DOJ files brief: Title VII does not protect sexual orientation

The Department of Justice filed an amicus brief late Wednesday stating that Title VII of the Civil Rights Act of 1964 does not cover employment “discrimination based on sexual orientation.” Jeff Sessions’ Justice Department (DOJ) filed the brief in the case of Donald Zarda.

Zarda had filed suit against his former employer, Altitude Express, in a case that challenges whether sexual orientation is implied in Title VII which prohibits employment discrimination based on race, color, religion, sex and national origin.

Zarda claimed he was fired from his job as a skydiving instructor after telling a customer about his own sexual orientation. However, Zarda was not alive when the trial started — he died in a skydiving accident. Even so, the executors of his estate moved forward with the lawsuit.

The DOJ brief claims the question is whether Title VII reaches sexual orientation discrimination.

The brief concluded “that Title VII does not prohibit discrimination because of sexual orientation.”

The ACLU slammed the DOJ’s brief as a “gratuitous and extraordinary attack on LGBT people’s civil rights.”

“Fortunately, courts will decide whether the Civil Rights Act protects LGBT people, not an Attorney General and a White House that are hell-bent on playing politics with people’s lives,” said James Esseks, director of the ACLU’s LGBT & HIV Project, in a statement. “We are confident that the courts will side with equality and the people.”

Below is a copy of the brief:

INTRODUCTION AND INTEREST OF THE UNITED STATES

The United States files this amicus brief pursuant to 28 U.S.C. 517 and Federal
Rule of Appellate Procedure 29(a). This case presents the question whether, under
Title VII of the Civil Rights Act of 1964, the statute’s prohibitions on employment
discrimination because of sex include discrimination because of sexual orientation.
The United States, through the Attorney General, enforces Title VII against
state or local government employers, 42 U.S.C. 2000e-5(f)(1), and the United States is
also subject to Title VII in its capacity as the Nation’s largest employer. 42 U.S.C.
2000e-16. The United States thus has a substantial and unique interest in the proper
interpretation of Title VII. Although the Equal Employment Opportunity
Commission (EEOC) enforces Title VII against private employers, 42 U.S.C. 2000e-
5(f)(1), and it has filed an amicus brief in support of the employee here, the EEOC is
not speaking for the United States and its position about the scope of Title VII is
entitled to no deference beyond its power to persuade. EEOC v. Arabian Am. Oil Co.,
499 U.S. 244, 257-58 (1991).

The United States submits that the en banc Court should reaffirm its settled
precedent holding, consistent with the longstanding position of the Department of
Justice, that Title VII does not reach discrimination based on sexual orientation.
Unlike the recent, contrary decision in Hively v. Ivy Tech Community College, 853 F.3d 339
(7th Cir. 2017) (en banc), this Court’s well-established position correctly reflects the
plain meaning of the statute, the overwhelming weight and reasoning of the case law,
and the clear congressional ratification of that interpretation. The question presented
is not whether, as a matter of policy, sexual orientation discrimination should be
prohibited by statute, regulations, or employer action. In fact, Congress and the
Executive Branch have prohibited such discrimination in various contexts. See, e.g., 18
U.S.C. 249(a)(2) (hate crimes); 42 U.S.C. 13925(b)(13)(A) (certain federal funding
programs); Exec. Order 13,672 (July 21, 2014) (government contracting); Exec. Order
13,087 (May 29, 1998) (federal employment); 5 C.F.R. 300.103(c) (non-performance-
related treatment under the Civil Service Reform Act, 5 U.S.C. 2302(b)(10)). The sole
question here is whether, as a matter of law, Title VII reaches sexual orientation
discrimination. It does not, as has been settled for decades. Any efforts to amend
Title VII’s scope should be directed to Congress rather than the courts.

STATUTORY BACKGROUND

Title VII of the Civil Rights Act of 1964 prohibits private employers from
discriminating against an individual “because of,” among other protected traits, “such
individual’s * * * sex.” 42 U.S.C. 2000e-2(a). In 1972, Congress extended that
prohibition to state and local government employers, see 42 U.S.C. 2000e(b), and it
also enacted a similar prohibition on discrimination against federal government
employees “based on * * * sex,” 42 U.S.C. 2000e-16(a). Congress did not define the
term “sex” when it enacted these antidiscrimination provisions. Indeed, “sex” was
added as a protected trait in a floor amendment “at the last minute” before the House
passed the 1964 bill. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 63-64 (1986).

In 1978, Congress amended Title VII’s definition of “sex.” Two years earlier,
the Supreme Court had held that Title VII’s prohibition on discrimination because of
sex did not cover an employer’s exclusion of pregnancy from coverage under a
disability-benefits plan. General Elec. Co. v. Gilbert, 429 U.S. 125, 135-40 (1976).
Congress abrogated that holding in the Pregnancy Discrimination Act by specifying
that Title VII’s prohibition on “sex” discrimination would be deemed to “include”
discrimination “because of or on the basis of pregnancy, childbirth, or related medical
conditions.” 42 U.S.C. 2000e(k). Congress did not, however, otherwise delineate the
scope of the term “sex.”

In 1991, Congress further amended Title VII. See Civil Rights Act of 1991,
Pub. L. No. 102-166, 105 Stat. 1071 (1991). As detailed below, by that time, several
courts of appeals had held that Title VII does not prohibit sexual orientation
discrimination, and no court of appeals had held otherwise. Against the backdrop of
that precedent, Congress neither added sexual orientation as a protected trait nor
defined discrimination on the basis of sex to include sexual orientation
discrimination—notwithstanding that Congress amended the provisions concerning
sex discrimination in other respects and overruled numerous other judicial precedents
with which it disagreed. In fact, every Congress from 1974 to the present has
declined to enact proposed legislation that would prohibit discrimination in
employment based on sexual orientation. See Addendum A.

ARGUMENT

I. TITLE VII’S BAR AGAINST DISCRIMINATION BECAUSE OF SEX IS NOT
VIOLATED UNLESS MEN AND WOMEN ARE TREATED UNEQUALLY
The term “sex” is not defined in Title VII, but, as Judge Sykes observed in
Hively without dispute from the majority, “[i]n common, ordinary usage in 1964—and
now, for that matter—the word ‘sex’ means biologically male or female.” 853 F.3d at
362 (dissenting op.) (citing dictionaries). As for the term “discrimination,” the
Supreme Court has held that Title VII requires a showing that an employer has
treated “similarly situated employees” of different sexes unequally. Texas Dep’t of
Community Affairs v. Burdine, 450 U.S. 248, 258-59 (1981).
Under the paradigmatic Title VII “disparate treatment” claim, “[t]he central
focus of the inquiry” is whether the employer has treated “some people less favorably
than others because of their * * * sex.” Furnco Constr. Corp. v. Waters, 438 U.S. 567,
569, 577 (1978). The requisite showing is thus that “an employer intentionally treated
a complainant less favorably than employees with the complainant’s qualifications but
outside the complainant’s protected class.” Young v. United Parcel Serv., 135 S. Ct. 1338,
1345 (2015) (emphasis added and quotation marks omitted).
Likewise, a Title VII “sexual harassment” claim may be brought, for either
opposite-sex or same-sex harassment, if and only if the harassment constitutes
“discriminat[ion] * * * because of * * * sex.” Oncale v. Sundowner Offshore Servs., Inc.,
523 U.S. 75, 80 (1998) (quoting 42 U.S.C. 2000e-2(a)(1)). Harassment is thus not “automatically
discrimination because of sex merely because the words used have
sexual content or connotations.” Id. Instead, “[t]he critical issue, Title VII’s text
indicates, is whether members of one sex are exposed to disadvantageous terms or
conditions of employment to which members of the other sex are not exposed.” Id.
(emphasis added).

So too for a claim of “sex stereotyping” under Title VII. Price Waterhouse v.
Hopkins, 490 U.S. 228, 251 (1989) (plurality op.). Although an employer cannot
“evaluate employees by assuming or insisting that they match[ ] the stereotype
associated with their group,” “[t]he plaintiff must show that the employer actually
relied on her [or his] gender in making its decision.” Id. For example, “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,” because that particular sort of “sex-based
consideration[ ]” of gender stereotypes results in “disparate treatment of men and
women.” Id. at 242, 250-51 (emphasis added); see also id. at 251 (“An 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.”).

By contrast, Title VII does not proscribe employment practices that take
account of the sex of employees but do not impose differential burdens on similarly
situated members of each sex. For example, employers necessarily consider the sex of
their employees when maintaining and enforcing sex-specific bathrooms, but that
alone does not constitute per se discriminatory treatment. Such practices do not
categorically violate Title VII because they do not discriminate between members of
one sex and “similarly situated” members of the opposite sex. See Michael M. v.
Superior Ct., 450 U.S. 464, 469 (1981) (plurality op.).

II. DISCRIMINATION BECAUSE OF SEXUAL ORIENTATION IS NOT
DISCRIMINATION BECAUSE OF SEX UNDER TITLE VII
As the Courts of Appeals and the EEOC had long interpreted Title VII until
recently, when Congress prohibited sex discrimination, it did not also prohibit sexual
orientation discrimination. And Congress has clearly ratified that interpretation of
Title VII, in repeated and varied ways.

A. Until Recently, The Courts Of Appeals And The EEOC Had
Uniformly Held That Sexual Orientation Discrimination Is Not
Prohibited Sex Discrimination Under Title VII

As the courts have long held, discrimination based on sexual orientation does
not fall within Title VII’s prohibition on sex discrimination because it does not
involve “disparate treatment of men and women.” See Price Waterhouse, 490 U.S. at
251. Rather than causing similarly situated “members of one sex [to be] exposed to
disadvantageous terms or conditions of employment [or employment actions] to
which members of the other sex are not exposed,” see Oncale, 523 U.S. at 80, it causes
differential treatment of gay and straight employees for men and women alike.

Accordingly, this Court has repeatedly held that “Title VII does not proscribe
discrimination because of sexual orientation” “[b]ecause the term ‘sex’ in Title VII
refers only to membership in a class delineated by gender.” Simonton v. Runyon,
232 F.3d 33, 36 (2d Cir. 2000); accord Dawson v. Bumble & Bumble, 398 F.3d 211, 217
(2d Cir. 2005). In Simonton, this Court rejected the plaintiff’s argument that Oncale
supports applying Title VII to sexual orientation discrimination, emphasizing that
Oncale instead had reaffirmed that “[t]he critical issue * * * ‘is whether members of
one sex are exposed to disadvantageous terms or conditions of employment to which
members of the other sex are not exposed.’” Simonton, 232 F.3d at 36 (quoting Oncale,
523 U.S. at 80). Similarly, in Dawson, this Court rejected the plaintiff’s attempt to use a
gender stereotyping claim under Price Waterhouse to “bootstrap protection for sexual
orientation into Title VII,” emphasizing that Price Waterhouse instead had reaffirmed
that the essential element is “disparate treatment of men and women.” Dawson,
398 F.3d at 218, 220-21 (quoting Price Waterhouse, 490 U.S. at 251).
Likewise, until the Seventh Circuit’s en banc decision in Hively earlier this year,
the ten other Courts of Appeals to have addressed the issue had uniformly joined this
Court in holding that Title VII’s prohibition on sex discrimination does not
encompass sexual orientation discrimination. See, e.g., Evans v. Georgia Reg’l Hosp.,
850 F.3d 1248, 1255 (11th Cir. 2017), rehearing en banc denied (July 6, 2017); Vickers v.
Fairfield Med. Ctr., 453 F.3d 757, 763 (6th Cir. 2006); Medina v. Income Support Div.,
413 F.3d 1131, 1135 (10th Cir. 2005); Hamm v. Weyauwega Milk Prods., Inc., 332 F.3d
1058, 1063 (7th Cir. 2003), overruled by Hively, supra; Bibby v. Philadelphia Coca Cola
Bottling Co., 260 F.3d 257, 261 (3d Cir. 2001); Higgins v. New Balance Athletic Shoe, Inc.,
194 F.3d 252, 259 (1st Cir. 1999); Wrightson v. Pizza Hut, 99 F.3d 138, 143 (4th Cir.
1996); Williamson v. A.G. Edwards & Sons, 876 F.2d 69, 70 (8th Cir. 1989); DeSantis v.
Pacific Tel. & Tel. Co., 608 F.2d 327, 329-30 (9th Cir. 1979), abrogated in part on other
grounds, Nichols v. Azteca Restaurant Enterpr., Inc., 256 F.3d 864, 874-75 (9th Cir. 2001);
Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979).

The EEOC also until recently had “consistently held that discrimination based
on sexual orientation is not actionable under Title VII,” including after the Supreme
Court decided Price Waterhouse and Oncale. Angle v. Veneman, EEOC Doc. 01A32644,
2004 WL 764265, at *2 (April 5, 2004); accord Marucci v. Caldera, EEOC Doc.
01982644, 2000 WL 1637387, at *2-*3 (Oct. 27, 2000); Dillon v. Frank, EEOC Doc.
01900157, 1990 WL 1111074, at *3 (Feb. 14, 1990); but see Baldwin v. Foxx, EEOC
Doc. 0120133080, 2015 WL 4397641 (July 15, 2015) (reversing course and holding
that sexual orientation discrimination is per se sex discrimination).
B. Congress Has Repeatedly Ratified The Settled Understanding
That Title VII Does Not Bar Sexual Orientation Discrimination
1. It is a well-established interpretive principle that “Congress is presumed
to be aware of an administrative or judicial interpretation of a statute and to adopt
that interpretation when it re-enacts a statute without change.” Lorillard v. Pons,
434 U.S. 575, 580 (1978); see Faragher v. City of Boca Raton, 524 U.S. 775, 792 (1998)
(“[T]he force of precedent here is enhanced by Congress’s amendment to the liability
provisions of Title VII since the Meritor decision, without providing any modification
of our holding.”).

The Supreme Court recently applied this principle in Texas Department of Housing
& Community Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507 (2015). The
Court there observed that, when Congress in 1988 amended the Fair Housing Act
(FHA), 42 U.S.C. 3601 et seq., it “was aware of th[e] unanimous precedent” of multiple
Courts of Appeals holding that the FHA authorized disparate impact claims, and
“with that understanding, [Congress] made a considered judgment to retain the
relevant statutory text.” Id. at 2519. The Court explained that, “[a]gainst this
background understanding in the legal and regulatory system, Congress’ decision in
1988 to amend the FHA while still adhering to the operative language * * * is
convincing support for the conclusion that Congress accepted and ratified” that
understanding: “[if] a word or phrase has been * * * given a uniform interpretation by
inferior courts * * *, a later version of that act perpetuating the wording is presumed
to carry forward that interpretation.” Id. at 2520. Finally, the Court found further
“confirmation of Congress’ understanding” in “the substance of the 1988
amendments,” which the Court believed “logical[ly] * * * presupposed” that disparate
impact was available under the pre-1988 version of the FAA. Id.; but see id. at 2540-41
(Alito, J., dissenting) (describing the 1988 amendments instead as “a compromise
among [three] factions”).

 

2. When Congress enacted the Civil Rights Act of 1991, supra, it ratified the
settled understanding that Title VII does not bar sexual orientation discrimination.
Compared to Inclusive Communities, the argument for ratification here is at least as
strong, if not stronger, for four reasons.

First, Congress undoubtedly “was aware of th[e] unanimous precedent” of
multiple Courts of Appeals holding that Title VII does not prohibit sexual orientation
discrimination. Inclusive Communities, 135 S. Ct. at 2519. Four Courts of Appeals had
already so held by 1991, and this Court had strongly so suggested. See Williamson,
876 F.2d at 70; Ulane v. Eastern Airlines, Inc., 742 F.2d 1081, 1085 (7th Cir. 1984);
DeSantis, 608 F.2d at 329-30; Blum, 597 F.2d at 938; see also DeCintio v. Westchester Cnty.
Med. Ctr., 807 F.2d 304, 306-07 (2d Cir. 1986) (holding that sex discrimination barred
by Title VII “must be a distinction based on a person’s sex, not on his or her sexual
affiliations”). Notably, although a few more Courts of Appeals than that had ruled at
the time of the 1988 FHA amendments, Inclusive Communities, 135 S. Ct. at 2519 (nine
overall), the interpretive question there nevertheless was far more contested, because
President Reagan expressly disagreed with all those courts when he signed the
amendments, id. at 2540-41 (Alito, J., dissenting). By contrast, when President Bush
signed the 1991 Title VII amendments, there is no indication that he disagreed with
the uniform view of the Courts of Appeals—and the EEOC, see, e.g., Dillon, 1990 WL
1111074, at *3; Tyler v. Marsh, EEOC Doc. 05890720, 1989 WL 1007268, at *1
(Aug. 10, 1989)—that the statute does not reach sexual orientation discrimination.

Second, “[a]gainst this background understanding,” Congress “amend[ed] [Title
VII] while still adhering to the operative language.” Inclusive Communities, 135 S. Ct. at
2520. Whereas Congress added new provisions that used the term “sex” in the course
of setting forth methods and burdens of proof for sex discrimination claims, it neither
included sexual orientation within the definition of sex nor added it as an
independently protected trait. See, e.g., Pub. L. No. 102-166, §§ 105-107, 105 Stat.
1071, 1074-75 (1991) (adding subsections (k)(1)(A), (l), and (m) to 42 U.S.C. 2000e-2).
Third, further “confirmation of Congress’ understanding” exists in “the
substance of the [1991] amendments.” Inclusive Communities, 135 S. Ct. at 2520.
Namely, those amendments left standing the judicial decisions that had rejected Title
VII’s application to sexual orientation discrimination while expressly abrogating
several other Title VII decisions that Congress believed had “sharply cut back on the
scope and effectiveness” of the statute. Ricci v. DeStefano, 557 U.S. 557, 624 (2009)
(quoting H.R. Rep. No. 102-40, pt. 2, at 2 (1991)). For example, Congress modified
the framework for disparate-impact claims in response to Wards Cove Packing Co. v.
Atonio, 490 U.S. 642 (1989), see 42 U.S.C. 2000e-2(k), and for mixed-motive claims in
response to Price Waterhouse, see 42 U.S.C. 2000e-2(m), 2000e-5(g)(2). Moreover, this
prompt abrogation of narrow judicial readings of Title VII followed in the footsteps
of Congress’s abrogation of the 1976 Gilbert decision in the 1978 Pregnancy
Discrimination Act. Supra at p. 3. In short, it is telling that Congress elected not to
disturb the cases holding that Title VII does not bar sexual orientation discrimination,
because Congress “has not been shy in revising other judicial constructions” of Title
VII that it has deemed unduly narrow. See General Dynamics Land Sys., Inc. v. Cline,
540 U.S. 581, 594 n.7 (2004).

Finally, the 1991 Congress also declined to enact proposed legislation that
would have expressly amended Title VII to bar discrimination based on “sex,
affectional or sexual orientation.” 137 Cong. Rec. 6162. As its sponsors themselves
recognized, the proposed legislation was necessary because sex discrimination is
different from sexual orientation discrimination and there was an “absence of Federal
laws” prohibiting the latter. 137 Cong. Rec. 5261, 6161 (statements of Sen. Cranston
and Rep. Weiss). In fact, Congress had rejected multiple prior efforts to enact such
laws. See, e.g., Ulane, 742 F.2d at 1085 & n.11.

3. After the Civil Rights Act of 1991, Congress has continued to confirm
that Title VII does not bar sexual orientation discrimination.
First, every subsequent Congress since 1991 (as well as every prior Congress
going back to 1974) has declined to enact proposed legislation that would prohibit
discrimination in employment based on sexual orientation. See Addendum A. And
Congress did so even as the number of Courts of Appeals holding that Title VII does
not reach such discrimination grew to a unanimous eleven. Supra at pp. 7-8. Such
“congressional silence after years of judicial interpretation supports adherence to the
traditional view.” Cline, 540 U.S. at 594; see also Simonton, 232 F.3d at 35 (“Although
congressional inaction subsequent to the enactment of a statute is not always a helpful
guide,” the sheer number of unsuccessful attempts to amend the statute in the face of
such a uniform body of law “is strong evidence of congressional intent.”).
Second, Congress expressly prohibited sexual orientation discrimination in
several other statutes that separately prohibit sex discrimination. See, e.g., 18 U.S.C.
249(a)(2) (enhanced penalties for crimes motivated by “gender” or “sexual
orientation”); 42 U.S.C. 13925(b)(13)(A) (no discrimination based on “sex” or “sexual
orientation” under certain federally funded programs); see also 42 U.S.C. 3716(a)(1)(C)
(federal aid to state or local investigations of crimes motivated by “gender” or “sexual
orientation”). Moreover, in each of these statutes, Congress listed “sexual
orientation” discrimination in addition to “sex” or “gender” discrimination, rather than
deeming “sexual orientation” discrimination to be “include[d]” within “sex”
discrimination, as it did for pregnancy discrimination. 42 U.S.C. 2000e(k) (emphasis
added). This demonstrates both that Congress considers “sexual orientation”
discrimination to be distinct from, rather than a subset of, “sex” or “gender”
discrimination, and also that Congress knows how to cover “sexual orientation”
discrimination separately from “sex” or “gender” discrimination when it so chooses.

Conversely, Congress expressly excluded “homosexuality” from disability
discrimination statutes that were passed in 1973 and 1990. See 29 U.S.C. 705(20)(E);
42 U.S.C. 12211(a). Given that each of these statutes was passed within a year of
amendments to Title VII’s prohibitions on sex discrimination, supra at pp. 2-3, it is
particularly implausible to interpret those prohibitions as including sexual orientation
discrimination implicitly.

4. Accordingly, this is not a situation where “statutory prohibitions often
go beyond the principal evil to cover reasonably comparable evils.” Oncale, 523 U.S.
at 79. When adopting Title VII’s ban on sex discrimination in 1964, and especially
when amending it in 1991, Congress was well aware of the distinct practice of sexual
orientation discrimination and chose not to ban it also.

To be sure, there have since been notable changes in societal and cultural
attitudes about such discrimination, but Congress has consistently declined to amend
Title VII in light of those changes, despite having been repeatedly presented with
opportunities to do so. And more fundamentally, even unforeseen circumstances do
not present courts with a license to “rewrite a constitutionally valid statutory text
under the banner of speculation about what Congress might have done” to implement
a clear statute’s policy objectives. Henson v. Santander Consumer USA Inc., 137 S. Ct.
1718, 1725 (2017). Although such an “evolution * * * might invite reasonable
disagreements on whether Congress should reenter the field and alter the judgments it
made in the past,” the Supreme Court has resoundingly reaffirmed that “the proper
role of the judiciary [is] to apply, not amend, the work of the People’s
representatives.” Id. at 1725-26.

 

III. THE THEORIES ADVANCED BY THE EEOC AND THE SEVENTH CIRCUIT
LACK MERIT, LET ALONE SUFFICIENT MERIT TO OVERCOME CONGRESS’S
RATIFICATION OF THE CONTRARY INTERPRETATION
The EEOC’s amicus brief, which is based on its decision in Baldwin, presents
three theories why sexual orientation discrimination is barred under Title VII: (1) it is
necessarily sex discrimination as it would not occur “but for” the sex of the gay
employee; (2) it is per se sex-stereotyping; and (3) it is gender-based associational
discrimination. EEOC Br. at 4; Baldwin, 2015 WL 4397641 at *5-10. The Seventh
Circuit majority in Hively largely adopted the EEOC’s theories. 853 F.3d at 343-52.
These theories are inconsistent with Congress’s clear ratification of the overwhelming
judicial consensus that Title VII does not prohibit sexual orientation discrimination.
And even viewed solely on their own terms, none of these theories is persuasive.

A. “But For” The Employee’s Sex
The EEOC and the Seventh Circuit majority contend that sexual orientation
discrimination is necessarily sex discrimination because the employer allegedly flunks
“‘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.’” EEOC Br. at 6 (quoting City of
L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702, 711 (1978)); see Hively,
853 F.3d at 345-46. For instance, they hypothesize a male employee who is
discriminated against because he has a male partner, but who would not have been
discriminated against if he were a woman with the same male partner, and they thus
conclude that such an employee would not have been discriminated against “but for”
his sex. EEOC Br. at 6; Hively, 853 F.3d at 345. This analysis commits two
fundamental errors in applying the “but for” test for sex discrimination.

First, as the Seventh Circuit dissent correctly observed, the but-for “comparison
can’t do its job of ruling in sex discrimination as the actual reason for the employer’s
decision * * * if we’re not scrupulous about holding everything constant except the
plaintiff’s sex.” Hively, 853 F.3d at 366 (Sykes, J., dissenting). The EEOC and the
Seventh Circuit majority fail to hold everything else constant because their
hypothetical changes both the employee’s sex (from male to female) and his sexual
orientation (from gay to straight). The proper comparison would be to change the
employee’s sex (from male to female) but to keep the sexual orientation constant (as
gay). In that hypothetical, the employer satisfies Manhart’s “simple test,” because the
employee would be adversely affected regardless of sex (whether as a gay man or a gay
woman).

Second, even if the EEOC and the Seventh Circuit majority were properly
applying the “but for” test, that test does not establish “disparate treatment of men
and women,” Price Waterhouse, 490 U.S. at 251, where an employer addresses a
circumstance that “the sexes are not similarly situated,” Michael M., 450 U.S. at 469.
Again, a simplistic application of the “but for” test would mean that sex-specific
bathrooms are always unlawful sex discrimination, because a man would never be
prohibited from using the women’s room if he were a woman (or vice versa). That,
of course, is not the law—an employer does not engage in sex discrimination when it
accounts for a sex-based difference without treating either sex worse than the other.
Notably, outside the context of sexual orientation discrimination, other Courts
of Appeals have rejected the mechanical use of the “but for” test urged by the EEOC
and the Seventh Circuit majority. For example, the en banc Ninth Circuit has
emphasized that it and other Circuits have “long recognized that companies may
differentiate between men and women in appearance and grooming policies” so long
as the policy “does not unreasonably burden one gender more than the other,” even
though this means that individual employees who fail to comply with the policy’s
“sex-differentiated requirements” would not have been disciplined but for their sex.
Jespersen v. Harrah’s Operating Co., Inc., 444 F.3d 1104, 1109-10 (9th Cir. 2006) (en banc).
Moreover, the Fourth Circuit recently held that an employer may use “physical fitness
standards that distinguish between the sexes on the basis of their physiological
differences but impose an equal burden of compliance on both men and women,”
because “[a] singular focus on the ‘but for’ element * * * skirts the fundamental issue
of whether those normalized requirements treat men in a different manner than
women.” Bauer v. Lynch, 812 F.3d 340, 351 (4th Cir. 2016).

In sum, an employer who discriminates based on sexual orientation alone does
not treat similarly situated employees differently but for their sex. Gay men and
women are treated the same, and straight men and women are treated the same. Of
course, if an employer fired only gay men but not gay women (or vice versa), that
would be prohibited by Title VII—but precisely because it would be discrimination
based on sex, not sexual orientation.

B. Per Se Sex-Stereotyping
The EEOC and the Seventh Circuit majority also contend that sexual
orientation discrimination necessarily involves sex stereotyping because it allegedly
targets an employee’s failure to conform to the gender norm of opposite-sex
attraction. EEOC Br. 13; Hively, 853 F.3d at 346. For instance, they assert that
lesbianism is “the ultimate case of failure to conform to the female stereotype.”
EEOC Br. 13 (quoting Hively, 853 F.3d at 346). Again, this analysis commits two
fundamental errors in applying the sex-stereotyping theory.

First, it erroneously presumes that sexual orientation discrimination always
reflects a gender-based stereotype. When bringing a sex-stereotyping claim, an
employee “must show that the employer actually relied on her [or his] gender in
making its decision.” Price Waterhouse, 490 U.S. at 251. What this means is that, “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 that the applicant or
employee was a woman [or man].” Id. at 250. In Price Waterhouse, for example, the
“employer who act[ed] on the basis of a belief that a woman cannot be aggressive, or
that she must not be, ha[d] acted on the basis of gender.” Id.

But where an employer discriminates against a female employee solely because
she is gay (without regard to whether, for instance, she has masculine manners or
clothing), it is not necessarily true that the employer has “actually relied on her gender
in making its decision.” Price Waterhouse, 490 U.S. at 251. Rather, the employer may
have treated homosexuality differently for reasons such as moral beliefs about sexual,
marital, and familial relationships that need not be based on views about gender at all.
See Hively, 853 F.3d at 370 (Sykes, J., dissenting). That may be impermissible
treatment under other statutes or rules, but it is not covered by Title VII’s ban on
“sex” discrimination.

Second, even if sexual orientation discrimination can sometimes or always be
conceptualized as a gender-based stereotype, it is not the sort of stereotype barred by
Price Waterhouse. As the Court explained, Title VII bars “sex stereotypes” insofar as
that particular sort of “sex-based consideration[ ]” causes “disparate treatment of men
and women.” 490 U.S. at 242, 251. There, for example, the stereotype against
aggressive women treated businesswomen worse than similarly situated businessmen:
“[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.” Id. at 251.

By contrast, the opposite-sex attraction “stereotype” relied upon by the EEOC
and the Seventh Circuit majority does not result in disparate treatment of the sexes
because men are treated no better or worse than similarly situated women. Indeed,
treating such gender-neutral “stereotypes” as prohibited by Title VII would lead to
absurd results. For example, one could just as easily, if not more easily, assert that
“the ultimate case of failure to conform to the female stereotype” (EEOC Br. at 13) is
a woman’s failure to use the woman’s bathroom. Again, though, no one can seriously
contend that Price Waterhouse outlawed sex-specific bathrooms.

That said, Title VII of course prohibits employers from applying impermissible
sex stereotypes to homosexual employees. Namely, gay employees, just like straight
employees, may invoke Price Waterhouse if they are subjected to gender-based
stereotypes—e.g., that a particular homosexual man is too effeminate—that cause
them to be treated worse than similarly situated employees of the opposite sex. See
Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285, 290 (3d Cir. 2009). Critically, though, that
is because such gender stereotyping truly is sex discrimination rather than sexual
orientation discrimination: the same claim could be brought by a heterosexual male
whom the employer likewise deemed too effeminate. See id. As this Court has
emphasized, homosexual individuals “do not have less protection under Price
Waterhouse against traditional gender stereotype discrimination” than do heterosexual
individuals. Christiansen v. Omnicon Grp., Inc., 852 F.3d 195, 200-01 (2d Cir. 2017).

2 As a factual matter, there sometimes may be a “difficult question” whether
discriminatory treatment against a gay plaintiff “was because of his homosexuality, his
effeminacy, or both.” See Prowel, 579 F.3d at 291. Nevertheless, the plaintiff may
prevail if it can satisfy the burden to “marshal[ ] sufficient evidence”—e.g., through
comparator employees or direct evidence of employer motive—“such that a
reasonable jury could conclude that harassment or discrimination occurred” because
of gender stereotypes rather than just because of sexual orientation. See id. at 292; see
also, e.g., Dawson, 398 F.3d at 216-23.

In sum, an employer who discriminates based on sexual orientation alone does
not apply the sort of sex stereotype proscribed by Price Waterhouse. Rather than a
gender-based norm that causes employees of one sex to be treated worse than
similarly situated employees of the other sex, sexual orientation discrimination per se
applies to both sexes alike.

C. Associational Discrimination
The EEOC and the Seventh Circuit majority finally contend that sexual
orientation discrimination is “associational discrimination” on the basis of sex.
EEOC Br. at 10; Hively, 853 F.3d at 348-49. Relying on cases addressing
discrimination against interracial relationships, the EEOC and the Seventh Circuit
majority reason that Title VII similarly prohibits discrimination based on the sex of
those with whom an employee associates. EEOC Br. at 10; Hively, 853 F.3d at 348-
49. This analogy to racial discrimination is fundamentally inapposite.
Title VII prohibits an employer from discriminating against an employee in an
interracial relationship, not because that constitutes “associational discrimination” as
such, but rather because that constitutes discrimination against the “individual
[employee] * * * because of such individual’s race.” 42 U.S.C. 2000e-2(a). In
particular, the employer is treating an employee of one race differently from similarly
situated employees of the partner’s race, solely because the employer deems the
employee’s own race to be either inferior or superior to the partner’s race. For example,
in Holcomb v. Iona College, 521 F.3d 130 (2d Cir. 2008), this Court held that a white
employee could bring a claim that he was treated worse for marrying a black woman,
as that was discrimination “because of the employee’s own race,” especially in light of
evidence that he himself was “insult[ed] * * * in public” as “a [n-word] lover.” Id. at
134, 138-40. By contrast, an employer who discriminates against an employee in a
same-sex relationship is not engaged in sex-based treatment of women as inferior to
similarly situated men (or vice versa), but rather is engaged in sex-neutral treatment of
homosexual men and women alike.

* * *

At bottom, none of the theories advanced by the EEOC and the Seventh
Circuit can overcome Title VII’s plain text and the longstanding precedent of this
Court and others. The essential element of sex discrimination under Title VII is that
employees of one sex must be treated worse than similarly situated employees of the
other sex, and sexual orientation discrimination simply does not have that effect.
Moreover, whatever this Court would say about the question were it writing on a
blank slate, Congress has made clear through its actions and inactions in this area that
Title VII’s prohibition of sex discrimination does not encompass sexual orientation
discrimination. Other statutes and rules may prohibit such discrimination, but Title
VII does not do so as a matter of law, and whether it should do so as a matter of
policy remains a question for Congress to decide.

CONCLUSION

This Court should reaffirm its precedent holding that Title VII does not
prohibit discrimination because of sexual orientation.

Respectfully submitted,
CHAD A. READLER
TOM WHEELER
Acting Assistant Attorneys General
HASHIM M. MOOPPAN
Deputy Assistant Attorney General
/s/ Charles W. Scarborough
CHARLES W. SCARBOROUGH
STEPHANIE R. MARCUS
Attorneys
U.S. Department of Justice
950 Pennsylvania Avenue N.W.
Washington, D.C. 20530

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