Zarda v. Altitude Express, Inc.

Filing 219

AMICUS BRIEF, on behalf of Amicus Curiae New York Civil Liberties Union, American Civil Liberties Union, 9 to 5, A Better Balance, Coalition of Labor Union Women, Equal Rights Advocates, Gender Justice, Legal Voice, National Women's Law Center, Southwest Women's Law Center, Women Employed, Women's Law Center of Maryland and Women's Law Project, FILED. Service date 11/04/2016 by CM/ECF.[1900229] [15-3775] [Entered: 11/04/2016 09:50 AM]

15-3775-cv
United States Court of Appeals
For the Second Circuit
MELISSA ZARDA, co-independent executor of the estate of Donald Zarda; and
WILLIAM ALLEN MOORE, JR., co-independent executor of the estate of Donald Zarda,
Plaintiffs-Appellants,
v.
ALTITUDE EXPRESS, INC., doing business as Skydive Long Island; and RAY MAYNARD,
Defendants-Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NEW YORK
BRIEF OF AMICI CURIAE AMERICAN CIVIL LIBERTIES UNION; NEW YORK
CIVIL LIBERTIES UNION; 9to5, NATIONAL ASSOCIATION OF WORKING WOMEN;
A BETTER BALANCE; COALITION OF LABOR UNION WOMEN; EQUAL RIGHTS
ADVOCATES; GENDER JUSTICE; LEGAL VOICE; NATIONAL WOMEN’S LAW
CENTER; SOUTHWEST WOMEN’S LAW CENTER; WOMEN EMPLOYED;
WOMEN’S LAW CENTER OF MARYLAND; and WOMEN’S LAW PROJECT
IN SUPPORT OF PLAINTIFFS-APPELLANTS
MELISSA ZARDA and WILLIAM ALLEN MOORE, JR.

LENORA M. LAPIDUS
GILLIAN L. THOMAS
Women’s Rights Project
RIA TABACCO MAR
LESLIE COOPER
Lesbian Gay Bisexual Transgender
& HIV Project
American Civil Liberties Union Foundation
125 Broad Street
New York, N.Y. 10004
[phone]

ERIN BETH HARRIST
ROBERT HODGSON
CHRISTOPHER DUNN
New York Civil Liberties Union Foundation
125 Broad Street, 19th Floor
New York, N.Y. 10004
[phone]

Attorneys for Amici Curiae

CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1, the undersigned
counsel of record certifies that none of the amici curiae is a nongovernmental
entity with a parent corporation or a publicly held corporation that owns 10% or
more of its stock. This representation is made in order that the judges of this Court
may evaluate possible disqualification or recusal.

Dated: March 18, 2016

s/ Erin Beth Harrist
ERIN BETH HARRIST
New York Civil Liberties Union
Foundation
125 Broad Street, 19th Floor
New York, NY 10004
[phone]
[e-mail]
Attorney for Amici Curiae

i

TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT ..........................................................i
TABLE OF AUTHORITIES ................................................................................... iii
SUMMARY OF THE ARGUMENT ........................................................................ 1
INTERESTS OF AMICI CURIAE ............................................................................. 3
ARGUMENT ............................................................................................................. 4
I.

Since Title VII’s enactment, courts consistently have adopted an
expansive interpretation of what constitutes discrimination
“because of sex.” ............................................................................................. 4

II.

Title VII’s prohibition against sex discrimination protects all
employees, including lesbian, gay, and bisexual people. .............................. 14
A. Discrimination because of sexual orientation is sex
discrimination under the plain meaning of the term “sex.” ................ 15
B. Discrimination because of sexual orientation involves
impermissible sex-role stereotyping. .................................................. 17
C. Discrimination against people who have same-sex relationships
is associational discrimination. ........................................................... 20

III.

Simonton should be reconsidered in light of the Supreme Court’s
expansive interpretation of what constitutes discrimination
“because of sex” as well as the recent EEOC ruling. .................................... 22

CONCLUSION ........................................................................................................ 27
CERTIFICATE OF COMPLIANCE ....................................................................... 28
CERTIFICATE OF SERVICE ................................................................................ 29
APPENDIX: INTERESTS OF AMICI CURIAE .................................................. A-1

ii

TABLE OF AUTHORITIES
Cases
Am. Newspaper Publishers Ass’n v. Alexander,
294 F. Supp. 1100 (D.D.C. 1969).................................................................... 7
AT&T Corp. v. Hulteen,
556 U.S. 701 (2009)....................................................................................... 10
Barnes v. Train,
No. 1828-73, 1974 WL 10628 (D.D.C. Aug. 9, 1974).................................. 12
Centola v. Potter,
183 F. Supp. 2d 403 (D. Mass. 2002) ............................................................ 20
Christiansen v. Omnicom Group, Inc.,
No. 15 Civ. 3440, 2016 WL 951581 (S.D.N.Y. Mar. 9, 2016) ..................... 26
City of L.A. Dep’t of Water & Power v. Manhart,
435 U.S. 702 (1978)......................................................................................... 6
Corne v. Bausch & Lomb, Inc.,
390 F. Supp. 161 (D. Ariz. 1975) ............................................................12, 13
Dawson v. Bumble & Bumble,
398 F.3d 211 (2d Cir. 2005) .................................................................... 24, 25
DeCintio v. Westchester County Medical Center,
807 F.2d 304 (2d Cir. 1986) .................................................................... 22, 23
Deneffe v. SkyWest, Inc.,
No. 14-cv-00348-MEH, 2015 WL 2265373 (D. Colo. May 11, 2015) ........ 19
Diaz v. Pan Am. World Airways, Inc.,
442 F.2d 385 (5th Cir. 1971) ........................................................................... 8
Dothard v. Rawlinson,
433 U.S. 321 (1977)......................................................................................... 9

iii

Foray v. Bell Atlantic,
56 F. Supp. 2d 327 (S.D.N.Y. 1999) .......................................................16, 21
General Electric Co. v. Gilbert,
429 U.S. 125 (1976)....................................................................................... 10
Glenn v. Brumby,
663 F.3d 1312 (11th Cir. 2011) ..................................................................... 23
Golinski v. U.S. Office of Pers. Mgmt.,
824 F. Supp. 2d 968 (N.D. Cal. 2012) ................................................................ 17
Griggs v. Duke Power Co.,
401 U.S. 424 (1971)......................................................................................... 9
Hall v. BNSF Ry. Co.,
No. C13-2160, 2014 WL 4719007 (W.D. Wash. Sept. 22, 2014) ................ 19
Heller v. Columbia Edgewater Country Club,
195 F. Supp. 2d 1212 (D. Or. 2002) .............................................................. 20
Holcomb v. Iona College,
521 F.3d 130 (2d Cir. 2008) .................................................................... 20, 21
In re Levenson,
560 F.3d 1145 (9th Cir. 2009) ....................................................................... 16
Int’l Union, UAW v. Johnson Controls, Inc.,
499 U.S. 187 (1991)...................................................................................9, 10
Jefferies v. Harris Co. Cmty. Action Ass’n,
693 F.2d 589 (5th Cir. 1982) ......................................................................... 11
Jernigan v. Crane,
64 F. Supp. 3d 1260 (E.D. Ark. 2014) .......................................................... 16
Kitchen v. Herbert,
961 F. Supp. 2d 1181 (D. Utah 2013) ........................................................... 17

iv

Koren v. Ohio Bell Tel. Co.,
894 F. Supp. 2d 1032 (N.D. Ohio 2012) ....................................................... 20
Lam v. Univ. of Hawai’i,
40 F.3d 1551 (1994) ...................................................................................... 11
Latta v. Otter,
771 F.3d 456 (9th Cir. 2014) ......................................................................... 16
Lawson v. Kelly,
58 F. Supp. 3d 923 (W.D. Mo. 2014) ............................................................ 17
Meritor Sav. Bank, FSB v. Vinson,
477 U.S. 57 (1986)...................................................................................13, 14
Miller v. Bank of Am.,
418 F. Supp. 233 (N.D. Cal. 1976) ................................................................ 12
Nashville Gas Co. v. Satty,
434 U.S. 136 (1977)....................................................................................... 10
Newport News Shipbuilding & Dry Dock Co. v. EEOC,
462 U.S. 669 (1983)...........................................................................10, 15, 24
Oncale v. Sundowner Offshore Servs.,
523 U.S. 75 (1998)...................................................................................14, 24
Perry v. Schwarzenegger,
704 F. Supp. 2d 921 (N.D. Cal. 2010) ........................................................... 17
Phillips v. Martin Marietta Corp.,
400 U.S. 542 (1971)....................................................................................... 11
Price Waterhouse v. Hopkins,
490 U.S. 228 (1989)................................................................................passim
Rosenbrahn v. Daugaard,
61 F. Supp. 3d 845 (D.S.D. 2014) ................................................................. 16

v

Rosenfeld v. S. Pac. Co.,
444 F.2d 1219 (9th Cir. 1971) ......................................................................... 8
Simonton v. Runyon,
232 F.3d 33 (2d Cir. 2000) .....................................................................passim
Smith v. City of Salem, Ohio,
378 F.3d 566 (6th Cir. 2004) ......................................................................... 23
Sommers v. Budget Mktg., Inc.,
667 F.2d 748 (8th Cir. 1982) ......................................................................... 23
Sprogis v. United Air Lines, Inc.,
517 F.2d 387 (7th Cir. 1975) ......................................................................... 11
Terveer v. Billington,
34 F. Supp. 3d 100 (D.D.C. 2014)................................................................. 20
Tomkins v. Public Serv. Elec. & Gas Co.,
422 F. Supp. 553 (D.N.J. 1976) ..................................................................... 12
Ulane v. E. Airlines,
742 F.2d 1081 (7th Cir. 1984) ....................................................................... 23
Videckis v. Pepperdine Univ.,
100 F. Supp. 3d 927 (C.D. Cal. 2015) ........................................................... 19
Weeks v. S. Bell Tel. & Tel. Co.,
408 F.2d 228 (5th Cir. 1969) ........................................................................... 8
Williams v. Consol. Edison Corp. of N.Y.,
255 F. App’x 546 (2d Cir. 2007) ................................................................... 21

vi

Administrative Decisions, Guidance, and Materials
Baldwin v. Foxx,
EEOC Doc. 0120133080, 2015 WL 4397641
(EEOC July 15, 2015) .......................................................................15, 18, 21
Complainant v. Johnson,
EEOC Doc. 0120110576, 2014 WL 4407457
(EEOC Aug. 20, 2014) ............................................................................ 18-19
Cote v. Wal-Mart Stores E., LP,
Final Determinatino, EEOC Charge No. 523-2014-00916
(Jan. 29, 2015). ........................................................................................15, 21
Macy v. Holder,
EEOC Doc. 0120120821, 2012 WL 1435995
(EEOC Apr. 20, 2012) ................................................................................... 18
Veretto v. Donahoe,
EEOC Doc. 0120110873, 2011 WL 2663401
(EEOC July 1, 2011)...................................................................................... 18
Rules, Statutes, and Regulations
29 C.F.R. Section 1604.11(a) (1980) ....................................................................... 13
42 U.S.C. § 2000e-2 ................................................................................................... 4
110 Cong. Rec. 2577-84 (1964) ................................................................................. 4
U.S. Dep’t of Labor, Discrimination on the Basis of Sex,
80 Fed. Reg. 5246 (proposed Jan. 30, 2015) ................................................. 19
Miscellaneous Authorities
Cary Franklin, Inventing the “Traditional Concept” of Sex Discrimination,
125 HARV. L. REV. 1307 (Apr. 2012) .............................................................. 5

vii

Robert C. Bird, More Than a Congressional Joke: A Fresh Look at the
Legislative History of Sex Discrimination of the 1964 Civil Rights Act,
3 WM. & MARY J. WOMEN & L. 137 (1997) ................................................ 5, 6
Michael Evan Gold, A Tale of Two Amendments: The Reasons Congress
Added Sex to Title VII and Their Implication for Comparable Worth,
19 DUQUESNE L. REV. 453 (1981) ................................................................... 5
Carl M. Brauer, Women Activists, Southern Conservatives, and the Prohibition
of Sex Discrimination in Title VII of the 1964 Civil Rights Act,
49 J. S. HIST. 37 (Feb. 1983) ............................................................................ 6

viii

SUMMARY OF THE ARGUMENT
This appeal presents the momentous issue of whether employers are free to
discriminate against lesbian, gay, and bisexual people without running afoul of
Title VII’s historic prohibition against discrimination “because of sex.” Decades
of Supreme Court history make plain that Title VII’s prohibition against
discrimination because of sex has become a robust source of protection for men
and women workers alike. Initially, Title VII was used as a vehicle for striking
down employer policies and practices that literally excluded women from
employment opportunities. It soon became clear, however, that discrimination
“because of sex” means much more than simply getting rid of “men only” signs
(or, for that matter, “women only” signs). The Supreme Court has explained that
sex discrimination occurs whenever an employer takes an employee’s sex into
account when making an adverse employment decision. Courts have applied this
principle to countless forms of employer bias, from cases involving a ban on hiring
mothers of preschool-aged children to bias against Asian-American women to the
failure to promote a Big Eight accounting firm partnership candidate because she
was considered to be “macho.” Time and again, courts have refused to allow
generalizations about men and women – or about certain types of men and women
– to play any role in employment decisions.

1

This rich history of courts’ interpretations of Title VII, in addition to the
reasons stated by Plaintiffs-Appellants, must be considered in understanding why
discrimination against lesbian, gay, and bisexual employees is discrimination
“because of sex.” Indeed, many of the rationales advanced to exclude lesbian, gay,
and bisexual employees from Title VII’s protection were also made, and rejected,
in cases involving equal opportunity for women. Employers who take sexual
orientation into account necessarily take sex into account, because sexual
orientation turns on one’s sex in relation to the sex of one’s partner. And bias
against lesbian, gay, and bisexual people turns on the sex-role expectation that
women should be attracted to only men (and not women) and vice versa. There is
no principled reason to create an exception from Title VII for sex discrimination
that involves sexual orientation, as the U.S. Equal Employment Opportunity
Commission (“EEOC”) recognized in a landmark July 2015 ruling. A growing
number of district courts agree.
This case presents an opportunity for the Court to correct its outdated and
unworkable interpretation of the scope of Title VII’s prohibition of discrimination
“because of sex.” In 2000, this Court held in Simonton v. Runyon, 232 F.3d 33 (2d
Cir. 2000), that harassment on the basis of sexual orientation is not sex-based
discrimination. Yet sex stereotyping, as defined by the Supreme Court, plainly
encompasses discrimination on the basis of sexual orientation. Continued reliance

2

on Simonton’s outdated categorical exclusion has led to cramped and illogical
attempts to distinguish between sex stereotyping that does not implicate sexual
orientation, which is clearly prohibited by Title VII, and sex stereotyping that
relates to the fact that an employee is lesbian, gay, or bisexual. This Court should
now hold, as other federal district courts and administrative agencies recently have
done, that there is no coherent line to be drawn between such forms of
discrimination and that sexual orientation discrimination is discrimination
“because of sex.”
INTERESTS OF AMICI CURIAE1
Amici are a coalition of thirteen civil rights groups and public interest
organizations committed to preventing, combating, and redressing sex
discrimination and protecting the equal rights of women in the United States.
More detailed statements of interest are contained in the accompanying appendix.
Amici have a vital interest in ensuring that Title VII’s promise of equal
employment opportunity effectively protects all people from invidious
discrimination “because of sex” and have filed this brief to address an issue of
importance in this case: the proper scope of Title VII’s application to

1

Pursuant to Rule 29(c)(5) of the Federal Rules of Appellate Procedure and Local
Rule 29.1, counsel for amici curiae state that no counsel for a party authored this
brief in whole or in part, and that no person other than amici curiae, their
members, or their counsel made a monetary contribution to the preparation or
submission of this brief.
3

discrimination against lesbian, gay, and bisexual employees. Amici take no
position on the other issues presented by this appeal.
ARGUMENT
I.

Since Title VII’s enactment, courts consistently have adopted an
expansive interpretation of what constitutes discrimination “because
of sex.”
This Court should revisit its decision in Simonton v. Runyon, 232 F.3d 33

(2d Cir. 2000), that discrimination on the basis of sexual orientation is not sexbased discrimination prohibited by Title VII. In doing so, this Court should take
into account the Supreme Court’s expansive interpretation of the phrase “because
of sex” during the past fifty years, a trajectory that informed the EEOC’s recent
decision recognizing that sexual orientation discrimination violates Title VII.
Title VII of the Civil Rights Act of 1964 makes it an unlawful employment
practice for an employer “to fail or refuse to hire or to discharge any individual, or
otherwise to discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual’s . . .
sex.” 42 U.S.C. § 2000e-2(a)(1). Unlike the prohibition against discrimination
because of race, the prohibition against discrimination because of sex was added to
the bill at the last minute, with a few hours of floor debate and without the benefit
of congressional hearings. 110 Cong. Rec. 2577-84 (1964).

4

Since Title VII’s enactment, this sparse record sometimes has been invoked
as justification for limiting Title VII’s reach beyond removing barriers that
explicitly disadvantage women as compared to men.2 Indeed, many have
presumed that such distinctions were the only kind of discrimination “because of
sex” that concerned legislators in 1964. This interpretation is simply incorrect. As
one scholar has explained in a seminal law review article: “Contrary to what
courts have suggested, there was no consensus among legislators in the mid-1960s
that the determination of whether an employment practice discriminated on the
basis of sex could be made simply by asking whether an employer had divided
employees into two groups perfectly differentiated along biological sex lines.”
Cary Franklin, Inventing the “Traditional Concept” of Sex Discrimination, 125
HARV. L. REV. 1307, 1320, 1328 (Apr. 2012).3

2

Even the motivations of the sex amendment’s sponsor, Representative Howard
Smith of Virginia, have been the subject of intense dispute among historians,
including theories that he intended the addition as a joke or as a vehicle for
scotching the entire bill, which he opposed. See, e.g., Robert C. Bird, More Than a
Congressional Joke: A Fresh Look at the Legislative History of Sex
Discrimination of the 1964 Civil Rights Act, 3 WM. & MARY J. WOMEN & L. 137,
139-42 (1997); Michael Evan Gold, A Tale of Two Amendments: The Reasons
Congress Added Sex to Title VII and Their Implication for Comparable Worth, 19
DUQUESNE L. REV. 453, 458-59 (1981). But as one scholar has noted, whatever
Smith’s “real” motivation, it is irrelevant; the reason(s) for introducing legislation
may or may not bear any relation to the reason(s) the legislature enacts it. Id. at
462-67.
3

Commentators also have noted that supporters of the sex amendment were
motivated not by concern for women vis a vis men, but for white women vis a vis
5

Given this history, it was left to the courts to define what is meant by
“because of sex.” Interpreting the plain meaning of these words, courts
consistently have interpreted Title VII’s prohibition against sex discrimination to
cover a wide range of employer assumptions about women and men alike. As the
Supreme Court put it nearly forty years ago, “‘[i]n forbidding employers to
discriminate against individuals because of their sex, Congress intended to strike at
the entire spectrum of disparate treatment of men and women resulting from sex
stereotypes.” City of L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702, 707
n.13 (1978) (internal citation omitted). Indeed, when examined in full, the halfcentury of precedent interpreting “sex discrimination” has dismantled not just
distinctions between men and women, but also those among men and among
women – distinctions that for generations had confined individuals to strict gender
roles at work, as well as in society.
In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Supreme Court
famously held that when an employer relies on sex stereotypes to deny
employment opportunities, it unquestionably acts “because of sex.” There, the

Black women. That is, if Title VII included only race but not sex provisions,
Black women would enjoy a level of protection in the workplace that white women
would not. See, e.g., Bird, supra note 2, at 155-58; Carl M. Brauer, Women
Activists, Southern Conservatives, and the Prohibition of Sex Discrimination in
Title VII of the 1964 Civil Rights Act, 49 J. S. HIST. 37, 49-50 (Feb. 1983). These
historical realities militate against, not in favor of, the crabbed analysis of Title VII
embodied in Simonton and related decisions.
6

Court considered the Title VII claim of Ann Hopkins, who was denied promotion
to partner in a major accounting firm – despite having brought in the most business
of the eighty-seven other (male) candidates – because she was deemed “macho.”
Id. at 235. To be fit for promotion, Hopkins was told, she needed to “walk more
femininely, talk more femininely, dress more femininely, wear make-up, have
[her] hair styled, and wear jewelry.” Id.
As detailed in Part II.B, infra, Price Waterhouse confirms that employees
who fail to conform to all manner of sex stereotypes are protected by Title VII’s
sex provision, and the stereotype concerning to whom men and women “should”
be romantically attracted is encompassed within this principle. But Ann Hopkins’s
case was hardly the only instance in which an employer’s stereotype-based
decision making was found to violate Title VII. Quite the opposite.
Among the earliest Title VII cases were those addressing – and disapproving
of – the literal exclusion of women from particular employment opportunities.
Prior to Title VII’s enactment, it had been routine for newspapers to separate “help
wanted” advertisements into “male” and “female” sections, but the EEOC and
courts found that practice illegal under the new law. See Am. Newspaper
Publishers Ass’n v. Alexander, 294 F. Supp. 1100 (D.D.C. 1969). Employers’
segregation of job opportunities by sex was premised on assumptions about what
work women and men can and want to do. Indeed, Title VII was enacted at a time

7

when the workforce was divided into “women’s jobs” and “men’s jobs,” stemming
largely from state “protective laws” restricting women’s access to historically
male-dominated fields, but also from the resulting cultural attitudes about the
sexes’ respective abilities and preferences. Just as sex-specific job listings were
found to violate Title VII, so too were a variety of other policies and practices that
had the purpose or effect of judging employees by their gender, not their
qualifications.
By adopting a narrow approach to the bona fide occupational qualification
(BFOQ) exception, for instance, courts assured that women and men alike would
be assessed for jobs on individual merit, not group-based stereotypes. See, e.g.,
Rosenfeld v. S. Pac. Co., 444 F.2d 1219 (9th Cir. 1971) (striking down employer
policy prohibiting women from becoming station agents due to job’s physical
demands); Diaz v. Pan Am. World Airways, Inc., 442 F.2d 385 (5th Cir. 1971)
(finding airline’s women-only rule for flight attendants unlawful discrimination);
Weeks v. S. Bell Tel. & Tel. Co., 408 F.2d 228 (5th Cir. 1969) (prohibiting
employer policy against women working as switchmen on grounds that job
required heavy lifting).
Similarly, within a few years of these decisions, the Supreme Court ruled
that physical criteria that disproportionately exclude women applicants violate
Title VII unless justified by business necessity; employers could no longer merely

8

assume that “bigger is better” when it came to dangerous jobs. See Dothard v.
Rawlinson, 433 U.S. 321 (1977) (unanimously extending disparate impact
framework of Griggs v. Duke Power Co., 401 U.S. 424 (1971), to cover height and
weight minimums for prison guards).4 The Court later relied on similar logic to
invalidate an employer’s “fetal protection policy” that barred women, but not men,
from jobs involving contact with lead – despite medical evidence showing that
men faced equal if not worse reproductive hazards. Int’l Union, UAW v. Johnson
Controls, Inc., 499 U.S. 187 (1991). Such a policy, said the Court, unlawfully
presumed that women were more suited to motherhood than to the rigors, and
dangers, of certain work: “It is no more appropriate for the courts than it is for the
individual employers to decide whether a woman’s reproductive role is more

4

Although the Dothard Court upheld on BFOQ grounds Alabama’s exclusion of
women from certain positions within maximum-security penitentiaries that
required bodily contact with inmates, the Court emphasized that its decision should
not be interpreted as endorsing an absolute male-only rule in all such jobs. Rather,
the Court reiterated that the BFOQ exception was otherwise to be read narrowly; it
was the harrowing conditions then prevailing in Alabama’s maximum-security
facilities, which were under federal court order to come into compliance with the
Eighth Amendment, that made this a special case. See 433 U.S. at 335 (“In the
usual case, the argument that a particular job is too dangerous for women may
appropriately be met by the rejoinder that it is the purpose of Title VII to allow the
individual woman to make that choice for herself.”).
9

important to herself and her family than her economic role. Congress has left this
choice to the woman as hers to make.” Id. at 211.5
Although what little floor debate occurred prior to Title VII’s passage
focused on women’s second-class status in the workplace, the prohibition against
discrimination “because of sex” has long been understood to ban discrimination
against men as well. As the Supreme Court noted, “[p]roponents of the legislation
stressed throughout the debates that Congress had always intended to protect all
individuals from sex discrimination in employment.” Newport News Shipbuilding
& Dry Dock Co. v. EEOC, 462 U.S. 669, 681 (1983).

5

At the time Johnson Controls was decided, Title VII had been amended by the
1978 Pregnancy Discrimination Act (“PDA”). The PDA’s addition to the statute
does not warrant the conclusion that Title VII’s sex provision, as originally
enacted, did not encompass pregnancy discrimination, or that the law otherwise
was incomplete in its substantive reach. Rather, the PDA was enacted in response
to the Supreme Court’s widely-disparaged ruling in General Electric Co. v.
Gilbert, 429 U.S. 125 (1976), in which it found that the exclusion of pregnancy
from a company’s disability benefits plan did not favor men over women, but
rather, differentiated between pregnant and non-pregnant persons. Gilbert was
nearly universally considered a misreading of Title VII; at the time it was decided,
the EEOC, as well as all of the courts of appeals that had considered the issue, had
declared pregnancy discrimination to be unlawful sex discrimination. See AT&T
Corp. v. Hulteen, 556 U.S. 701, 717-18 (2009) (Ginsburg, J., dissenting). Indeed,
just one year after Gilbert (and before passage of the PDA), the Supreme Court
found discrimination on the basis of pregnancy to be discrimination “because of
sex” when it struck down a municipal employer’s policy of erasing women’s
seniority while they were out on maternity leave. Nashville Gas Co. v. Satty, 434
U.S. 136, 142-43 (1977).
10

In addition to protecting male employees, Title VII also has been read
repeatedly to forbid discrimination against subsets of employees, resulting in a
broad definition of sex discrimination that acknowledges the diversity of
employees’ identities – and the equally diverse forms of sex-based bias to which
they may be subjected. See, e.g., Lam v. Univ. of Hawai’i, 40 F.3d 1551 (1994)
(Asian-American woman’s Title VII sex discrimination claim viable despite
evidence that white women comparators were not subjected to discrimination);
Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971) (per curiam) (invalidating
employer’s ban on hiring mothers of preschool-aged children, despite overall high
rates of women’s employment); Jefferies v. Harris Co. Cmty. Action Ass’n, 693
F.2d 589 (5th Cir. 1982) (Black woman could bring Title VII claim despite
evidence that employer treated white female comparators favorably); Sprogis v.
United Air Lines, Inc., 517 F.2d 387 (7th Cir. 1975) (airline’s policy of employing
only unmarried female flight attendants violated Title VII).
The initial rejection and later recognition of sexual harassment as sex
discrimination offers another useful lens into courts’ ever-widening understanding
of what constitutes discrimination “because of sex.” Although courts understood
by the early 1970s that using racial epithets or displaying racist symbols like
nooses was harassment “because of race” that violated Title VII, they were slower
to see sexual harassment as harassment “because of sex.” Instead, judges routinely

11

wrote off adverse employment actions against women who had spurned their
supervisors’ advances as “controvers[ies] underpinned by the subtleties of an
inharmonious personal relationship.” Barnes v. Train, No. 1828-73, 1974 WL
10628, at *1 (D.D.C. Aug. 9, 1974) (emphasis added), rev’d sub nom Barnes v.
Costle, 561 F.2d 983 (D.C. Cir. 1977); see also Miller v. Bank of Am., 418 F. Supp.
233, 236 (N.D. Cal. 1976) (sexual harassment could not be discrimination
“because of sex” because “[t]he attraction of males to females and females to
males is a natural sex phenomenon”), rev’d, 600 F.2d 211 (9th Cir. 1979); Tomkins
v. Public Serv. Elec. & Gas Co., 422 F. Supp. 553, 556 (D.N.J. 1976) (Title VII not
meant to provide a remedy “for what amounts to physical attack motivated by
sexual desire . . . which happened to occur in a corporate corridor rather than a
back alley”), rev’d, 568 F.2d 1044 (3d Cir. 1977); Corne v. Bausch & Lomb, Inc.,
390 F. Supp. 161, 163 (D. Ariz. 1975) (supervisor’s sexual harassment was
motivated not by plaintiff’s sex but by a “personal proclivity, peculiarity or
mannerism”), rev’d, 562 F.2d 55 (9th Cir. 1977).
Notably, these courts buttressed their narrow readings of Title VII by
referencing the limited debate that preceded Congress’s addition of the sex
provision. See Miller, 418 F. Supp. at 235-36 (the “Congressional Record fails to
reveal any specific discussions as to the amendment’s intended scope or impact”);
Tomkins, 422 F. Supp. at 556-57 (sexual harassment “clear[ly] . . . without the

12

scope of the Act,” because otherwise “we would need 4,000 federal trial judges
instead of some 400”); Corne, 390 F. Supp. at 163 (given the “little legislative
history surrounding the addition of the word ‘sex’ to the employment
discrimination provisions of Title VII,” it would “be ludicrous to hold that the sort
of activity involved here was contemplated by the Act”).
The jurisprudential tide began to turn in the late 1970s (as evidenced in part
by the appellate reversals of the above-cited decisions), and in 1980 the EEOC
updated its Guidelines on Discrimination Because of Sex to declare that sexual
harassment of a female employee could not be disentangled from her sex. 29
C.F.R. Section 1604.11(a) (1980). The 1980 Guidelines recognized that it is not
“personal” to disadvantage a female employee because of her supervisor’s sexual
conduct toward her; it is illegal.
The Supreme Court continued this evolution in 1986, when it ruled that
severe or pervasive conduct that creates a sexually hostile work environment
violates Title VII by altering the “terms, conditions, and privileges” of
employment. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986). But the
Vinson Court took it as a given that sexual harassment was sex discrimination; its
analysis centered on whether a plaintiff’s “voluntary” acquiescence to sexual
demands and her failure to lodge a formal complaint negated her Title VII claim.
As the Court put it, “Without question, when a supervisor sexually harasses a

13

subordinate because of the subordinate’s sex, that supervisor ‘discriminate[s]’ on
the basis of sex.” Id. at 64 (emphasis added). Indeed, the bank had not contested
that principle in its filings, either. Id.
Roughly a decade later, the Court extended Vinson – unanimously – to
encompass same-sex sexual harassment. See Oncale v. Sundowner Offshore
Servs., 523 U.S. 75, 79-80 (1998). In so doing, the Oncale Court rejected various
attempts to define sexual harassment narrowly. For example, the Court declined to
hold that whether an employee is the victim of sex (or race) discrimination turns on
the sex (or race) of the harasser. Id. at 78-79. The Court likewise did away with
the argument that sexual harassment must be motivated by sexual desire to be
actionable under Title VII. Id. at 80-81. Rather, the Court adopted perhaps the
simplest test for whether discrimination had occurred: whether the conduct at
issue met Title VII’s “statutory requirements,” i.e., whether the harassment
occurred because of the employee’s sex. Id. at 80. The same test applies to
discrimination against lesbian, gay, and bisexual employees, for the reasons
explained below.
II.

Title VII’s prohibition against sex discrimination protects all employees,
including lesbian, gay, and bisexual people.
As a remedial statute, and as illustrated by the foregoing decisions, Title VII

does not prohibit only discrimination by men against women. Oncale, 523 U.S. at
78. Rather, the statute protects “all individuals” from differential treatment
14

because of their sex. Newport News, 462 U.S. at 681. This includes lesbian, gay,
and bisexual individuals, as the EEOC recognized recently in a July 2015 ruling.
A.

Discrimination because of sexual orientation is sex discrimination
under the plain meaning of the term “sex.”

Discrimination on the basis of sexual orientation is sex discrimination under
the plain meaning of the term, because sexual orientation turns on one’s sex in
relation to the sex of one’s partner. Consideration of an employee’s sexual
orientation therefore necessarily involves consideration of the employee’s sex, as
the EEOC recently held. Baldwin v. Foxx, EEOC Doc. 0120133080, 2015 WL
4397641, at *5 (EEOC July 15, 2015).
That discrimination because of sexual orientation involves impermissible
consideration of sex is particularly apparent in the employee benefits context.
When an employer refuses to provide insurance coverage to an employee’s samesex spouse, but would provide such benefits to a different-sex spouse, the
employment benefit depends on the sex of the employee. For example, a female
employee who is denied fringe benefits because she is married to a woman
experiences sex discrimination, because she would be provided those benefits if
she were a man married to a woman. See Final Determination, Cote v. Wal-Mart
Stores E., LP, EEOC Charge No. 523-2014-00916 (Jan. 29, 2015),
http://www.glad.org/uploads/docs/cases/cote-v-walmart/cote-v-walmart-probablecause-notice.pdf. In addition to the EEOC, several federal courts have reached the
15

same conclusion in analogous contexts. For example, in Foray v. Bell Atlantic, the
court recognized that a male plaintiff could advance a sex discrimination theory
based on the denial of benefits to his same-sex partner. See 56 F. Supp. 2d 327,
329-30 (S.D.N.Y. 1999) (recognizing sex discrimination theory under Title VII
and the Equal Pay Act “because all things being equal, if [plaintiff’s] gender were
female, he would be entitled to claim his domestic partner as an eligible dependent
under the benefits plan” but dismissing both claims because plaintiff and his
partner were not similarly situated to married couples); see also In re Levenson,
560 F.3d 1145, 1147 (9th Cir. 2009) (holding that denial of benefits for same-sex
spouse of federal public defender constituted discrimination on the basis of sex or
sexual orientation).
Numerous federal courts have concluded that sexual orientation
discrimination is sex discrimination in cases seeking the freedom to marry for
same-sex couples. As Judge Berzon recognized, the Equal Protection Clause
forbids marriage bans for same-sex couples as a form of impermissible sex
discrimination, because “[o]nly women may marry men, and only men may marry
women.” Latta v. Otter, 771 F.3d 456, 480 (9th Cir. 2014) (Berzon, J.,
concurring); see also Jernigan v. Crane, 64 F. Supp. 3d 1260, 1286-87 (E.D. Ark.
2014), aff’d on other grounds, 796 F.3d 976 (8th Cir. 2015); Rosenbrahn v.
Daugaard, 61 F. Supp. 3d 845, 859-60 (D.S.D. 2014), aff’d on other grounds, 799

16

F.3d 918 (8th Cir. 2015); Lawson v. Kelly, 58 F. Supp. 3d 923, 934 (W.D. Mo.
2014); Kitchen v. Herbert, 961 F. Supp. 2d 1181, 1206 (D. Utah 2013), aff’d on
other grounds, 755 F.3d 1193 (10th Cir.), cert. denied, 135 S. Ct. 265 (2014);
Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 996 (N.D. Cal. 2010), appeal
dismissed sub nom. Perry v. Brown, 725 F.3d 1140 (9th Cir. 2013); cf. Golinski v.
U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968, 982 n.4 (N.D. Cal. 2012) (“Ms.
Golinski is prohibited from marrying Ms. Cunninghis, a woman, because Ms.
Golinski is a woman. If Ms. Golinski were a man, [the Defense of Marriage Act
(“DOMA”)] would not serve to withhold benefits from her. Thus, DOMA operates to
restrict Ms. Golinski’s access to federal benefits because of her sex.”), initial hearing
en banc denied, 680 F.3d 1104 (9th Cir. 2012) and appeal dismissed, 724 F.3d 1048
(9th Cir. 2013). This reasoning applies with equal force to Title VII as it does to
the Equal Protection Clause.
B.

Discrimination because of sexual orientation involves
impermissible sex-role stereotyping.

As the Supreme Court recognized in Price Waterhouse, the prohibition
against discrimination “because of sex” is not limited to discrimination based on
the fact that an individual is male or female, but also discrimination based on other
aspects of a person’s sex, such as gender expression and conformity (or lack of
conformity) with social gender roles. 490 U.S. at 250 (employers discriminate
“because of sex” when they rely on sex-specific stereotypical beliefs, such as the
17

notion that “a woman cannot be aggressive, or that she must not be”); id. at 256
(“[I]f an employee’s flawed ‘interpersonal skills’ can be corrected by a soft-hued
suit or a new shade of lipstick, perhaps it is the employee’s sex and not her
interpersonal skills that has drawn the criticism.”); see also Macy v. Holder, EEOC
Doc. 0120120821, 2012 WL 1435995, at *6 (EEOC Apr. 20, 2012) (Title VII
prohibits discrimination based “not only on a person’s biological sex but also the
cultural and social aspects associated with masculinity and femininity”).
While discrimination because of sexual orientation often is accompanied by
explicit evidence of disparate treatment because of an individual’s failure to
conform with gender stereotypes about dress and appearance, it need not be to
constitute sex discrimination. See Baldwin, 2015 WL 4397641, at *7-8. Since
2011, the EEOC has recognized that discrimination against lesbian, gay, and
bisexual employees is unlawful to the extent that it turns on the sex-role
expectation that women should be attracted to only men (and not women), and that
men should be attracted to only women (and not men). See Veretto v. Donahoe,
EEOC Doc. 0120110873, 2011 WL 2663401, at *3 (EEOC July 1, 2011) (Title VII
prohibits adverse employment action “motivated by the sexual stereotype that
marrying a woman is an essential part of being a man”); see also Complainant v.

18

Johnson, EEOC Doc. 0120110576, 2014 WL 4407457, at *7 (EEOC Aug. 20,
2014) (collecting cases).6
Because nonconformity with sex-role expectations is the very quality that
defines lesbian, gay, and bisexual people, federal district courts likewise have
begun to recognize that discrimination against members of those groups is a form
of sex stereotyping without requiring additional evidence of gender nonconformity.
See, e.g., Videckis v. Pepperdine Univ., No. CV 15-00298 DDP, 2015 WL
1735191, at *8 (C.D. Cal. Apr. 16, 2015) (“[A] policy that female basketball
players could only be in relationships with males inherently would seem to
discriminate on the basis of gender.”); Deneffe v. SkyWest, Inc., No. 14-cv-00348MEH, 2015 WL 2265373, at *6 (D. Colo. May 11, 2015) (denying motion to
dismiss where plaintiff alleged that he failed to conform to male stereotypes by
designating his same-sex partner as beneficiary); Hall v. BNSF Ry. Co., No.
C13-2160, 2014 WL 4719007, at *3 (W.D. Wash. Sept. 22, 2014) (denying motion
to dismiss where plaintiff alleged that “he (as a male who married a male) was
treated differently in comparison to his female coworkers who also married

6

More recently, the U.S. Department of Labor’s Office of Federal Contract
Compliance Programs promulgated a proposed rule that would codify this
reasoning and provide that federal contractors must not make employment
decisions because an employee “does not conform to sex-role expectations by
being in a relationship with a person of the same sex.” U.S. Dep’t of Labor,
Discrimination on the Basis of Sex, 80 Fed. Reg. 5246, 5279 (proposed Jan. 30,
2015) (to be codified at 41 C.F.R. pt. 60-20).
19

males”); Terveer v. Billington, 34 F. Supp. 3d 100, 116 (D.D.C. 2014) (denying
motion to dismiss where “Plaintiff has alleged that he is ‘a homosexual male
whose sexual orientation is not consistent with the Defendant’s perception of
acceptable gender roles’”); Koren v. Ohio Bell Tel. Co., 894 F. Supp. 2d 1032,
1038 (N.D. Ohio 2012) (finding genuine issue of material fact under sex
stereotyping theory where plaintiff failed to conform by taking his same-sex
spouse’s surname after marriage); Heller v. Columbia Edgewater Country Club,
195 F. Supp. 2d 1212, 1224 (D. Or. 2002) (finding genuine issue of material fact
under sex stereotyping theory where female plaintiff failed to conform by being
attracted to and dating other women and not only men); see also Centola v. Potter,
183 F. Supp. 2d 403, 410 (D. Mass. 2002) (“Sexual orientation harassment is often,
if not always, motivated by a desire to enforce heterosexually defined gender
norms. In fact, stereotypes about homosexuality are directly related to our
stereotypes about the proper roles of men and women.”).
C.

Discrimination against people who have same-sex relationships is
associational discrimination.

This Court first recognized that associational discrimination violates Title
VII in Holcomb v. Iona College, which involved a white man who alleged he was
fired in part because of his interracial marriage to a Black woman. 521 F.3d 130
(2d Cir. 2008). “The reason is simple: where an employee is subjected to adverse

20

action because an employer disapproves of interracial association, the employee
suffers discrimination because of the employee’s own race.” Id. at 139.
The same standard, and the same reasoning, apply to discrimination against
an employee because he or she is in a relationship with a person of the same sex.
See Williams v. Consol. Edison Corp. of N.Y., 255 F. App’x 546, 549 (2d Cir.
2007) (noting that this Court “appl[ies] the same standard to both race-based and
sex-based hostile work environment claims”); Baldwin, 2015 WL 4397641, at
*6-7. The employer’s disapproval of same-sex relationships depends on the
employee’s sex: If the employee were of a different sex, he or she would not be in
a same-sex relationship and, therefore, would not be subject to the employer’s
adverse action. Cf. Foray, 56 F. Supp. 2d at 329-30 (“[A]ll things being equal, if
[plaintiff’s] gender were female, he would be entitled to claim his domestic partner
as an eligible dependent under the benefits plan. . . .”); Final Determination, Cote
v. Wal-Mart Stores E., LP, EEOC Charge No. 523-2014-00916 (Jan. 29, 2015),
http://www.glad.org/uploads/docs/cases/cote-v-walmart/cote-v-walmart-probablecause-notice.pdf (a female employee is “subjected to employment discrimination
[where] she was treated differently and denied benefits because of her sex, since
such coverage would be provided if she were a woman married to a man”).

21

III.

Simonton should be reconsidered in light of the Supreme Court’s
expansive interpretation of what constitutes discrimination “because of
sex” as well as the recent EEOC ruling.
Simonton was wrongly decided because it ignored the meaning of sex

discrimination discussed above. This Court should now revisit that decision in
light of the history of Title VII jurisprudence described above and the EEOC’s
recent ruling recognizing that sexual orientation discrimination is necessarily sex
discrimination within the meaning of Title VII.
This Court first held that Title VII does not prohibit sexual orientation
discrimination in Simonton v. Runyon, a case brought by a postal worker who
claimed he was subjected to an abusive and hostile work environment because he
was gay. 232 F.3d 33. Simonton, in turn, relied in part on DeCintio v. Westchester
County Medical Center, 807 F.2d 304 (2d Cir. 1986), a decision that did not
involve sexual orientation discrimination at all. Rather, DeCintio involved male
plaintiffs who were passed over for a promotion in favor of a woman who was
involved in a romantic relationship with the man who supervised both her and the
plaintiffs. Id. at 305. In ruling that the male applicants did not have a Title VII
claim, this Court observed that “[s]ex, when read in this context, logically could
only refer to membership in a class delineated by gender, and not to sexual
affiliation.” Id. at 306.

22

Simonton relied on this language from DeCintio to rule that Title VII does
not proscribe discrimination based on sexual orientation, 232 F.3d at 36, but its
reliance was misplaced. First, the language was taken out of context; the “sexual
affiliation” at issue was the male employer’s romantic relationship with a woman.
More significantly, it was inconsistent with Price Waterhouse, in which the
Supreme Court held that sex means more than the fact of being a man or a woman
and encompasses the full range of gender expression in the workplace. See supra
Part II.B. What is more, the language relied on in DeCintio was derived from
cases from other circuits, see 807 F.2d at 307 (citing Ulane v. E. Airlines, 742 F.2d
1081 (7th Cir. 1984); Sommers v. Budget Mktg., Inc., 667 F.2d 748 (8th Cir.
1982)), whose reasoning has now been soundly rejected. “[F]ederal courts have
recognized with near-total uniformity that ‘the approach in . . . Ulane[] and
Sommers” was “‘eviscerated’ by the decision in Price Waterhouse.” Glenn v.
Brumby, 663 F.3d 1312, 1318 n.5 (11th Cir. 2011) (quoting Smith v. City of Salem,
Ohio, 378 F.3d 566, 573 (6th Cir. 2004)).
This Court in Simonton also gave great weight to the fact that Congress has
refused to amend Title VII to prohibit explicitly discrimination because of sexual
orientation. As an initial matter, congressional failure to act could just as easily
establish the opposite conclusion: that amendment of the statute was unnecessary
because sexual orientation discrimination already is covered by the prohibition

23

against discrimination because of sex. In any event, the Supreme Court in Oncale
squarely rejected the notion that legislative intent could limit the forms of sex
discrimination prohibited by Title VII. 523 U.S. at 79-80. The Court has made
clear that the full scope of Title VII’s protections should not be determined solely
by reference to the kinds of discrimination that were evident to legislators in 1964.
As Justice Scalia observed, the mere fact that a particular strain of bias was “not
the principal evil Congress was concerned with when it enacted Title VII” does not
end the analysis: “[S]tatutory 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.”
Id. at 79 (finding same-sex sexual harassment to be actionable sex discrimination
under Title VII); see also Newport News, 462 U.S. at 679-81 (rejecting the
argument that some of Title VII’s protections apply only to women and not to men,
despite the fact that the prohibition against sex discrimination was intended to
combat discrimination against women). Just as there is no exception to Title VII
for same-sex sexual harassment, see Oncale, 523 U.S. at 79, there is no exception
for lesbian, gay, or bisexual people either.
This Court’s only other precedential case addressing sexual orientation
discrimination is Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005). In
Dawson, the plaintiff alleged that her employer, a hair salon, did not promote her

24

to stylist because she was a lesbian who did not conform to gender stereotypes
about femininity. Id. at 213-16. The Dawson Court noted that the plaintiff
asserted a gender stereotyping claim and recognized that “[w]hen utilized by an
avowedly homosexual plaintiff, however, gender stereotyping claims can easily
present problems for an adjudicator. This is for the simple reason that
stereotypical notions about how men and women should behave will often
necessarily blur into ideas about heterosexuality and homosexuality.” Id. at 218.
Despite recognizing that sexual orientation necessarily implicates sex, this Court
nevertheless cited Simonton for the proposition that “a gender stereotyping claim
should not be used to bootstrap protection for sexual orientation into Title VII.”
Id.
The Court’s discussion regarding “bootstrapping” reveals the tension
between the categorical rejection of sexual orientation claims, on the one hand,
with the expansive definition of sex discrimination adopted in Price Waterhouse,
on the other. This artificial distinction created a trap whereby an “avowedly
homosexual” plaintiff is excluded from Title VII protections, but a heterosexual
plaintiff who is perceived to be lesbian, gay, or bisexual is not. As recognized
recently by a district court in the Southern District of New York, “[t]he lesson
imparted by the body of Title VII litigation concerning sexual orientation
discrimination and sexual stereotyping seems to be that no coherent line can be

25

drawn between these two sorts of claims.” Christiansen v. Omnicom Group, Inc.,
No. 15 Civ. 3440, 2016 WL 951581, at *14 (S.D.N.Y. Mar. 9, 2016) (noting the
perverse practical effect of Simonton and observing that “[t]he inevitable result of
holding that some sexual stereotypes give rise to cognizable Title VII claims, while
others – namely those involving sexual orientation – do not, has been an invitation
to the precise bootstrapping that the Simonton Court intended to avoid”).
This Court should no longer adhere to pre-Price Waterhouse precedent and
reasoning. Instead, this Court should apply the principles mandated by the
Supreme Court to determine whether sexual orientation claims are covered by Title
VII. For the reasons discussed above, applying those principles leads to the
conclusion that sexual orientation discrimination is a form of sex discrimination
prohibited by Title VII.

26

CONCLUSION
This Court should hold that sexual orientation discrimination is sex
discrimination prohibited by Title VII.

Dated: March 18, 2016

Respectfully submitted,

LENORA M. LAPIDUS
GILLIAN L. THOMAS
Women’s Rights Project
LESLIE COOPER
RIA TABACCO MAR
Lesbian Gay Bisexual Transgender
& HIV Project
American Civil Liberties Union
Foundation
125 Broad Street
New York, NY 10004
[phone]
s/ Erin Beth Harrist
ERIN BETH HARRIST
ROBERT HODGSON
CHRISTOPHER DUNN
New York Civil Liberties Union
Foundation
125 Broad Street, 19th Floor
New York, NY 10004
[phone]
[e-mail]
Attorneys for Amici Curiae

27

CERTIFICATE OF COMPLIANCE
1.

This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because it contains 6,284 words, excluding the parts of the brief
exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
2.

This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has
been prepared in a proportionally spaced typeface using Microsoft Word 2010 in
14-point Times New Roman type style.

Dated: March 18, 2016

s/ Erin Beth Harrist
ERIN BETH HARRIST
New York Civil Liberties Union
Foundation
125 Broad Street, 19th Floor
New York, NY 10004
[phone]
[e-mail]
Attorney for Amici Curiae

28

CERTIFICATE OF SERVICE FOR ELECTRONIC FILINGS
I hereby certify that on March 18, 2016, I electronically filed the foregoing
Brief of Amici Curiae American Civil Liberties Union; New York Civil Liberties
Union; 9to5, National Association of Working Women; A Better Balance;
Coalition of Labor Union Women; Equal Rights Advocates; Gender Justice; Legal
Voice; National Women’s Law Center; Southwest Women’s Law Center; Women
Employed; Women’s Law Center of Maryland; and Women’s Law Project in
Support of Plaintiffs-Appellants Melissa Zarda and William Allen Moore, Jr., with
the United States Court of Appeals for the Second Circuit by using the appellate
CM/ECF system. I certify that all participants in this case are registered CM/ECF
users and that service will be accomplished by the appellate CM/ECF system.

s/ Erin Beth Harrist
ERIN BETH HARRIST
New York Civil Liberties Union
Foundation
125 Broad Street, 19th Floor
New York, NY 10004
[phone]
[e-mail]
Attorney for Amici Curiae

29

APPENDIX: INTERESTS OF AMICI CURIAE
The American Civil Liberties Union is a nationwide, nonprofit,
nonpartisan organization with over 500,000 members dedicated to defending the
principles embodied in the Constitution and our nation’s civil rights laws. The
New York Civil Liberties Union (NYCLU) is a nonprofit, nonpartisan
organization with approximately 50,000 members founded in 1951 to protect and
advance civil rights in New York. The NYCLU has long fought to ensure that
lesbian, gay, bisexual, and transgender New Yorkers are treated equally and fairly
under New York and federal law.
9to5, National Association of Working Women is a 43-year-old national
membership organization of women in low-wage jobs dedicated to achieving
economic justice and ending discrimination. Our membership includes lesbian and
bisexual women and transgender individuals. Our members and constituents are
directly affected by workplace discrimination and poverty, among other issues.
9to5 is committed to equity and inclusion, and to combating all forms of
oppression. We have actively supported local, state and federal policy efforts to
prohibit discrimination based on sexual orientation, gender identity and gender
expression in the workplace, in the legal system, in educational institutions, in
public programs, and in family rights. The outcome of this case will directly affect

A-1

our members’ and constituents’ rights and economic well-being, and that of their
families.
A Better Balance is a national legal advocacy organization dedicated to
promoting fairness in the workplace and helping employees meet the conflicting
demands of work and family. Through its legal clinic, A Better Balance provides
direct services to low-income workers on a range of issues, including employment
discrimination based on pregnancy and/or caregiver status. A Better Balance is
also working to combat LGBTQ employment nondiscrimination through its
national LGBT Work-Family project. The workers we serve, who are often
struggling to care for their families while holding down a job, are particularly
vulnerable to retaliation that discourages them from complaining about illegal
discrimination.
The Coalition of Labor Union Women is a national membership
organization based in Washington, DC with chapters throughout the country.
Founded in 1974 it is the national women’s organization within the labor
movement which is leading the effort to empower women in the workplace,
advance women in their unions, encourage political and legislative involvement,
organize women workers into unions and promote policies that support women and
working families. During our history we have fought against discrimination in all

A-2

its forms, particularly when it stands as a barrier to employment or is evidenced by
unequal treatment in the workplace or unequal pay.
Equal Rights Advocates is a national non-profit legal organization
dedicated to protecting and expanding economic and educational access and
opportunities for women and girls. Since its founding in 1974, ERA has sought to
end gender discrimination in employment and education and advance equal
opportunity for all by litigating historically significant cases in both state and
federal courts, including two of the first U.S. Supreme Court cases addressing Title
VII’s prohibition of discrimination “because of sex” and its application to pregnant
workers, Geduldig v. Aiello, 417 U.S. 484 (1974) and Richmond Unified Sch. Dist.
v. Berg, 434 U.S. 158 (1977). ERA has participated as amicus curiae in scores of
cases involving the interpretation of Title VII and other anti-discrimination laws,
including Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986); Harris v.
Forklift Systems, Inc., 510 U.S. 17 (1993); Burlington Northern & Santa Fe Ry.
Co. v. White, 548 U.S. 53 (2006); and Ledbetter v. Goodyear, 550 U.S. 618 (2007).
Because ERA recognizes that sex discrimination often is justified by or based on
stereotypes and biased assumptions about the roles that women and men can or
should play in the public and private sphere, we have supported the recognition
and application of these laws and the constitutional principles of equal protection
and due process to gay, lesbian, bisexual, and transgender persons in amicus briefs

A-3

filed in numerous cases, including Obergefell v. Hodges, 135 S. Ct. 2584 (2015),
and Hollingsworth v. Perry, 133 S. Ct. 2652 (2013).
Gender Justice is a nonprofit advocacy organization based in the Midwest
that works to eliminate gender barriers based on sex, sexual orientation, gender
identity, or gender expression. Gender Justice targets the root causes of gender
discrimination, such as cognitive bias and stereotyping. We believe that courts
should take an expansive, and inclusive, interpretation of what constitutes
discrimination “because of sex.” Consistent with that view, we represent the
transgender plaintiff in Rumble v. Fairview Health Services, No. 0:14-cv-02037SRN-FLN (D. Minn.), whose right to sue under the Affordable Care Act, Section
1557, was recognized by the court in 2015.
Legal Voice is a nonprofit public interest organization in the Pacific
Northwest that works to advance the legal rights of women and girls through
litigation, legislation, and public education on legal rights. Since its founding in
1978, Legal Voice has been at the forefront of efforts to combat sex discrimination
in the workplace, in schools, and in public accommodations. We have served as
counsel and as amicus curiae in numerous cases involving workplace gender
discrimination throughout the Northwest and the country. Legal Voice serves as a
regional expert advocating for legislation and for robust interpretation and
enforcement of anti-discrimination laws to protect women and LGBTQ people.

A-4

Legal Voice has a strong interest in ensuring that Title VII is interpreted to cover
sexual orientation.
The National Women’s Law Center is a nonprofit legal advocacy
organization dedicated to the advancement and protection of women’s legal rights
and opportunities since its founding in 1972. The Center focuses on issues of key
importance to women and their families, including economic security,
employment, education, health, and reproductive rights, with special attention to
the needs of low-income women and women of color, and has participated as
counsel or amicus curiae in a range of cases before the Supreme Court and the
federal Courts of Appeals to secure the equal treatment of women under the law,
including numerous cases addressing the scope of Title VII’s protection. The
Center has long sought to ensure that rights and opportunities are not restricted for
women or men on the basis of gender stereotypes and that all individuals enjoy the
protection against such discrimination promised by federal law.
The Southwest Women’s Law Center is a non-profit policy and advocacy
Law Center that was founded in 2005 with a focus on advancing opportunities for
women and girls in the state of New Mexico. We work to ensure that women have
equal access to quality, affordable healthcare, access to equal pay and that girls in
middle and high school have equal access to sports’ programs. Our work strongly
supports protections for individuals, without regard to sexual orientation as we

A-5

advocate to eliminate the full range of stereotypes and biases that women and
LGBT individuals often face. Accordingly, the Law Center is uniquely qualified
to comment on the decision in the Estate of Zarda v. Altitude Express.
Women Employed’s mission is to improve the economic status of women
and remove barriers to economic equity. Since 1973, the organization has assisted
thousands of working women with problems of discrimination and harassment,
monitored the performance of equal opportunity enforcement agencies, and
developed specific, detailed proposals for improving enforcement efforts,
particularly on the systemic level. Women Employed believes that barring
discrimination “because of sex” encompasses discrimination against an employee
because of his/her sexual orientation because women’s rights and LGB rights are
inextricable.
The Women’s Law Center of Maryland, Inc. (WLC) is a non-profit,
membership organization established in 1971 with a mission of improving and
protecting the legal rights of women, particularly regarding gender discrimination,
employment law, family law and reproductive rights. Through its direct services
and advocacy, the Women’s Law Center seeks to protect women’s legal rights and
ensure equal access to resources and remedies under the law. The Women’s Law
Center is participating as amicus curiae in this case because it agrees with the
proposition that sex, gender, and sexual orientation are intrinsically intertwined,

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particularly in the realm of discrimination. The concerns and struggles of the
LGBTQ community impact all women, regardless of sexual orientation.
The Women’s Law Project (WLP) is a non-profit women’s legal advocacy
organization with offices in Philadelphia and Pittsburgh, Pennsylvania. Founded
in 1974, WLP’s mission is to create a more just and equitable society by advancing
the rights and status of all women throughout their lives. To this end, we engage in
high impact litigation, policy advocacy, and public education. For over forty
years, WLP has challenged discrimination rooted in gender stereotyping and based
on sex.

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