Zarda v. Altitude Express, Inc.

Filing 218

AMICUS BRIEF, on behalf of Amicus Curiae Lambda Legal Defense and Education Fund, Inc., FILED. Service date 11/03/2016 by CM/ECF.[1899746] [15-3775] [Entered: 11/03/2016 03:06 PM]

15-3775
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
MELISSA ZARDA, co-independent executor of the estate of Donald Zarda; WILLIAM
ALLEN MOORE, JR., co-independent executor of the estate of Donald Zarda,
Plaintiffs-Appellants,
v.
ALTITUDE EXPRESS, INC., d/b/a SKYDIVE LONG ISLAND; and RAYMOND MAYNARD,
Defendants-Appellees.
On Appeal from the U.S. District Court for the Eastern District of New York
Hon. Joseph Bianco, Judge
BRIEF OF LAMBDA LEGAL AS AMICUS CURIAE IN SUPPORT OF
PLAINTIFFS-APPELLANTS AND REVERSAL
MICHAEL D.B. KAVEY
LGBTQ RIGHTS CLINIC
WASHINGTON SQ. LEGAL SERVICES, INC.
NYU SCHOOL OF LAW§
245 Sullivan Street, 5th Floor
New York, New York 10012
[phone]
§

NYU School of Law is named for
identification purposes only. This brief
does not purport to present the law
school’s views.

OMAR GONZALEZ-PAGAN
LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC.
120 Wall Street, 19th Floor
New York, New York 10005
[phone]
GREGORY R. NEVINS*
LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC.
730 Peachtree Street NE, Suite 1070
Atlanta, Georgia 30308
[phone]
* Admission pending.

TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT ..................................................... iii
TABLE OF AUTHORITIES ................................................................................ iv
AMICUS CURIAE’S INTEREST ........................................................................... 1
SUMMARY OF THE ARGUMENT ..................................................................... 2
ARGUMENT ........................................................................................................ 3
I.

TITLE VII’S PROSCRIPTION AGAINST SEX
DISCRIMINATION ENCOMPASSES DISCRIMINATION
ON THE BASIS OF SEXUAL ORIENTATION. ..........................................3
A.

Employees, Including LGBT Employees, Are Protected
From Discrimination Based On Nonconformity To Sex
Stereotypes. ........................................................................................3
1. A Man's Attraction To Men Is Undeniably A Stereotypically
Gender-Nonconforming Trait ................................................. 4
2. Dawson's Dicta Is Incorrect To The Extent It Purports To
Immunize Discrimination Based On Certain Types of Gender
Nonconformity......................................................................... 6

B.

C.

II.

When Employers Discriminate Based on Sexual
Orientation, They Necessarily Consider An Employee’s
Sex. ................................................................................................... 11
Discrimination Based On Same-Sex Relationships Is
Analogous To Discrimination Based On Interracial
Relationships, And Therefore Equally Violates Title VII .................. 13

THE COURT SHOULD REJECT AND DISAVOW THE
REASONING OF SIMONTON AND DAWSON. ........................................ 15

i

A.

Courts Should Not Rely Upon Congressional Inaction
When Interpreting Title VII’s Sex Discrimination
Prohibition. ....................................................................................... 15

B.

Should The Court Be Inclined To Consider Congress’s
Inaction, It Should Also Focus On Congress’s Inaction In
The Face Of The EEOC’s Decision In Baldwin And
Court Decisions Holding That Sexual Orientation
Discrimination Is Actionable Under Title VII. .................................. 18

C.

The Court Can And Should Reconsider Simonton And
Dawson. ............................................................................................ 19

III.

THE EEOC’S INTERPRETATION OF TITLE VII IN
BALDWIN IS ENTITLED TO STRONG DEFERENCE. ............................ 23

IV.

THIS COURT SHOULD REJECT EFFORTS TO CREATE A
SEXUAL ORIENTATION EXCEPTION TO TITLE VII’S
CLEAR STATUTORY LANGUAGE......................................................... 26

CONCLUSION ................................................................................................... 31
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE

ii

CORPORATE DISCLOSURE STATEMENT
Amicus curiae Lambda Legal Defense and Education Fund, Inc. has no
parent corporation(s), does not have shareholders, and does not issue stock.

iii

TABLE OF AUTHORITIES
CASES
Back v. Hastings On Hudson Union Free Sch. Dist.,
365 F.3d 107 (2d Cir. 2004) ........................................................................ 4, 9, 10
Baldwin v. Foxx, 2015 WL 4397641 (E.E.O.C. July 15, 2015) ...................... passim
Boutillier v. Hartford Pub. Schs.,
2014 WL 4794527 (D. Conn. Sept. 25, 2014) ................................................. 5, 19
Burda Media, Inc. v. Viertel, 417 F.3d 292 (2d Cir. 2005) .................................... 21
Centola v. Potter, 183 F. Supp. 2d 403 (D. Mass. 2002) ............................... 5, 6, 19
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984) ... passim
Christiansen v. Omnicom Group, Inc.,
2016 WL 95181 (S.D.N.Y. Mar. 9, 2016) ................................................. 5, 28, 30
City of L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702 (1978)............ 8, 11
Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005) ........................... passim
Deneffe v. Skywest, Inc.,
2015 WL 2265373 (D. Colo. May 11, 2015) .................................................. 5, 18
Diebold Found. Inc. v. C.I.R., 736 F.3d 172 (2d Cir. 2013) ................................... 21
EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. CT. 2028 (2015) ................... 22
EEOC v. Seafarers Int’l Union, 394 F.3d 197 (4th Cir. 2005) ......................... 24, 25
Estate of D.B. v. Thousand Islands Cent. Sch. Dist.,
2016 WL 945350 (N.D.N.Y. Mar. 14, 2016) .................................................. 7, 23
Faragher v. City of Boca Raton, 524 U.S. 775 (1998) ........................................... 13
Finkel v. Stratton Corp., 962 F.2d 169 (2d Cir. 1992) ........................................... 20
iv

Germain v. Conn. Nat’l Bank,
926 F.2d 191 (2d Cir. 1991), rev’d on other grounds, 503 U.S. 249 (1992) ...... 21
Getty Petroleum Corp. v. Bartco Petro. Corp., 858 F.2d 103 (2d Cir. 1988) .. 20, 21
Gilbert v. Country Music Ass’n, 432 F. App’x 516 (6th Cir. 2011) ......................... 4
Girouard v. United States, 328 U.S. 61 (1946) ...................................................... 16
Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009) .............................................. 27
Hall v. BNSF Ry. Co.,
2014 WL 4719007 (W.D. Wash. Sept. 22, 2014).......................................... 12, 18
Heller v. Columbia Edgewater Country Club,
195 F. Supp. 2d 1212 (D. Or. 2002) .................................................... 5, 12, 18, 19
Holcomb v. Iona Coll., 521 F.3d 130 (2d Cir. 2008) .................................. 13, 14, 21
In re Initial Pub. Offerings Secs. Litig., 471 F.3d 24 (2d Cir. 2006)................ 21, 22
INS v. Aguirre-Aguirre, 526 U.S. 415 (1999) ......................................................... 24
Isaacs v. Felder Servs., LLC,
2015 WL 6560655 (M.D. Ala. Oct. 29, 2015) .................................... 5, 12, 14, 18
Jones v. Am. Postal Workers Union, 192 F.3d 417 (4th Cir. 1999) ....................... 24
Kiley v. Am. Soc. for Prevention of Cruelty to Animals,
296 F. App’x 107 (2d Cir. 2008) ....................................................................... 6, 7
Koke v. Baumgardner, 2016 WL 93094 (S.D.N.Y. Jan. 5, 2016) ............................ 6
Koren v. Ohio Bell Tel. Co., 894 F. Supp. 2d 1032 (N.D. Ohio 2012) ........ 5, 12, 18
Lawrence v. Texas, 539 U.S. 558 (2003) ................................................................ 29
Lewis v. City of Chicago, 560 U.S. 205 (2010) ................................................ 17, 22
v

Local Union 36 v. N.L.R.B., 706 F.3d 73 (2d Cir. 2013) ........................................ 20
Loving v. Virginia, 388 U.S. 1 (1967) .................................................................... 14
Ming Shi Zue v. BIA, 439 F.3d 111 (2d Cir. 2006) ................................................. 20
Nat’l Cable & Telecomm. v. Brand X Internet Servs., 545 U.S. 967 (2005) ......... 25
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) .......................... 25, 26
New York v. Nat’l Serv. Indus., Inc., 460 F.3d 201 (2d Cir. 2006) ........................ 20
Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669 (1983) ...... 11
Obergefell v. Hodges, 135 S. Ct. 2584 (2015)................................................. passim
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998) ............... 16, 17, 27
Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888 (11th Cir. 1986) .. 13, 23
Pension Ben. Guar. Corp. v. LTV Corp., 496 U.S. 633 (1990) .............................. 16
Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010) ......................... 11
Pond v. Braniff Airways, Inc., 500 F.2d 161 (5th Cir. 1974) ................................... 9
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) ........................................ passim
Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285 (3d Cir. 2009)................................ 5
Roberts v. United Parcel Serv., Inc.,
115 F. Supp. 3d 344 (E.D.N.Y. 2015) ............................................... 16, 24, 26, 30
Sassaman v. Gamache, 566 F.3d 307 (2d Cir. 2009) ............................................. 23
Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008) .................................... 13
Shipping Corp. of India v. Jaldhi Overseas Pte, 585 F.3d 58 (2d Cir. 2009) ........ 21
Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000) ............................................ passim
vi

Skidmore v. Swift & Co., 323 U.S. 134 (1944) ....................................................... 26
SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471 (9th Cir. 2014) ........... 22
Sobel v. Yeshiva Univ., 839 F.2d 18 (2d Cir. 1988) ................................................. 9
Sprogis v. United Airlines, 444 F.2d 1194 (7th Cir. 1971) ....................................... 8
Tavora v. New York Mercantile Exch., 101 F.3d 907 (2d Cir. 1996) ..................... 10
TerVeer v. Billington, 34 F. Supp. 3d 100 (D.D.C. 2014) .................................. 5, 18
Thompson v. N. Am. Stainless, LP, 562 U.S. 170 (2011) ....................................... 22
Townsend v. Benjamin Enters., Inc., 679 F.3d 41 (2d Cir. 2012) .......................... 25
Union of Needletrades, Indus. & Textile Emps. v. U.S.I.N.S,
336 F.3d 200 (2d Cir. 2003) ................................................................................ 20
United States v. Brutus, 505 F.3d 80 (2d Cir. 2007) .............................................. 21
United States v. Craft, 535 U.S. 274 (2002) ........................................................... 16
United States v. Elbert, 658 F.3d 220 (2d Cir. 2011) ............................................. 21
United States v. Mead Corp., 533 U.S. 218 (2001) ................................................ 24
Univ. of Texas Southwestern Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013) ........... 27
Velasco-Giron v. Holder, 773 F.3d 774 (7th Cir. 2014)......................................... 24
Vickers v. Fairfield Med. Ctr., 453 F.3d 757 (6th Cir. 2006) ............................... 4, 5
Videckis v. Pepperdine Univ., 100 F. Supp. 3d 927 (C.D. Cal. 2015) ............ passim
Voyles v. Ralph K. Davies Med. Ctr., 403 F. Supp. 456 (N.D. Cal. 1975) ............ 19
Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) ...................................................... 9
vii

Williams v. Consol. Edison Corp. of N.Y., 255 F. App’x 546 (2d Cir. 2007) .. 13, 14
Windsor v. United States,
699 F.3d 169 (2d Cir. 2012), aff’d, 133 S. Ct. 2675 (2013) .............. 10, 22, 23, 30
Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315 (2d Cir. 2006) .................. 7, 20
Zervos v. Verizon N.Y., Inc., 252 F.3d 163 (2d Circ. 2011) ................................... 19
Zuber v. Allen, 396 U.S. 168 (1969) ................................................................. 15, 16
STATUTES
1 U.S.C. § 7 ............................................................................................................. 29
42 U.S.C. § 1983 ....................................................................................................... 4
42 U.S.C. § 2000e-2 .................................................................................................. 3
42 U.S.C. § 2000e-2(a)(1)......................................................................................... 2
42 U.S.C. § 2000e-16(b) ......................................................................................... 24
42 U.S.C. § 12211(a) .............................................................................................. 28
Marriage Equality Act, 2011 Sess. Law News of N.Y. Ch. 95 (A. 8354)
(McKinney’s) .......................................................................................................... 29
OTHER AUTHORITIES
Am. Psychiatric Ass’n, Position Statement: Homosexuality and Civil Rights
(1973), 131 Am. J. Psychiatry 497 (1974) .............................................................. 28
Brief of Plaintiff-Appellee, Windsor v. United States, 699 F.3d 169 (2d Cir. 2012)
(Nos. 12-2335, 12-2435), 2012 WL 3900586 ........................................................ 30

viii

AMICUS CURIAE’S INTEREST
Lambda Legal Defense and Education Fund, Inc. (“Lambda Legal”) is the
nation’s oldest and largest legal organization committed to achieving the full
recognition of the civil rights of lesbian, gay, bisexual, and transgender (“LGBT”)
people and people living with HIV through impact litigation, education, and policy
advocacy. Since its founding in 1973, Lambda Legal has striven to ensure
employment fairness for LGBT people by serving as counsel of record or amicus
curiae in litigation addressing the application of federal law to discrimination
against LGBT individuals.
Amicus files this brief, pursuant to Federal Rule of Appellate Procedure 29(b).
Appellants consent to the filing of the brief. Appellees do not.1

1

No party’s counsel authored this brief in whole or in part. No party, party’s
counsel, or other person—other than amicus curiae, its members, or its counsel—
has contributed money intended to fund preparing or submitting the brief.

1

SUMMARY OF THE ARGUMENT
This Court is being asked whether sexual orientation discrimination is
actionable under Title VII’s sex discrimination proscription, 42 U.S.C. § 2000e2(a)(1). Amicus urges this Court to answer such question in the affirmative for the
reasons below.
First, sexual orientation discrimination is sex discrimination because: (1) it is
based on gendered stereotypes that a man should only be attracted to women, and a
woman only be attracted to men; (2) it inherently involves considerations of an
employee’s sex; and (3) discrimination based on association with someone of a
particular sex is analogous to discrimination based on association with someone of
a particular race.
Second, because Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), and
Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005), were wrongly decided,
this Court can and should reconsider and reject their reasoning.
Third, the Equal Employment Opportunity Commission’s (“EEOC”)
decision in Baldwin v. Foxx, 2015 WL 4397641 (E.E.O.C. July 16, 2015), holding
that sexual orientation discrimination is sex discrimination, is entitled to Chevron
deference by this Court and overrides contrary precedent.
Finally, considering the new legal landscape surrounding the legal
protections afforded to lesbians and gay men by the Constitution, this Court should
2

reject any efforts to create a gay exception to Title VII’s sex discrimination
prohibition.
ARGUMENT
I.

TITLE VII’S PROSCRIPTION AGAINST SEX
DISCRIMINATION ENCOMPASSES DISCRIMINATION
ON THE BASIS OF SEXUAL ORIENTATION.

Under any theory, antigay discrimination that an employee experiences is
necessarily “because of such individual’s ... sex.” 42 U.S.C. § 2000e-2. First,
sexual orientation discrimination involves sex stereotyping, as it is based on the
perception that the sexual orientation of lesbians and gay men does not conform to
gender norms. Second, discrimination on the basis of sexual orientation
necessarily involves sex-based considerations prohibited by Title VII. Finally, just
as discrimination against someone because of their association with someone of a
particular race has been recognized as race discrimination, discrimination against
someone because of their romantic involvement with someone of a particular sex is
sex discrimination.
A. Employees, Including LGBT Employees, Are Protected From
Discrimination Based On Nonconformity To Sex Stereotypes.
In 1989, the Supreme Court ruled in Price Waterhouse v. Hopkins, 490 U.S.
228, that “[a]s for the legal relevance of sex stereotyping, we are beyond the day
when an employer could evaluate employees by assuming or insisting that they
match[] the stereotype associated with their group.” Id. at 251. Lest any mystery
3

remain, this Court has held “that adverse actions taken on the basis of gender
stereotypes can constitute sex discrimination.” Back v. Hastings on Hudson Union
Free Sch. Dist., 365 F.3d 107, 130 (2d Cir. 2004).2 Because a man who is attracted
to men does not conform to gender stereotypes, it is untenable to suggest that Title
VII does not cover discrimination based on this attraction.
1. A Man’s Attraction to Men Is Undeniably a Stereotypically
Gender-Nonconforming Trait.
Indisputably, attraction to women is a gender norm or stereotype about men.
Discrimination and harassment against men who defy that stereotype is “motivated
by a desire to enforce heterosexually defined gender norms.” Baldwin, 2015 WL
4397641, *8 (citation omitted). Indeed, Dawson and other decisions contrary to
amicus’s coverage position have freely conceded the presence of gender
stereotyping in sexual orientation discrimination. See Dawson, 398 F.3d at 218
(“‘Stereotypical notions about how men and women should behave will often
necessarily blur into ideas about heterosexuality and homosexuality.’”) (citation
omitted); Gilbert v. Country Music Ass’n, 432 F. App’x 516, 520 (6th Cir. 2011)
(“Gilbert fits every male ‘stereotype’ save one—sexual orientation”); Vickers v.
Fairfield Med. Ctr., 453 F.3d 757, 764 (6th Cir. 2006) (“[A]ll homosexuals, by

2

While Back was brought under 42 U.S.C. § 1983, this Court made clear that its
analysis was the same under Title VII.

4

definition, fail to conform to traditional gender norms in their sexual practices.”).
Courts cannot coherently follow Price Waterhouse and still immunize
discrimination based on failure to conform to the gender norm that men should
only date women.
Increasingly, courts have concluded that distinguishing between sex
discrimination and sexual orientation discrimination is indefensible, as sanctioning
discrimination based on failure to conform to heterosexually-defined gender norms
does not coherently apply Price Waterhouse.3 “It is impossible to categorically
separate ‘sexual orientation discrimination’ from discrimination on the basis of sex
or from gender stereotypes,” because “to do so would result in a false choice.”
Videckis v. Pepperdine Univ., 2015 WL 8916764, *7 (C.D. Cal. Dec. 15, 2015). In
Dawson, this Court notably observed that “the borders” between sex and sexual
orientation are “imprecise.” 398 F.3d at 217. See also Prowel v. Wise Bus. Forms,
Inc., 579 F.3d 285, 291 (3d Cir. 2009) (“line between sexual orientation
discrimination and [sex] discrimination” is “difficult to draw”); Christiansen v.
Omnicom Group, Inc., 2016 WL 951581, *14 (S.D.N.Y. Mar. 9, 2016) (“no
3

See, e.g., Isaacs v. Felder Servs., LLC, 2015 WL 6560655, *4 (M.D. Ala. Oct. 29,
2015); Boutillier v. Hartford Pub. Schs., 2014 WL 4794527, *2 (D. Conn. Sept.
25, 2014); Deneffe v. SkyWest, Inc., 2015 WL 2265373, *5-6 (D. Colo. May 11,
2015); TerVeer v. Billington, 34 F. Supp. 3d 100, 116 (D.D.C. 2014); Koren v.
Ohio Bell Tel. Co., 894 F. Supp. 2d 1032, 1038 (N.D. Ohio 2012); Heller v.
Columbia Edgewater Country Club, 195 F. Supp. 2d 1212, 1224 (D. Or. 2002);
Centola v. Potter, 183 F. Supp. 2d 403, 409 (D. Mass. 2002).
5

coherent line can be drawn between” sex and sexual orientation claims); Centola,
183 F. Supp. 2d at 408. And while some courts have attempted to impose an
illusory line between allegations based on sexual orientation and allegations based
on sex, the reason courts find it “difficult to discern” or draw this line, Dawson,
398 F.3d at 217, is because “the line between sex discrimination and sexual
orientation discrimination is ‘difficult to draw’ because that line does not exist,
save as a lingering and faulty judicial construct.” Videckis, 2015 WL 8916764, *6.
2. Dawson’s Dicta Is Incorrect To The Extent It Purports To
Immunize Discrimination Based on Certain Types of
Gender Nonconformity.
In Dawson, this Court stated in dicta that “[g]enerally speaking, one can fail
to conform to gender stereotypes in two ways: (1) through behavior or (2) through
appearance.” Dawson, 398 F.3d at 221 (citations omitted). That statement
lamentably has been read to give a blank check to employers who discriminate
based on an employee’s nonconformity in sexual attraction, as that nonconformity
may not be related to the employee’s behavior or appearance.4 See, e.g., Kiley v.
Am. Soc. for Prevention of Cruelty to Animals, 296 F. App’x 107, 109 (2d Cir.
2008); Estate of D.B. v. Thousand Islands Cent. Sch. Dist., 2016 WL 945350, *8

4

This brief focuses its sex stereotyping discussion on Dawson, and not Simonton,
because this Court did “not reach the merits of” a possible sex stereotyping
discrimination claim in Simonton. See Simonton, 232 F.3d at 38; see also Koke v.
Baumgardner, 2016 WL 93094, *2 (S.D.N.Y. Jan. 5, 2016).
6

(N.D.N.Y. Mar. 14, 2016) (focusing on the victim’s sexual orientation as “the
critical fact,” stating “If the harassment consists of homophobic slurs directed at a
homosexual, then a gender-stereotyping claim by that individual is improper
bootstrapping. If, on the other hand, the harassment consists of homophobic slurs
directed at a heterosexual, then a gender-stereotyping claim by that individual is
possible.”).
But Dawson actually held that the plaintiff did not sufficiently prove sexual
orientation discrimination, period, and thus affirmed summary judgment not only
on her federal claims but also on her claims under state and local laws explicitly
prohibiting sexual orientation discrimination. See Dawson, 398 F.2d at 213, 22425. Thus, any insinuation in Dawson that sexual orientation discrimination is not
sex stereotyping discrimination, or not covered by Title VII, is dicta that does not
bind this Court, because it was not relevant to the holding that Dawson failed to
establish sexual orientation discrimination on the facts. See Xiao Ji Chen v. U.S.
Dep’t of Justice, 471 F.3d 315, 338 (2d Cir. 2006).
Dawson thus did not create binding precedent either concerning Title VII’s
coverage of sexual orientation discrimination or in its behavior/appearance
passage. Nor, for the reasons below, should the Court create a behavior/
appearance limitation on actionable sex stereotyping discrimination.
a. The Behavior/Appearance Limitation Ignores Price
Waterhouse’s Import.
7

The behavior/appearance limitation in Dawson appears to narrow
inappropriately the universe of relevant gender norms to only those that Ann
Hopkins was deemed to transgress in Price Waterhouse, despite that case’s
declaration that Title VII was “intended to strike at the entire spectrum of disparate
treatment of men and women resulting from sex stereotypes.” Price Waterhouse,
490 U.S. at 251. Moreover, the “entire spectrum” phrase previously appeared in
City of L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702 (1978), which had
a decidedly broad view of what constituted discrimination based on sex
stereotypes. See id. at 707, n.13. Manhart struck down the employer’s policy of
making women, as a group, pay higher pension contributions because it is
“unquestionably true” that “[w]omen, as a class, do live longer than men.” 435
U.S. at 707. But because “[m]any women do not live as long as the average man”
and Title VII’s “focus on the individual is unambiguous,” a “‘stereotyped’ answer
to” the question of whether discrimination occurred “may not be the same as the
answer that the language and purpose of the statute command.” Id.at 708.
Manhart had nothing to do with behavior or appearance, and neither did the case
from which Manhart borrowed the “entire spectrum” concept – Sprogis v. United
Airlines, 444 F.2d 1194, 1198 (7th Cir. 1971) (invalidating airline’s policy against
married female flight attendants).

8

Many other cases through Title VII’s history reflect a broad understanding
of sex stereotypes that the statute combats, including stereotypes about life choices
about families and relationships. Sobel v. Yeshiva Univ., 839 F.2d 18, 33 (2d Cir.
1988) (refusing to credit “stereotype” that men are more often sole wage earners);
Pond v. Braniff Airways, Inc., 500 F.2d 161, 166 (5th Cir. 1974) (discrimination
based on “stereotypical culturally-based concepts of the abilities of people to
perform certain tasks because of their sex” violates Title VII); cf. Weinberger v.
Wiesenfeld, 420 U.S. 636 (1975) (holding statute rooted in stereotype that families
depend on male breadwinners unconstitutional).
b. The Behavior/Appearance Limitation Is Inconsistent
With Back.
In contrast to Dawson, Back is both an actual holding about what sex
stereotyping is actionable, and a careful examination of the history of sex
stereotyping. Back produced evidence that her employer denied her tenure,
believing “that a woman cannot ‘be a good mother’ and have a job that requires
long hours” or “that a mother who received tenure ‘would not show the same level
of commitment she had shown because she had little ones at home.’” Back, 365
F.3d at 120 (alterations omitted). Rather than the approach in Dawson, which
apparently viewed the exact stereotypes at issue in Price Waterhouse as an
exclusive list, the Back court correctly concluded that a proper reading of Price
Waterhouse is that the “question [of w]hat constitutes a gender-based stereotype …
9

must be answered in the particular context in which it arises, and without undue
formalization.” Id. at 119-20.
Back cited a variety of precedents demonstrating that the fight against sex
stereotyping discrimination always has been concerned with rules and exclusions
that would dictate to women (whether working or not) whether they could be in a
relationship and, if so, which kind; what their roles in their relationships should be;
and what type of family structures they could establish consistent with their job
obligations. See Back, 365 F.3d at 120-21, 130 (citations omitted). Thus, the Back
court had little trouble recognizing that the employer’s comments about the
purported conflict between her motherhood and her commitment to the university
reflected the kind of stereotyping that takes no “special training to discern.” 365
F.3d at 120.
In sum, Title VII condemns all non-trivial5 discrimination based on failure to
conform to sex stereotypes, whether that nonconformity relates to behavior,
appearance, marriage and family decisions, or sexual orientation.

5

In Tavora v. New York Mercantile Exch., 101 F.3d 907 (2d Cir. 1996), this Court
upheld hair-length restrictions, rejecting the argument “that Title VII applies to any
employment policy with any difference between men and women, no matter how
trivial.” Id. at 908. Plainly, after Windsor and Obergefell, discrimination against
employees in same-sex relationships cannot be dismissed as too trivial for Title VII
coverage.
10

B. When Employers Discriminate Based on Sexual Orientation,
They Necessarily Consider An Employee’s Sex.
Sexual orientation discrimination by an employer inherently involves
differential treatment based on an employee’s sex, in violation of Title VII,
because one cannot consider an individual’s sexual orientation without taking into
account that individual’s sex. See Baldwin, 2015 WL 4397641, *5. Cf. Perry v.
Schwarzenegger, 704 F. Supp. 2d 921, 996 (N.D. Cal. 2010).
Conceptually, this is an even simpler formulation of why sexual orientation
discrimination is sex discrimination under Title VII. Rather than rely on sex
stereotypes, the Court need only ask whether the employee would have been
discriminated against if the employee had been of a different sex. If the answer is
“no,” then the discrimination plainly was because of such individual’s sex.
This Court’s treatment of sexual orientation discrimination as distinct from
sex discrimination in Simonton is therefore untenable. For one, the Simonton court
did not articulate the relevant standard for sex discrimination as established by the
Supreme Court. Manhart articulated the controlling, yet “simple[,] test of whether
the evidence shows treatment of a person in a manner which but for that person’s
sex would be different” to determine whether a sex-based violation of Title VII
occurred. Manhart, 435 U.S. at 711 (quotation omitted). See also Newport News
Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 682-83 (1983) (applying
Manhart’s “simple test”). Ignoring this test, the Simonton court simply concluded,
11

without support, that “‘sex’ in Title VII refers only to membership in a class
delineated by gender, and not to sexual affiliation,” and that “Title VII does not
proscribe discrimination because of sexual orientation.” 232 F.3d at 36.
Simonton’s articulation disregards the “inescapabl[e]” link between sexual
orientation and sex, Baldwin, 2015 WL 4397641, *5, and fundamentally
misapprehends the nature of the inquiry courts are required to perform when
evaluating sex discrimination claims.
Indeed, numerous courts have ruled in favor of lesbian or gay Title VII
plaintiffs, using the simple logic noted above. See, e.g., Isaacs, 2015 WL
6560655, *3 (“If a business fires Ricky because of his sexual activities with Fred,
while this action would not have been taken against Lucy if she did exactly the
same things with Fred, then Ricky is being discriminated against because of his
sex.”) (alterations, citation omitted); Hall v. BNSF Ry. Co., 2014 WL 4719007, *3
(W.D. Wash. Sept. 22, 2014); Koren, 894 F. Supp. 2d at 1038; Heller, 195 F.
Supp. 2d at 1223; see also Videckis, 2015 WL 8916764, *8.
Thus, because “sexual orientation is inseparable from and inescapably
linked to sex,” “allegations of sexual orientation discrimination [necessarily]
involve sex-based considerations.” Baldwin, 2015 WL 4397641, *5; see also
Videckis, 2015 WL 8916764, *7.

12

C. Discrimination Based On Same-Sex Relationships Is
Analogous To Discrimination Based On Interracial
Relationships, And Therefore Equally Violates Title VII.
It is impossible to reconcile this Court’s holding that discrimination based on
an employee’s interracial marriage or interracial associations constitutes race
discrimination with an argument that discrimination based on a worker’s same-sex
intimate relationships is not sex discrimination. In Holcomb v. Iona Coll., 521
F.3d 130 (2d Cir. 2008), a case post-dating Simonton and Dawson, this Court held
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 (emphasis in original); see also Parr v.
Woodmen of the World Life Ins. Co., 791 F.2d 888, 892 (11th Cir. 1986); Schroer
v. Billington, 577 F. Supp. 2d 293, 307 (D.D.C. 2008). The same principles of
construction apply to determining what constitutes discrimination “because of
race” and “because of ... sex,” and thus should dictate the same treatment of
relationships involving the enumerated traits in Title VII.
In light of Holcomb, and this Court’s obligation “to give Title VII a liberal
construction,” Parr, 791 F.2d at 892, and “harmonize the standards” concerning
actionable conduct among the categories enumerated in Title VII, Faragher v. City
of Boca Raton, 524 U.S. 775, 787 n.1 (1998); see also Williams v. Consol. Edison
Corp. of N.Y., 255 F. App’x 546, 549 (2d Cir. 2007), the Court should reject the
13

idea that Title VII does not help those who suffer employment discrimination as a
result of their association with persons of a particular sex.
In addition, this Court’s analysis should be informed by how an individual’s
right to marry is protected by the Constitution no matter the race or sex of the
person the individual chooses to marry. See Obergefell v. Hodges, 135 S. Ct.
2584, 2604 (2015); Loving v. Virginia, 388 U.S. 1, 12 (1967). Unlike interracial
couples, whose right to marry was recognized in 1967, same-sex couples were
unable to marry in most jurisdictions until relatively recently. But now, there
should be no question that whether for the purposes of due process analysis or
statutory interpretation, same-sex relationships and interracial relationships are
afforded the same protections.
Title VII “on its face treats each of the enumerated categories exactly the
same.” Price Waterhouse, 490 U.S. at 243 n.9. Accordingly, this Court should
treat discrimination based on same-sex relationships just as it treats discrimination
based on interracial relationships, following Holcomb’s liberal construction of
Title VII and “reject[ing] [the] restrictive reading of Title VII” employed by
Simonton and Dawson. Holcomb, 521 F.3d at 139. Discrimination on the basis of
an employee’s personal association with someone of a particular sex is
discrimination because of sex. See Videckis, 2015 WL 1735191, *8; Isaacs, 2015
WL 6560655, *3.
14

II.

THE COURT SHOULD REJECT AND DISAVOW THE
REASONING OF SIMONTON AND DAWSON.

Simonton and Dawson do not constrain this Court from holding that
discrimination based on sexual orientation is sex discrimination under Title VII,
because Simonton’s holding and Dawson’s dicta were clearly incorrect, and
because legal developments post-dating them have neutered any precedential value
they might have had.
A. Courts Should Not Rely Upon Congressional Inaction
When Interpreting Title VII’s Sex Discrimination
Prohibition.
This Court’s decision in Simonton, and Dawson’s reliance on it, is erroneous
because it relied on Congressional inaction as the basis to carve out gay people
from Title VII’s protections. In Simonton, this Court primarily relied on
Congressional inaction on legislation that would have made explicit Title VII’s
proscription on discrimination based on sexual orientation in order to find that
“Title VII does not proscribe discrimination because of sexual orientation.” 232
F.3d at 35; see also id. at 36. But reliance on Congressional inaction for statutory
interpretation, especially with regards to Title VII’s sex discrimination
proscription, is not only treacherous, it is impermissible.
The Supreme Court has taken a dim view of reliance on Congressional
inaction as a tool of statutory interpretation. Simply put, “[l]egislative silence is a
poor beacon to follow in discerning the proper statutory route.” Zuber v. Allen,
15

396 U.S. 168, 185 (1969); see also Pension Ben. Guar. Corp. v. LTV Corp., 496
U.S. 633, 650 (1990); Girouard v. United States, 328 U.S. 61, 69 (1946). That is
because Congressional inaction may be interpreted in many different ways,
including an acknowledgement that Title VII’s sex discrimination prohibition
already encompasses discrimination on the basis of sexual orientation. See United
States v. Craft, 535 U.S. 274, 287 (2002); Girouard, 328 U.S. at 70.
Moreover, “[t]he idea that congressional action is required (and inaction is
therefore instructive in part) rests on the notion that protection against sexual
orientation discrimination under Title VII would create a new class of covered
persons. But analogous case law confirms this is not true.” Roberts v. United
Parcel Serv., Inc., 115 F. Supp. 3d 344, 364 (E.D.N.Y. 2015) (citation omitted).
The Supreme Court has specifically instructed that Title VII should be
interpreted based on the words of the statute and not on some divining of the evils
that Congress meant to address. For example, when the Supreme Court held “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” in Oncale v.
Sundowner Offshore Servs., Inc., it did so while noting that “statutory prohibitions
often go beyond the principal evil to cover reasonably comparable evils, and it is
ultimately the provisions of our laws rather than the principal concerns of our
legislators by which we are governed.” 523 U.S. 75, 79-80 (1998). Similarly, the
16

Supreme Court has stated that it is not for the courts “to rewrite the statute so that it
covers only what we think is necessary to achieve what we think Congress really
intended.” Lewis v. City of Chicago, 560 U.S. 205, 215 (2010); see also id. at 217
(court’s “charge is to give effect to the law Congress enacted” even if “effect was
unintended”). One can be reasonably sure that the unanimous Oncale Court, in
dismissing the relevance of the motivations of the 88th Congress that passed Title
VII, was not inviting courts deciding coverage issues to shift their focus to what
later sessions of Congress did not enact into statutory law.
As a result, judge-made rules must not insulate from liability conduct falling
within the language of Title VII. Whatever flexibility lower courts might have,
when it comes to Title VII, a court’s job is to entertain all claims that fall within
“the statutory requirements,” Oncale, 523 U.S. at 80, and not limit claims to only
those “necessary to achieve what we think Congress really intended.” Lewis, 560
U.S. at 215.
While this Court in Simonton failed to understand “how Oncale change[d]
[its] well-settled precedent that ‘sex’ refers to membership in a class delineated by
gender,” 232 F.3d at 36, and purported to reaffirm in Dawson that sex stereotyping
claims “should not be used to ‘bootstrap protection for sexual orientation into Title
VII.’” Dawson, 398 F.3d at 218-21 (citation omitted), such results-oriented
approach is contrary to the Supreme Court’s clear instructions regarding the
17

interpretation of Title VII, which is to follow the words of the statute, and let the
chips fall where they may.
B. Should The Court Be Inclined To Consider Congress’s
Inaction, It Should Also Focus On Congress’s Inaction In The
Face Of The EEOC’s Decision In Baldwin And Court Decisions
Holding That Sexual Orientation Discrimination Is Actionable
Under Title VII.
While this Court should rely on the text of Title VII for its interpretation, to
the extent this Court continues to rely on Congressional inaction as a tool to
interpret Title VII, it should do so bearing in mind Congress’s inaction in the face
of the EEOC’s decision in Baldwin and decisions by numerous federal courts
holding that sexual orientation discrimination is actionable under Title VII.
The EEOC’s decision in Baldwin holding that discrimination on the basis
sexual orientation violates Title VII occurred in mid-2015 and to date Congress has
taken no action to override it. Similarly, multiple federal courts throughout the
country have held that claims of discrimination against gay people under Title VII
(whether based on same-sex relationships, attraction, or orientation, or on sex
stereotypes) are actionable. See, e.g., Isaacs, 2015 WL 6560655, *3 (“This court
agrees … that claims of sexual orientation-based discrimination are cognizable
under Title VII.”); Deneffe, 2015 WL 2265373, *5-6; Hall, 2014 WL 4719007, *45; TerVeer, 34 F. Supp. 3d at 116; Koren, 894 F. Supp. 2d at 1037-38; Heller, 195

18

F. Supp. 2d at 1223. Cf. Videckis, 2015 WL 8916764, *8; Boutillier, 2014 WL
4794527, *2; Centola, 183 F. Supp. 2d at 410.
Congress’s lack of action with regards to these decisions, some of them
dating back more than a decade, could be seen as ratifying the understanding that
sexual orientation discrimination violates Title VII’s sex discrimination
prohibition. Any argument that Baldwin and some of the aforementioned decisions
are too recent to rely on is misguided. For if a district court could hold in 1975 that
Congress’s failure to enact Bella Abzug’s Equality Act of 1974 was indicative that
sexual orientation and gender identity were not covered under Title VII, see Voyles
v. Ralph K. Davies Med. Ctr., 403 F. Supp. 456, 457 (N.D. Cal. 1975), then surely
Congress’s lack of action after the EEOC’s decision in Baldwin and the numerous
federal courts that have held that sexual orientation discrimination is actionable
under Title VII must equally mean that Congress has now ratified such decisions.
C. The Court Can And Should Reconsider Simonton And
Dawson.
This Court can and should reconsider Simonton and Dawson because while
three-judge panels of this Court should “ordinarily” adhere to a prior panel’s
holding, Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 171-72 (2d Cir. 2001), this
general rule does not apply where subsequent legal developments at the Supreme
Court, the EEOC, and the Second Circuit have rendered a prior panel’s decision
hollow.
19

First, this Court may disregard another panel’s decision when an intervening
Supreme Court or Second Circuit en banc decision has explicitly or implicitly
rejected the prior panel’s reasoning. See New York v. Nat’l Serv. Indus., Inc., 460
F.3d 201, 207 (2d Cir. 2006); Union of Needletrades, Indus. & Textile Emps. v.
U.S.I.N.S., 336 F.3d 200, 210 (2d Cir. 2003). A panel may also overrule a prior
panel by relying on Supreme Court precedent pre-dating the prior panel’s holding
if, for example, a more recent, intervening Supreme Court decision lends new
significance to the earlier Supreme Court precedent. See Finkel v. Stratton Corp.,
962 F.2d 169, 174-75 (2d Cir. 1992); see also Local Union 36 v. N.L.R.B., 706
F.3d 73, 83 (2d Cir. 2013). Supreme Court decisions regarding the proper
interpretation of Title VII’s text and the recognition of same-sex relationships and
the constitutional rights of lesbians and gay men, see Part IV, have fatally
undermined Simonton and Dawson to the point that they should be deemed
rejected.
Second, Dawson’s analysis of this issue was dicta, see Part I.A.2, and is
therefore not binding on this Court. The obligation to follow prior decisions
extends only to express holdings. See Xiao Ji Chen, 471 F.3d at 338; Ming Shi Xue
v. BIA, 439 F.3d 111, 121 (2d Cir. 2006); Getty Petroleum Corp. v. Bartco Petro.
Corp., 858 F.2d 103, 113 (2d Cir. 1988). Because the plaintiff in Dawson failed
even to raise a triable issue of fact as to sexual orientation discrimination, 398 F.2d
20

at 213, 224-25, any analysis of Title VII’s application to such discrimination was
unnecessary and does not bind future panels.
Third, Simonton and Dawson’s conclusions about sexual orientation
discrimination are fundamentally inconsistent with Holcomb. See Part I.C. Even if
Simonton or Dawson silently rejected the reasoning later endorsed in Holcomb,
Holcomb abrogates their unexpressed view. See Getty Petroleum Corp., 858 F.2d
at 113 (sub silentio rulings are not binding). It is also well-established that one
panel may overrule another to resolve inconsistencies among this Court’s
precedents, see Diebold Found., Inc. v. C.I.R., 736 F.3d 172, 183 n.7 (2d Cir.
2013); United States v. Brutus, 505 F.3d 80, 86 n.3, 87 n.5 (2d Cir. 2007); Germain
v. Conn. Nat’l Bank, 926 F.2d 191, 193-94 (2d Cir. 1991), rev’d on other grounds,
503 U.S. 249 (1992), or to remedy significant, unforeseen consequences, see
Shipping Corp. of India v. Jaldhi Overseas Pte, 585 F.3d 58, 67-69 (2d Cir. 2009);
see also United States v. Elbert, 658 F.3d 220, 222-24 (2d Cir. 2011). Where
panels reject a prior panel’s decision in the absence of intervening higher authority,
they typically—though not invariably—indicate that their opinion was circulated,
prior to filing, to some or all of the Court’s other judges, though they do not always
disclose the extent of other judges’ agreement. See Burda Media, Inc. v. Viertel,
417 F.3d 292, 298 & n.5 (2d Cir. 2005); see also In re Initial Pub. Offerings Secs.
Litig., 471 F.3d 24, 39-42 (2d Cir. 2006) (disavowing prior decisions without
21

relying on intervening Supreme Court or en banc precedent and without stating
whether opinion was circulated to other judges).
Fourth, because Simonton and Dawson relied on non-textual considerations
to carve an exception in Title VII, see Parts II.A and IV, they have been abrogated
by the Supreme Court’s repeated repudiation of non-textual interpretations of Title
VII. See EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2033 (2015)
(court may not “add words to the law to produce what is thought to be a desirable
result”); Thompson v. N. Am. Stainless, LP, 562 U.S. 170, 175 (2011) (court’s
preference for different rule “cannot justify departing from statutory text”); Lewis,
560 U.S. at 215-17.
Fifth, the EEOC’s decision in Baldwin, a decision entitled to Chevron
deference, overrides Simonton and Dawson. See Part III.
Finally, reaffirming Simonton’s and Dawson’s sexual orientation analysis
under Title VII would be inconsistent with, and raise constitutional concerns under,
this Court’s ruling in Windsor v. United States, 699 F.3d 169 (2012), aff’d, 133
S. Ct. 2675 (2013), adopting heightened constitutional protection for lesbians and
gay men. Id. at 181-82.6 It would be untenable for this Court, having deemed
sexual orientation classifications “quasi-suspect,” id., to perpetuate a judicial bar

6

Affirming this Court, the Supreme Court also applied heightened scrutiny. See
SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471, 480-84 (9th Cir. 2014).
22

on otherwise viable sex-stereotyping and associational-gender claims precisely
because they involve sexual orientation bias, or to again single out sexdiscrimination claims by “avowedly homosexual” plaintiffs as a “problem.”
Dawson, 398 F.3d at 218; see also Estate of D.B., 2016 WL 945350, *8.7
Applying the foregoing principles, this Court can and should reject
Simonton’s and Dawson’s discussion of sexual orientation claims under Title VII.
III.

THE EEOC’S INTERPRETATION OF TITLE VII IN
BALDWIN IS ENTITLED TO STRONG DEFERENCE.

Further, the EEOC’s decision in Baldwin holding that sexual orientation
discrimination is sex discrimination is entitled to strong deference from this Court.
See Parr, 791 F.2d at 892 (“EEOC’s interpretation of Title VII is to be accorded
‘great deference.’” (citation omitted)). Indeed, Baldwin supersedes earlier contrary
court precedent, including Simonton and Dawson.
Because the EEOC’s decision in Baldwin occurred in a federal sector case, it
is entitled to Chevron deference. Under Chevron, an agency’s interpretation of a
statute with which it has been charged with administering is to be fully accepted by
a court as long as Congress has not directly spoken as to the precise question at

7

This Court’s straightforward application of Price Waterhouse in Sassaman v.
Gamache, 566 F.3d 307 (2d Cir. 2009), which involved a stereotype about malefemale sexual harassment, sharpens the tension between the Court’s general
acceptance of sex-stereotyping doctrine and its suspicion of sex-stereotyping
claims by gay plaintiffs, Dawson, 398 F.3d at 218.
23

issue and the interpretation proffered by the agency is a permissible one. Chevron,
U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984); see also
United States v. Mead Corp., 533 U.S. 218, 226-227 (2001) (agency decisions
qualify for Chevron deference where “it appears that Congress delegated authority
to the agency generally to make rules carrying the force of law, and that the agency
interpretation claiming deference was promulgated in the exercise of such
authority.”). Here, Baldwin was decided pursuant to the EEOC’s broad, explicit
authority to interpret Title VII (including its substantive terms) in adjudicating
federal sector cases. See, e.g., 42 U.S.C. § 2000e-16(b); see also Roberts, 115 F.
Supp. 3d at 363 (describing Baldwin as “a landmark ruling—binding on all federal
agencies”). And while it appears to be an unsettled question whether Chevron
deference applies to EEOC federal sector adjudications, there is authority that
agency adjudications are entitled to Chevron deference, where otherwise
appropriate. See, e.g., INS v. Aguirre-Aguirre, 526 U.S. 415 (1999); VelascoGiron v. Holder, 773 F.3d 774 (7th Cir. 2014). Indeed, other Courts of Appeals
have granted Chevron deference to the EEOC’s interpretation of the relevant
provisions of Title VII. See Jones v. Am. Postal Workers Union, 192 F.3d 417,
427 (4th Cir. 1999) (granting Chevron deference to EEOC’s interpretation of Title
VII as set forth in an amicus brief). Cf. EEOC. v. Seafarers Int’l Union, 394 F.3d

24

197, 202 (4th Cir. 2005) (“[W]e review the EEOC’s interpretation of the ADEA
under the deferential standard of Chevron.”).
As a result, the EEOC’s decision in Baldwin supersedes any contrary earlier
court decisions, because those decisions do not hold that the meaning of “sex” in
Title VII is “unambiguous” and because the Commission was acting under a
specific grant of authority from Congress in issuing those decisions. The Supreme
Court has held that an agency interpretation that is entitled to Chevron deference
governs over conflicting judicial precedent, unless that precedent holds that a
statute’s language “unambiguously” commands a contrary meaning. Nat’l Cable
& Telecomm. v. Brand X Internet Servs., 545 U.S. 967, 982-83 (2005)
(“[A]llowing a judicial precedent to foreclose an agency from interpreting an
ambiguous statute, as the Court of Appeals assumed it could, would allow a court’s
interpretation to override an agency’s. Chevron’s premise is that it is for agencies,
not courts, to fill statutory gaps.”). Because Baldwin is entitled to Chevron
deference, under Brand X, Baldwin supersedes prior contrary precedent, like
Simonton and Dawson.
Alternatively, even if this Court were to conclude that the EEOC’s decision
in Baldwin is not entitled to Chevron deference, the EEOC’s decision in Baldwin
“is entitled to deference to the extent it has the power to persuade.” Townsend v.
Benjamin Enters., Inc., 679 F.3d 41, 53 (2d Cir. 2012) (citing Nat’l R.R. Passenger
25

Corp. v. Morgan, 536 U.S. 101, 110 n.6 (2002), and Skidmore v. Swift & Co., 323
U.S. 134, 140 (1944)). This Court should therefore defer to the EEOC’s
“reasoned” decision in Baldwin, Roberts, 115 F. Supp. 3d at 365, because the
EEOC relied “on principles of Title VII in protecting against sex-based
discrimination” and applied the “words of the statute Congress [] charged [it] with
enforcing.” Id. at 365, 366.
IV.

THIS COURT SHOULD REJECT EFFORTS TO CREATE A
SEXUAL ORIENTATION EXCEPTION TO TITLE VII’S
CLEAR STATUTORY LANGUAGE.

Finally, this Court should reconsider Simonton and Dawson because of what
they are: judicially-created carve-outs of gay people from Title VII’s proscription
against discrimination that disregard Title VII’s clear and broad statutory language.
Indeed, even with regard to clearly actionable sex stereotyping claims, the
Simonton and Dawson courts adopted a notion that a statutory exclusion of sexual
orientation claims is written into Title VII and that courts must be vigilant to
ensure that lesbian and gay employees not be allowed to circumvent this illusory
exclusion by invoking their rights to be free from sex-based discrimination. See
Dawson, 398 F.3d at 218 (stating that while sex stereotypes “often necessarily
blur” into ideas about sexual orientation, nevertheless “a gender stereotyping claim
should not be used to bootstrap protection for sexual orientation into Title VII.”
(quotation omitted)). But Congress’s actions subsequent to Price Waterhouse and
26

the legal developments affecting lesbians and gay men subsequent to Simonton and
Dawson weigh heavily against judicially engrafting a sexual orientation exception
to Title VII’s coverage.
First, the Court should take note of the error of Simonton and Dawson and
the fiction of the gay carve-out they create. Consider a hypothetical where the
Acme Company issues a memorandum stating that the following employees were
terminated for behavior unbecoming of “an Acme Lady”: Agnes for driving a
motorcycle to and from work, Beth for wearing pants and not wearing makeup or
jewelry every day for six months, and Christine for having a relationship with
another woman. If each employee sued under Title VII, they all should be allowed
to proceed, because all have viable sex discrimination claims that they would not
have been terminated for their conduct had they been male, based on the plain
language of the statute and Oncale.
Second, Congress’s actions subsequent to Price Waterhouse reveal that
Congress never intended for Title VII to have a sexual orientation exception in its
coverage. The Supreme Court has placed great weight on the significance of what
amendments were and were not made in the Civil Rights Act of 1991. See Univ. of
Texas Southwestern Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013); Gross v. FBL
Fin. Servs., Inc., 557 U.S. 167 (2009). In 1989, Price Waterhouse ruled that it is
sex discrimination for employees to be fired for their nonconformity with gender
27

norms. In 1990, Congress passed the Americans with Disabilities Act (“ADA”)
and incorporated a specific provision excluding homosexuality from the definition
of “disability,” despite the fact that it had not been viewed by medical and mental
health authorities as an impairment since 1973. See 42 U.S.C. §§ 12211(a); Am.
Psychiatric Ass’n, Position Statement: Homosexuality and Civil Rights (1973), in
131 Am. J. Psychiatry 497 (1974). A year later, Congress passed the Civil Rights
Act of 1991, specifically repealing the part of Price Waterhouse regarding mixedmotive liability but not limiting in any way its sex stereotyping holding or
amending Title VII to exclude coverage of sexual orientation discrimination, as it
had a year earlier in passing the ADA. Congress’s decision not to add the 1990
ADA exception for sexual orientation to Title VII coverage in 1991 speaks
volumes. It thus was wrong of Simonton and Dawson to judicially engraft the type
of “gay exception” found in the ADA onto Title VII when Congress had declined
to do so.
Lastly, the world in which Simonton and Dawson were decided, no longer
exists. See Christiansen, 2016 WL 951581, *13 (“The broader legal landscape has
undergone significant changes since the Second Circuit’s decision in Simonton.”).
When Simonton and Dawson were decided, it was constitutional for states to deny
lesbians and gay men the fundamental right to marry, and for the federal
government to refuse to recognize the marriages of same-sex couples that managed
28

to travel to the handful of jurisdictions that recognized their right to marry. Indeed,
when Simonton was decided, conduct central to gay people’s very identity could be
criminalized, subjecting them to widespread discrimination. See Lawrence v.
Texas, 539 U.S. 558, 575 (2003). As such, it is not difficult to understand why the
Simonton and Dawson courts would engraft a gay exception onto Title VII’s sex
discrimination prohibition. For if a state could imprison someone for conduct
central to being gay, how could employment discrimination on that basis be
illegal? For if states could discriminate based on one’s non-stereotypical sexual
orientation, how could employment discrimination on such basis be illegal?
But “[t]he nature of injustice is that we may not always see it in our own
times,” Obergefell, 135 S. Ct. at 2598, and since Simonton was decided, the
societal walls erected against gay people have steadily crumbled. In Lawrence, the
Supreme Court “acknowledged, and sought to remedy, the continuing inequality
that resulted from laws making intimacy in the lives of gays and lesbians a crime
against the State,” Obergefell, 135 S. Ct. at 2604, and it became clear that “samesex couples have the same right as opposite-sex couples to enjoy intimate
association.” Id. at 2600. In 2011, New York enacted Marriage Equality Act,
2011 Sess. Law News of N.Y. Ch. 95 (A. 8354) (McKinney’s), recognizing the
right of same-sex couples to marry. And in 2012, this Court boldly held that the
federal Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, was unconstitutional
29

because lesbians and gay men “compose a class that is subject to heightened
scrutiny” just like women. Windsor, 699 F.3d at 185.8 Finally, in 2015, the
Supreme Court held that laws barring same-sex couples from marriage “burden the
liberty of same-sex couples, and … abridge central precepts of equality.”
Obergefell, 135 S. Ct. at 2604.
While none of these cases directly answer “of what protections Title VII
affords,” when considered together, they “reflect a shift in the perception, both of
society and of the courts, regarding the protections warranted for same-sex
relationships and the men and women who engage in them.” Christiansen, 2016
WL 951581, *13; see also Roberts, 115 F. Supp. 3d at 348 (“As the nation’s
understanding and acceptance of sexual orientation evolve, so does the law’s
definition of appropriate behavior in the workplace.”). It is thus incumbent upon
this Court to reject efforts to engraft a gay exception onto Title VII’s sex
discrimination prohibition, in the face of its clear statutory language. To do so
“would disparage the[] choices and diminish the[] personhood” of gay people,
Obergefell, 135 S. Ct. at 2602, and would cast lesbians and gay men out of Title
VII’s protective umbrage.

8

The parties in Windsor did not present this Court with, nor did this Court
consider, arguments regarding whether DOMA discriminated on the basis of sex.
See Brief of Plaintiff-Appellee, Windsor v. United States, 699 F.3d 169 (2d Cir.
2012) (Nos. 12-2335, 12-2435), 2012 WL 3900586.
30

CONCLUSION
The judgment of the district court should be reversed.
March 18, 2016

Respectfully submitted,
/s/ Omar Gonzalez-Pagan
OMAR GONZALEZ-PAGAN
LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC.
120 Wall Street, 19th Floor
New York, New York 10005
[phone]
[e-mail]

GREGORY R. NEVINS*
LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC.
730 Peachtree Street NE, Suite 1070
Atlanta, Georgia 30308
[phone]
[e-mail]
* Admission pending.
MICHAEL D.B. KAVEY
LGBTQ RIGHTS CLINIC
WASHINGTON SQ. LEGAL SERVICES, INC.
NYU SCHOOL OF LAW
245 Sullivan Street, 5th Floor
New York, New York 10012
[phone]
[e-mail]

Counsel for Amicus Curiae Lambda Legal Defense and Education Fund, Inc.

31

CERTIFICATE OF COMPLIANCE
Pursuant to Fed. R. App. P. 32(a)(7)(C), the undersigned hereby certifies
that this brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B).
1.

Exclusive of the exempted portions of the brief, as provided in Fed. R.

App. P. 32(a)(7)(B), the brief contains 6,993 words.
2.

The brief has been prepared in proportionally spaced typeface using

Microsoft Word 2010 in 14 point Times New Roman font. As permitted by Fed.
R. App. P. 32(a)(7)(C)(i), the undersigned has relied upon the word count feature
of this word processing system in preparing this certificate.

/s/ Omar Gonzalez-Pagan
OMAR GONZALEZ-PAGAN
LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC.
120 Wall Street, 19th Floor
New York, New York 10005
[phone]
[e-mail]
March 18, 2016

CERTIFICATE OF SERVICE
I hereby certify that I filed the foregoing Brief with the Clerk of the United
States Court of Appeals for the Second Circuit via the CM/ECF system this 18th
day of March, 2016. I certify that all participants in the case are registered
CM/ECF users and that service will be accomplished by the CM/ECF system.

/s/ Omar Gonzalez-Pagan
OMAR GONZALEZ-PAGAN
LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC.
120 Wall Street, 19th Floor
New York, New York 10005
[phone]
[e-mail]
March 18, 2016