel Celler of New York, floor manager for the Civil Rights
Bill in the House, rose to oppose Representative Smith’s proposed amendment,
he expressed concern that it would lead to such supposed travesties as the
14
elimination of “protective” employment laws regulating working conditions for
women, drafting women for military service, and revisions of rape and alimony
laws. See 110 Cong. Rec. 2,577 (1964). He did not reference the prohibition of
sexual orientation discrimination.5 The idea was nowhere on the horizon.
II
I do not cite this sorry history of opposition to equality for African-
Americans, women, and gay women and men, and of the biases prevailing a half-
century ago, to argue that the private intentions and motivations of the members
of Congress can trump the plain language or clear implications of a legislative
enactment. (Still less, of course, do I endorse the views of those who opposed
racial equality, ridiculed women’s rights, and persecuted people for their sexual
orientation.) Although Chief Judge Katzmann has observed elsewhere that
judicial warnings about relying on legislative history as an interpretive aid have
5
By contrast, by the early 1970s, when Congress finally got around to proposing the
Equal Rights Amendment (“ERA”) for ratification, gay issues were at least on the radar screen,
albeit only as a talking point of opponents that was quickly disavowed by the ERA’s
supporters. Senator Sam Ervin, who opposed the ERA, purported to be concerned that its
broad language might invalidate laws that “make homosexuality a crime or . . . [require states
to recognize] the right of a man to marry another man or the right of a woman to marry a
woman.” 118 Cong. Rec. 9,315 (1972). Senator Birch Bayh, the chief sponsor of the ERA,
hastened to deny that the Amendment would have any such effect, reassuring the Senate that
the ERA would require only that “if a State legislature makes a judgment that it is wrong for a
man to marry a man, then it must say it is wrong for a woman to marry a woman.” Id. at 9,331.
15
been overstated, see Robert A. Katzmann, Judging Statutes 35–39 (2014), I agree
with him, and with my other colleagues in the majority, that the implications of
legislation flatly prohibiting sex discrimination in employment, duly enacted by
Congress and signed by the President, cannot be cabined by citing the private
prejudices or blind spots of those members of Congress who voted for it.6 The
above history makes it obvious to me, however, that the majority misconceives
the fundamental public meaning of the language of the Civil Rights Act. The
problem sought to be remedied by adding “sex” to the prohibited bases of
employment discrimination was the pervasive discrimination against women in
the employment market, and the chosen remedy was to prohibit discrimination
that adversely affected members of one sex or the other. By prohibiting
discrimination against people based on their sex, it did not, and does not,
prohibit discrimination against people because of their sexual orientation.
6
In the years immediately following the enactment of Title VII, however, even certain
prominent officials charged with enforcing it seemed to take the opposite approach,
interpreting the statute, insofar as it prohibited sex discrimination, in the light of the presumed
prejudices of those who adopted it. Franklin Roosevelt, Jr., the first chair of the Equal
Employment Opportunity Commission, believed that the ban on sex discrimination was an
inadvertent add-on, and as a result need not be enforced as strictly as the prohibition on racial
discrimination. When asked, at his first press conference as head of the EEOC, “What about
sex?” Roosevelt responded, “Don’t get me started. I’m all for it.” Thomas, supra, at 4. One of the
agency’s first executive directors, Herman Edelsberg, was no better, dismissing the provision
as a “fluke” that was “conceived out of wedlock.” Id.
16
A
To start, the history of the overlapping movements for equality for blacks,
women, and gays, and the differing pace of their progress, as outlined in the
previous section, tells us something important about what the language of Title
VII must have meant to any reasonable member of Congress, and indeed to any
literate American, when it was passed — what Judge Sykes has called the
“original public meaning” of the statute. Hively v. Ivy Tech Cmty. Coll. of Ind., 853
F.3d 339, 362 (7th Cir. 2017) (en banc) (Sykes, J., dissenting) (emphasis added).
That history tells us a great deal about why the legislators who constructed and
voted for the Act used the specific language that they did.
The words used in legislation are used for a reason. Legislation is adopted
in response to perceived social problems, and legislators adopt the language that
they do to address a social evil or accomplish a desirable goal. The words of the
statute take meaning from that purpose, and the principles it adopts must be
read in light of the problem it was enacted to address. The words may indeed cut
deeper than the legislators who voted for the statute fully understood or
intended: as relevant here, a law aimed at producing gender equality in the
workplace may require or prohibit employment practices that the legislators who
17
voted for it did not yet understand as obstacles to gender equality. Nevertheless,
it remains a law aimed at gender inequality, and not at other forms of
discrimination that were understood at the time, and continue to be understood,
as a different kind of prejudice, shared not only by some of those who opposed
the rights of women and African-Americans, but also by some who believed in
equal rights for women and people of color.
The history I have cited is not “legislative history” narrowly conceived. It
cannot be disparaged as a matter of attempts by legislators or their aides to
influence future judicial interpretation — in the direction of results they could
not convince a majority to support in the overt language of a statute — by
announcing to largely empty chambers, or inserting into obscure corners of
committee reports, explanations of the intended or unintended legal implications
of a bill. Nor am I seeking to infer the unexpressed wishes of all or a majority of
the hundreds of legislators who voted for a bill without addressing a particular
question of interpretation. Rather, I am concerned with what principles Congress
committed the country to by enacting the words it chose.7 I contend that these
7
Despite my explicit clarity about this point, both the majority, see Maj. Op. at 28
(characterizing “reliance on the principal concern of our legislators” as “the centerpiece of the
dissent’s statutory analysis”) (internal quotation marks omitted), and Judge Lohier’s
concurrence, see Lohier, J. Concurring Op. at 2 (characterizing this opinion as a “call . . . to
18
principles can be illuminated by an understanding of the central public meaning
of the language used in the statute at the time of its enactment.8
If the specifically legislative history of the “sex amendment” is relatively
sparse in light of its adoption as a floor amendment, see Maj. Op. at 59 n.31, the
broader political and social history of the prohibition of sex discrimination in
employment is plain for all to read. The history of the 20th century is, among
consider what the legislature would have decided if the issue had occurred to the legislators at
the time of enactment”), fail to grasp it. As the text above makes plain, I do not contend that
Title VII is limited by what members of Congress who voted for it privately believed or
intended to prohibit, or might have hoped it would or would not do. The question here is what
“discriminate against any individual . . . because of such individual’s . . . sex,” 42 U.S.C. §
2000e-2(a)(1), as contrasted to “discriminate against any individual . . . because of such
individual’s . . . sexual orientation,” meant (and continues to mean) to ordinary speakers of
English. Legislation cannot sensibly be interpreted by stringing together dictionary synonyms
of each word and proclaiming that, if the right example of the meaning of each is selected, the
“plain meaning” of the statute leads to a particular result. No theory of interpretation,
including textualism itself, is premised on such an approach. (No less a textualist than Justice
Scalia recognized the point: “Adhering to the fair meaning of the text . . . does not limit one to
the hyperliteral meaning of each word in the text.” Antonin Scalia and Bryan A. Garner,
Reading Law 356 (2012) (emphasis in original).) That is because the political and social context of
the words is critical to understanding what it is that the political branches of our government
wrote into law. (Justice Scalia again: Because most common English words “have a number of
dictionary definitions,” a court should ordinarily “assume the contextually appropriate ordinary
meaning.” Id. at 70 (emphasis added).)
8
As the Supreme Court has repeatedly instructed, “[i]t is a ‘fundamental canon of
statutory construction’ that, ‘unless otherwise defined, words will be interpreted as taking their
ordinary, contemporary, common meaning.’” Sandifer v. U.S. Steel Corp., 134 S. Ct. 870, 876
(2014), quoting Perrin v. United States, 444 U.S. 37, 42 (1979). It is worth noting, moreover, that,
because legislation is a fundamentally political process, the political context of legislation, and
the way in which language is (or is not) used in the public debate over proposed legislation, can
be useful in understanding that meaning.
19
other things, a history of increasing equality of men and women. Recent events
remind us of how spotty that equality remains, and how inequality persists even
with respect to the basic right of women to physical security and control of their
own bodies. But the trend is clear, and it is particularly emphatic in the
workplace.
That history makes it equally clear that the prohibition of discrimination
“based on sex” was intended to secure the rights of women to equal protection in
employment. Put simply, the addition of “sex” to a bill to prohibit employers
from “discriminat[ing] against any individual with respect to his [or her]
compensation, terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, . . . or national origin,” 42 U.S.C. § 2000e-2(a)(1),
was intended to eliminate workplace inequalities that held women back from
advancing in the economy, just as the original bill aimed to protect African-
Americans and other racial, national, and religious minorities from similar
discrimination. The language of the Act itself would have been so understood not
only by members of Congress, but by any politically engaged citizen deciding
whether to urge his or her representatives to vote for it. As Judge Sykes noted in
her dissent in the Seventh Circuit’s encounter with the same issue we face today,
20
citing a 1960s dictionary, “In common, ordinary usage in 1964 — and now, for
that matter — the word ‘sex’ means biologically male or female; it does not also
refer to sexual orientation.” Hively, 853 F.3d at 362–63 (Sykes, J., dissenting)
(emphasis in original).9 On the verge of the adoption of historic legislation to
address bigotry against African-Americans on the basis of race, women in effect
stood up and said “us, too,” and Congress agreed.
The majority cites judicial interpretations of Title VII as prohibiting sexual
harassment, and allowing hostile work environment claims, in an effort to argue
that the expansion they are making simply follows in this line. Maj. Op. at 25,
27–28. But the fact that a prohibition on discrimination against members of one
sex may have unanticipated consequences when courts are asked to consider
carefully whether a given practice does, in fact, discriminate against members of
one sex in the workplace does not support extending Title VII by judicial
9
The majority agrees, at least “arguendo.” Maj. Op. at 7 n.2. Issues about how to define
who falls into which gender, or whether the division of humanity into two sexes or genders is
oversimplified as applied to persons who identify as transgender or gender fluid or bigendered
are not before us today, and neither the majority nor the plaintiffs nor their amici contend that
gay and lesbian individuals constitute a third or fourth sex. Cf. Hively, 853 F.3d at 355 (Posner,
J., concurring) (“It’s true that even today if asked what is the sex of plaintiff Hively one would
answer that she is female or that she is a woman, not that she is a lesbian. Lesbianism denotes a
form of sexual or romantic attraction; it is not a physical sex identifier like masculinity or
femininity.”).
21
construction to protect an entirely different category of people. It is true that
what counts as discrimination against members of one sex may not have been
fully fleshed out in the minds of supporters of the legislation, but it is easy
enough to illustrate how the language of a provision enacted to accomplish the
goal of equal treatment of the sexes compels results that may not have been
specifically intended by its enacters.
To begin with, just as laws prohibiting racial discrimination, adopted
principally to address some of the festering national wrongs done to African-
Americans, protect members of all races, including then-majority white
European-Americans, the prohibition of sex discrimination by its plain language
protects men as well as women, whether or not anyone who voted on the bill
specifically considered whether and under what circumstances men could be
victims of gender-based discrimination. That is not an expansion of Title VII, but
is a conclusion mandated by its text: Congress deliberately chose to protect
women and minorities not by prohibiting discrimination against “African-
Americans” or “Jews” or “women,” but by neutrally prohibiting discrimination
against any individual “based on race, . . . religion, [or] sex.” 42 U.S.C. § 2000e-
2(a)(1). That choice of words is clearly intentional, and represents a commitment
22
to a principle of equal treatment of races, religions, and sexes that is important,
even if the primary intended beneficiaries of the legislation — those most in need
of its protection — are members of the races, religions, and gender that have
suffered the most from inequality in the past.
Other interpretations of the statute that may not have occurred to members
of the overwhelmingly male Congress that adopted it seem equally
straightforward. Perhaps it did not occur to some of those male members of
Congress that sexual harassment of women in the workplace was a form of
employment discrimination, or that Title VII was inconsistent with a “Mad Men”
culture in the office.10 But although a few judges were slow to recognize this
point, see, e.g., Barnes v. Train, No. 1828-73, 1974 WL 10628, at *1 (D.D.C. Aug. 9,
1974), rev’d sub nom. Barnes v. Costle, 561 F.2d 983 (D.C. Cir. 1977), as soon as the
issue began to arise in litigation, courts quickly recognized that for an employer
to expect members of one sex to provide sexual favors as a condition of
employment from which members of the other sex are exempt, or to view the
10
As we have recently been reminded, too many powerful men continue to engage in
such practices. See, e.g., J.M.F., What is Sexual Harassment and How Prevalent Is It?, The
Economist (Nov. 24, 2017), https://www.economist.com/blogs/economist
-explains/2017/11/economist-explains-17 (writing that “[i]n recent months myriad women have
detailed the sexual harassment and assault they have experienced in . . . Hollywood, Silicon
Valley, politics, the media, the armed forces, [and] academia”).
23
only value of female employees as stemming from their sexualization, constitutes
a fundamental type of discrimination in conditions of employment based on sex.
See, e.g., Barnes v. Costle, 561 F.2d at 989 (finding that retaliation by plaintiff’s
supervisor when she resisted his sexual advances “was plainly based on
[plaintiff’s] gender”).11
The reason why any argument to the contrary would fail is not a matter of
simplistic application of a formal standard, along the lines of “well, the employer
wouldn’t have asked the same of a man, so it’s sex discrimination.” Sexual
exploitation has been a principal obstacle to the equal participation of women in
the workplace, and whether or not individual legislators intended to prohibit it
when they cast their votes for Representative Smith’s amendment, both the literal
language of that amendment and the elimination of the social evil at which it was
11
Indeed, the overt objectification of female employees was highlighted in debates
immediately following the enactment of Title VII. One industry notorious for sexualizing
women was the airline industry, which hired only young, attractive women to serve as flight
attendants. Stephanie Coontz, A Strange Stirring: The Feminine Mystique and American Women at
the Dawn of the 1960s 9–10 (2011). Flight attendants were forced to retire upon marriage, or, if
they did not marry, once they reached their early thirties because, as one airline official
commented, “the average woman’s appearance has markedly deteriorated at this age.” Id. at
10. In 1965, responding to public (male) commentary lamenting the idea that Title VII might
mean an end to the practice of hiring only female flight attendants, Representative Martha
Griffiths remarked, “If you are trying to run a whorehouse in the sky, get a license.” Menand,
supra.
24
aimed make clear that the statute must be read to prohibit it.12
The same goes for other forms of “hostile environment” discrimination.
The history of resistance to racial integration illustrates why. Employers forced to
take down their “whites only” signs could not be permitted to retreat to the
position that “you can make me hire black workers, but you can’t make me
welcome them.” Making black employees so unwelcome that they would be
deterred from seeking or retaining jobs previously reserved for whites must be
treated as an instance of prohibited racial discrimination — and the same clearly
goes for sex discrimination. The Supreme Court recognized that point, in exactly
those terms:
The phrase “terms, conditions or privileges of
employment” in Title VII is an expansive concept which
sweeps within its protective ambit the practice of
creating a working environment heavily charged with
ethnic or racial discrimination. . . . Nothing in Title VII
suggests that a hostile environment based on
discriminatory sexual harassment should not be
12
The text of the sex provision, as well as the principle of equal treatment of both sexes
makes it as obvious that the less-frequently encountered situation of sexual harassment of male
employees, whether by men or by women, must also be included in Title VII’s prohibitions. See
Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 682 (1983) (noting that under
Title VII, “[m]ale as well as female employees are protected against discrimination”); see also
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998) (holding that “nothing in Title VII
necessarily bars a claim of discrimination ‘because of . . . sex’ merely because the plaintiff and
the defendant . . . are of the same sex”).
25
likewise prohibited.
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986) (internal quotation marks,
brackets and emphasis omitted).
But such interpretations of employment “discrimination against any
individual . . . based on sex” do not say anything about whether discrimination
based on other social categories is covered by the statute. Just as Congress
adopted broader language than discrimination “against women,” it adopted
narrower language than “discrimination based on personal characteristics or
classifications unrelated to job performance.” Title VII does not adopt a broad
principle of equal protection in the workplace; rather, its language singles out for
prohibition discrimination based on particular categories and classifications that
have been used to perpetuate injustice — but not all such categories and
classifications. That is not a matter of abstract justice, but of political reality.
Those groups that had succeeded by 1964 in persuading a majority of the
members of Congress that unfair treatment of them ought to be prohibited were
included; those who had not yet achieved that political objective were not.
Thus, if Representative Smith’s amendment had been defeated, Title VII
would still be a landmark prohibition of the kinds of race-, religion-, and national
26
origin-based employment discrimination that had historically disadvantaged
blacks, Jews, Catholics, or Mexican-Americans. But it would not have protected
women, and a subsequent shift in popular support for such protection would not
have changed that fact, without legislative action. Similarly, the statute did not
protect those discriminated against, similarly unfairly, on the basis of age or
disability; that required later legislation. See, e.g., Americans with Disabilities Act
of 1990, 42 U.S.C. § 12101 et seq.; Age Discrimination in Employment Act of 1967,
29 U.S.C. § 621 et seq.
None of this, of course, is remotely to suggest that employment
discrimination on the basis of sexual orientation is somehow not invidious and
wrong. But not everything that is offensive or immoral or economically
inefficient is illegal, and if the view that a practice is offensive or immoral or
economically inefficient does not command sufficiently broad and deep political
support to produce legislation prohibiting it, that practice will remain legal. In
the context of private-sector employment, racial discrimination was just as
indefensible before 1964 as it is today, but it was not illegal. Discrimination
against women, as President Kennedy’s commission understood, was just as
unfair, and just as harmful to our economy, before Title VII prohibited it as it is
27
now, but if Congress had not adopted Representative Smith’s amendment, it
would have remained legal. Employment discrimination against older workers,
and against qualified individuals with disabilities, imposed unfair burdens on
those categories of individuals in 1964, yet it remained legal after the Civil Rights
Act of 1964 became law, because Congress did not at that time choose to prohibit
such discrimination. Congress is permitted to choose what types of social
problems to attack and by which means. The majority says that “we have stated
that ‘Title VII should be interpreted broadly to achieve equal employment
opportunity,’” Maj. Op. at 18, quoting Huntington Branch, N.A.A.C.P. v. Town of
Huntington, 844 F.2d 926, 935 (2d Cir. 1988), but of course that dictum13 appeared
in the context of a discussion of racial discrimination. Congress, in fact, did not
legislate in 1964 “broadly to achieve equal employment opportunity” for all
Americans, but instead opted to prohibit only certain categories of unfair
discrimination. It did not then prohibit, and alas has not since prohibited,
discrimination based on sexual orientation.
13
The quoted statement from Huntington is actually a parenthetical squib glossing a
citation to Griggs v. Duke Power Co., 401 U.S. 424, 429–36 (1971), and summarizing the import of
a lengthy discussion in that seminal Supreme Court decision; Huntington itself concerned the
Fair Housing Act, Title VIII of the Civil Rights Act of 1968, codified at 42 U.S.C. §§ 3601–3631.
Huntington, 844 F.2d at 928.
28
B
The majority’s linguistic argument does not change the fact that the
prohibition of employment discrimination “because of . . . sex” does not protect
gays and lesbians. Simply put, discrimination based on sexual orientation is not
the same thing as discrimination based on sex. As Judge Sykes explained,
[t]o a fluent speaker of the English language — then and
now — the ordinary meaning of the word “sex” does
not fairly include the concept of “sexual orientation.”
The two terms are never used interchangeably, and the
latter is not subsumed within the former; there is no
overlap in meaning. . . . The words plainly describe
different traits, and the separate and distinct meaning of
each term is easily grasped. More specifically to the
point here, discrimination “because of sex” is not
reasonably understood to include discrimination based
on sexual orientation, a different immutable
characteristic. Classifying people by sexual orientation
is different than classifying them by sex.
Hively, 853 F.3d at 363 (Sykes, J., dissenting) (footnote omitted).
Of course, the majority does not really dispute this common-sense
proposition. It does not say that “sex discrimination” in the ordinary meaning of
the term is literally the same thing as “sexual orientation discrimination.” Rather,
the majority argues that discrimination based on sex encompasses discrimination
against gay people because discrimination based on sex encompasses any
29
distinction between the sexes that an employer might make for any reason.14 The
argument essentially reads “discriminate” to mean pretty much the same thing as
“distinguish.” And indeed, there are recognized English uses of “discriminate,”
particularly when followed with “between” or “from,” that imply nothing
invidious, but merely mean “to perceive, observe or note [a] difference,” or “[t]o
make or recognize a distinction.” The Oxford English Dictionary Online,
http://www.oed.com (search for “Discriminate,” verb, definitions 2a and 2b). For
example, a person with perfect pitch is capable of discriminating a C from a C-
sharp. But in the language of civil rights, a different and stronger meaning
applies, that references invidious distinctions: “To treat a person or group in an
unjust or prejudicial manner, esp[ecially] on the grounds of race, gender, sexual
orientation, etc.; frequently with against.” Id. (definition 4).
And that is indeed the sense in which Title VII uses the word: the statute
prohibits such practices as “fail[ing] or refus[ing] to hire or to discharge” persons
on account of their race or sex or other protected characteristic, or “otherwise to
14
Indeed, Judge Cabranes’s concurring opinion suggests that that interpretation is so
obvious and straightforward that nothing more need be said on the subject, and that we can
dispense with the various arguments from precedent and principle that the majority opinion
makes in support of its holding. Cabranes, J., Concurring Op. at 1. But that interpretation, in
fact, is anything but obvious.
30
discriminate against any individual” with respect to employment terms. 42 U.S.C.
§ 2000e-2(a)(1) (emphasis added). In other words, it is an oversimplification to
treat the statute as prohibiting any distinction between men and women in the
workplace, still less any distinction that so much as requires the employer to
know an employee’s sex in order to be applied, cf. Maj. Op. at 21–22; the law
prohibits discriminating against members of one sex or the other in the
workplace.
That point may have little bite in the context of racial discrimination. The
different “races” are defined legally and socially, and not by actual biological or
genetic differences — both Hitler’s Nuremberg laws and American laws
imposing slavery and segregation had to define, arbitrarily, how much ancestry
of a particular type consigned persons to a disfavored category, since there is no
scientific or genetic basis for distinguishing a “Jew” or a “member of the colored
race” from anyone else. And since no biological factor can support any job
qualification based on race, courts have taken the view that to distinguish is, for
the most part, to discriminate against. But in the area of sex discrimination,
where the groups to be treated equally do have potentially relevant biological
differences, not every distinction between men and women in the workplace
31
constitutes discrimination against one gender or the other.15 The distinctions that
were prohibited, however, in either case, are those that operate to the
disadvantage of (principally) the disfavored race or sex. That is the social
problem that the statute aimed to correct.
Opponents of Title VII, and later of the Equal Rights Amendment (“ERA”),
were fond of conjuring what they thought of as unthinkable or absurd
consequences of gender equality. Some of those proved not so unthinkable or
absurd at all. Workplace “protective” legislation that applied only to women
soon fell by the wayside, see 29 C.F.R. § 1604.2(b)(1) (stating that protective laws
for women “conflict with and are superseded by [T]itle VII”), despite
15
The majority’s reliance on a footnote in Price Waterhouse does nothing to change this
fact. Maj. Op. at 47–48. The majority quotes the portion of the footnote stating that Title VII “on
its face treats each of the enumerated categories exactly the same,” and that the “principles . . .
announce[d]” by the Price Waterhouse Court with regard to gender “apply with equal force to
discrimination based on race, religion, or national origin,” to support its conclusion that the
associational discrimination cases that have arisen in the context of race should also apply to
associational discrimination in terms of gender. Price Waterhouse v. Hopkins, 490 U.S. 228, 243
n.9 (1989). While I explain my disagreement with this argument below, it is worth noting here
why this footnote does not change the above analysis. The Court in Price Waterhouse did not
state that every decision with regard to one enumerated group in Title VII must be applied
blindly to every other group. Rather, it emphasized that the “principles” embedded in Title VII
should apply with equal force to each enumerated category. Id. It is those principles that have
allowed courts to interpret the various prohibitions in Title VII “against the background of . . .
the historical context from which the Act arose,” United Steelworkers of Am., AFL-CIO-CLC v.
Weber, 443 U.S. 193, 201 (1979), in upholding distinctions between sexes that would
unquestionably be rejected if made between races. And it is the principle of equal opportunity
animating Title VII that I have attempted to distill in this opinion.
32
Representative Cellar’s fears, without adverse consequences. But other
distinctions based on sex remain, and their legality is either assumed, or at a
minimum requires more thought than just “but that’s a distinction based on sex,
so it’s illegal.”
Distinctions based on personal privacy, for example, remain in place.
When opponents of the ERA, like Senator Ervin, argued that under the ERA
“there can be no exception for elements of publically [sic] imposed sexual
segregation on the basis of privacy between men and women,” 118 Cong. Rec.
9,564 (1972), that objection was derided by Senator Marlow Cook of Kentucky as
the “potty” argument, id. at 9,531. Title VII too does not prohibit an employer
from having separate men’s and women’s toilet facilities. Nor does it prohibit
employer policies that differentiate between men and women in setting
requirements regarding hair lengths. Thus, in Longo v. Carlisle DeCoppet & Co., we
held that a policy “requiring short hair on men and not on women” did not
violate Title VII. 537 F.2d 685, 685 (2d Cir. 1976); see also Tavora v. N.Y. Mercantile
Exch., 101 F.3d 907, 908–09 (2d Cir. 1996) (same).
Dress codes provide a more complicated example. It is certainly arguable
that some forms of separate dress codes further stereotypes harmful to workplace
33
equality for women; requiring female employees to wear “Hooters”-style outfits
but male employees doing the same work to wear suit and tie would not stand
scrutiny. But what of a pool facility that requires different styles of bathing suit
for male and female lifeguards? Judge Cabranes’s concurrence would seem to
prohibit that practice, but I believe, and I expect Judge Cabranes would agree,
that a pool that required both male and female lifeguards to wear a uniform
consisting only of trunks would violate Title VII, while one that prescribed trunks
for men and a bathing suit covering the breasts for women would not.
More controversial distinctions, such as different fitness requirements for
men and women applying for jobs involving physical strength, have also been
upheld. In a recent case, the Fourth Circuit rejected the notion that Title VII
prohibits gender-normed physical fitness benchmarks pursuant to which male
FBI agent trainees must perform 30 push-ups, while female trainees need only do
14. Bauer v. Lynch, 812 F.3d 340, 342, 351 (4th Cir.), cert. denied, 137 S. Ct. 372
(2016). In upholding this distinction, the court noted that of “the few decisions to
confront the use of gender-normed physical fitness standards in the Title VII
context, none has deemed such standards to be unlawful,” id. at 348, because
courts have recognized that some physiological differences between men and
34
women “impact their relative abilities to demonstrate the same levels of physical
fitness,” id. at 351. Thus, the court in Bauer recognized that to distinguish between
the sexes is not always to discriminate against one or the other. Indeed, a failure
to impose distinct fitness requirements for men and women may be found to
violate Title VII, if it has a disparate impact on one sex and the employer cannot
justify the requirement as a business necessity. See Lanning v. Se. Pa. Transp. Auth.
(SEPTA), 181 F.3d 478, 494 (3d Cir. 1999) (applying Civil Rights Act of 1991 and
finding that time cutoff for 1.5 mile run for officers had a disparate impact, when
women had a pass rate of only 6.7%, compared to a 55.6% pass rate for men, and
remanding to district court to determine whether the score represents “the
minimum qualifications necessary for successful performance of the job in
question”). Taken to its logical conclusion, though, the majority’s interpretation
of Title VII would do away with this understanding of the Act.
These examples suffice to illustrate two points relevant to the supposedly
simple interpretation of sex-based discrimination relied upon by the majority.
First, it is not the case that any employment practice that can only be applied by
identifying an employee’s sex is prohibited. Second, neither can it be the case that
any discrimination that would be prohibited if race were the criterion is equally
35
prohibited when gender is used.16 Obviously, Title VII does not permit an
employer to maintain racially segregated bathrooms, nor would it allow
different-colored or different-designed bathing costumes for white and black
lifeguards. Such distinctions would smack of racial subordination, and would
impose degrading differences of treatment on the basis of race. Precisely the
same distinctions between men and women would not.17
Nor does the example of “discrimination based on traits that are a function
of sex, such as life expectancy,” Maj. Op. at 19, help the majority’s cause.
Discrimination of that sort, as the majority notes, could permit gross
discrimination against female employees “by using traits that are associated with
sex as a proxy for sex.” Id. at 19–20. That is certainly so as to “traits that are a
function of sex,” such as pregnancy or the capacity to become pregnant. But it is
not so as to discrimination based on sexual orientation. Same-sex attraction is not
16
That of course does not mean that “discriminate against” has any different meaning
as applied to “because of . . . race” than it does as applied to “because of . . . sex.” What it
means is that similar, or even identical, practices may have a different social meaning and a
different economic effect when they distinguish male from female employees than when they
distinguish white from black employees.
17
Despite the Times’s concerns, the Rockettes remain all female more than 50 years after
Title VII became law, and the owners of franchises in the Women’s National Basketball
Association are likely not very worried about losing a lawsuit by men who were not allowed to
try out for employment with their teams. Needless to say, dance troupes or professional sports
leagues that employed only whites or blacks would be quite a different matter.
36
“a function of sex” or “associated with sex” in the sense that life expectancy or
childbearing capacity are.18 A refusal to hire gay people cannot serve as a covert
means of limiting employment opportunities for men or for women as such; a
minority of both men and women are gay, and discriminating against them
discriminates against them, as gay people, and does not differentially
disadvantage employees or applicants of either sex.19 That is not the case with
other forms of “sex-plus” discrimination that single out for disfavored status
traits that are, for example, common to women but rare in men.20
C
That “because of . . . sex” did not, and still does not, cover sexual
orientation, is further supported by the movement, in both Congress and state
18
To spell the point out: life expectancy, see Maj. Op. at 31–32, citing L.A. Dep’t of Water
& Power v. Manhart, 435 U.S. 702 (1978), may be quite literally a mathematical “function of sex,”
to the extent that with knowledge of a person’s sex, one can calculate his or her life expectancy,
which will differ from that of a member of the opposite sex. Whatever the majority means by
its assertion that “sexual orientation is a function of sex,” Maj. Op. at 37, it plainly does not
mean anything like that.
19
Although empirical data are hard to come by, there appears to be nothing to suggest
that rates of homosexuality differ significantly between men and women. See, e.g., Gary J.
Gates, In U.S., More Adults Identifying as LGBT, Gallup (Jan. 11, 2017),
http://news.gallup.com/poll/201731/lgbt-identification-rises.aspx.
20
Of course, discrimination against a subcategory of members of one sex is also
prohibited by Title VII. An employer that hires gay men but refuses to hire lesbians, or vice
versa, would thus be in violation of the statute.
37
legislatures, to enact legislation protecting gay men and women against
employment discrimination. This movement, which has now been successful in
twenty-two states — including all three in our Circuit — and the District of
Columbia, has proceeded by expanding the categories of prohibited
discrimination in state anti-discrimination laws.21 In none of those states did the
prohibition of sexual orientation discrimination come by judicial interpretation of
a pre-existing prohibition on gender-based discrimination to encompass
discrimination on the basis of sexual orientation. Similarly, the Executive Branch
has prohibited discrimination against gay men and lesbians in federal
employment by adding “sexual orientation” to previously protected grounds. See
Exec. Order No. 13087, 63 Fed. Reg 30,097 (May 28, 1998).22 Finally, the same
21
See Cal. Gov't Code § 12940 (California); Colo. Rev. Stat. § 24-34-402 (Colorado); Conn.
Gen. Stat. § 46a-60 (Connecticut); Del. Code Ann. tit. 19, § 711 (Delaware); D.C. Code §
2-1402.11 (District of Columbia); Haw. Rev. Stat. § 378-2 (Hawaii); 775 Ill. Comp. Stat. 5/2-101,
102 (Illinois); Iowa Code § 216.6; Me. Rev. Stat. tit. 5, § 4571 (Maine); Md. Code Ann., State
Gov't § 20-606 (Maryland); Mass. Gen. Laws ch. 151B, § 4 (Massachusetts); Minn. Stat. §
363A.08 (Minnesota); Nev. Rev. Stat. § 613.330 (Nevada); N.H. Rev. Stat. Ann. § 354-A:7 (New
Hampshire); N.J. Stat. Ann. § 10:5-4 (New Jersey); N.M. Stat. Ann. § 28-1-7 (New Mexico); N.Y.
Exec. Law § 296 (New York); Or. Rev. Stat. § 659A.003 (Oregon); R.I. Gen. Laws § 28-5-7 (Rhode
Island); Vt. Stat. Ann. tit. 21, § 495 (Vermont); Wash. Rev. Code § 49.60.180 (Washington); Wis.
Stat. § 111.321 (Wisconsin).
22
Discrimination in federal employment on the basis of sex (as well as race, color,
religion, and national origin) has been prohibited by executive order since 1969. See Exec.
Order No. 11478, 34 Fed. Reg. 12,985 (Aug. 8, 1969). In 1998, the Clinton Administration did not
argue that the prohibition of sex discrimination in that Order already banned, or henceforth
would be deemed to ban, sexual orientation discrimination; rather, like the states that have
38
approach has been reflected in the repeated (but so far unsuccessful) introduction
of bills in Congress to add “sexual orientation” to the list of prohibited grounds
of employment discrimination in Title VII.23
prohibited such discrimination by all employers, it straightforwardly added sexual orientation
to the prohibited categories. See Exec. Order No. 13087.
23
See Civil Rights Amendments Act, H.R. 166, 94th Cong. (1975); A Bill to Prohibit
Discrimination on the Basis of . . . Sexual Preference, H.R. 2667, 94th Cong. (1975); Civil Rights
Amendments, H.R. 5452, 94th Cong. (1975); Civil Rights Amendments, H.R. 13019, 94th Cong.
(1976); Civil Rights Amendments, H.R. 451, 95th Cong. (1977); Civil Rights Amendments Act,
H.R. 7775, 95th Cong. (1977); Civil Rights Amendments, H.R. 2998, 95th Cong. (1977); Civil
Rights Amendments Act of 1977, H.R. 4794, 95th Cong. (1977); Civil Rights Amendments Act of
1977, H.R. 5239, 95th Cong. (1977); Civil Rights Amendments Act of 1977, H.R. 8269, 95th Cong.
(1977); Civil Rights Amendments Act of 1979, H.R. 2074, 96th Cong. (1979); A Bill to Prohibit
Employment Discrimination on the Basis of Sexual Orientation, S. 2081, 96th Cong. (1979); Civil
Rights Amendments Act of 1981, H.R. 1454, 97th Cong.; Civil Rights Amendments Act of 1981,
H.R. 3371, 97th Cong.; A Bill to Prohibit Discrimination on the Basis of Sexual Orientation, S.
1708, 97th Cong. (1981); A Bill to Prohibit Employment Discrimination on the Basis of Sexual
Orientation, S. 430, 98th Cong. (1983); Civil Rights Amendments Act of 1983, H.R. 427, 98th
Cong.; Civil Rights Amendments Act of 1983, H.R. 2624, 98th Cong.; Civil Rights Amendments
Act of 1985, S. 1432, 99th Cong.; Civil Rights Amendments Act of 1985, H.R. 230, 99th Cong.;
Civil Rights Amendments Act of 1987, S. 464, 100th Cong.; Civil Rights Amendments Act of
1987, H.R. 709, 100th Cong.; Civil Rights Protection Act of 1988, S. 2109, 100th Cong.; Civil
Rights Amendments Act of 1989, S. 47, 101st Cong.; Civil Rights Amendments Act of 1989, H.R.
655, 101st Cong.; Civil Rights Amendments Act of 1991, S. 574, 102d Cong.; Civil Rights
Amendments Act of 1991, H.R. 1430, 102d Cong.; Civil Rights Amendments Act of 1993, H.R.
423, 103d Cong.; Employment Nondiscrimination Act of 1994, S. 2238, 103d Cong.; Civil Rights
Act of 1993, H.R. 431, 103d Cong.; Employment Non-Discrimination Act of 1994, H.R. 1430,
103d Cong.; Civil Rights Amendments Act of 1995, H.R. 382, 104th Cong.; Employment Non-
Discrimination Act of 1995, S. 932, 104th Cong.; Employment Non-Discrimination Act of 1995,
H.R. 1863, 104th Cong.; Civil Rights Amendments Act of 1998, H.R. 365, 105th Cong.;
Employment Non-Discrimination Act of 1997, S. 869, 105th Cong.; Employment Non-
Discrimination Act of 1997, H.R. 1858, 105th Cong.; Civil Rights Amendments Act of 1999, H.R.
311, 106th Cong.; Employment Non-Discrimination Act of 1999, S. 1276, 106th Cong.;
Employment Non-Discrimination Act of 1999, H.R. 2355, 106th Cong.; Civil Rights
Amendments Act of 2001, H.R. 217, 107th Cong.; Employment Non-Discrimination Act of 2001,
H.R. 2692, 107th Cong.; Employment Non-Discrimination Act of 2002, S. 1284, 107th Cong.;
39
The Department of Justice argues, relying on Texas Department of Housing
and Community Affairs v. Inclusive Communities Project, Inc., – U.S. –, 135 S. Ct. 2507
(2015), that Congress ratified judicial interpretations of “sex” in Title VII as
excluding sexual orientation when it amended the Civil Rights Act in 1991 and
failed to overrule judicial decisions holding that the sex discrimination provision
of Title VII did not cover sexual orientation discrimination. See Brief of United
States as Amicus Curiae 8–14. In Inclusive Communities, the Supreme Court held
that disparate-impact claims are cognizable under the Fair Housing Act (“FHA”).
135 S. Ct. at 2525. In so holding, the Court found it relevant that Congress had
amended the FHA after nine Courts of Appeals had held that the FHA allowed
for disparate-impact claims, and did not alter the text of the Act in a way that
would make it clear that disparate-impact claims were not contemplated by the
FHA. Id. at 2519. Furthermore, the Court found it significant that the legislative
Equal Rights and Equal Dignity for Americans Act of 2003, S. 16, 108th Cong.; Employment
Non-Discrimination Act of 2003, H.R. 3285, 108th Cong.; Employment Non-Discrimination Act
of 2003, S. 1705, 108th Cong.; Civil Rights Amendments Act of 2005, H.R. 88, 109th Cong.;
Employment Non-Discrimination Act of 2007, H.R. 2015, 110th Cong.; Employment
Non-Discrimination Act of 2007, H.R. 3685, 110th Cong.; Employment Non-Discrimination Act
of 2009, H.R. 3017, 111th Cong.; Employment Non-Discrimination Act of 2009, H.R. 2981, 111th
Cong.; Employment Non-Discrimination Act of 2009, S. 1584, 111th Cong.; Employment
Non-Discrimination Act, H.R. 1397, 112th Cong. (2011); Employment Non-Discrimination Act
of 2011, S. 811, 112th Cong.; Employment Non-Discrimination Act of 2013, H.R. 1755, 113th
Cong.; Employment Non-Discrimination Act of 2013, S. 815, 113th Cong.; Equality Act, H.R.
3185, 114th Cong. (2015); Equality Act, S. 1858, 114th Cong. (2015).
40
history of the FHA amendment made it clear that Congress was aware of those
Court of Appeals decisions. Id. at 2519–20. The majority dismisses this argument
because at the time of the 1991 amendment to the Civil Rights Act, only three
Courts of Appeals24 had ruled that Title VII did not cover sexual orientation, and
Congress did not make clear, in the legislative history of the 1991 amendment,
that it was aware of this precedent. Maj. Op. at 57–59.
In light of the clear textual and historical meaning of the sex provision that
I have discussed above, I do not find it necessary to rely heavily on the more
technical argument that strives to interpret the meaning of statutes by
congressional actions and omissions that might be taken as ratifying Court of
Appeals decisions. But I do think it is worth noting that the Supreme Court also
found it relevant, in Inclusive Communities, that Congress had rejected a proposed
amendment “that would have eliminated disparate-impact liability for certain
zoning decisions.” 135 S. Ct. at 2520. Here, while only three Courts of Appeals
may have ruled on the issue by 1991, over twenty-five amendments had been
proposed to add sexual orientation to Title VII between 1964 and 1991. All had
24
Williamson v. A.G. Edwards and Sons, Inc., 876 F.2d 69 (8th Cir. 1989); DeSantis v. Pac.
Telephone and Telegraph Co., Inc., 608 F.2d 327 (9th Cir. 1979); Blum v. Gulf Oil Corp., 597 F.2d 936
(5th Cir. 1979).
41
been rejected. In fact, two amendments were proposed in 1991, one in the House
and one in the Senate, Civil Rights Amendments Act of 1991, S. 574, 102d
Congress; Civil Rights Amendments Act of 1991, H.R. 1430, 102d Congress, and
neither of those amendments found its way into the omnibus bill that overruled
other judicial interpretations of the Civil Rights Act. Moreover, in addition to the
three Courts of Appeals that had ruled on the issue, the EEOC — the primary
agency charged by Congress with interpreting and enforcing Title VII — had also
held, by 1991, that sexual orientation discrimination fell “outside the purview of
Title VII.” Dillon v. Frank, EEOC Doc. No. 01900157, 1990 WL 1111074, at *3 (Feb.
14, 1990).
Thus, to the extent that we can infer the awareness of Congress at all, the
continual attempts to add sexual orientation to Title VII, as well as the EEOC’s
determination regarding the meaning of sex, should be considered, in addition to
the three appellate court decisions, as evidence that Congress was
unquestionably aware, in 1991, of a general consensus about the meaning of
“because of . . . sex,” and of the fact that gay rights advocates were seeking to
change the law by adding a new category of prohibited discrimination to the
statute.
42
Although the Supreme Court has rightly cautioned against relying on
legislative inaction as evidence of congressional intent, because “several equally
tenable inferences may be drawn from such inaction, including the inference that
the existing legislation already incorporated the offered change,” Pension Benefit
Guar. Corp. v. LTV Corp., 496 U.S. 633, 650 (1990) (internal quotation marks
omitted), surely the proposal and rejection of over fifty amendments to add
sexual orientation to Title VII means something. Supra note 23. And it is pretty
clear what it does not mean. It is hardly reasonable, in light of the EEOC and
judicial consensus that sex discrimination did not encompass sexual orientation
discrimination, to conclude that Congress rejected the proposed amendments
because senators and representatives believed that Title VII “already
incorporated the offered change.” Pension Benefit Guar. Corp., 496 U.S. at 650.
There may be many reasons why each proposal ultimately failed, but it cannot
reasonably be claimed that the basic reason that Congress did not pass such an
amendment year in and year out was anything other than that there was not yet
the political will to do so.
This last point requires one further disclaimer. As with the social pre-
history of Title VII, these later developments are not referenced in a dubious
43
effort to infer the specific intentions of the members of Congress who voted for
the Smith amendment in 1964, nor are they referenced to infer the specific intent
of each Congress that was faced with proposed sexual orientation amendments.
The point, rather, is that race, gender, and sexual orientation discrimination have
been consistently perceived in the political world, and by the American
population as a whole, as different practices presenting different social and
political issues. At different times over the last few generations, the recognition of
each as a problem to be remedied by legislation has been controversial, with the
movements to define each form of discrimination as illegal developing at a
different pace and for different reasons, and being opposed in each case by
different coalitions for different reasons. To recognize this fact is to understand
that discrimination against persons based on sex has had, in law and in politics, a
meaning that is separate from that of discrimination based on sexual
orientation.25
25
This is by no stretch of the imagination an outlier position, past or present. As the
majority recognizes, until just last year, when the Seventh Circuit decided Hively, 853 F.3d at
340, this interpretation of the sex provision prevailed, unanimously, in federal courts of appeals
nationwide. Maj. Op. at 7–8 (citing the “consensus among our sister circuits” that “because of . .
. sex” did not cover sexual orientation, and listing eight Court of Appeals decisions so holding).
Specifically, eleven Circuit Courts, including ours, had considered the question, and all had
concluded that, by its terms, Title VII does not prohibit sexual orientation discrimination. See
Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Cir. 1999); Dawson v. Bumble &
Bumble, 398 F.3d 211, 217–18 (2d Cir. 2005); Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257,
44
In short, Title VII’s prohibition of employment discrimination against
individuals on the basis of their sex is aimed at employment practices that
differentially disadvantage men vis-à-vis women or women vis-à-vis men. That is
what the language of the statute means to an ordinary “fluent speaker of the
English language,” Hively, 853 F.3d at 363 (Sykes, J., dissenting), that is the social
practice that Congress chose to legislate against, and in light of that
understanding, certain laws and practices that distinguish between men and
women have been found to violate Title VII, and certain others have not.
Discrimination against persons whose sexual orientation is homosexual rather
than heterosexual, however offensive such discrimination may be to me and to
many others, is not discrimination that treats men and women differently. The
simplistic argument that discrimination against gay men and women is sex
261 (3d Cir. 2001); Wrightson v. Pizza Hut of Am., Inc., 99 F.3d 138, 143 (4th Cir. 1996); Blum v.
Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979); Kalich v. AT & T Mobility, LLC, 679 F.3d 464, 471
(6th Cir. 2012); Hamner v. St. Vincent Hosp. & Health Care Ctr., Inc., 224 F.3d 701, 708 (7th Cir.
2000); Williamson v. A.G. Edwards & Sons, Inc., 876 F.2d 69, 70 (8th Cir. 1989); DeSantis, 608 F.2d
at 329–30; Medina v. Income Support Div., 413 F.3d 1131, 1135 (10th Cir. 2005); Evans v. Georgia
Reg’l Hosp., 850 F.3d 1248, 1255 (11th Cir. 2017). As noted above, the EEOC had also concluded
that sexual orientation fell “outside the purview of Title VII.” Dillon, 1990 WL 1111074, at *3. It
was not until 2015 that the EEOC ruled, for the first time, that Title VII should be interpreted to
cover sexual orientation, Baldwin v. Foxx, EEOC Decision No. 0120133080, 2015 WL 4397641, at
*5 (July 15, 2015), and its position is opposed by the Department of Justice, which also has
responsibility for enforcing statutes prohibiting sex discrimination. See Brief of the United
States as Amicus Curiae 1.
45
discrimination because targeting persons sexually attracted to others of the same
sex requires noticing the gender of the person in question is not a fair reading of
the text of the statute, and has nothing to do with the type of unfairness in
employment that Congress legislated against in adding “sex” to the list of
prohibited categories of discrimination in Title VII.
III
The majority opinion goes on to identify two other arguments in support
of its holding: (1) that sexual orientation discrimination is actually “gender
stereotyping” that constitutes discrimination against individuals based on their
sex, and (2) that such discrimination constitutes prohibited “associational
discrimination” analogous to discriminating against employees who are married
to members of a different race.
These arguments have the merit of attempting to link discrimination based
on sexual orientation to the social problem of gender discrimination at which
Title VII is aimed. But just as the “differential treatment” argument attempts to
shoehorn sexual orientation discrimination into the statute’s verbal template of
discrimination based on sex, these arguments attempt a similar (also
unsuccessful) maneuver with lines of case law. While certain Supreme Court
46
cases identify clear-cut examples of sex or race discrimination that may have a
superficial similarity to the practice at issue here, the majority mistakes that
similarity for a substantive one.
A
Perhaps the most appealing of the majority’s approaches is its effort to
treat sexual orientation discrimination as an instance of sexual stereotyping. The
argument proceeds from the premises that “sex stereotyping violates Title VII,”
Maj. Op. at 40, and that “same-sex orientation ‘represents the ultimate case of
failure to conform’ to gender stereotypes,” id. 41, quoting Hively, 853 F.3d at 346,
and concludes that an employer who discriminates against gay people is
therefore “sex stereotyping” and thus violating Title VII. But like the other
arguments adopted by the majority, this approach rests more on verbal facility
than on social reality.
In unpacking the majority’s syllogism, it is first necessary to address what
we mean by “sex stereotyping” that “violates Title VII.” Invidious stereotyping of
members of racial, gender, national, or religious groups is at the heart of much
employment discrimination. Most employers do not entertain, let alone admit to,
older forms of racialist or other discriminatory ideologies that hold that members
47
of certain groups are inherently or genetically inferior and undeserving of equal
treatment. Much more common are assumptions, not always even conscious, that
associate certain negative traits with particular groups. A perception that women,
for example, are not suited to executive positions, or are less adept at the
mathematical and practical skills demanded of engineers, can be a significant
hindrance to women seeking such positions, even when a particular woman is
demonstrably qualified, or indeed even where empirical data show that on
average women perform as well as or better than men on the relevant tasks.
Refusing to hire or promote someone because of that sort of gender (or racial, or
ethnic, or religious) stereotyping is not a separate form of sex (or race, or ethnic,
or religious) discrimination, but is precisely discrimination in hiring or
promotion based on sex (or race, or ethnicity, or religion). It treats applicants or
employees not as individuals but as members of a class that is disfavored for
purposes of the employment decision by reason of a trait stereotypically assigned
to members of that group as a whole. For the most part, then, the kind of
stereotyping that leads to discriminatory employment decisions that violate Title
VII is the assignment of traits that are negatively associated with job performance
(dishonesty, laziness, greed, submissiveness) to members of a particular
48
protected class.
Clearly, sexual orientation discrimination is not an example of that kind of
sex stereotyping; an employer who disfavors a male job applicant whom he
believes to be gay does not do so because the employer believes that most men
are gay and therefore unsuitable. Rather, he does so because he believes that
most gay people (whether male or female) have some quality that makes them
undesirable for the position, and that because this applicant is gay, he must also
possess that trait. Although that is certainly stereotyping, and invidiously so, it
does not stereotype a group protected by Title VII, and is therefore not (yet)
illegal.
But as the majority correctly points out, that is not the only way in which
stereotyping can be an obstacle to protected classes of people in the workplace.
The stereotyping discussed above involves beliefs about how members of a
particular protected category are, but there are also stereotypes (or more simply,
beliefs) about how members of that group should be. In the case of sex
discrimination in particular, stereotypes about how women ought to look or
behave can create a double bind. For example, a woman who is perceived
through the lens of a certain “feminine” stereotype may be assumed to be
49
insufficiently assertive for certain positions by contrast to men who, viewed
through the lens of a “masculine” stereotype, are presumed more likely to excel
in situations that demand assertiveness. At the same time, the employer may
fault a woman who behaves as assertively as a male comparator for being too
aggressive, thereby failing to comply with societal expectations of femininity.
That is the situation that a plurality of the Supreme Court identified in
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the key case the majority relies on
for its “sex stereotyping” argument. As that opinion pointed out, “[a]n employer
who objects to aggressiveness in women but whose positions require this trait
places women in an intolerable and impermissible catch 22: out of a job if they
behave aggressively and out of a job if they do not. Title VII lifts women out of
this bind.” Id. at 251. The two horns of the dilemma described in Price Waterhouse
have slightly different, yet equally problematic, sexist foundations: a female
employee or applicant may be prejudiced by a negative assumption that women
aren’t or can’t be sufficiently dominant for a position that requires leadership or
strength or aggression, but when a woman unquestionably does show the
putatively desired traits, she is held back because of the different but related
notion that women shouldn’t be aggressive or dominant. The latter is not an
50
assumption about how most women are, it is a normative belief about how all
women should be.
I fully accept the conclusion that that kind of discrimination is prohibited,
and that it imposes different conditions of employment on men and on women.
Not only does such discrimination require women to behave differently in the
workplace than men, but it also actively deters women from engaging in kinds of
behavior that are required for advancement to certain positions, and thus
effectively bars them from such advancement. The key element here is that one
sex is systematically disadvantaged in a particular workplace. In that
circumstance, sexual stereotyping is sex discrimination.26
But as Judge Sykes points out in her Hively dissent, the homophobic
employer is not deploying a stereotype about men or about women to the
disadvantage of either sex. Such an employer is expressing disapproval of the
behavior or identity of a class of people that includes both men and women. 853
F.3d at 370. That disapproval does not stem from a desire to discriminate against
26
The same type of discrimination could affect men in a job environment in which
stereotypically “feminine” traits such as empathy are required. On the authority of Price
Waterhouse, Title VII would prohibit an employer from discriminating against male social
workers in hiring or promotion either based on a stereotypical assumption that men are in
general insufficiently caring or because of a prejudice against men who do display such
putatively feminine qualities.
51
either sex, nor does it result from any sex-specific stereotype, nor does it
differentially harm either men or women vis-à-vis the other sex. Rather, it results
from a distinct type of objection to anyone, of whatever gender, who is identified
as homosexual. The belief on which it rests is not a belief about what men or
women ought to be or do; it is a belief about what all people ought to be or do —
to be heterosexual, and to have sexual attraction to or relations with only
members of the opposite sex. That does not make workplace discrimination
based on this belief better or worse than other kinds of discrimination, but it does
make it something different from sex discrimination, and therefore something
that is not prohibited by Title VII.
B
The “associational discrimination” theory is no more persuasive. That
theory rests on cases involving race discrimination.27 Many courts have found
that Title VII prohibits discrimination in cases in which, as in our case of Holcomb
v. Iona College, 521 F.3d 130 (2d Cir. 2008), a white plaintiff alleged that he was
fired because he was married to a person of a different race.
It would require absolute blindness to the history of racial discrimination
27
Other than the Seventh Circuit’s decision in Hively, 853 F.3d at 347–49, no federal
appellate court has applied this theory outside of the context of racial discrimination cases.
52
in this country not to understand what is at stake in such cases, and why such
allegations unmistakably state a claim of discrimination against an individual
employee on the basis of race. Anti-miscegenation laws constituted a bulwark of
the structure of institutional racism that is the paradigm of invidious
discrimination in this country. African-Americans were condemned first to
slavery, and then to second-class citizenship and virtual apartheid, on the basis of
an ideology that regarded them as inferior. Such an ideology is incompatible with
fraternization, let alone marriage and reproduction, between African-Americans
and whites. A prohibition on “race-mixing” was thus grounded in bigotry
against a particular race and was an integral part of preserving the rigid
hierarchical distinction that denominated members of the black race as inferior to
whites.
Thus, as the Supreme Court noted in striking down Virginia’s law
prohibiting marriage between a white person and a person of color, the Supreme
Court of Virginia had upheld the statute because Virginia defined its “legitimate”
purposes as “‘preserv[ing] the racial integrity of [the state’s] citizens,’ and []
prevent[ing] ‘the corruption of blood,’ ‘a mongrel breed of citizens,’ and ‘the
obliteration of racial pride,’” purposes the Court correctly identified and rejected
53
as “obviously an endorsement of the doctrine of White Supremacy.” Loving v.
Virginia, 388 U.S. 1, 7 (1967), quoting Naim v. Naim, 87 S.E.2d 749, 756 (Va. 1955).
The racist hostility to “race-mixing” extended well beyond a prohibition against
interracial marriage. The beatings of “freedom riders” attempting to integrate
interstate bus lines in the South in the early 1960s, inflicted on white as well as
black participants in the protests, demonstrated that racial bigotry against
African-Americans manifested itself in direct attacks not only on African-
Americans, but also on whites who associated with African-Americans as equals.
The entire system of “separate but equal” segregation in both state-owned and
private facilities and places of public accommodation was designed, as Charles
Black made plain in a classic deconstruction of the legal fiction of “separate but
equal,” to confine black people to “a position of inferiority.” Charles Black, The
Lawfulness of the Segregation Decision, 69 Yale L.J. 421, 424 (1960). Thus, the
associational discrimination reflected in cases such as Loving and Holcomb was a
product of bigotry against a single race by another. That discrimination is
expressly prohibited in employment by Title VII.
Workplace equality for racial minorities is thus blatantly incompatible with
a practice that ostracizes, demeans, or inflicts adverse conditions on white
54
employees for marrying, dating, or otherwise associating with, people of color.
The prohibition of that kind of discrimination is not simply a matter of noting
that, in order to effectuate it, the employer must identify the races of the
employee and the person(s) with whom he or she associates. Just as sexual
harassment against female employees presents a serious obstacle to the full and
equal participation of women in the workplace, discrimination against members
of a favored race who so much as associate with persons of another race reflects a
deep-seated bigotry against the disfavored race(s) that Title VII undertakes to
banish from the workplace. The principle was well stated by the Sixth Circuit in a
case cited by the majority, Barrett v. Whirlpool Corporation:
Title VII protects individuals who, though not members
of a protected class, are victims of discriminatory
animus toward protected third persons with whom the
individuals associate.
556 F.3d 502, 512 (6th Cir. 2009) (internal quotation marks and brackets
omitted).28
28
The majority quotes this passage from Barrett, italicizing “protected class,” in an effort
to suggest that the Sixth Circuit, like the Seventh, has applied this principle to sex
discrimination. Maj. Op. at 50. It has not. Barrett was a race discrimination case. To the extent
that the formulation used could be read to extend beyond race, it is dictum. As will be made
clear momentarily, it is not dictum to which I object, but it is one that, properly understood, has
no application to the present case.
55
Discrimination on the basis of sexual orientation, however, is not
discrimination of the sort at issue in Holcomb and Barrett. In those cases, the
plaintiffs alleged that they were discriminated against because the employer was
biased — that is, had a “discriminatory animus” — against members of the race with
whom the plaintiffs associated. There is no allegation in this case, nor could there
plausibly be, that the defendant discriminated against Zarda because it had
something against men, and therefore discriminated not only against men, but
also against anyone, male or female, who associated with them. I have no trouble
assuming that the principle of Holcomb and Barrett applies beyond the category of
race discrimination: an employer who fired or refused to promote an Anglo-
American, Christian employee because she associated with Latinos or Jews
would presumably run afoul of that principle just as much as one whose animus
ran against black Americans. Such an employer would clearly be discriminating
against the employee on the basis of her friends’ ethnicity or religion — in the
formulation from the Barrett opinion, that employer would be victimizing an
employee out of “discriminatory animus toward protected third persons with
whom the [employee] associate[d].” 556 F.3d at 512 (internal quotation marksand
56
alterations omitted).29
It is more difficult to imagine realistic hypotheticals in which an employer
discriminated against anyone who so much as associated with men or with
women, though I suppose academic examples of such behavior could be
conjured. But whatever such a case might look like, discrimination against gay
people is not it. Discrimination against gay men, for example, plainly is not
rooted in animus toward “protected third persons with whom [they] associate.”
Id., 556 F.3d at 512. An employer who practices such discrimination is hostile to
gay men, not to men in general; the animus runs not, as in the race and religion
cases discussed above, against a “protected group” to which the employee’s
associates belong, but against an (alas) unprotected group to which they belong:
other gay men.30
The majority tries to rebut this straightforward distinction in various ways.
First, it notes — but declines to rely on — academic “research suggesting that
29
Furthermore, the principle that prohibitions against discrimination equally protect
members of the socially dominant group in situations in which they are victims of
discrimination would apply the same rule to a Jewish or black employer who discriminated
against Jewish or black employees who married or associated with Christians or whites.
30
The majority twits “[c]ertain amici” for failing to offer “empirical support” for a
comparable assertion. Maj. Op. at 54. I doubt that a fair-minded reader needs any for the
proposition I have stated.
57
sexual orientation discrimination has deep misogynistic roots.” Maj. Op. at 54. It
is certainly plausible to me that the “deep roots” of hostility to homosexuals are
in some way related to the same sorts of beliefs about the proper roles of men
and women in family life that underlie at least some employment discrimination
against women. See, e.g., Andrew Koppelman, Why Discrimination Against
Lesbians and Gay Men Is Sex Discrimination, 69 N.Y.U. L. Rev. 197, 234 (1994)
(noting that “[i]t should be clear from ordinary experience that the stigmatization
of the homosexual has something to do with the homosexual’s supposed deviance
from traditional sex roles”) (emphasis in original). It may also be that the “roots”
of all forms of discrimination against people who are different in some way from
a socially defined dominant group can be found in similar psychological
processes of discomfort with change or difference, or with “authoritarian
personality traits”31 — or that there are other links among different forms of
prejudice. And it can plausibly be argued that homosexual men have historically
been derided because they were seen as abdicating their masculinity, and
therefore the advantage they have over women. See, e.g., Joseph H. Pleck, Men’s
31
Sociologists have theorized that individuals with authoritarian personalities are most
likely to be prejudiced against marginalized groups because they are rigid thinkers who obey
authority, see the world as black and white, and enforce strict adherence to social hierarchies.
Theodor W. Adorno et al., The Authoritarian Personality 228 (1st ed. 1950).
58
Power with Women, Other Men, and Society: A Men’s Movement Analysis, in The
American Man 417, 424 (Elizabeth H. Pleck & Joseph H. Pleck eds., 1980).
But the majority is right not to go searching for such roots, whatever they
might be, because legislation is not typically concerned, and Title VII manifestly
is not concerned, with defining and eliminating the “deep roots” of biased
attitudes. Congress legislates against concrete behavior that represents a
perceived social problem. Title VII does not prohibit “misogyny” or “sexism,”
nor does it undertake to revise individuals’ ideas (religious or secular) about how
families are best structured. Rather, it prohibits overt acts: discrimination in
hiring, promotion, and the terms and conditions of employment based on sex.32
Similarly, states, like those in our Circuit, that have prohibited discrimination
based on sexual orientation do not seek to eradicate disapproval of homosexual
practices (whether rooted in religious belief or misogyny or some other theory, or
caused by some conditioned or other visceral reaction). People may believe what
they like, but they may not discriminate in employment against those whose
32
This is not to deny that such legislation may be supported in part by the hope that
once individuals from different backgrounds have occasion to interact with one another, they
will see beyond stereotypes and preconceived notions about how an entire class of people “is,”
and the ignorance and bigotry that initially motivated discrimination will be lessened. But any
such purpose cannot warrant extending the categories of discrimination that Congress has
outlawed to any other category that shares similar “roots” to prohibited practices.
59
characteristics or behaviors place them within the ambit of a protected category.
Unlike those states, though, Congress has not enacted such a prohibition, and the
fact that some of us believe that sexual orientation discrimination is unfair for
much the same reasons that we disapprove of sex discrimination does not change
that reality.
Second, the majority suggests that my analysis of associational
discrimination is “squarely foreclosed by” cases like Oncale. Maj. Op. at 55. It is
not. As noted above, I do not maintain that Title VII prohibits only those practices
that its framers might have been principally concerned with, or only what was
“traditionally,” id., seen as sex discrimination. To reiterate: sexual harassment
plays a large role in hindering women’s entry into, and advancement in, the
workplace, and thus it is no surprise that courts have interpreted Title VII to
prohibit it. And because Title VII protects both men and women from such
practices, it does not matter whether the victim is male or female. Sexual
harassment in the workplace quite literally imposes conditions of employment on
one sex that are not imposed on the other, and it does not matter whether the
employer who perpetrates such discriminatory disadvantage is male or female,
or of the same or different sex than the employee. The victim of discrimination in
60
such situations is selected by his or her sex, and the disadvantage is imposed on
him or her by reason of his or her membership in the protected class. It is not a
question of what is “traditionally conceptualized as sexism.” Maj. Op. at 55. It is a
question of the public meaning of the words adopted by Congress in light of the
social problem it was addressing when it chose those words.
C
In the end, perhaps all of these arguments, on both sides, boil down to a
disagreement about how discrimination on the basis of sexual orientation should
be conceptualized. Whether based on linguistic arguments or associational
theories or notions of stereotyping, the majority’s arguments attempt to draw
theoretical links between one kind of discrimination and another: to find ways to
reconceptualize discrimination on the basis of sexual orientation as
discrimination on the basis of sex. It is hard to believe that there would be much
appetite for this kind of recharacterization if the law expressly prohibited sexual
orientation discrimination, or that any opponent of sexual orientation
discrimination would oppose the addition of sexual orientation to the list of
protected characteristics in Title VII on the ground that to do so would be
redundant or would express a misunderstanding of the nature of discrimination
61
against men and women who are gay. I believe that the vast majority of people in
our society — both those who are hostile to homosexuals and those who deplore
such hostility — understand bias against or disapproval of those who are
sexually attracted to persons of their own sex as a distinct type of prejudice, and
not as merely a form of discrimination against either men or women on the basis
of sex.
The majority asserts that discrimination against gay people is nothing more
than a subspecies of discrimination against one or the other gender.
Discrimination against gay men and lesbians is wrong, however, because it
denies the dignity and equality of gay men and lesbians, and not because, in a
purely formal sense, it can be said to treat men differently from women. It is
understandable that those who seek to achieve legal protection for gay people
victimized by discrimination search for innovative arguments to classify
workplace bias against gays as a form of discrimination that is already prohibited
by federal law. But the arguments advanced by the majority ignore the evident
meaning of the language of Title VII, the social realities that distinguish between
the kinds of biases that the statute sought to exclude from the workplace from
those it did not, and the distinctive nature of anti-gay prejudice. Accordingly,
62
much as I might wish it were otherwise, I must conclude that those arguments
fail.
IV
The law with respect to the rights of gay people has advanced considerably
since 1964. Much of that development has been by state legislation. As noted
above, for example, twenty-two states now prohibit, by explicit legislative
pronouncement, employment discrimination on the basis of sexual orientation.
See supra note 21. But other advances have come by means of Supreme Court
decisions interpreting the Constitution. Perhaps the most striking advance, from
the vantage of the early 1960s, has been the legalization of same-sex marriage as a
matter of constitutional law.33
Nothing that I have said in this opinion should be interpreted as
expressing any disagreement with the line of cases running from Lawrence v.
Texas, 539 U.S. 558 (2003) (invalidating criminal prohibitions of consensual sexual
relations between members of the same sex), through Obergefell v. Hodges, – U.S.
–, 135 S. Ct. 2584 (2015) (holding that persons of the same sex have a
33
Both the majority, see Maj. Op. at 66–67 n.33, and Judge Sack, see Concurring Op. of
Sack, J., at 1, cite these dramatic, and to me welcome, changes in the law. But these changes,
both legislative and constitutional, stem from changes in social attitudes toward gay people,
not from any change in, or improved understanding of, the meaning of “sex discrimination.”
63
constitutional right to marry). But those cases provide no support for the
plaintiff’s position in this case, or for the method of interpretation utilized by the
majority.
For one thing, it is noteworthy that none of the Supreme Court’s landmark
constitutional decisions upholding the rights of gay Americans depend on the
argument that laws disadvantaging homosexuals constitute merely a species of
the denial of equal protection of the laws on the basis of gender, or attempt to
assimilate discrimination against gay people to the kinds of sex discrimination
that were found to violate equal protection in cases like Frontiero v. Richardson,
411 U.S. 677 (1973), Craig v. Boren, 429 U.S. 190 (1976), and Orr v. Orr, 440 U.S. 268
(1979), in the 1970s.34 Instead, the Court’s gay rights cases were based on the
guarantee of “liberty” embodied in the Fourteenth Amendment.
There is also a more fundamental difference. The Supreme Court’s
decisions in this area are based on the Constitution of the United States, rather
than a specific statute, and the role of the courts in interpreting the Constitution
34
That is particularly noteworthy given that one of the pioneering academic assertions
of a right to same-sex marriage argued that the prohibition of discrimination based on sex in
the Equal Rights Amendment (then before the states for ratification) would invalidate laws
prohibiting same-sex marriage. Note, The Legality of Homosexual Marriage, 82 Yale L.J. 573,
583–88 (1973).
64
is distinctively different from their role in interpreting acts of Congress. There are
several reasons for this.
First, the entire point of the Constitution is to delimit the powers that have
been granted by the people to their government. Our Constitution creates a
republican form of government, in which the democratically elected
representatives of the majority of the people are granted the power to set policy.
But the powers of those representatives are constrained by a written text, which
prevents a popular majority — both in the federal Congress and, since the Civil
War Amendments, in state legislatures — from violating certain fundamental
rights. As every law student reads in his or her first-year constitutional law class,
“[t]he powers of the legislature are defined and limited; and that those limits may
not be mistaken, or forgotten, the constitution is written.” Marbury v. Madison, 1
Cranch 137, 176 (1803). To the extent that the courts exercise a non-democratic or
counter-majoritarian power, they do so in the name of those rights. See City of
Richmond v. J.A. Croson Co., 488 U.S. 469, 495 (1989) (quoting United States v.
Carolene Products, 304 U.S. 144, 153 n.4 (1938) to explain that “one aspect of the
judiciary’s role under the Equal Protection Clause is to protect ‘discrete and
insular minorities’ from majoritarian prejudice or indifference”). Particular
65
exercises of that power, including the gay rights decisions of this new
millennium, may be controversial, and fierce disagreements exist over the
legitimacy of various methods of constitutional interpretation. And it is not
controversial that the power to assess the constitutionality of legislation must be
exercised with restraint, and with a due deference to the judgments of elected
officials who themselves have taken an oath to defend the Constitution. But it has
long been generally accepted that the courts have a special role to play in
defending the liberties enshrined in the Constitution against encroachment even
by the people’s elected representatives. See City of Boerne v. Flores, 521 U.S. 507,
536 (1997) (explaining that “Congress’ discretion [to enact legislation] is not
unlimited, however, and the courts retain the power, as they have since Marbury
v. Madison, to determine if Congress has exceeded its authority under the
Constitution”).
Within the limits imposed by constitutional principles, however, the will of
the majority, as expressed in legislation adopted by the people’s representatives,
governs. As the Supreme Court has instructed, the role of courts with respect to
statutes is simply “to apply the statute as it is written — even if we think some
other approach might accord with good policy.” Sandifer v. U.S. Steel Corp., – U.S.
66
–, 134 S. Ct. 870, 878 (2014), quoting Burrage v. United States, – U.S. –, 134 S. Ct.
881, 892 (2014). Just last Term, a unanimous Supreme Court foreclosed judicial
efforts to “update” statutes, declaring that, although “reasonable people can
disagree” whether, following the passage of time, “Congress should reenter the
field and alter the judgments it made in the past[,] . . . the proper role of the
judiciary in that process . . . [is] to apply, not amend, the work of the People’s
representatives.” Henson v. Santander Consumer USA Inc., – U.S. –, 137 S. Ct. 1718,
1725–26 (2017). In interpreting statutes, courts must not merely show deference
or restraint; their obligation is to do their best to understand, in a socially and
politically realistic way, what decisions the democratic branches of government
have embodied in the language they voted for (and what they have not), and to
interpret statutes accordingly in deciding cases.
Second, the rights conferred by the Constitution are written in broad
language. As the great Chief Justice Marshall commented, our Constitution is
“one of enumeration, and not of definition.” Gibbons v. Ogden, 22 U.S. 1, 72 (1824).
Examples are easily cited: The Constitution does not contain a list of specific
punishments that are too cruel to be imposed; it prohibits, in general language,
“cruel and unusual punishments.” U.S. Const. amend. VIII. It does not enact a
67
code of police procedure that explains exactly what kinds of searches the police
may conduct, under what particular circumstances; it prohibits “unreasonable
searches and seizures.” U.S. Const. amend. IV. It does not, as relevant here,
identify particular types of discriminatory actions by state governments that it
undertakes to forbid; it demands that those governments provide to all people
within our borders “the equal protection of the laws.” U.S. Const. amend. XIV.
Legislation, in contrast, can and often does set policy in minute detail. It
does not necessarily concern itself with deep general principles. Rather,
legislators are entitled to pick and choose which problems to address, and how
far to go in addressing them. Within the limits of constitutional guarantees,
Congress is given “wide latitude” to legislate, City of Boerne, 521 U.S. at 520, but
courts must struggle to define those limits by giving coherent meaning to broad
constitutional principles. The majestic guarantee of equal protection in the
Fourteenth Amendment is a very different kind of pronouncement than the
prohibition, in Title VII, of specific kinds of discrimination, by a specified subset
of employers, based on clearly defined categories. The language of the
Constitution thus allows a broader scope for interpretation.
Third, and following in part from above, the Constitution requires some
68
flexibility of interpretation, because it is intended to endure; it was deliberately
designed to be difficult to amend.35 It is difficult to amend because the framers
believed that certain principles were foundational and, for practical purposes, all
but eternal, and should not be subject to the political winds of the moment. A
constitution is, to quote Chief Justice Marshall yet again,“framed for ages to
come, and is designed to approach immortality as nearly as human institutions
can approach it.” Cohens v. State of Virginia, 19 U.S. 264, 387 (1821). The choice of
broad language reflects the framers’ goal: they did not choose to prohibit “cruel
and unusual punishments,” rather than listing prohibited punishments, simply to
save space, on the assumption that future courts could consult extra-
constitutional sources to identify what particular penalties they had in mind; they
did so in order to enshrine a general principle, leaving its instantiation and
elaboration to future interpreters.
Those enduring principles would not, could not, endure if they were
incapable of adaptation — at times via judicial interpretation — to new social
circumstances, as well as new understandings of old problems. That idea is not
35
Scholars have noted that an exceedingly small fraction of the population could
conceivably block ratification of a constitutional amendment, despite overwhelming majority
support for such an amendment. See, e.g., Akhil Reed Amar, Philadelphia Revisited: Amending the
Constitution Outside Article V, 55 U. Chi. L. Rev. 1043, 1060 (1988).
69
new. In 1910, the Supreme Court wrote, in the context of the Eighth Amendment,
that “[t]ime works changes, brings into existence new conditions and purposes.
Therefore a principle, to be vital, must be capable of wider application than the
mischief which gave it birth. This is peculiarly true of constitutions.” Weems v.
United States, 217 U.S. 349, 373 (1910). More recently, in Obergefell, the Court
noted that “in interpreting the Equal Protection Clause, the Court has recognized
that new insights and societal understandings can reveal unjustified inequality
within our most fundamental institutions that once passed unnoticed and
unchallenged.” 135 S. Ct. at 2603.
Legislation, on the other hand, is not intended to last forever. It must be
consistent with constitutional principles, and ideally it will be inspired by a
principled concept of ordered liberty. But it nevertheless remains the domain of
practical political compromise. Congress and the state legislatures are in frequent
session, and are capable — notwithstanding criticisms of “gridlock” and praise of
“checks and balances” — of acting to repeal, extend, or modify prior enactments.
In interpreting the Constitution, courts speak to the ages; in interpreting
legislation, federal courts speak to — and essentially for — Congress, which can
always correct our mistakes, or revise legislation in light of changing political and
70
social realities.
Finally, the Constitution, as noted above, is designed, with very limited
exceptions,36 to govern the government. The commands of equal protection and
respect for liberties that can only be denied by due process of law tell us how a
government must behave when it regulates the people who created it.
Legislation, however, generally governs the people themselves, in their relation
with each other.
The question of how the government, acting at the behest of a possibly
temporary political majority, is permitted to treat the people it governs, is a
different question, and is answered by reference to different principles, than the
question of what obligations should be imposed on private citizens. The former
question must ultimately be answered by courts under the principles adopted in
the Constitution. The latter is entrusted primarily to the legislative process.
Courts interpreting statutes are not in the business of imposing on private actors
new rules that have not been embodied in legislative decision. It is for that reason
36
A significant exception is the Thirteenth Amendment, which “[b]y its own unaided
force . . . abolished slavery, and established universal freedom.” Civil Rights Cases, 109 U.S. 3, 20
(1883); see Jones v. Alfred H. Mayer Co., 392 U.S. 409, 437–44 (1968) (explaining that the
Amendment reaches, and authorizes Congress to reach in implementing legislation, private
conduct).
71
that segregation in public facilities was struck down by constitutional command,
long before segregation of private facilities was prohibited by federal legislation
adopted by Congress. Whether or not the Fifth and Fourteenth Amendments
have something to say about whether the state and federal governments may
discriminate in employment against gay Americans — a question that is not
before us, and about which I express no view — it is the prerogative of Congress
or a state legislature to decide whether private employers may do so.
In its amicus submission, the EEOC quite reasonably asks whether it is just
that a gay employee can be married on Sunday, and fired on Monday —
discriminated against at his or her job for exercising a right that is protected by
the Constitution. Brief of the Equal Employment Opportunity Commission as
Amicus Curiae 22.37 I would answer that it is not just. But at the same time, I
recognize that the law does not prohibit every injustice. The Constitution protects
the liberty of gay people to marry against deprivation by their government, but it
does not promise freedom from discrimination by their fellow citizens. That is
hardly a novel proposition: absent Title VII, the same injustice could have been
inflicted on the Lovings themselves. The Constitution protected them against
37
The majority notes the same “paradox.” Maj. Op. at 66–67 n.33.
72
governmental discrimination, but (except for specific vestiges of slavery prohibited
by the Thirteenth Amendment) only an act of Congress can prohibit one
individual from discriminating against another in housing, public
accommodations, and employment. It is well to remember that whether to
prohibit race and sex discrimination was a controversial political question in
1964. Imposing an obligation on private employers to treat women and
minorities fairly required political organizing and a political fight.
At the end of the day, to paraphrase Chief Justice Marshall, in interpreting
statutes we must never forget that it is not a Constitution we are expounding. Cf.
M’Culloch v. Maryland, 17 U.S. 316, 407 (1819). When interpreting an act of
Congress, we need to respect the choices made by Congress about which social
problems to address, and how to address them. In 1964, Congress — belatedly —
prohibited employment discrimination based on race, sex, religion, ethnicity, and
national origin. Many states have similarly recognized the injustice of
discrimination on the basis of sexual orientation. In doing so, they have called
such discrimination by its right name, and taken a firm and explicit stand against
it. I hope that one day soon Congress will join them, and adopt that principle on
a national basis. But it has not done so yet.
73
For these reasons, I respectfully, and regretfully, dissent.38
38
For the record, I note that I fully agree with the majority’s discussion of our
jurisdiction, Maj. Op. at 14–17.
74
DEBRA ANN LIVINGSTON, Circuit Judge, dissenting:
I dissent for substantially the reasons set forth in Sections I, II, and III of Judge
Lynch’s opinion, and I join in those sections. I share in the commitment that all
individuals in the workplace be treated fairly, and that individuals not be subject to
workplace discrimination on the basis of their sexual orientation, just as on the basis
of their “race, color, religion, sex, [and] national origin.” I cannot conclude,
however, as the majority does, that sexual orientation discrimination is a “subset”
of sex discrimination, Maj. Op. at 20–21, 24 n.10, 37, 38, et passim, and is therefore
included among the prohibited grounds of workplace discrimination listed in Title
VII.1
The majority’s efforts founder on the simple question of how a reasonable
reader, competent in the language and its use, would have understood Title VII’s
text when it was written – on the question of its public meaning at the time of
enactment. The majority acknowledges the argument “that it is not ‘even remotely
plausible that in 1964, when Title VII was adopted, a reasonable person competent
in the English language would have understood that a law banning employment
1
In relevant part, Title VII renders it an unlawful employment practice “to discriminate
against any individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C.
§ 2000e-2(a)(1).
discrimination ‘because of sex’ also banned discrimination because of sexual
orientation.’” Id. at 24 (citation omitted). It does not contest the point, however, but
seeks merely to justify its departure from ordinary, contemporary meaning by
claiming that “[e]ven if that [is] so,” its approach no more departs from the ordinary
meaning of words in their contemporary context than supposedly occurred when
sexual harassment and hostile work environment claims were first recognized by
courts. Id. at 24–25. But as Judge Lynch has cogently explained, that is simply not
the case. Dissenting Op. at 19–26. The majority does not discover a “plain” yet
hidden meaning in Title VII, sufficiently obscure as to wholly elude every appellate
court, including this one, until the Seventh Circuit’s decision in Hively v. Ivy Tech
Cmty. Coll. of Ind., 853 F.3d 339 (7th Cir. 2017) (en banc), last year. Instead, it sub
silentio abandons our usual approach to statutory interpretation. See, e.g., Sandifer
v. U.S. Steel Corp., – U.S. –, 134 S. Ct. 870, 876 (2014) (noting the “‘fundamental canon
of statutory construction’ that, ‘unless otherwise defined, words will be interpreted
as taking their ordinary, contemporary, common meaning’” (quoting Perrin v. United
States, 444 U.S. 37, 42 (1979))); Bilski v. Kappos, 561 U.S. 593, 603 (2010) (quoting Perrin
and applying the same canon of statutory interpretation); Diamond v. Diehr, 450 U.S.
175, 182 (1981) (same).
2
Because Sections I, II, and III of Judge Lynch’s dissent are sufficient to answer
the statutory question that this case presents, I do not go further to address the
subject of constitutional interpretation, and do not join in Section IV. I agree with
Judge Lynch, however, that constitutional and statutory interpretation should not
be confused: that while courts sometimes may be called upon to play a special role
in defending constitutional liberties against encroachment by government, in
statutory interpretation, courts “are not in the business of imposing on private actors
new rules that have not been embodied in legislative decision.” Dissenting Op. at
65. To do so chips away at the democratic and rule-of-law principles on which our
system of governance is founded – the very principles we rely on to secure the
legitimacy and the efficacy of our laws, including antidiscrimination legislation.2
The Supreme Court said unanimously, just last Term, that the proper role of
the judiciary in statutory interpretation is “to apply, not amend, the work of the
People’s representatives,” even when reasonable people might believe that
“Congress should reenter the field and alter the judgments it made in the past.”
2
Notably, all three states in this Circuit have prohibited workplace discrimination on the
basis of sexual orientation, as have nineteen other states and the District of Columbia, all through
legislation, and not judicial reinterpretation of existing prohibitions on sex discrimination. Under
New York law, Zarda was thus able to present his claim that he was subject to workplace
discrimination on the basis of his sexual orientation to a jury. The jury decided in favor of his
former employer, Altitude Express.
3
Henson v. Santander Consumer USA Inc., – U.S. –, 137 S. Ct. 1718, 1725–26 (2017). “[I]t
is for Congress, not the courts, to write the law,” Stanard v. Olesen, 74 S. Ct. 768, 771
(1954), and where “Congress’ . . . decisions are mistaken as a matter of policy, it is
for Congress to change them. We should not legislate for them[,]” Herb’s Welding,
Inc. v. Gray, 470 U.S. 414, 427 (1985) (citing Victory Carriers, Inc v. Law, 404 U.S. 202,
216 (1971)).
This hornbook separation-of-powers principle and the reasons behind it need
not be elaborated here, for both should be well known to every law student. See The
Federalist No. 47, at 251–52 (James Madison) (Carey & McClellan eds., 2001) (quoting
Montesquieu to the effect that “were the power of judging joined with the
legislative, the life and liberty of the subject would be exposed to arbitrary control,
for the judge would then be the legislator”); see also I.N.S. v. Chadha, 462 U.S. 919, 951
(1983) (noting that “hydraulic pressure inherent within each of the separate
Branches to exceed the outer limits of its power, even to accomplish desirable
objectives, must be resisted”). Together, they explain why judges interpreting
statutes do their best to discern the ordinary, contemporary, common meaning of
the statute’s language. This is the law that was enacted through the democratic
process, and the law we are to apply.
4
This approach does not always yield results that satisfy the judge charged
with the task of statutory interpretation. It has not done so today. But I cannot
faithfully join in the majority’s opinion. I agree with Judge Lynch that when Title
VII was written and, indeed, today, “bias against or disapproval of those who are
sexually attracted to persons of their own sex” was and is viewed “as a distinct type
of prejudice,” and not as a subcategory of “discrimination against either men or
women on the basis of sex.” Dissenting Op. at 56. Accordingly, and agreeing with
him that in interpreting an act of Congress, we must “respect the choices made by
Congress about which social problems to address, and how to address them,” id. at
66, I respectfully dissent.
5
REENA RAGGI, Circuit Judge, dissenting:
A majority of the court today extends Title VII’s prohibition of employment
discrimination “because of . . . sex,” 42 U.S.C. § 2000e‐2(a)(1), to discrimination
based on sexual orientation. I respectfully dissent substantially for the reasons
stated by Judge Lynch in Parts I, II, and III of his dissenting opinion and by Judge
Livingston in her dissenting opinion.