Zarda v. Altitude Express, Inc.

Filing 333

AMICUS BRIEF, on behalf of Amicus Curiae The LGBT Bar Association of Greater New York, Anti-Defamation League, Asian American Bar Association of New York, Association of the Bar of the City of New York, Bay Area Lawyers for Individual Freedom, Hispanic National Bar Association, Legal Aid at Work, National Queer Asian Pacific Islander Alliance, New York County Lawyers' Association and Women's Bar Association of the State of New York, , FILED. Service date 06/26/2017 by CM/ECF. [2066524] [15-3775] [Entered: 06/26/2017 05:26 PM]

15-3775

d
IN THE

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,
—against—
ALTITUDE EXPRESS, INC., doing business as SKYDIVE LONG ISLAND,
RAY MAYNARD,
Defendants-Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NEW YORK

BRIEF FOR AMICI CURIAE THE LGBT BAR ASSOCIATION
OF GREATER NEW YORK (LEGAL), ANTI-DEFAMATION LEAGUE,
ASIAN AMERICAN BAR ASSOCIATION OF NEW YORK,
ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK,
BAY AREA LAWYERS FOR INDIVIDUAL FREEDOM,
HISPANIC NATIONAL BAR ASSOCIATION, LEGAL AID AT WORK,
NATIONAL QUEER ASIAN PACIFIC ISLANDER ALLIANCE,
NEW YORK COUNTY LAWYERS’ ASSOCIATION, AND
WOMEN’S BAR ASSOCIATION OF THE STATE OF NEW YORK
IN SUPPORT OF PLAINTIFFS-APPELLANTS

THE LGBT BAR ASSOCIATION
OF GREATER NEW YORK (LEGAL)
BY: MATTHEW SKINNER,
EXECUTIVE DIRECTOR
601 West 26th Street, Suite 325-20
New York, New York 10001
[phone]
Attorneys for Amici Curiae

CORPORATE DISCLOSURE STATEMENT
Pursuant to FED. R. APP. P. 26.1, amicus curiae The LGBT Bar
Association of Greater New York (“LeGaL”) certifies that it has no parent
corporation and no corporation or publicly held entity owns 10% or more of its
stock.
The Anti-Defamation League (“ADL”) certifies that it has no parent
corporation and no corporation or publicly held entity owns 10% or more of its
stock.
The Asian American Bar Association of New York (“AABANY”)
certifies that it has no parent corporation and no corporation or publicly held entity
owns 10% or more of its stock. It is the New York affiliate of the National Asian
Pacific American Bar Association.
The Association of the Bar of the City of New York (a/k/a the New York
City Bar Association), is a voluntary bar association with no parent corporation or
subsidiaries, and no corporation or publicly held entity owns 10% or more of its
stock. The New York City Bar Association has one affiliate, the Association of the
Bar of the City of New York Fund, Inc.
Bay Area Lawyers for Individual Freedom (“BALIF”) certifies that it has
no parent corporation and no corporation or publicly held entity owns 10% or more
of its stock.

i

The Hispanic National Bar Association (“HNBA”) certifies that it has no
parent corporation and no corporation or publicly held entity owns 10% or more of
its stock.
Legal Aid at Work (“LAAW”) certifies that it has no parent corporation
and no corporation or publicly held entity owns 10% or more of its stock.
The National Queer Asian Pacific Islander Alliance (“NQAPIA”)
certifies that it has no parent corporation and no corporation or publicly held entity
owns 10% or more of its stock.
The New York County Lawyers Association (“NYCLA”) certifies that it
has no parent corporation and no corporation or publicly held entity owns 10% or
more of its stock.
The Women’s Bar Association of the State of New York (“WBASNY”)
states that it is a statewide voluntary bar association incorporated in the State of
New York, with no parent corporation, no corporation or publicly held entity
owning 10% or more of its stock, and twenty-seven (28) subsidiaries and affiliates
(consisting of one (1) direct subsidiary that is an IRC 501(c)(3) charitable
foundation incorporated in New York; nineteen (19) affiliated regional chapters
across New York, some of which are unincorporated and others of which are

ii

incorporated in New York; and eight (8) IRC 501(c)(3) charitable foundations or
legal clinics that are subsidiaries of its chapters and incorporated in New York).1

WBASNY’s affiliates are: Chapters – Adirondack Women’s Bar Association; The Bronx
Women’s Bar Association, Inc.; Brooklyn Women’s Bar Association, Inc.; Capital District
Women’s Bar Association; Central New York Women’s Bar Association; Del-Chen-O Women’s
Bar Association, Finger Lakes Women’s Bar Association; Greater Rochester Association for
Women Attorneys; Mid-Hudson Women’s Bar Association; Mid-York Women’s Bar
Association; Nassau County Women’s Bar Association; New York Women’s Bar Association;
Queens County Women’s Bar Association; Rockland County Women’s Bar Association; Staten
Island Women’s Bar Association; The Suffolk County Women’s Bar Association; Westchester
Women’s Bar Association; Western New York Women’s Bar Association; and Women’s Bar
Association of Orange and Sullivan Counties. Charitable Foundations & Legal Clinic –
Women’s Bar Association of the State of New York Foundation, Inc.; Brooklyn Women’s Bar
Foundation, Inc.; Capital District Women’s Bar Association Legal Project Inc.; Nassau County
Women’s Bar Association Foundation, Inc.; New York Women’s Bar Association Foundation,
Inc.; Queens County Women’s Bar Foundation; Westchester Women’s Bar Association
Foundation, Inc.; and The Women’s Bar Association of Orange and Sullivan Counties
Foundation, Inc.
1

iii

TABLE OF CONTENTS
Page
CORPORATE DISCLOSURE STATEMENT .........................................................i
TABLE OF CONTENTS .........................................................................................iv
TABLE OF AUTHORITIES .................................................................................... v
INTERESTS OF AMICI CURIAE ............................................................................ 1
ARGUMENT SUMMARY ...................................................................................... 1
ARGUMENT ............................................................................................................ 2
I.

The Court Should Overturn Simonton Because It Relied on Outdated
Law, Resulting in a Decision That Conflicts with Supreme Court and
Second Circuit Precedent................................................................................ 2

II.

This Court Should Follow the Seventh Circuit’s Groundbreaking
Precedent in Hively. ........................................................................................ 6

III. The Panel Decision’s Unworkable Approach Leaves LGB Employees
Without Reassurance That They Are Protected from Illegal
Discrimination Based on Their Sexual Orientation. ...................................... 8
CONCLUSION .......................................................................................................13
CERTIFICATE OF COMPLIANCE ......................................................................14
CERTIFICATE OF SERVICE ...............................................................................15
ADDENDUM: INTERESTS OF AMICI CURIAE ...............................................16

iv

TABLE OF AUTHORITIES
Page(s)

CASES

Baldwin v. Foxx,
EEOC DOC 0120133080, 2015 WL 4397641 (July 15, 2015) ..................4, 9, 12
Christiansen v. Omnicom Grp., Inc.,
167 F. Supp. 3d 598 (S.D.N.Y. 2016) .................................................................. 8
Christiansen v. Omnicom Grp., Inc.,
852 F.3d 195 (2d Cir. 2017) ........................................................................passim
Dawson v. Bumble & Bumble,
398 F.3d 211 (2d Cir. 2005) ................................................................................. 8
Hively v. Ivy Tech Cmty. Coll. of Indiana,
853 F.3d 339 (7th Cir. 2017) ....................................................................3, 6, 7, 9
Holcomb v. Iona College,
521 F.3d 130 (2d Cir. 2008) ............................................................................. 3, 4
Lawrence v. Texas,
539 U.S. 558 (2003) .............................................................................................. 5
Loving v. Virginia,
388 U.S. 1 (1967) .................................................................................................. 3
Obergefell v. Hodges,
135 S. Ct. 2584 (2015) ..................................................................................5, 6, 7
Pension Ben. Guar. Corp. v. LTV Corp.,
496 U.S. 633 (1990) .............................................................................................. 3
Philpott v. New York,
No. 16 Civ. 6778 (AKH), 2017 U.S. Dist. LEXIS 67591
(S.D.N.Y. May 3, 2017).................................................................................. 9, 10
Price Waterhouse v. Hopkins,
490 U.S. 228 (1989) .............................................................................................. 4
Prowel v. Wise Bus. Forms, Inc.,
579 F.3d 285 (3d Cir. 2009) ................................................................................. 8
v

Romer v. Evans,
517 U.S. 620 (1996) .............................................................................................. 7
Simonton v. Runyon,
232 F.3d 33 (2d Cir. 2000) ..........................................................................passim
U.S. Equal Emp’t Opportunity Comm’n v. Scott Med. Health Ctr., P.C.,
No. 16-225, 2016 WL 6569233 (W.D. Pa. Nov. 4, 2016) ................................... 9
United States v. Windsor,
133 S. Ct. 2675 (2013) .......................................................................................... 5
Videckis v. Pepperdine Univ.,
150 F. Supp. 3d 1151 (C.D. Cal. 2015) ................................................................ 9
Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ.,
2017 U.S. App. LEXIS 9362 (7th Cir. May 30, 2017)......................................... 3
Zarda v. Altitude Express,
855 F.3d 76 (2d Cir. 2017) ............................................................................... 1, 5
RULES
Title VII of the Civil Rights Act of 1964..........................................................passim
Fed. R. App. P. 26.1 ....................................................................................................i
Fed. R. App. P. 29(d) ............................................................................................... 14
Fed. R. App. P. 32(a)(5) ........................................................................................... 14
Fed. R. App. P. 32(a)(6) ........................................................................................... 14
Fed. R. App. P. 32(a)(7)(B) ..................................................................................... 14
Fed. R. App. P. 32(f) ................................................................................................ 14

vi

OTHER AUTHORITIES
Fourteenth Amendment ............................................................................................. 6
Brad Sears & Christy Mallory, Williams Inst., Evidence of
Employment Discrimination on the Basis of Sexual Orientation in
State and Local Government: Complaints Filed with State
Enforcement Agencies 2003-2007 (2011) .......................................................... 11
Brad Sears et al., Williams Inst., Documenting Discrimination on the
Basis of Sexual Orientation & Gender Identity in State
Employment (2009) ............................................................................................. 12
EEOC, LGBT-Based Sex Discrimination Charges (Charges filed with
EEOC) FY 2013-FY 2016,
https://www.eeoc.gov/eeoc/statistics/enforcement/lgbt_sex_based.
cfm (last visited Apr. 19, 2017) ....................................................................11, 12
Jennifer C. Pizer et al., Evidence of Persistent and Pervasive
Workplace Discrimination Against LGBT People: The Need for
Federal Legislation Prohibiting Discrimination and Providing for
Equal Employment Benefits, 45 Loy. L.A. L. Rev. 715 (2012) ........................ 11
Williams Inst., Annual Discrimination Complaints to State Agencies
Prohibiting Sexual Orientation and/or Gender Identity (2008) ......................... 12

vii

INTERESTS OF AMICI CURIAE
Amici are a coalition of voluntary bar associations and nonprofit
organizations united in their commitment to protecting the rights of LGBT
individuals and the prevention of workplace discrimination and harassment of all
forms. Detailed statements of interests are in the addendum following this brief.
ARGUMENT SUMMARY
Discrimination on the basis of sexual orientation is discrimination on the
basis of sex prohibited under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e-2(a)(1) (“Title VII”). The panel in Zarda felt constrained by prior outdated
decisions from this Circuit, stating it “lack[ed] the power to overturn Circuit
precedent,” in rejecting Zarda’s request to find discrimination on the basis of
sexual orientation is prohibited by Title VII. Zarda v. Altitude Express, 855 F.3d
76, 80 (2d Cir. 2017). Furthermore, the prior decisions on which the panel relied
are in direct conflict with Supreme Court and Second Circuit case law.
Consequently, the law as it stands in this Circuit is in disarray. Lesbian, gay, and
bisexual (“LGB”) employees deserve clarity with respect to their rights in the
workplace, and the time is now ripe for this Court to clarify those rights. For the
following reasons, this Court should overturn its outdated precedent established in
Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2017), and find that Title VII protects

1

against discrimination on the basis of sexual orientation through its prohibition of
discrimination “because of . . . sex.”
ARGUMENT
I.

The Court Should Overturn Simonton Because It Relied on
Outdated Law, Resulting in a Decision That Conflicts with
Supreme Court and Second Circuit Precedent.
Sexual orientation discrimination constitutes sex discrimination under Title

VII in three distinct circumstances: (1) when LGB individuals are treated in a way
that would be different “but for” their sex; (2) when LGB individuals are treated
less favorably based on the sex of their associates; and (3) when LGB individuals
are treated less favorably because they do not conform to gender stereotypes,
particularly in romantic relationships. This Court has not had the opportunity to
address these compelling theories, which developed after Simonton v. Runyon, 232
F.3d 33 (2d Cir. 2000). See Christiansen v. Omnicom Grp., Inc., 852 F.3d 195,
203–06 (2d Cir. 2017) (Katzmann, C.J., concurring). Given the “evolving legal
landscape” in the nearly two decades since Simonton was decided, a conflict with
Supreme Court and more recent Second Circuit precedent now exists.
Consequently, Simonton should be overturned. See id. at 202.
First, Simonton was heavily informed by Congress’s refusal to expand Title
VII protections and thus deserves revisiting. See 232 F.3d at 35. This Court
reached the bare conclusion in Simonton that “Title VII does not prohibit
harassment or discrimination because of sexual orientation.” Like other circuits,
2

the Second Circuit inferred Congress’s intent to exclude sexual orientation from
Title VII from Congressional inaction. See id. However, the Supreme Court has
stated that “[c]ongressional inaction lacks persuasive significance because several
equally tenable inferences may be drawn from such inaction, including the
inference that the existing legislation already incorporated the offered change.”
Pension Ben. Guar. Corp. v. LTV Corp., 496 U.S. 633, 650 (1990) (citation
omitted) (internal quotation marks omitted); see also Whitaker v. Kenosha Unified
Sch. Dist. No. 1 Bd. of Educ., 2017 U.S. App. LEXIS 9362, at *30 (7th Cir. May
30, 2017) (finding congressional inaction not determinative of expanding Title IX
protections); Hively v. Ivy Tech Cmty. Coll. of Indiana, 853 F.3d 339, 344 (7th Cir.
2017) (finding congressional inaction not determinative of expanding Title VII
protections for discrimination based on sexual orientation).

Accordingly, the

reasoning on which Simonton relied is irreconcilable with Supreme Court
precedent. Therefore, this panel’s reliance on Simonton merits reversal.
Second, overturning Simonton is warranted in light of the recognition of
associational discrimination. The theory of associational discrimination has long
been accepted, see, e.g., Loving v. Virginia, 388 U.S. 1, 7–8 (1967), and was
adopted by this Circuit in Holcomb v. Iona College, 521 F.3d 130 (2d Cir. 2008).
Although Loving and Holcomb only addressed race-based associations, the theory
of associational discrimination applies “with equal force” to discrimination based

3

on sex because each enumerated category under Title VII is treated “exactly the
same . . . .” See Price Waterhouse v. Hopkins, 490 U.S. 228, 243, n.9 (1989).
Thus, an employee who alleges that “his or her employer took his or her sex into
account by treating him or her differently for associating with a person of the same
sex” alleges sex discrimination under Title VII. Baldwin v. Foxx, EEOC DOC
0120133080, 2015 WL 4397641, at *6 (July 15, 2015).

Because Simonton

predates Holcomb, this Court has not yet addressed how associational
discrimination intersects with discrimination on the basis of same-sex associations.
This conflict in Second Circuit case law necessitates a fresh examination of the
legal framework in Simonton; in doing so, this Court must overrule Simonton and
find that associational discrimination includes discrimination on the basis of sex.
Third, the Court should use the opportunity presented here to address the
modern approach—that sexual orientation discrimination is a type of genderstereotyping under Title VII. Simonton created a “binary distinction . . . between
permissible gender stereotype discrimination claims and impermissible sexual
orientation discrimination.”

Christiansen, 852 F.3d at 205 (Katzmann, C.J.,

concurring). This unworkable distinction has persisted, complicating pleadings
and disregarding the strong overlap between gender stereotypes and sexual
orientation discrimination. The Simonton approach ignores the reality that sexual
orientation discrimination is based on gender stereotypes and thus should be

4

actionable under Title VII. See id. at 205-06 (“fundamentally, carving out gender
stereotypes related to sexual orientation ignores the fact that negative views of
sexual orientation are often, if not always, rooted in the idea that men should be
exclusively attracted to women . . . as clear a gender stereotype as any.”) The
history of Zarda’s case demonstrates the resulting burden on LGB plaintiffs. As
the panel acknowledged, the District Court limited its analysis of sex stereotyping
to “what you may wear or how you may behave,” yet failed to analyze “whether
Zarda could rely on a ‘sex stereotype’ that men should date women.” Zarda, 855
F.3d at 81. In so doing, the District Court furthered, and the panel upheld, the
needlessly complicated and increasingly unworkable distinction between
discrimination based on gender stereotypes and sexual orientation. Accordingly,
this Court should overrule Simonton and acknowledge the “gender stereotype at
play in sexual orientation discrimination.”

Christiansen, 852 F.3d at 206

(Katzmann, C.J., concurring).
The legal landscape surrounding LGB rights has overwhelmingly changed
since Simonton. Simonton predates the Supreme Court’s decisions in Lawrence v.
Texas, 539 U.S. 558, 578 (2003) (finding unconstitutional Texas’s criminalization
of same-sex intimacy), United States v. Windsor, 133 S. Ct. 2675, 2679 (2013)
(finding unconstitutional DOMA’s definition of marriage as between a man and
woman), and Obergefell v. Hodges, 135 S. Ct. 2584, 2607–08 (2015) (holding that

5

same-sex couples have a fundamental right to marry, as protected under the
Fourteenth Amendment). This Court should overrule the outdated, unworkable
Simonton decision to address more recent legal developments. As reasoned in
Obergefell, “[i]f rights were defined by who exercised them in the past, then
received practices could serve as their own continued justification and new groups
could not invoke rights once denied.” 135 S. Ct. at 2602.
The panel’s decision and its reliance on Simonton conflicts with Supreme
Court and Second Circuit precedent.

In light of this and the changing legal

landscape surrounding LGB issues, the Second Circuit should overrule Simonton
and find discrimination on the basis of sexual orientation is discrimination
prohibited under Title VII “because of … sex”.
II.

This Court Should Follow the
Groundbreaking Precedent in Hively.

Seventh’s

Circuit’s

Two weeks before the panel’s decision in this case, the Seventh Circuit
published its groundbreaking decision in Hively, where it held for the first time that
discrimination on the basis of sexual orientation is a form of sex discrimination
under Title VII. See Hively, 853 F.3d at 341. Hively is now in direct conflict with
the decision of this panel. Accordingly, this Court should overrule Simonton, and
follow the persuasive precedent set by the Seventh Circuit in Hively.
In Hively, the Seventh Circuit held that a plaintiff who alleges discrimination
on the basis of sexual orientation can put forth a valid claim of sex discrimination

6

under Title VII. See id. In finding that discrimination on the basis of sexual
orientation constitutes a form of sex discrimination covered by Title VII, the
Seventh Circuit stressed that it was not “amending” Title VII to add a new
protected category, but was rather interpreting “what it means to discriminate on
the basis of sex, and in particular, whether actions taken on the basis of sexual
orientation are a subset of actions taken on the basis of sex.”

Id. at 343.

Ultimately, the Seventh Circuit was convinced that Title VII encompasses sexual
orientation discrimination under two alternative theories: (1) the “comparative
method,” where courts attempt to isolate the significance of a plaintiff’s sex in an
employer’s decision; and (2) the associational discrimination theory. See id. at
345.2
The Seventh Circuit’s en banc decision in Hively unequivocally overruled
prior Seventh Circuit precedent. Like the panel here, the panel in Hively also felt
constrained by prior outdated precedent. But the Seventh Circuit “recognize[ed]
the power of the full court to overrule earlier decisions and to bring [its] law into
conformity with the Supreme Court’s teachings.” Id. at 343. This Court now
should do the same.

2

The majority in Hively traced its decision against a backdrop of Supreme Court cases
beginning with Romer v. Evans, 517 U.S. 620 (1996) to the most recent opinion in Obergefell,
recognizing the evolving sense that laws that discriminate on the basis of sexual orientation
violate the Equal Protection Clause. Id. at *19.

7

III.

The Panel Decision’s Unworkable Approach Leaves LGB
Employees Without Clear Protection from Illegal Discrimination
Based on Their Sexual Orientation.
In continuing to draw a line between sexual orientation and sex-based

discrimination claims, the panel has furthered a fallacious distinction. The law as
it currently stands requires district courts to determine whether an allegation is
based on gender stereotyping or stereotyping based on sexual orientation.
However, numerous courts throughout the country have grappled with this
distinction and found it unworkable. See 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 concerning sexual orientation discrimination and sexual stereotyping
seems to be that no coherent line can be drawn between these two sorts of
claims.”); see also, e.g., Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285, 291 (3d
Cir. 2009) (“[T]he line between sexual orientation discrimination and
discrimination ‘because of sex’ can be difficult to draw.”); Dawson v. Bumble &
Bumble, 398 F.3d 211, 217 (2d Cir. 2005) (finding it “often difficult to discern”
between allegations based on sexual orientation discrimination and those based on
sex stereotyping, because “the borders [between these classes] are so imprecise”).
The confusion among courts surrounding this artificial line-drawing led the
Equal Employment Opportunity Commission (“EEOC”) to throw out the
distinction altogether. The EEOC’s official position is now that “an allegation of

8

discrimination based on sexual orientation is necessarily an allegation of sex
discrimination under Title VII.” Baldwin, 2015 WL 4397641, at *5. The EEOC
reached this conclusion because, among other reasons, discrimination on the basis
of sexual orientation inevitably involves stereotypes about the proper gender roles
in romantic relationships—namely, that men should only date women and vice
versa.
Since Baldwin, numerous courts have gone beyond merely lamenting this
distinction as unworkable, and have now coalesced to condemn the distinction as
an artificial judicial construct with no basis in reality. See, e.g., Hively, 853 F.3d at
346 (concluding that the line between sexual orientation discrimination and sexstereotyping claims “does not exist at all”); Philpott v. New York, No. 16 Civ. 6778
(AKH), 2017 U.S. Dist. LEXIS 67591, at *6-7 (S.D.N.Y. May 3, 2017) (following
Hively and “declin[ing] to embrace an illogical and artificial distinction” between
sexual orientation discrimination and gender stereotyping) (internal quotation
omitted); U.S. Equal Emp’t Opportunity Comm’n v. Scott Med. Health Ctr., P.C.,
No. 16-225, 2016 WL 6569233, at *6 (W.D. Pa. Nov. 4, 2016) (describing the
distinction between sexual orientation discrimination and sex stereotyping as “a
distinction without a difference” and concluding that no line separates the two);
Videckis v. Pepperdine Univ., 150 F. Supp. 3d 1151, 1159 (C.D. Cal. 2015)
(“[T]he Court concludes that the distinction is illusory and artificial, and that

9

sexual orientation discrimination is not a category distinct from sex or gender
discrimination.”). Indeed, courts have even rejected the distinction between sexual
orientation discrimination and sex stereotyping as immaterial and proceeded to
find claims of sexual orientation discrimination “cognizable under Title VII.”
Philpott, 2017 U.S. Dist. LEXIS 67591, at *7.
Under the current framework, LGB employees who face illegal
discrimination in the workplace can only seek protections under Title VII if they
assert a gender stereotyping claim.

This result permits (and perhaps even

encourages) employers to claim that they did not discriminate against an employee
because of gender stereotypes, but rather, simply because of the employee’s sexual
orientation. Not only is this illogical, but as the Christiansen panel acknowledged
in addressing the same issue, it has become “especially difficult for gay plaintiffs
to bring” gender stereotyping claims. Christiansen, 852 F.3d at 200 (citation
omitted).
Title VII protections should extend to all LGB employees, not just a subset
who survive scrutiny within a false judicial construct. The law, as it currently
stands, leaves LGB employees uniquely vulnerable to illegal employment
discrimination, without the reassurance that Title VII protects them from such
evils. Indeed, the Williams Institute at the UCLA School of Law has gathered
studies demonstrating the impact of sexual orientation discrimination on LGBT

10

employees. See Jennifer C. Pizer et al., Evidence of Persistent and Pervasive
Workplace Discrimination Against LGBT People: The Need for Federal
Legislation Prohibiting Discrimination and Providing for Equal Employment
Benefits,

45

Loy.

L.A.

L.

Rev.

715

(2012)

(hereinafter

“Persistent

Discrimination”). A 2008 national survey reported that 42% of LGB workers
experienced some form of workplace discrimination or harassment related to their
sexual orientation. See Persistent Discrimination at 722–23. A more recent 2011
study revealed that on a national level, the population-adjusted rate for sexual
orientation-based

discrimination

complaints

matches

that

of

race-based

discrimination claims at four claims per 10,000 workers, and is just short of the
adjusted rate for sex-based discrimination complaints at five claims per 10,000
workers.

See Brad Sears & Christy Mallory, Williams Inst., Evidence of

Employment Discrimination on the Basis of Sexual Orientation in State and Local
Government: Complaints Filed with State Enforcement Agencies 2003-2007 2
(2011).
Given the community’s vulnerability to discrimination, it is not surprising
that the EEOC has reported a general upward trend in the number of sexual
orientation-based discrimination complaints filed since the agency began tracking
such information, including an increase from fiscal year 2015 (when Baldwin was
issued) to fiscal year 2016. See EEOC, LGBT-Based Sex Discrimination Charges

11

(Charges filed with EEOC) FY 2013-FY 2016, https://www.eeoc.gov/eeoc/
statistics/enforcement/lgbt_sex_based.cfm (last visited Apr. 19, 2017). Similarly, a
2008 study reported an upward trend in the number of sexual orientation
discrimination claims filed between 1999 and 2007 with the appropriate state
agencies in Connecticut and New York.

See Williams Inst., Annual

Discrimination Complaints to State Agencies Prohibiting Sexual Orientation
and/or Gender Identity 2, 5 (2008). Corroborating this study’s finding, the New
York State Division of Human Rights reported a similar increase of discrimination
complaints on the basis of sexual orientation filed from 2003 to 2007. See Brad
Sears et al., Williams Inst., Documenting Discrimination on the Basis of Sexual
Orientation & Gender Identity in State Employment 15-67–15-68 (2009).
These studies highlight the dilemma faced by LGB employees, who seek to
rely on anti-discrimination laws at roughly equivalent ratios to minority or female
workers, but who find that protections for the LGB community are less likely to be
enforced to the fullest extent of the law. The history of this case exemplifies the
struggle these LGB employees face under the current law.

Further, the

documented increasing rate at which these claims are being brought, particularly
after Baldwin, will inevitably compound the confusion district courts face.

12

LGB employees, their employers, and their respective attorneys all need
clarity with respect to this area of law. This Court needs to settle this uncertainty
and should retire the unworkable distinction between permissible gender stereotype
discrimination claims and impermissible sexual orientation discrimination claims
to hold that discrimination based on sexual orientation is, in fact, sex
discrimination under Title VII.
CONCLUSION
This Court should overturn Simonton and hold that discrimination on the
basis of sexual orientation is discrimination on the basis of sex, as prohibited under
Title VII.
The LGBT Bar Association of
Greater New York (LeGaL)
601 West 26th Street, Suite 325-20
New York, NY 10001
[phone]
By:

Matthew Skinner
Executive Director

Amicus Curiae

13

CERTIFICATE OF COMPLIANCE
1.

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

P. 32(a)(7)(B) and Fed. R. App. P. 29(d) because it contains 3,942 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 proportional typeface using Microsoft Word in Times New
Roman 14-point font.
Dated: June 26, 2017
The LGBT Bar Association of
Greater New York (LeGaL)
601 West 26th Street, Suite 325-20
New York, NY 10001
[phone]
[e-mail]
By:

Matthew Skinner
Executive Director

Amicus Curiae

14

CERTIFICATE OF SERVICE
I hereby certify that on June 26, 2017 I electronically filed the foregoing
brief with the Clerk of Court for the United States Court of Appeals for the Second
Circuit by using the Court’s CM/ECF system. I certify that all participants in the
case are registered CM/ECF users and that service will be accomplished by the
CM/ECF system.
The LGBT Bar Association of
Greater New York (LeGaL)
601 West 26th Street, Suite 325-20
New York, NY 10001
[phone]
[e-mail]
By:

Matthew Skinner
Executive Director

Amicus Curiae

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ADDENDUM: INTERESTS OF AMICI CURIAE
The LGBT Bar Association of Greater New York (“LeGaL”) was one of
the nation’s first bar associations of the LGBT legal community and remains one
of the largest and most active organizations of its kind in the country. Serving the
New York metropolitan area, LeGaL is dedicated to improving the administration
of the law, ensuring full equality for members of the LGBT community, and
promoting the expertise and advancement of LGBT legal professionals. LeGaL,
whose membership includes attorneys that regularly represent LGBT employees in
cases of employment discrimination, has a fundamental interest in ensuring that
Title VII’s protections extend to all LGBT employees.
The Anti-Defamation League (“ADL”) was founded in 1913 to combat
anti-Semitism and other forms of prejudice, and to secure justice and fair treatment
to all. Today, ADL is one of the nation’s leading civil rights organizations. As part
of its commitment to protecting the civil rights of all persons, ADL has filed
amicus briefs in numerous cases addressing the unconstitutionality or illegality of
discriminatory practices or laws. ADL worked closely with coalition partners to
help pass the Civil Rights of Act of 1964, and it maintains a strong interest in
ensuring that its provisions, such as Title VII, are interpreted in accordance with
the law’s intent to protect people in historically persecuted groups, like Donald
Zarda, from discrimination.

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The Asian American Bar Association of New York (“AABANY”) was
formed in 1989 as a not-for-profit corporation to represent the interests of New
York Asian American attorneys, judges, law professors, legal professionals, legal
assistants, paralegals and law students. The mission of AABANY is to improve
the study and practice of law, and the fair administration of justice for all by
ensuring the meaningful participation of Asian Americans in the legal profession.
AABANY, currently with over 1000 active members, is the New York affiliate of
the National Asian Pacific American Bar Association.
The Association of the Bar of the City of New York (a/k/a the New York
City Bar Association or the “City Bar”) is a voluntary association of over 24,000
member lawyers and law students. Among other initiatives, the City Bar addresses
unmet legal needs, especially the needs of traditionally disadvantaged groups and
individuals such as those in the LGBT community. The Committee on LGBT
Rights addresses legal and policy issues that affect LGBT individuals.
Bay Area Lawyers for Individual Freedom (“BALIF”) is a bar association
of approximately 500 lesbian, gay, bisexual, and transgender (“LGBT”) members
in the San Francisco Bay Area legal community. BALIF promotes the professional
interests and social justice goals of its members and the legal interests of the LGBT
community at large. For nearly 40 years, BALIF has actively participated in public

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policy debates concerning the rights of LGBT people and has authored and joined
amicus efforts concerning matters of broad public importance.
The membership of amicus curiae the Hispanic National Bar Association
(the “HNBA”) comprises thousands of Latino lawyers, law professors, law
students, legal professionals, state and federal judges, legislators, and bar affiliates
across the country.

The HNBA supports Hispanic legal professionals and is

committed to advocacy on issues of importance to the 53 million people of
Hispanic heritage living in the United States. The HNBA regularly participates as
amicus in cases concerning civil rights.
Legal Aid at Work (“LAAW”) (formerly Legal Aid Society – Employment
Law Center) is a non-profit public interest law organization whose mission is to
protect, preserve, and advance the employment and education rights of individuals
from traditionally under-represented communities.

LAAW has represented

plaintiffs in cases of special import to communities of color, women and girls,
recent immigrants, individuals with disabilities, the LGBT community, and the
working poor. LAAW has litigated a number of cases under Title IX of the
Education Amendments of 1972 as well as Title VII of the Civil Rights Act of
1964. LAAW has appeared in discrimination cases on numerous occasions both as
counsel for plaintiffs, see, e.g., National Railroad Passenger Corp. v. Morgan, 536
U.S. 101 (2002); U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002); and

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California Federal Savings & Loan Ass’n v. Guerra, 479 U.S. 272 (1987) (counsel
for real party in interest), as well as in an amicus curiae capacity. See, e.g., U.S. v.
Virginia, 518 U.S. 515 (1996); Harris v. Forklift Systems, 510 U.S. 17 (1993);
International Union, UAW v. Johnson Controls, 499 U.S. 187 (1991); Price
Waterhouse v. Hopkins, 490 U.S. 228 (1989); Meritor Savings Bank v. Vinson, 477
U.S. 57 (1986).

LAAW’s interest in preserving the protections afforded to

employees and students by this country’s antidiscrimination laws is longstanding.
The National Queer Asian Pacific Islander Alliance (“NQAPIA”) is a
federation of lesbian, gay, bisexual, and transgender (LGBT) Asian American,
South Asian, Southeast Asian, and Pacific Islander (APIs) organizations. NQAPIA
builds the capacity of local LGBT API groups, develops leadership, promotes
visibility, educates the community, invigorates grassroots organizing, encourages
collaborations, and challenges anti-LGBT bias and racism.

NQAPIA as long

supported the expansion of rights to protect LGBT people from discrimination.
The New York County Lawyers Association (“NYCLA”) Committee on
Lesbian, Gay, Bisexual and Transgender Issues is a committee of NYCLA—a notfor-profit membership organization of approximately 8,000 members committed to
applying their knowledge and experience in the field of law to promotion of the
public good and ensuring access to justice for all. Founded in 1908, NYCLA was
the first major bar association in the country to admit members without regard to

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race, ethnicity, religion or gender, and continues to pioneer tangible reforms in
American jurisprudence. This amicus brief has been approved by the NYLCA
Committee on Lesbian, Gay, Bisexual and Transgender Issues and has not been
reviewed by the NYCLA Executive Committee.
The Women’s Bar Association of the State of New York (“WBASNY”) is
the second largest statewide bar association in New York, with more 4,400
members in nineteen regional chapters. WBASNY’s membership includes jurists,
academics, and practicing attorneys in every area of the law, including
constitutional and civil rights, employment law, family and matrimonial law, and
children’s rights.3 WBASNY’s primary mission is to ensure the advancement of
equal rights and the fair administration of justice for all persons. It has been a
vanguard for the rights of women, children, and LGBT persons for decades, and it
has participated as an amicus in many cases supporting equal rights for all persons,
regardless of gender or sexual orientation, including before the Second Circuit and
U.S. Supreme Court in Windsor v. United States, 699 F.3d 169 (2d Cir. 2012),
aff’d sub nom. United States v. Windsor, 133 S. Ct. 2675 (2013).

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The Boards of Directors of WBASNY and its 19 affiliated chapters include attorneys who are
judges, court attorneys, or otherwise affiliated with courts in New York. No WBASNY
members who are judges or court personnel participated in WBASNY’s vote to join in this
matter as amicus or in the drafting or review of this brief.

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