Zarda v. Altitude Express, Inc.

Filing 330

AMICUS BRIEF, on behalf of Amicus Curiae GLBTQ Legal Advocates & Defenders and National Center for Lesbian Rights, FILED. Service date 06/26/2017 by CM/ECF. [2066510] [15-3775] [Entered: 06/26/2017 05:19 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, DOING BUSINESS AS SKYDIVE LONG ISLAND;
and RAY MARNARD
Defendants-Appellees.
On Appeal from United States District Court
for the Eastern District of New York, No. 10 Civ. 4334 (Bianco, J.)
BRIEF OF AMICI CURIAE GLBTQ LEGAL ADVOCATES &
DEFENDERS (“GLAD”) AND NATIONAL CENTER FOR LESBIAN
RIGHTS (“NCLR”) IN SUPPORT OF PLAINTIFFS-APPELLANTS
MARY BONAUTO
GLBTQ LEGAL ADVOCATES & DEFENDERS
30 Winter Street, Suite 800
Boston, MA 02108
[phone]
Counsel for Amicus Curiae GLAD
CHRISTOPHER STOLL
NATIONAL CENTER FOR LESBIAN RIGHTS
870 Market Street, Suite 370
San Francisco, CA 94102
[phone]
Counsel for Amicus Curiae NCLR

June 26, 2017

ALAN E. SCHOENFELD
WILMER CUTLER PICKERING
HALE AND DORR LLP
7 World Trade Center
250 Greenwich Street
New York, NY 10007
[phone]
DAVID M. LEHN
WILMER CUTLER PICKERING
HALE AND DORR LLP
1875 Pennsylvania AVENUE NW
Washington, DC 20006
[phone]
CHRISTOPHER D. DODGE
WILMER CUTLER PICKERING
HALE AND DORR LLP
60 State Street
Boston, MA 02109
[phone]
Counsel for Amici Curiae GLAD and NCLR

CORPORATE DISCLOSURE STATEMENT
Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, amicus
curiae GLBTQ Legal Advocates & Defenders certifies that it has no parent
corporation and no corporation or publicly held entity owns 10% or more of its
stock.
Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, amicus
curiae National Center for Lesbian Rights certifies that it has no parent corporation
and no corporation or publicly held entity owns 10% or more of its stock.

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TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT ..........................................................i
TABLE OF AUTHORITIES ....................................................................................iv
INTEREST OF AMICI CURIAE ............................................................................... 1
INTRODUCTION AND SUMMARY OF ARGUMENT ........................................ 2
ARGUMENT .............................................................................................................4
I.

Simonton Has Proved To Be An Unworkable Standard
And Ought Not Be Given The Benefit Of Stare Decisis ...................... 4
A.

B.
II.

Simonton Has Sown Confusion And Inconsistency
In Title VII Cases Brought By Lesbian, Gay, And
Bisexual Employees .................................................................... 4
Simonton Ought Not Be Given The Benefit Of
Stare Decisis ..............................................................................14

Recognizing That Sexual Orientation Discrimination Is A
Form Of Sex Discrimination Is Compelled By Title VII’s
Text And Doctrine ...............................................................................17
A.

Sexual Orientation Discrimination Is
Discrimination “Because Of … Sex” Because But
For The Plaintiff’s Sex, The Treatment Would
Have Been Different .................................................................19

B.

Concluding That Sexual Orientation
Discrimination Is “Because Of … Sex” Accords
With Settled Title VII Doctrine ................................................23

CONCLUSION ........................................................................................................28

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TABLE OF AUTHORITIES
CASES
Page(s)
Adarand Constructors, Inc. v. Pena,
515 U.S. 200 (1995).......................................................................................15
Alleyne v. United States,
133 S. Ct. 2151 (2013)...................................................................................16
Back v. Hastings on Hudson Union Free School District,
365 F.3d 107 (2d Cir. 2004) ..........................................................................23
Berry v. United States,
No. 93-8652, 1995 WL 33284 (S.D.N.Y. Jan. 27, 1995)................................ 5
Boutillier v. Hartford Public Schools,
221 F. Supp. 3d 255 (D. Conn. 2016) .............................................6, 9, 17, 26
Boutillier v. Hartford Public Schools,
No. 13-1303, 2014 WL 4794527 (D. Conn. Sept. 25, 2014) ........................10
Cargian v. Breitling USA, Inc.,
No. 15-01084, 2016 WL 5867445 (S.D.N.Y. Sept. 29, 2016) ........................ 4
Centola v. Potter,
183 F.Supp.2d 403 (D. Mass. 2002) ..............................................................18
Christiansen v. Omnicom Group, Inc.,
852 F.3d 195 (2d Cir. 2017) ...................................................................passim
Christiansen v. Omnicom Grp., Inc.,
167 F. Supp. 3d 598 (S.D.N.Y 2016) ..........................................................6, 8
City of Los Angeles, Department of Water & Power v. Manhart,
435 U.S. 702 (1978).......................................................................................19
Dawson v. Bumble & Bumble,
398 F.3d 211 (2d Cir. 2005) ............................................................................ 6
DeCintio v. Westchester County Medical Center,
807 F.2d 304 (2d Cir. 2000) ............................................................................ 5

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EEOC v. Scott Medical Health Center, P.C.,
217 F. Supp. 3d 834 (W.D. Pa. 2016) ...........................................................17
Estate of D.B. by Briggs v. Thousand Islands Central School District,
169 F. Supp. 3d 320 (N.D.N.Y. 2016) ..........................................................11
Fabian v. Hospital of Central Connecticut,
172 F. Supp. 3d 509 (D. Conn. Mar. 18, 2016) ............................................... 7
Garvey v. Childtime Learning Center,
No. 16-1073, 2016 WL 6081436 (N.D.N.Y. Sept. 12, 2016) ......................... 8
Gorzynski v. JetBlue Airways Corp.,
596 F.3d 93 (2d Cir. 2010) ............................................................................23
Hively v. Ivy Tech Community College of Indiana,
853 F.3d 339 (7th Cir. 2017) ..................................................................passim
Holcomb v. Iona College,
521 F.3d 130 (2d Cir. 2008) ..............................................................24, 26, 27
Howell v. North Central College,
320 F. Supp. 2d 717 (N.D. Ill. 2004) .............................................................17
Kay v. Independent Blue Cross,
142 F. App’x 48 (3d Cir. 2005) ....................................................................... 8
Kimble v. Marvel Entertainment, LLC,
135 S. Ct. 2401 (2015)...................................................................................14
Loving v. Virginia,
388 U.S. 1 (1967).....................................................................................25, 27
Lugo v. Shinseki,
No. 06-13187, 2010 WL 1993065 (S.D.N.Y. May 19, 2010)......................... 9
Magnusson v. County of Suffolk,
No. 14-3449, 2016 WL 2889002 (E.D.N.Y. May 17, 2016) ........................10
Maroney v. Waterbury Hospital,
No. 10-1415, 2011 WL 1085633 (D. Conn. Mar. 18, 2011).........................10
Martin v. New York State Department of Correctional Services,
224 F. Supp. 2d 434 (N.D.N.Y. 2002) ............................................................ 8
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Michigan v. Bay Mills Indian Community,
134 S. Ct. 2024 (2014).............................................................................13, 14
Monell v. Department of Social Services,
436 U.S. 658 (1978).......................................................................................14
Morales v. ATP Health & Beauty Care, Inc.,
No. 06-01430, 2008 WL 3845294 (D. Conn. Aug. 18, 2008) .................. 9, 10
Obergefell v. Hodges,
135 S. Ct. 2584 (2015)...................................................................................25
Parr v. Woodmen of the World Life Insurance Co.,
791 F.2d 888 (11th Cir. 1986) .......................................................................25
Pearson v. Callahan,
555 U.S. 223 (2009).......................................................................................14
Philpott v. New York,
No. 16-6778, 2017 WL 1750398 (S.D.N.Y. May 3, 2017).......................6, 17
Planned Parenthood of Southeastern Pennsylvania v. Casey,
505 U.S. 833 (1992).......................................................................................15
Price Waterhouse v. Hopkins,
490 U.S. 228 (1989).........................................................................4, 6, 22, 26
Riccio v. New Haven Board of Education,
467 F. Supp. 2d 219 (D. Conn. 2006) ...........................................................10
Roberts v. United Parcel Service, Inc.,
115 F. Supp. 3d 344 (E.D.N.Y. 2015) ...........................................................27
Rosenblatt v. Bivona & Cohen, P.C.,
946 F. Supp. 298 (S.D.N.Y. 1996) ..........................................................24, 25
Schmedding v. Tnemec Co.,
187 F.3d 862 (8th Cir. 1999) ...................................................................12, 13
Shi Liang Lin v. U.S. Department of Justice,
494 F.3d 296 (2d Cir. 2007) ..........................................................................14
Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte Ltd.,
585 F.3d 58 (2d Cir. 2009) ......................................................................14, 15
-v-

Simonton v. Runyon,
232 F.3d 33 (2d Cir. 2000) .....................................................................passim
Taken v. Oklahoma Corp. Commission,
125 F.3d 1366 (10th Cir. 1997) ....................................................................... 5
Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick, & GMC Trucks,
Inc.,
173 F.3d 988 (6th Cir. 1999) .........................................................................25
Trigg v. New York City Transit Authority,
No. 99-4730, 2001 WL 868336 (E.D.N.Y. July 26, 2001) ............................. 8
Tyrrell v. Seaford Union Free School District,
792 F. Supp. 2d 601 (E.D.N.Y. 2011) ...........................................................10
Vasquez v. Hillery,
474 U.S. 254 (1986).......................................................................................14
Videckis v. Pepperdine University,
150 F. Supp. 3d 1151 (C.D. Cal. 2015) ........................................................... 7
ADMINISTRATIVE DECISIONS
Baldwin v. Foxx,
No. 2012-24738-FAA-03, 2015 WL 4397641 (EEOC July 15,
2015) ..............................................................................................................21
STATUTES
42 U.S.C. § 2000e-2(a) ............................................................................................18
OTHER AUTHORITIES
Kanazawa, Schwenk and the Ambiguity in Federal “Sex”
Discrimination Jurisprudence: Defining Sex Discrimination
Dynamically Under Title VII, 25 Seattle U. L. Rev. 255 (2001) .................. 13
Ryan, A “Queer” by Any Other Name: Advocating A Victim-Centered
Approach to Title VII and Title IX Same-Sex Sexual
Harassment Claims, 13 B.U. Pub. Int. L.J. 227 (2004) ................................11

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INTEREST OF AMICI CURIAE1
Through strategic litigation, public policy advocacy, and education, GLBTQ
Legal Advocates & Defenders (“GLAD”) works in New England and nationally to
create a just society free of discrimination based on gender identity and expression,
HIV status, and sexual orientation. GLAD has litigated widely in both state and
federal courts in all areas of the law in order to protect and advance the rights of
lesbians, gay men, bisexuals, transgender individuals, and people living with HIV
and AIDS. GLAD has an enduring interest in ensuring that employees receive full
and complete redress for violation of their civil rights in the workplace.
The National Center for Lesbian Rights (“NCLR”) is a national non-profit
legal organization dedicated to protecting and advancing the civil rights of lesbian,
gay, bisexual, and transgender people and their families through litigation, public
policy advocacy, and public education. Since its founding in 1977, NCLR has
played a leading role in securing fair and equal treatment for LGBT people and
their families in cases across the country involving constitutional and civil rights.
NCLR has a particular interest in promoting equal opportunity for LGBT people in
the workplace through legislation, policy, and litigation, and represents LGBT
people in employment and other cases in courts throughout the country.
1

Counsel for the parties have not authored this brief. The parties and counsel
for the parties have not contributed money that was intended to fund preparing or
submitting the brief. No person other than the amicus curiae contributed money
that was intended to fund preparing or submitting this brief.

INTRODUCTION AND SUMMARY OF ARGUMENT
In Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), this Court concluded
that although Title VII does not allow discrimination claims based on sexual
orientation, it does permit claims based on sexual stereotyping—but not if that
theory is being used merely to “bootstrap” a claim based on sexual orientation.
Simonton’s conclusion was not rooted in the text of the statute, nor did it account
for well-established Title VII doctrine. In effect, Simonton created a sui generis set
of rules that apply only to sex discrimination claims brought by lesbian, gay, and
bisexual employees and not to claims brought by other employees. As numerous
judges inside and outside this Circuit have observed, that standard is simply
impossible to apply with any degree of consistency or fairness.
The Court should avail itself of this opportunity to repudiate Simonton’s
unworkable rule and hold that discrimination based on sexual orientation is a type
of discrimination because of sex under Title VII. That is so for the straightforward
reason that, but for the plaintiff’s sex, discrimination based on sexual orientation
would not occur. For example, if a man is treated adversely because he is attracted
to men, then he has been discriminated against because of his sex—if he were
instead a woman who was attracted to men, he would not have been treated that
way. Recognition of such claims does not therefore require a view that the
statute’s meaning has evolved alongside extra-judicial developments. It merely

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requires the application of Title VII in accordance with its text and established
doctrines.
This brief proceeds in two parts. We first describe the confusion Simonton
has sown, as it has required judges to parse a nonexistent line between
discrimination claims brought by lesbian, gay, and bisexual employees based on
their sexual orientation (which are impermissible) and those brought by lesbian,
gay, and bisexual employees based on sex stereotyping (which are permissible, as
long as they are not “bootstrapping” a claim based on sexual orientation). We then
explain why established principles of stare decisis do not support leaving Simonton
in place, particularly because the rule in that case has proved unworkable and there
are no legitimate reliance interests to protect by maintaining the existing rule. In
Part II, we show how Simonton departs from settled Title VII case law, and argue
that bringing sexual orientation cases into line with Title VII case law requires
repudiating Simonton and holding that claims of sexual orientation discrimination
are cognizable.

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ARGUMENT
I.

SIMONTON HAS PROVED TO BE AN UNWORKABLE STANDARD AND OUGHT
NOT BE GIVEN THE BENEFIT OF STARE DECISIS
A.

Simonton Has Sown Confusion And Inconsistency In Title VII
Cases Brought By Lesbian, Gay, And Bisexual Employees

This Court concluded in Simonton that Title VII’s prohibition against sex
discrimination permitted litigants to bring claims premised upon sexual stereotype
discrimination, but not sexual orientation discrimination. The decision explained
that sexual stereotype discrimination, deemed actionable under Title VII by the
Supreme Court in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), could not be
applied to cover discrimination based on sexual orientation because “not all
homosexual men are stereotypically feminine, and not all heterosexual men are
stereotypically masculine.” Simonton, 232 F.3d at 37. Accordingly, the decision
barred plaintiffs from using a sexual stereotyping theory to “bootstrap protection
for sexual orientation into Title VII,” though independent “relief would be
available for discrimination based upon sexual stereotypes.” Id.; see, e.g., Cargian
v. Breitling USA, Inc., No. 15-01084, 2016 WL 5867445, at *4 (S.D.N.Y. Sept. 29,
2016) (“Courts in this Circuit must distinguish between claims based on
discrimination targeting sexual orientation, which are not cognizable under Title

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VII, and cognizable claims based on discrimination targeting nonconformity with
gender stereotypes.”).2
Simonton thus invited plaintiffs to try to thread the needle between a claim
based on purportedly pure sexual stereotyping and a claim that merely uses a
theory of sexual stereotyping to “bootstrap” a sexual orientation claim. That has
saddled courts with what judges in this Circuit and elsewhere have come to
recognize is the futile task of discerning on which side of a nonexistent line a
particular claim falls. Indeed, even while hewing to Simonton, this Court has
acknowledged that Simonton is the source of “confusion” within the Circuit,
2

The Court’s error in Simonton is traceable in part to its conclusion that “Title
VII does not proscribe discrimination because of sexual orientation” because
sexual orientation is a form of “sexual affiliation,” which is not covered by the
term “sex” in the statute. Simonton, 232 F.3d at 36. In deeming sexual orientation
a form of “sexual affiliation,” the Court misunderstood the jurisprudence regarding
that term. Apart from Simonton, courts have used “sexual affiliation” to refer to
“sexual activity regardless of gender.” DeCintio v. Westchester County Med. Ctr.,
807 F.2d 304, 306-307 (2d Cir. 2000); see also Taken v. Okla. Corp. Comm’n, 125
F.3d 1366, 1370 (10th Cir. 1997). As the facts of those cases illustrate,
discrimination because of sexual affiliation occurs when an employer’s act is based
on whether a person is in a particular romantic relationship, such as when an
employer favors a spouse or boyfriend or girlfriend. Such claims do not qualify as
sex discrimination because changing the sex of the victim would not change the
treatment; only changing their relationship status would. See also Berry v. United
States, No. 93-86521995 WL 33284, at *3 (S.D.N.Y. Jan. 27, 1995) (woman failed
to state sex-discrimination claim where harassment was due solely to her
relationship with husband, an ex-employee; “the alleged mistreatment was based
on the identity of Mrs. Berry’s husband rather than her sex…”). For reasons
explained below, the treatment of sexual affiliation discrimination has no purchase
for sexual orientation discrimination because changing the sex of the victim of
sexual orientation discrimination actually would change the treatment.

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Christiansen v. Omnicom Grp., Inc., 852 F.3d 195, 200 (2d Cir. 2017) (per
curiam), and that “gender stereotyping claims can easily present problems for an
adjudicator … for the simple reason that stereotypical notions about how men and
women should behave will often necessarily blur into ideas about heterosexuality
and homosexuality,” Dawson v. Bumble & Bumble, 398 F.3d 211, 218 (2d Cir.
2005) (alterations omitted); see also Christiansen, 852 F.3d at 205 (Katzmann,
C.J., concurring) (observing that “[n]umerous district courts throughout the
country have also found [Simonton’s] approach to gender stereotype claims
unworkable”).
Courts in this Circuit are not alone in their confusion. The en banc Seventh
Circuit recently discussed the “confused hodge-podge of cases” that have
attempted to extricate gender nonconformity claims from sexual orientation claims.
Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339, 342 (7th Cir. 2017) (en banc);
see also, e.g., Philpott v. New York, No. 16-6788, 2017 WL 1750398, at *2
(S.D.N.Y. May 3, 2017) (commenting on the “‘illogical’ artificial distinction
between gender-stereotyping discrimination and sexual-orientation
discrimination”); Boutillier v. Hartford Pub. Sch., 221 F. Supp. 3d 255, 270 (D.
Conn. 2016) (“[R]econciliation of Simonton and Price Waterhouse produces
untenable results.”); Christiansen v. Omnicom Grp., Inc., 167 F. Supp. 3d 598, 620
(S.D.N.Y. 2016) (“The lesson imparted by the body of Title VII litigation

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concerning sexual orientation discrimination and sexual stereotyping seems to be
that no coherent line can be drawn between these two sorts of claims”), aff’d in
part, rev’d in part, 852 F.3d 195 (2d Cir. 2017) (per curiam); Videckis v.
Pepperdine Univ., 150 F. Supp. 3d 1151, 1159-1160 (C.D. Cal. 2015) (“Simply
put, 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. … It is impossible to categorically separate ‘sexual orientation
discrimination’ from discrimination on the basis of sex or from gender
stereotypes.”).
Courts adhering to the dichotomy adopted in Simonton are forced to engage
in an artificial and ultimately futile analysis to try to distinguish homophobic slurs
or other anti-gay workplace conduct from sex-based discrimination. See Fabian v.
Hosp. of Cent. Conn., 172 F. Supp. 3d 509, 524 n.8 (D. Conn. Mar. 18, 2016) (“a
woman might have a Title VII claim if she was harassed or fired for being
perceived as too ‘macho,’ but not if she was harassed or fired for being perceived
as a lesbian, and courts and juries have to sort out the difference on a case-by-case
basis”). For instance, one court dismissed a sexual stereotyping claim because
“[i]n contrast” to what it deemed to be the paradigm of such a claim, the complaint
was “rife with references to sexual orientation, homophobia, and accusations of
discrimination based on homosexuality,” including allegations that a superior had

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called the plaintiff a “fag[g]ot … faggot ass … sissy”—as if such epithets did not
play on the victim’s deviation from masculine stereotypes. Trigg v. N.Y. City
Transit Auth., No. 99-4730, 2001 WL 868336, at *5-6 (E.D.N.Y. July 26, 2001).
More recently, a district court concluded that a plaintiff was “clearly attempting to
bring a Title VII claim based on sexual orientation” because the complaint
referenced the phrase “sexual orientation at least twice” and identified the plaintiff
as a “male homosexual.” Garvey v. Childtime Learning Ctr., 16-1073, 2016 WL
6081436, at *3 (N.D.N.Y. Sept. 12, 2016). Another district court recently
concluded that a plaintiff’s allegation that a coworker told him he was “‘effeminate
and gay so he must have AIDS’” failed to state a sexual stereotyping claim because
this single allegation of stereotyping was outweighed by “multiple illustrations of
[the co-worker’s] animus towards gay individuals.” Christiansen, 167 F. Supp. 3d
at 621; see also Martin v. N.Y. State Dep’t of Corr. Servs., 224 F. Supp. 2d 434,
447 (N.D.N.Y. 2002) (“The torment endured by Martin, as reprehensible as it is,
relates to his sexual orientation. The name-calling, the lewd conduct and the
posting of profane pictures and graffiti are all of a sexual, not gender, nature.”); cf.
Kay v. Indep. Blue Cross, 142 F. App’x 48, 51 (3d Cir. 2005) (comparing the
relative frequency of comments such as “ass wipe,” “fag,” “gay,” “queer,” “real
man” and “fem” to conclude that it was “clear that Kay’s claim is based upon
discrimination that is motivated by perceived sexual orientation”).

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The result of this lexical bean counting is that courts find it difficult to
assess—much less reach a proper conclusion in—discrimination cases brought by
plaintiffs who are, or are perceived to be, lesbian, gay, or bisexual. In one recent
case, two defendants made a number of disparaging comments about the plaintiff,
a woman who was transgender. The Court concluded that the first co-worker’s
comments—calling the plaintiff a “faggot”—and some of the second co-worker’s
comments “appear to be directed at Morales’ sexual orientation, and therefore, they
are not actionable under Title VII. However, [the second co-worker’s other
comments] appear to be directed at Morale’s failure to conform to societal
stereotypes about how men should appear, and therefore” were actionable.
Morales v. ATP Health & Beauty Care, Inc., No. 06-01430 (AWT), 2008 WL
3845294, at *8 (D. Conn. Aug. 18, 2008). In other words, although all the
comments were part of a single course of conduct and plainly evidenced sex
stereotyping, the overtly “gay” words were excluded from the case as if they were
irrelevant. See Boutillier, 221 F. Supp. 3d at 269 (“[S]exual orientation
discrimination must be excluded from the equation when determining whether
allegations or evidence of gender non-conformity discrimination are sufficient.”);
Lugo v. Shinseki, No. 06-13187, 2010 WL 1993065, at *10 (S.D.N.Y. May 19,
2010) (“The comments addressed to Lugo’s perceived sexual orientation do not

-9-

enter our analysis because Title VII does not prohibit harassment or discrimination
because of sexual orientation.”) (quotation omitted).
As a result of this confusion, discrimination claims have been “especially
difficult for gay plaintiffs to bring.” Maroney v. Waterbury Hosp., No. 10-1415,
2011 WL 1085633, at *2 n.2 (D. Conn. Mar. 18, 2011). Indeed, cases presenting
many nearly identical facts have reached inconsistent results as district courts
struggle to apply the Simonton rule to complex fact patterns. Compare Morales,
2008 WL 3845294, at *8 (rejecting evidence of homophobic slurs by supervisor as
reflecting sexual orientation discrimination rather than gender-based harassment),
Magnusson v. County of Suffolk, No. 14-3449, 2016 WL 2889002, *8 (E.D.N.Y.
May 17, 2016) (same), and Tyrrell v. Seaford Union Free Sch. Dist., 792 F. Supp.
2d 601, 623 (E.D.N.Y. 2011) (same in Title IX case), with Boutillier v. Hartford
Pub. Sch., No. 13-1303, 2014 WL 4794527, *2 (D. Conn. Sept. 25, 2014) (holding
that allegations plaintiff “was subjected to sexual stereotyping during her
employment on the basis of her sexual orientation” were sufficient to state a claim
under Title VII), and Riccio v. New Haven Bd. of Educ., 467 F. Supp. 2d 219, 226
(D. Conn. 2006) (holding that plaintiff who was “targeted by other female students
and called a variety of pejorative epithets, including ones implying that she is a
female homosexual,” stated a claim under Title IX).

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Such is the confusion that one district court even held that a genderstereotyping claim may be brought only if “the harassment consists of homophobic
slurs directed at a heterosexual.” Estate of D.B. by Briggs v. Thousand Islands
Cent. Sch. Dist., 169 F. Supp. 3d 320, 332-333 (N.D.N.Y. 2016) (citation omitted;
emphasis added). That perverse holding, although rejected by this Court, see
Christiansen, 852 F.3d at 200, was not necessarily an unreasonable inference to
draw from Simonton. As Chief Judge Katzmann explained in his recent
Christiansen concurrence, Simonton’s dichotomy creates unique challenges for gay
men, lesbians, and bisexual people, who alone bear the burden of showing that
their discrimination was motivated by their perceived gender non-conformity
rather than their sexual orientation; heterosexual plaintiffs bear no such burden.
Christiansen, 852 F.3d at 205.
Litigants have predictably responded to Simonton’s artificial distinction by
omitting references to sexual orientation from their complaints, even where
homophobic slurs or other orientation-related facts are highly relevant to their
discrimination claim. 3 Some courts have played along, undoubtedly to the

3

See Ryan, A “Queer” by Any Other Name: Advocating A Victim-Centered
Approach to Title VII and Title IX Same-Sex Sexual Harassment Claims, 13 B.U.
Pub. Int. L.J. 227, 241 (2004) (“The Simonton opinion invites further conjecture
into whether the plaintiff would have prevailed had he hidden his homosexuality
from the court. The court’s unwillingness to analyze the facts critically without
reference to Simonton’s sexuality evinces an inability to look beyond the
terminology of the harassment …”).
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confusion of their fellow jurists. Although both out-of-Circuit and predating
Simonton, the Eighth Circuit’s decision in Schmedding v. Tnemec Co., 187 F.3d
862 (8th Cir. 1999), is illustrative. There, the plaintiff was asked to perform sexual
acts; given derogatory notes referring to his anatomy; called names such as
“homo” and “jerk off”; and subjected to the exhibition of sexually inappropriate
behavior by others. Id. at 865. The district court dismissed the complaint, holding
the claim noncognizable because it alleged that the plaintiff was taunted due to his
“perceived sexual preference.” Id. The Eighth Circuit reversed, explaining that
“simply because … the harassment alleged by Schmedding includes taunts of
being homosexual…[does not] thereby transform[] [the complaint] from one
alleging harassment based on sex to one alleging harassment based on sexual
orientation.” Id. In other words, it was plausible the plaintiff was taunted as a
homosexual in “an effort to debase his masculinity, not … because he is
homosexual or perceived as homosexual.” Id. Nonetheless, the court
acknowledged that the references to the plaintiff’s sexual orientation confused the
issue and that the complaint was “not a model of clarity.” Id. The Court
concluded that “the best recourse is to remand the case to the district court with
instructions that plaintiff be allowed to amend his complaint” “so as to delete” a
reference to the phrase “perceived sexual preference.” Id. 4 By causing plaintiffs to

4

As one commentator has noted, the Eight Circuit’s observation that a
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disavow reliance upon homophobic slurs or similar facts that may be probative of
sex discrimination, the Simonton rule denies courts highly relevant evidence,
inevitably leading to the rejection of many meritorious discrimination claims solely
because the plaintiff is lesbian, gay, or bisexual.
Given the lack of clarity and coherence Simonton has generated, its rule
ought to be reconsidered in favor of a clear rule. As explained below, the rule that
best accords with Title VII’s text and case law is that claims of discrimination on
the basis of sexual orientation are actionable as discrimination on the basis of sex.
See infra Part II.
B.

Simonton Ought Not Be Given The Benefit Of Stare Decisis

Although courts ought not “overturn [their] precedents lightly,” stare decisis
is “not an inexorable command.” Michigan v. Bay Mills Indian Cmty., 134 S. Ct.
2024, 2036 (2014); see also Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296,
310 (2d Cir. 2007) (en banc) (“While stare decisis is undoubtedly of considerable
importance to questions of statutory interpretation, the Supreme Court ‘ha[s] never

homophobic slur may be animated by a desire to both demean another person’s
sexual orientation and gender conformity reveals the fundamental futility of
Simonton’s separation of orientation from stereotype. See Kanazawa, Schwenk and
the Ambiguity in Federal “Sex” Discrimination Jurisprudence: Defining Sex
Discrimination Dynamically Under Title VII, 25 Seattle U. L. Rev. 255, 284-285
(2001) (arguing that Schmedding suggests the “sex/sexual orientation dichotomy is
inherently unworkable” and that “Courts should stop making mechanical and futile
inquiries into what stereotypes are attached to masculinity or femininity on the one
hand and what stereotypes are attached to sexual orientation on the other”).
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applied stare decisis mechanically to prohibit overruling … earlier decisions
determining the meaning of statutes.’” (quoting Monell v. Dep’t of Social Serv.,
436 U.S. 658, 695 (1978)). Indeed, the doctrine retains its utility only to the extent
it “ensure[s] that legal rules develop ‘in a principled and intelligible fashion.’”
Michigan, 134 S. Ct. at 2036 (quoting Vasquez v. Hillery, 474 U.S. 254, 265
(1986)). Where a rule “prove[s] unworkable,” Kimble v. Marvel Entertainment,
LLC, 135 S. Ct. 2401, 2410-2411 (2015), or where “experience has pointed up the
precedent’s shortcomings,” Pearson v. Callahan, 555 U.S. 223, 233 (2009), stare
decisis poses no impediment to repudiating prior decisions. See also Shipping
Corp. of India Ltd. v. Jaldhi Overseas Pte Ltd., 585 F.3d 58, 67-69 (2d Cir. 2009)
(overruling Winter Storm Shipping, Ltd. v. TPI, 310 F.3d 263 (2d Cir. 2002), in
view of the “strains on federal courts” imposed by the earlier decision).
As discussed, Simonton has created confusion and disarray in the courts of
this Circuit, and the results for plaintiffs pressing Title VII claims have been
inconsistent and unpredictable. This Court has not hesitated to revisit even recent
precedent under similar circumstances. In Jaldhi, the Court repudiated its six-yearold decision in Winter Storm after district judges in the Circuit began “to question
the correctness” of the earlier decision. 585 F.3d at 61. The standard set in Winter
Storm had “prov[en] to be practically unworkable,” and the consequences for the
courts, the parties, and their lawyers were “too significant to let th[e Court’s] error

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go uncorrected simply to avoid overturning a recent precedent.” Id. at 67. Thus,
notwithstanding that “[o]verturning Winter Storm [would] dramatically affect the
law … in our Circuit,” the Court saw fit to do so. Id. at 62. The Court should take
the same step here.
Moreover, stare decisis does not ordain the outcome here because the rule
laid down in Simonton is not “subject to a kind of reliance that would lend a
special hardship to the consequences of overruling and add inequity to the cost of
repudiation.” Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 854 (1992).
For purposes of determining the weight to be given to stare decisis in a given case,
courts generally focus on the extent to which private parties have relied on existing
precedent to shape their affairs. See, e.g., Adarand Constructors, Inc. v. Pena, 515
U.S. 200, 234 (1995). It is hard to imagine that employers intent on discriminating
against lesbian, gay, and bisexual employees have, in the years since Simonton,
shaped their conduct around the indecipherable line between sexual-stereotype and
sexual-orientation discrimination. Nor is it plausible that lesbian, gay, and
bisexual employees have based their workplace behavior around Simonton’s
unintelligible rule. Rather, the absence of a principled way to determine how
courts will rule on Title VII claims by lesbian, gay, or bisexual plaintiffs has left
both employers and employees bereft of clear guidance. The instability and
unpredictability inherent in such a scheme thwart reliance, leaving litigants to

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guess as to whether courts will categorize particular facts as evidence of sexual
orientation discrimination or as evidence of sex discrimination. The divergent
outcomes in factually similar cases (see supra pp. 10-11) confirm the fundamental
unreliability of the current regime.
As Justice Sotomayor recently explained, “particularly in a case where the
reliance interests are so minimal, and the reliance interests of private parties are
nonexistent, stare decisis cannot excuse a refusal to bring ‘coherence and
consistency’” to the law. Alleyne v. United States, 133 S. Ct. 2151, 2165 (2013)
(Sotomayor, J., concurring). Overruling Simonton would not cause hardship or
inequity; rather, it would eliminate the inconsistent and inequitable results made
inevitable by the existing rule and provide clarity to employees and employers.
II.

RECOGNIZING THAT SEXUAL ORIENTATION DISCRIMINATION IS A FORM
OF SEX DISCRIMINATION IS COMPELLED BY TITLE VII’S TEXT AND
DOCTRINE
The result of the Simonton rule is that a gay plaintiff is allowed to bring a

claim of sex-stereotyping discrimination involving his or her sexual orientation if
the plaintiff does not explicitly identify as lesbian, gay, or bisexual or invoke his or
her sexual orientation as the basis of the claim. As discussed above, that rule is
untenable, and district courts rightly perceive that the law in this Circuit is “clearly
in a state of flux.” Philpott, 2017 WL 1750398, at *2. This Court can and should

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now put its Title VII jurisprudence on sounder footing by holding that
discrimination on the basis of sexual orientation is a form of sex discrimination.
That conclusion follows for several reasons, which were laid out by Chief
Judge Katzmann in his Christiansen concurrence. First, Title VII’s plain text and
traditional doctrines compel the conclusion that discrimination based on sexual
orientation is discrimination “because of … sex.” Christiansen, 852 F.3d at 205
(Katzmann, C.J., concurring). The en banc Seventh Circuit recently took the same
tack in concluding that “discrimination on the basis of sexual orientation is a form
of sex discrimination.” Hively, 853 F.3d at 341. That decision was based on “the
common-sense reality that it is actually impossible to discriminate on the basis of
sexual orientation without discriminating on the basis of sex.” Id. at 351.
Second, contrary to Simonton’s crabbed view, sexual orientation
discrimination is a paradigmatic instance of gender stereotyping. Christiansen,
852 F.3d at 205 (Katzmann, C.J., concurring). After all, “stereotypes concerning
sexual orientation are probably the most prominent of all sex related stereotypes.”
Boutillier, 221 F. Supp. 3d at 269; see also EEOC v. Scott Med. Health Ctr., P.C.,
217 F. Supp. 3d 834, 841 (W.D. Pa. 2016); Howell v. N. Cent. Coll., 320 F. Supp.
2d 717, 723 (N.D. Ill. 2004); Centola v. Potter, 183 F.Supp.2d 403, 410 (D. Mass.
2002).

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Third, recognizing that sexual orientation discrimination is a form of sex
discrimination follows from this Court’s jurisprudence concerning associational
discrimination. Christiansen, 852 F.3d at 205 (Katzmann, C.J., concurring).
Any of these three theories is sufficient to establish sexual orientation
discrimination as a cognizable form of sex discrimination under Title VII. As
explained below, the theory that sexual orientation discrimination is discrimination
“because of … sex” is particularly straightforward and consonant with established
Title VII doctrines. That theory therefore provides a compelling basis—though not
the only one—to recognize sexual orientation claims as cognizable under Title VII.
A.

Sexual Orientation Discrimination Is Discrimination “Because of
… Sex” Because But For The Plaintiff’s Sex, The Treatment
Would Have Been Different

Title VII makes it unlawful for an employer to “discriminate against any
individual … because of such individual’s … sex.” 42 U.S.C. § 2000e-2(a). As
the majority in Hively explains, the “tried and true” method in Title VII cases is “to
isolate the significance of the plaintiff’s sex to the employer’s decision: has she
described a situation in which, holding all other things constant and changing only
her sex, she would have been treated the same way?” Hively, 853 F.3d at 345;
accord City of L.A., Dep’t of Water and Power v. Manhart, 435 U.S. 702, 711
(1978) (under Title VII, applying “the simple test of whether the evidence shows
‘treatment of a person in a manner which but for that person’s sex would be

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different’”). In applying this method in cases of sex discrimination, “[i]t is critical
… to be sure that only the variable of the plaintiff’s sex is allowed to change.”
Hively, 853 F.3d at 345.
Application of this “comparative method” shows that sexual orientation
discrimination is discrimination because of sex. Where a woman is fired or
harassed because of her attraction to other women, changing the single variable of
sex—a man would not have been fired because of his attraction to women—
reveals that the discrimination is because of sex, i.e., because of the victim’s
membership in the class woman. As the majority in Hively concluded, such a
scenario “describes paradigmatic sex discrimination.” Id.
This analysis betrays the error that underlies Simonton: Mr. Simonton
would have not have been subject to an endless stream of homophobic invective if,
all else constant, he had been a woman attracted to men. See Simonton, 232 F.3d at
35. Chief Judge Katzmann could not have put it more directly: “[S]exual
orientation discrimination is sex discrimination for the simple reason that such
discrimination treats otherwise similarly-situated people differently solely because
of their sex … [B]ut for the employee’s sex, the employee’s treatment would have
been different. Because this situation meets the statutory requirements of Title
VII, the statute must extend to prohibit it.” Christiansen, 852 F.3d at 202-203
(Katzmann, C.J., concurring) (citations omitted); see also Hively, 853 F.3d at 357

- 19 -

(Flaum, J., concurring) (“[T]he statute’s text commands” the conclusion that
“discriminating against an employee for being homosexual violates Title VII’s
prohibition against discriminating against that employee because of their sex”).
In her Hively dissent, Judge Sykes took issue with this use of the
comparative method. In the dissent’s view, “the comparative method” as used by
the majority was “not serving its usual and intended purpose; it [wa]s not invoked
as a method of proof or a technique for evaluating the sufficiency of the plaintiff’s
allegations or evidence.” 853 F.3d at 365. Rather, the dissent posited that the
majority was improperly using the method to resolve “a pure question of statutory
interpretation,” namely, whether the statutory term “sex” should now be
interpreted to encompass “sexual orientation,” regardless of its original meaning.
Id. at 366. One need not quarrel with the dissent’s conception of the comparative
method as a tool for applying the law to a particular set of facts to see that its
conclusion was wrong. The Hively majority was doing exactly what the dissent
argued was necessary: using the comparative method to apply the statutory phrase
“because of … sex” to the particular factual circumstances of that case, in which a
woman alleged she faced workplace sex discrimination because she was a lesbian.
That comparative analysis did not alter or expand the meaning of Title VII;
it simply laid bare the reality that treating someone differently because of his
sexual orientation is in fact treating him differently because of his sex. See

- 20 -

Baldwin v. Foxx, No. 2012-24738-FAA-03, 2015 WL 4397641 at *5 (EEOC July
15, 2015) (“‘Sexual orientation’ as a concept cannot be defined or understood
without reference to sex.”). And in that way, the majority’s comparative analysis,
contrary to the dissent, did “ferret[] out a prohibited discriminatory motive as an
actual cause of the adverse employment action” and specifically revealed that the
discriminatory treatment allegedly experienced by the plaintiff due to her sexual
orientation was “actually motivated by the plaintiff’s sex.” Hively, 853 F.3d at 366
(Sykes, J., dissenting).
The Hively dissent also contended that the majority “load[ed] the dice” in its
comparative method analysis by changing two variables—sex and sexual
orientation. Id. But that is simply not the case. As the Hively majority explained,
“[i]t makes no sense to control for or rule out discrimination on the basis of sexual
orientation if the question before us is whether that type of discrimination is
nothing more or less than a form of sex discrimination.” Id. at 347.
Nor, on the other hand, does recognizing a claim of sexual orientation
discrimination retroactively impute to the defendant an intent that was not there.
The Hively dissent objected that “[a]n employer who refuses to hire a lesbian
applicant because she is a lesbian only accounts for her sex in the limited sense that
he notices she is a woman. But that’s not the object of the employer’s
discriminatory intent, not even in part.” Id. at 367 (Sykes, J., dissenting) (citations

- 21 -

omitted). That is wrong—not as a matter of statutory interpretation, but as a matter
of fact. As the Supreme Court has explained, “Congress meant to obligate [a
plaintiff] to prove that the employer relied upon sex-based considerations in
coming to its decision.” Price Waterhouse v. Hopkins, 490 U.S. at 241-242
(emphasis added). Sexual orientation discrimination inherently involves sex-based
considerations. Such a claim rests on the realization that when someone
intentionally treats a person differently because of his or her sexual orientation,
that differential treatment depends upon, and thus is “because of,” the person’s sex.
The dissent’s hypothetical employer does not take a lesbian woman’s sex into
account incidentally; the discriminatory employer takes it into account by treating
her differently because she is a woman who is attracted to women, and not a man
who is attracted to women.
B.

Concluding That Sexual Orientation Discrimination Is “Because
Of … Sex” Accords With Settled Title VII Doctrine

Although the comparative analysis described above suffices to show that
sexual orientation discrimination is discrimination “because of … sex” and thus is
actionable under Title VII, that conclusion is underscored by well-established Title
VII doctrine. Indeed, only recognition of sexual orientation discrimination as a
form of sex discrimination can be reconciled with settled Title VII case law.
First, one might object that sexual orientation discrimination is not because
of sex because it does not entail discrimination against all members of a given sex
- 22 -

but rather requires that the victim also possess another defining trait—namely,
attraction to members of the same sex. Those features, however, have not
precluded sex discrimination claims in other situations, and therefore they should
not preclude sex discrimination claims based on sexual orientation. This Court has
repeatedly recognized that Title VII claims are not defeated merely because
“certain members of a protected class are not subject to discrimination.” Gorzynski
v. JetBlue Airways Corp., 596 F.3d 93, 109 (2d Cir. 2010).
The long line of decisions recognizing so-called sex-plus cases illustrates
this principle. See, e.g., Back v. Hastings on Hudson Union Free Sch. Dist., 365
F.3d 107, 118 (2d Cir. 2004) (explaining that the term “sex plus” is a heuristic
affirming that sex discrimination claims are cognizable even “when not all
members of a disfavored class are discriminated against”). Sexual orientation
claims are, in effect, but another type of sex-plus claim and therefore equally
cognizable under Title VII.
Second, this Court (and many others) has recognized that “an employer may
violate Title VII if it takes action against an employee because of the employee’s
association with a person of another race.” Holcomb v. Iona Coll., 521 F.3d 130,
132 (2d Cir. 2008). That interracial discrimination is discrimination because of
race confirms that sexual orientation discrimination is discrimination because of
sex.

- 23 -

In Holcomb, for example, a white male plaintiff alleged that he had been
discriminated against by his employer because he was married to a black woman.
Id. at 132. The employer sought summary judgment on the basis that the plaintiff
was not fired “because of [his] race,” as the adverse employment action was not
animated by his status as a white person. This Court rightly rejected that argument
and concluded the plaintiff was penalized by his class membership. “The reason is
simple: where an employee is subjected to adverse action because an employer
disapproves of interracial association, the employee suffers discrimination because
of the employee’s own race.” Id. at 139. The Court reached this conclusion
because such discrimination could only be understood by reference to the
plaintiff’s race—a black employee married to another black person would not have
been treated adversely in the way that the white employee married to a black
person was. See Rosenblatt v. Bivona & Cohen, P.C., 946 F. Supp. 298, 300
(S.D.N.Y. 1996) (“Plaintiff has alleged discrimination as a result of his marriage to
a black woman. Had he been black, his marriage would not have been interracial.
Therefore, inherent in his complaint is the assertion that he has suffered racial
discrimination based on his own race.”).
A decision from the Sixth Circuit further illustrates the point. In Tetro v.
Elliott Popham Pontiac, Oldsmobile, Buick, & GMC Trucks, Inc., a white
employee alleged he was discriminated against because he had fathered a biracial

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child. The Court concluded that such an allegation stated a claim of discrimination
“because of race” under Title VII because “the alleged discrimination … was due
to Tetro’s race being different from his daughter’s.” 173 F.3d 988, 994-995 (6th
Cir. 1999). As the Court explained, “If [the employee] had been AfricanAmerican, presumably the dealership would not have discriminated because his
daughter would also have been African-American.” Id.; see also Parr v. Woodmen
of the World Life Ins. Co., 791 F.2d 888, 892 (11th Cir. 1986) (“Where a plaintiff
claims discrimination based upon an interracial marriage or association, he alleges,
by definition, that he has been discriminated against because of his race.”). 5
These cases show instances of discrimination where, but for the plaintiff’s
race, she or he would not have been discriminated against—and the claim therefore
is cognizable under Title VII——regardless of the discriminator’s animus towards
the plaintiff’s specific class in isolation. The same analysis should apply to claims
of sex discrimination based on same-sex relationships or associations. See Hively,
853 F.3d at 349 (citing Price Waterhouse, 490 U.S. at 244 n.9). Judge Flaum’s
concurrence in Hively makes the connection well:

5

The same analysis has long been used to invalidate anti-miscegenation laws
under the Equal Protection Clause. See Loving v. Virginia, 388 U.S. 1, 11 (1967)
(“There can be no question but that Virginia’s miscegenation statutes rest solely
upon distinctions drawn according to race.”). Although Loving is a constitutional
decision, it still provides a meaningful guide for understanding and interpreting
anti-discrimination statutes. See Hively, 853 F.3d at 349 (citing Obergefell v.
Hodges, 135 S. Ct. 2584 (2015)).
- 25 -

Interracial relationships are comprised of (A) an individual of one
race, and (B) another individual of a different race. Without
considering the first individual’s race, the word ‘different’ is
meaningless. Consequently, employment discrimination based on an
employee’s interracial relationship is, in part, tied to an enumerated
trait: the employee’s race … The same principle applies here. Ivy
Tech allegedly refused to promote Professor Hively because she was
homosexual—or (A) a woman who is (B) sexually attracted to
women.
853 F.3d at 359. As Judge Flaum recognized, the long line of cases upholding
claims of discrimination based on interracial associations is fundamentally
incompatible with the rule of Simonton. Judges within the Second Circuit have
observed the same. See Christiansen, 852 F.3d at 204 (Katzmann, C.J.,
concurring); Boutillier, 221 F. Supp. 3d at 268 (“The logic is inescapable: [i]f
interracial association discrimination is held to be ‘because of the employee’s own
race,’ so ought sexual orientation discrimination be held to be because of the
employee’s own sex. Holcomb and Simonton are not legitimately
distinguishable.”); Roberts v. United Parcel Serv., Inc., 115 F. Supp. 3d 344, 365366 (E.D.N.Y. 2015) (applying reasoning of Holcomb to case of sexual orientation
discrimination).6

6

The Hively dissent mistakenly rejected this analogy to Title VII’s race-based
precedent on the ground that, whereas anti-interracial rules “are inherently racist
[because] [t]hey are premised on invidious ideas about white superiority, …
[s]exual-orientation discrimination … is not inherently sexist.” Hively, 853 F.3d at
368. But, as the Hively majority correctly noted, Loving struck down the Virginia
anti-miscegenation law because it “rest[ed] solely upon distinctions drawn
according to race.” Loving, 388 U.S. at 11; id. at 11 n.11 (court “need not reach
- 26 -

CONCLUSION
This Court should overrule Simonton and hold that discrimination on the
basis of sexual orientation is actionable discrimination because of sex under Title
VII.
Respectfully submitted,

MARY BONAUTO
GLBTQ LEGAL ADVOCATES & DEFENDERS
30 Winter Street, Suite 800
Boston, MA 02108
[phone]
Counsel for Amicus Curiae GLAD
CHRISTOPHER STOLL
NATIONAL CENTER FOR LESBIAN RIGHTS
870 Market Street, Suite 370
San Francisco, CA 94102
[phone]
Counsel for Amicus Curiae NCLR

June 26, 2017

/s/ Alan E. Schoenfeld
ALAN E. SCHOENFELD
WILMER CUTLER PICKERING
HALE AND DORR LLP
7 World Trade Center
250 Greenwich Street
New York, NY 10007
[phone]
DAVID M. LEHN
WILMER CUTLER PICKERING
HALE AND DORR LLP
1875 Pennsylvania AVENUE NW
Washington, DC 20006
[phone]
CHRISTOPHER D. DODGE
WILMER CUTLER PICKERING
HALE AND DORR LLP
60 State Street
Boston, MA 02109
[phone]
Counsel for Amici Curiae GLAD and NCLR

this [white-supremacy] contention because we find the racial classifications in
these statutes repugnant … even assuming an even-handed state purpose to protect
the ‘integrity’ of all races”); see also Hively, 853 F.3d at 348 n.4. Holcomb
confirms that the same principle obtains in the Title VII context. 521 F.3d at 139.
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CERTIFICATE OF COMPLIANCE
Pursuant to Fed. R. App. P. 32(g), the undersigned hereby certifies that,

1. This brief complies with the type-volume limitation of Second Circuit
Local Rule 29.1(c) because it contains 6441 words, excluding the parts of the brief
exempted by Fed. R. App. P. 32(f).
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 2016 in
14-point Times New Roman type style.

/s/ Alan E. Schoenfeld
ALAN E. SCHOENFELD
June 26, 2017

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 26th
day of June, 2017, to be served on all counsel of record via ECF.

/s/ Alan E. Schoenfeld
ALAN E. SCHOENFELD