Zarda v. Altitude Express, Inc.

Filing 334

AMICUS BRIEF, on behalf of Amicus Curiae American Civil Liberties Union, New York Civil Liberties Union, National Women’ Law Center, 9to5, National Association of Working Women, A Better Balance, California Women’ Law Center, Equal Rights Advocates, Feminist Majority Foundation, Gender Justice, Legal Voice, National Organization for Women (NOW) Foundation, National Partnership for Women & Families, Southwest Women’ Law Center, Women Employed, Women’ Law Center of Maryland, Inc., Women’s Law Project, FILED. Service date 06/26/2017 by CM/ECF. [2066529] [15-3775] [Entered: 06/26/2017 05:28 PM]

15-3775-cv
United States Court of Appeals
For the Second Circuit
MELISSA ZARDA, co-independent executor of the estate of Donald Zarda; and
WILLIAM ALLEN MOORE, JR., co-independent executor of the estate of Donald Zarda,
Plaintiffs-Appellants,
v.
ALTITUDE EXPRESS, INC., doing business as Skydive Long Island; and RAY MAYNARD,
Defendants-Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
BRIEF OF AMICI CURIAE AMERICAN CIVIL LIBERTIES UNION; NEW YORK
CIVIL LIBERTIES UNION; NATIONAL WOMEN’S LAW CENTER; 9to5, NATIONAL
ASSOCIATION OF WORKING WOMEN; A BETTER BALANCE; CALIFORNIA
WOMEN’S LAW CENTER; EQUAL RIGHTS ADVOCATES; FEMINIST MAJORITY
FOUNDATION; GENDER JUSTICE; LEGAL VOICE; NATIONAL ORGANIZATION
FOR WOMEN (NOW) FOUNDATION; NATIONAL PARTNERSHIP FOR WOMEN &
FAMILIES; SOUTHWEST WOMEN’S LAW CENTER; WOMEN EMPLOYED;
WOMEN’S LAW CENTER OF MARYLAND, INC.; and WOMEN’S LAW PROJECT
IN SUPPORT OF PLAINTIFFS-APPELLANTS MELISSA ZARDA
and WILLIAM ALLEN MOORE, JR.
ERIN BETH HARRIST
CHRISTOPHER DUNN
NEW YORK CIVIL LIBERTIES
UNION FOUNDATION
125 Broad Street, 19th Floor
New York, New York 10004
[phone]
FATIMA GOSS GRAVES
NATIONAL WOMEN’S LAW CENTER
11 Dupont Circle, N.W., Suite 800
Washington, District of Columbia 20036
[phone]

RIA TABACCO MAR
LESLIE COOPER
JAMES D. ESSEKS
Lesbian Gay Bisexual Transgender
& HIV Project
LENORA M. LAPIDUS
GILLIAN L. THOMAS
Women’s Rights Project
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
125 Broad Street, 18th Floor
New York, New York 10004
[phone] 

Attorneys for Amici Curiae

CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rules of Appellate Procedure 26.1 and 29, the
undersigned counsel of record certifies that none of the amici curiae is a
nongovernmental entity with a parent corporation or a publicly held corporation
that owns 10% or more of its stock. This representation is made in order that the
judges of this Court may evaluate possible disqualification or recusal.

Dated: June 26, 2017

s/ Ria Tabacco Mar
RIA TABACCO MAR
American Civil Liberties Union
Foundation
125 Broad Street, 18th Floor
New York, NY 10004
[phone]
[e-mail]
Attorney for Amici Curiae

i

TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT ......................................................... i 
TABLE OF AUTHORITIES ................................................................................... iii 
INTERESTS OF AMICI CURIAE .............................................................................1 
SUMMARY OF THE ARGUMENT ........................................................................1 
ARGUMENT .............................................................................................................4 
I.  Since Title VII’s enactment, courts consistently have adopted an
expansive interpretation of what constitutes discrimination “because of
sex.” .................................................................................................................4 
II.  Title VII’s prohibition against sex discrimination protects all employees,
including lesbian, gay, and bisexual people. .................................................15 
A.  Discrimination because of sexual orientation is sex discrimination
under the plain meaning of the term “sex.” ..............................................15 
B.  Discrimination because of sexual orientation involves impermissible
sex-role stereotyping. ...............................................................................18 
C.  Discrimination against people who have or seek to have same-sex
relationships is associational discrimination. ...........................................21 
III. Simonton should be overruled in light of the Supreme Court’s expansive
interpretation of what constitutes discrimination “because of sex.” .............23 
CONCLUSION ........................................................................................................29 
CERTIFICATE OF COMPLIANCE .......................................................................31 
CERTIFICATE OF SERVICE FOR ELECTRONIC FILINGS .............................32 
APPENDIX: INTERESTS OF AMICI CURIAE ................................................. A-1  

ii

TABLE OF AUTHORITIES
Cases
Am. Newspaper Publishers Ass’n v. Alexander,
294 F. Supp. 1100 (D.D.C. 1968). .......................................................................8
AT&T Corp. v. Hulteen,
556 U.S. 701 (2009) ...........................................................................................10
Back v. Hastings on Hudson Union Free Sch. Dist.,
365 F.3d 107 (2d Cir. 2004) ..............................................................................28
Baldwin v. Foxx,
EEOC Doc. 0120133080, 2015 WL 4397641
(EEOC July 15, 2015) ........................................................................... 16, 19, 22
Barnes v. Costle,
561 F.2d 983 (D.C. Cir. 1977) ...........................................................................12
Barnes v. Train,
No. 1828-73, 1974 WL 10628 (D.D.C. Aug. 9, 1974) ......................................12
Boutillier v. Hartford Pub. Sch.,
No. 3:13CV1303 WWE, 2014 WL 4794527 (D. Conn. Sept. 25, 2014) ..........20
Boutillier v. Hartford Pub. Sch.,
221 F. Supp. 3d 255 (D. Conn. 2016)................................................................22
Bradwell v. State,
83 U.S. 130 (1872) ...............................................................................................7
Cent. Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A.,
511 U.S. 164 (1994) ...........................................................................................25
Centola v. Potter,
183 F. Supp. 2d 403 (D. Mass. 2002) ................................................................21
Christiansen v. Omnicom Grp., Inc.,
852 F.3d 195 (2d Cir. 2017) ............................................................. 2, 15, 23, 28
City of L.A. Dep’t of Water & Power v. Manhart,
435 U.S. 702 (1978) ...................................................................................... 6, 27

iii

Complainant v. Johnson,
EEOC Doc. 0120110576, 2014 WL 4407457 (EEOC Aug. 20, 2014) .............19
Corne v. Bausch & Lomb, Inc.,
390 F. Supp. 161 (D. Ariz. 1975) ......................................................................13
Dawson v. Bumble & Bumble,
398 F.3d 211 (2d Cir. 2005) ....................................................................... 26, 27
DeCintio v. Westchester Cty. Med. Ctr.,
807 F.2d 304 (2d Cir. 1986) ....................................................................... 23, 24
Diaz v. Pan Am. World Airways, Inc.,
442 F.2d 385 (5th Cir. 1971) ...............................................................................9
Dothard v. Rawlinson,
433 U.S. 321 (1977) ...................................................................................... 9, 10
EEOC v. Scott Med. Health Ctr., P.C.,
217 F. Supp. 3d 834 (W.D. Pa. 2016)................................................................20
Evans v. Ga. Reg’l Hosp.,
850 F.3d 1248 (11th Cir. 2017) .........................................................................23
Fabian v. Hosp. of Cent. Conn.,
172 F. Supp. 3d 509 (D. Conn. 2016)................................................................25
Foray v. Bell Atl.,
56 F. Supp. 2d 327 (S.D.N.Y. 1999) .......................................................... 16, 22
Gen. Electric Co. v. Gilbert,
429 U.S. 125 (1976) ...........................................................................................10
Glenn v. Brumby,
663 F.3d 1312 (11th Cir. 2011) .........................................................................24
Goesaert v. Cleary,
335 U.S. 464 (1948) .............................................................................................7
Golinski v. U.S. Office of Pers. Mgmt.,
824 F. Supp. 2d 968 (N.D. Cal. 2012) .................................................................18

iv

Griggs v. Duke Power Co.,
401 U.S. 424 (1971) .............................................................................................9
Hall v. BNSF Ry. Co.,
No. C13-2160, 2014 WL 4719007 (W.D. Wash. Sept. 22, 2014) ....................20
Heller v. Columbia Edgewater Country Club,
195 F. Supp. 2d 1212 (D. Or. 2002) ..................................................................21
Hively v. Ivy Tech Cmty. Coll. of Ind.,
853 F.3d 339 (7th Cir. 2017) ..................................................................... passim
Holcomb v. Iona Coll.,
521 F.3d 130 (2d Cir. 2008) ..............................................................................21
Hoyt v. Florida,
368 U.S. 57 (1961) ...............................................................................................8
In re Levenson,
560 F.3d 1145 (9th Cir. 2009) ...........................................................................17
Isaacs v. Felder Servs., LLC,
143 F. Supp. 3d 1190 (M.D. Ala. 2015) ............................................................16
Jefferies v. Harris Cty. Cmty. Action Ass’n,
693 F.2d 589 (5th Cir. 1982) ....................................................................... 11-12
Jernigan v. Crane,
64 F. Supp. 3d 1260 (E.D. Ark. 2014)...............................................................17
Kitchen v. Herbert,
961 F. Supp. 2d 1181 (D. Utah 2013)................................................................17
Koren v. Ohio Bell Tel. Co.,
894 F. Supp. 2d 1032 (N.D. Ohio 2012) ...........................................................21
Lam v. Univ. of Hawai’i,
40 F.3d 1551 (9th Cir. 1994) .............................................................................11
Latta v. Otter,
771 F.3d 456 (9th Cir. 2014) .............................................................................17

v

Lawson v. Kelly,
58 F. Supp. 3d 923 (W.D. Mo. 2014) ................................................................17
Macy v. Holder,
EEOC Doc. 0120120821, 2012 WL 1435995 (EEOC Apr. 20, 2012) ....... 18-19
Meritor Sav. Bank, FSB v. Vinson,
477 U.S. 57 (1986) .............................................................................................14
Miller v. Bank of Am.,
418 F. Supp. 233 (N.D. Cal. 1976) ............................................................. 12, 13
Muller v. Oregon,
208 U.S. 412 (1908) .............................................................................................7
Nashville Gas Co. v. Satty,
434 U.S. 136 (1977) ...........................................................................................11
Newport News Shipbuilding & Dry Dock Co. v. EEOC,
462 U.S. 669 (1983) .............................................................................. 11, 15, 26
Oncale v. Sundowner Offshore Servs.,
523 U.S. 75 (1998) ................................................................................ 14, 15, 26
Perry v. Schwarzenegger,
704 F. Supp. 2d 921 (N.D. Cal. 2010) ...............................................................17
Phillips v. Martin Marietta Corp.,
400 U.S. 542 (1971) ...........................................................................................11
Philpott v. New York,
No. 16 Civ. 6778 (AKH), 2017 WL 1750398 (S.D.N.Y. May 3, 2017) ...........20
Price Waterhouse v. Hopkins,
490 U.S. 228 (1989) ................................................................................. 6, 18, 22
Rosenbrahn v. Daugaard,
61 F. Supp. 3d 845 (D.S.D. 2014) .....................................................................17
Rosenfeld v. S. Pac. Co.,
444 F.2d 1219 (9th Cir. 1971) .............................................................................9

vi

Simonton v. Runyon,
232 F.3d 33 (2d Cir. 2000) ........................................................................ passim
Smith v. City of Salem,
378 F.3d 566 (6th Cir. 2004) .............................................................................24
Sobel v. Yeshiva Univ.,
839 F.2d 18 (2d Cir. 1988) ................................................................................28
Sommers v. Budget Mktg., Inc.,
667 F.2d 748 (8th Cir. 1982) .............................................................................24
Sprogis v. United Air Lines, Inc.,
444 F.2d 1194 (7th Cir. 1971) .................................................................... 12, 28
Terveer v. Billington,
34 F. Supp. 3d 100 (D.D.C. 2014) .....................................................................20
Tomkins v. Pub. Serv. Elec. & Gas Co.,
422 F. Supp. 553 (D.N.J. 1976) .................................................................. 12, 13
Ulane v. E. Airlines, Inc.,
742 F.2d 1081 (7th Cir. 1984) ...........................................................................24
United Auto. Workers of Am. v. Johnson Controls, Inc.,
499 U.S. 187 (1991) ...........................................................................................10
Veretto v. Donahoe,
EEOC Doc. 0120110873, 2011 WL 2663401 (EEOC July 1, 2011) ................19
Videckis v. Pepperdine Univ.,
100 F. Supp. 3d 927 (C.D. Cal. 2015) ...............................................................20
Weeks v. S. Bell Tel. & Tel. Co.,
408 F.2d 228 (5th Cir. 1969) ...............................................................................9
Williams v. Consol. Edison Corp. of N.Y.,
255 F. App’x 546 (2d Cir. 2007) .......................................................................22
Rules
29 C.F.R. § 1604.11(a) (1980) .................................................................................13

vii

Statutes
42 U.S.C. § 2000e-2(a)(1)..........................................................................................4
Other Authorities
110 Cong. Rec. 2577-84 (1964) .................................................................................4
Br. Amici Curiae of 128 Members of Congress, Christiansen v. Omnicom Grp.,
Inc., No. 16-748-cv, 2016 WL 3551468 (2d Cir. June 28, 2016) ......................25
Carl M. Brauer, Women Activists, Southern Conservatives, and the Prohibition
of Sex Discrimination in Title VII of the 1964 Civil Rights Act,
49 J. SOUTHERN HIST. 37 (1983) ...........................................................................5
Cary Franklin, Inventing the “Traditional Concept” of Sex Discrimination,
125 HARV. L. REV. 1307 (2012). ..........................................................................5
Final Determination, Cote v. Wal-Mart Stores E., LP,
EEOC Charge No. 523-2014-00916 (Jan. 29, 2015),
https://www.glad.org/wp-content/uploads/2014/09/cote-v-walmart-probablecause-notice.pdf ........................................................................................... 16, 22
Michael Evan Gold, A Tale of Two Amendments: The Reasons Congress Added
Sex to Title VII and Their Implication for Comparable Worth,
19 DUQUESNE L. REV. 453 (1981) ........................................................................5
Robert C. Bird, More Than a Congressional Joke: A Fresh Look at the
Legislative History of Sex Discrimination of the 1964 Civil Rights Act,
3 WM. & MARY J. WOMEN & L. 137 (1997) ..................................................... 4-5

viii

INTERESTS OF AMICI CURIAE1
Amici are a coalition of civil rights groups and public interest organizations
committed to preventing, combating, and redressing sex discrimination and
protecting the equal rights of women in the United States. Detailed statements of
interest are contained in the accompanying appendix.
Amici have a vital interest in ensuring that Title VII’s promise of equal
employment opportunity effectively protects all people – including lesbian, gay,
and bisexual persons – from invidious discrimination “because of sex.”
SUMMARY OF THE ARGUMENT
This appeal presents the momentous issue of whether employers are free to
discriminate against lesbian, gay, and bisexual people without violating Title VII’s
historic prohibition against discrimination “because of sex.” Decades of Supreme
Court history make plain that Title VII’s prohibition against discrimination
because of sex has become a robust source of protection for male and female
workers alike. Initially, Title VII was a vehicle for striking down employer
policies and practices that literally excluded women (or men) from certain
employment opportunities. It soon became clear, however, that discrimination

1

Pursuant to Rule 29(c)(5) of the Federal Rules of Appellate Procedure and Local
Rule 29.1, counsel for amici curiae state that no counsel for a party authored this
brief in whole or in part, and that no person other than amici curiae, their
members, or their counsel made a monetary contribution to the preparation or
submission of this brief.
1

“because of sex” means much more than simply getting rid of “Help Wanted –
Male” signs (or, for that matter, “Help Wanted – Female” signs). The Supreme
Court has explained that sex discrimination occurs whenever an employer takes an
employee’s sex into account when making an adverse employment decision.
Courts have applied this principle to countless forms of employer bias, from cases
involving a ban on hiring mothers of preschool-aged children to bias against
Asian-American women to the failure to promote a Big Eight accounting firm
partnership candidate because she was “macho.” Time and again, courts have
refused to allow generalizations about men and women – or about certain types of
men and women – to play any role in employment decisions.
This rich history of courts’ interpretations of Title VII, in addition to the
reasons stated by Plaintiff-Appellant and articulated by Chief Judge Katzmann in
his recent concurring opinion in Christiansen v. Omnicom Group, Inc., 852 F.3d
195 (2d Cir. 2017), show why discrimination on the basis of sexual orientation
(also referred to as discrimination against lesbian, gay, and bisexual people) is
discrimination “because of sex.” Indeed, many of the rationales advanced to
exclude lesbian, gay, and bisexual employees from Title VII were also made by
employers, and rejected by the courts, in cases involving equal opportunity for
women. Employers who take sexual orientation into account necessarily take sex
into account, because sexual orientation turns on one’s sex in relation to the sex of

2

the individuals to whom one is attracted. And bias against lesbian, gay, and
bisexual people turns on the sex-role expectation that women should be attracted to
only men (and not women) and vice versa. There is no principled reason to create
an exception from Title VII for sex discrimination that involves sexual orientation,
as the en banc Seventh Circuit, Chief Judge Katzmann, federal district courts
(including district courts in the Second Circuit), and administrative agencies have
recognized. This Court should come to the same conclusion.
This case presents an opportunity for the full Court to correct its outdated
and unworkable interpretation of Title VII’s prohibition of discrimination “because
of sex.” In 2000, a three-judge panel of this Court held in Simonton v. Runyon,
232 F.3d 33 (2d Cir. 2000), that harassment on the basis of sexual orientation is not
sex-based discrimination. Yet sex stereotyping, as defined by the Supreme Court,
plainly encompasses discrimination on the basis of sexual orientation. Continued
reliance on Simonton’s outdated categorical exclusion has led to cramped and
illogical attempts to distinguish between sex stereotyping that does not implicate
sexual orientation, which is clearly prohibited by Title VII, and sex stereotyping
that relates to the fact that an employee is lesbian, gay, or bisexual. This Court
should now hold that there is no coherent line to be drawn between such forms of
discrimination and that sexual orientation discrimination is discrimination
“because of sex.”

3

ARGUMENT
I.

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

(2d Cir. 2000), that discrimination on the basis of sexual orientation is not sexbased discrimination prohibited by Title VII. In doing so, this Court should take
into account the Supreme Court’s expansive interpretation of the phrase “because
of sex” during the past fifty years.
Title VII of the Civil Rights Act of 1964 forbids employers from making
adverse decisions about hiring, firing, or the terms, conditions, or privileges of
employment because of sex. 42 U.S.C. § 2000e-2(a)(1). Unlike the prohibition
against discrimination because of race, the prohibition against discrimination
because of sex was added to the bill at the last minute, with little floor debate and
without the benefit of congressional hearings. 110 Cong. Rec. 2577-84 (1964).
Since Title VII’s enactment, this sparse record has been invoked by some to
justify limiting Title VII’s coverage solely to workplace barriers that explicitly
disadvantage women as compared to men.2 Indeed, many have presumed that such

2

Even the motivations of the sex amendment’s sponsor, Representative Howard
Smith of Virginia, have been the subject of intense dispute among historians,
giving rise to theories that he intended the addition as a joke or as a vehicle for
scotching the entire bill, which he opposed. See, e.g., Robert C. Bird, More Than a
Congressional Joke: A Fresh Look at the Legislative History of Sex
4

distinctions were the only kind of discrimination “because of sex” that concerned
legislators in 1964. This interpretation is incorrect. As one scholar has explained
in a seminal law review article: “Contrary to what courts have suggested, there
was no consensus among legislators in the mid-1960s that the determination of
whether an employment practice discriminated on the basis of sex could be made
simply by asking whether an employer had divided employees into two groups
perfectly differentiated along biological sex lines.” Cary Franklin, Inventing the
“Traditional Concept” of Sex Discrimination, 125 HARV. L. REV. 1307, 1320,
1328 (2012).3
Given this history, it was left largely to the courts to define what is meant by
“because of sex.” Interpreting the plain meaning of these words, courts

Discrimination of the 1964 Civil Rights Act, 3 WM. & MARY J. WOMEN & L. 137,

139-42 (1997); Michael Evan Gold, A Tale of Two Amendments: The Reasons
Congress Added Sex to Title VII and Their Implication for Comparable Worth, 19
DUQUESNE L. REV. 453, 458-59 (1981). But as one scholar has noted, whatever
Smith’s “real” motivation, it is irrelevant; the reason(s) for introducing legislation
may or may not bear any relation to the reason(s) the legislature enacts it. Id. at
462-67.
3

Commentators also have noted that supporters of the sex amendment were
motivated not by concern for women vis a vis men, but for white women vis a vis
Black women. That is, if Title VII included only race but not sex provisions,
Black women would enjoy a level of protection in the workplace that white women
would not. See, e.g., Bird, supra note 2, at 155-58; Carl M. Brauer, Women
Activists, Southern Conservatives, and the Prohibition of Sex Discrimination in
Title VII of the 1964 Civil Rights Act, 49 J. SOUTHERN HIST. 37,
49-50 (1983). These historical realities militate against, not in favor of, the
crabbed analysis of Title VII embodied in Simonton and related decisions.
5

consistently have interpreted Title VII’s prohibition against sex discrimination to
cover a wide range of employer assumptions about women and men alike. As the
Supreme Court put it nearly forty years ago, “‘[i]n forbidding employers to
discriminate against individuals because of their sex, Congress intended to strike at
the entire spectrum of disparate treatment of men and women resulting from sex
stereotypes.” City of L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702, 707
n.13 (1978) (internal citation omitted). Indeed, when examined in full, the halfcentury of precedent interpreting “sex discrimination” has dismantled not just
distinctions between men and women, but also those among men and among
women – distinctions that for generations had confined individuals to strict sex
roles at work, as well as in society.
In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Supreme Court
famously held that when an employer relies on sex stereotypes to deny
employment opportunities, it unquestionably acts “because of sex.” There, the
Court considered the Title VII claim of Ann Hopkins, who was denied promotion
to partner in a major accounting firm – despite having brought in the most business
of the eighty-seven other (male) candidates – because she was deemed “macho.”
Id. at 235 (plurality opinion). To be fit for promotion, Hopkins was told, she
needed to “walk more femininely, talk more femininely, dress more femininely,
wear make-up, have her hair styled, and wear jewelry.” Id.

6

As detailed in Part II.B, infra, Price Waterhouse confirms that adverse
employment action based on all manner of sex stereotypes is prohibited by Title
VII’s sex provision. The stereotype concerning to whom men and women
“should” be romantically attracted is encompassed within this principle. But Ann
Hopkins’s case was hardly the only instance in which an employer’s stereotypebased decision making was found to violate Title VII.
Among the earliest Title VII cases were those addressing – and disapproving
of – the literal exclusion of women from particular employment opportunities. The
sex-segregated work world of 1964 that Title VII was charged with regulating
reflected longstanding assumptions about the kinds of jobs for which women (and
men) were suited – physically, temperamentally, and even morally. See, e.g.,
Goesaert v. Cleary, 335 U.S. 464, 466 (1948) (upholding state law preventing
women from working as bartenders unless their husband or father owned the bar,
because “the oversight assured through [such] ownership . . . minimizes hazards
that may confront a barmaid without such protecting oversight”); Muller v.
Oregon, 208 U.S. 412, 421 (1908) (sustaining state maximum-hours law for
women laundry workers because “woman’s physical structure and the performance
of maternal functions place her at a disadvantage in the struggle for subsistence”);
Bradwell v. State, 83 U.S. 130, 141 (1872) (Bradley, J., concurring) (in approving
under the due process clause Illinois’ law against admitting women to practice law,

7

observing that “[t]he natural and proper timidity and delicacy which belongs to the
female sex evidently unfits it for many of the occupations of civil life”). Indeed,
just three years before Title VII became law, the Court had unanimously upheld a
Florida statute exempting women from jury service because of their “special
responsibilities” in the home unless they affirmatively chose to register for service.
Hoyt v. Florida, 368 U.S. 57, 62 (1961).
It is unsurprising, then, that prior to Title VII’s enactment, it had been
routine for newspapers to separate “help wanted” advertisements into “male” and
“female” sections, but the EEOC and courts found that practice illegal under the
new law. See Am. Newspaper Publishers Ass’n v. Alexander, 294 F. Supp. 1100
(D.D.C. 1968). Employers’ segregation of job opportunities by sex was premised
on assumptions about what work women and men can and want to do. Indeed,
Title VII was enacted at a time when the workforce was divided into “women’s
jobs” and “men’s jobs,” stemming largely from state “protective laws” restricting
women’s access to historically male-dominated fields, but also from the resulting
cultural attitudes about the sexes’ respective abilities and preferences. Just as sexspecific job listings were found to violate Title VII, so too were a variety of other
policies and practices that had the purpose or effect of judging employees by their
sex, not their qualifications.

8

By adopting a narrow approach to the bona fide occupational qualification
(BFOQ) exception, for instance, courts assured that women and men alike would
be assessed for jobs on individual merit, not group-based stereotypes. See, e.g.,
Rosenfeld v. S. Pac. Co., 444 F.2d 1219 (9th Cir. 1971) (striking down employer
policy prohibiting women from becoming station agents due to job’s physical
demands); Diaz v. Pan Am. World Airways, Inc., 442 F.2d 385 (5th Cir. 1971)
(finding airline’s women-only rule for flight attendants unlawful discrimination);
Weeks v. S. Bell Tel. & Tel. Co., 408 F.2d 228 (5th Cir. 1969) (prohibiting
employer policy against women working as switchmen on grounds that job
required heavy lifting).
Similarly, within a few years of these decisions, the Supreme Court ruled
that physical criteria that disproportionately exclude women applicants violate
Title VII unless justified by business necessity; employers could no longer merely
assume that “bigger is better” when it came to dangerous jobs. See Dothard v.
Rawlinson, 433 U.S. 321 (1977) (unanimously extending disparate impact
framework of Griggs v. Duke Power Co., 401 U.S. 424 (1971), to cover height and
weight minimums for prison guards).4 The Court later relied on similar logic to

4

Although the Dothard Court upheld on BFOQ grounds Alabama’s exclusion of
women from certain positions within maximum-security penitentiaries that
required bodily contact with inmates, the Court emphasized that its decision should
not be interpreted as endorsing an absolute male-only rule in all such jobs. Rather,
the Court reiterated that the BFOQ exception was otherwise to be read narrowly; it
9

invalidate an employer’s “fetal protection policy” that barred women, but not men,
from jobs involving contact with lead – despite medical evidence showing that
men faced equal if not worse reproductive hazards. United Auto. Workers of Am.
v. Johnson Controls, Inc., 499 U.S. 187 (1991). Such a policy, said the Court,
unlawfully presumed that women were more suited to motherhood than to the
rigors, and dangers, of certain work: “It is no more appropriate for the courts than
it is for individual employers to decide whether a woman’s reproductive role is
more important to herself and her family than her economic role. Congress has left
this choice to the woman as hers to make.” Id. at 211.5

was the harrowing conditions then prevailing in Alabama’s maximum-security
facilities, which were under federal court order to come into compliance with the
Eighth Amendment, that made this a special case. See 433 U.S. at 335 (“In the
usual case, the argument that a particular job is too dangerous for women may
appropriately be met by the rejoinder that it is the purpose of Title VII to allow the
individual woman to make that choice for herself.”).
5

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

Although what little floor debate occurred prior to Title VII’s passage
focused on women’s second-class status in the workplace, the prohibition against
discrimination “because of sex” has long been understood to ban discrimination
against men as well. As the Supreme Court noted, “[p]roponents of the legislation
stressed throughout the debates that Congress had always intended to protect all
individuals from sex discrimination in employment.” Newport News Shipbuilding
& Dry Dock Co. v. EEOC, 462 U.S. 669, 681 (1983).
In addition to protecting male employees, Title VII also has been read
repeatedly to forbid discrimination against subsets of employees, resulting in a
broad definition of sex discrimination that acknowledges the diversity of
employees’ identities – and the equally diverse forms of sex-based bias to which
they may be subjected. See, e.g., Phillips v. Martin Marietta Corp., 400 U.S. 542
(1971) (per curiam) (invalidating employer’s ban on hiring mothers of preschoolaged children, despite overall high rates of women’s employment); Lam v. Univ. of
Hawai’i, 40 F.3d 1551 (9th Cir. 1994) (Asian-American woman’s Title VII sex
discrimination claim viable despite evidence that white women comparators were
not subjected to discrimination); Jefferies v. Harris Cty. Cmty. Action Ass’n, 693

found discrimination on the basis of pregnancy to be discrimination “because of
sex” when it struck down a municipal employer’s policy of erasing women’s
seniority while they were out on maternity leave. Nashville Gas Co. v. Satty, 434
U.S. 136, 142-43 (1977).
11

F.2d 589 (5th Cir. 1982) (Black woman could bring Title VII claim despite
evidence that employer treated white female comparators favorably); Sprogis v.
United Air Lines, Inc., 444 F.2d 1194 (7th Cir. 1971) (airline’s policy of
employing only unmarried female flight attendants violated Title VII).
The initial rejection and later recognition of sexual harassment as sex
discrimination offers another useful lens into courts’ ever-widening understanding
of what constitutes discrimination “because of sex.” Although courts understood
by the early 1970s that using racial epithets or displaying racist symbols like
nooses was harassment “because of race” that violated Title VII, they were slower
to see sexual harassment as harassment “because of sex.” Instead, judges routinely
wrote off adverse employment actions against women who had spurned their
supervisors’ advances as “controvers[ies] underpinned by the subtleties of an
inharmonious personal relationship.” Barnes v. Train, No. 1828-73, 1974 WL
10628, at *1 (D.D.C. Aug. 9, 1974) (emphasis added), rev’d sub nom Barnes v.
Costle, 561 F.2d 983 (D.C. Cir. 1977); see also Miller v. Bank of Am., 418 F. Supp.
233, 236 (N.D. Cal. 1976) (sexual harassment could not be discrimination
“because of sex” because “[t]he attraction of males to females and females to
males is a natural sex phenomenon”), rev’d, 600 F.2d 211 (9th Cir. 1979); Tomkins
v. Pub. Serv. Elec. & Gas Co., 422 F. Supp. 553, 556 (D.N.J. 1976) (Title VII not
meant to provide a remedy “for what amounts to physical attack motivated by

12

sexual desire . . . which happened to occur in a corporate corridor rather than a
back alley”), rev’d, 568 F.2d 1044 (3d Cir. 1977); Corne v. Bausch & Lomb, Inc.,
390 F. Supp. 161, 163 (D. Ariz. 1975) (supervisor’s sexual harassment was
motivated not by plaintiff’s sex but by a “personal proclivity, peculiarity or
mannerism”), rev’d, 562 F.2d 55 (9th Cir. 1977).
Notably, these courts buttressed their narrow readings of Title VII by
referencing the limited debate that preceded Congress’s addition of the sex
provision. See Miller, 418 F. Supp. at 235 (the “Congressional Record fails to
reveal any specific discussions as to the amendment’s intended scope or impact”);
Tomkins, 422 F. Supp. at 556-57 (sexual harassment “clear[ly] . . . without the
scope of the Act,” because otherwise “we would need 4,000 federal trial judges
instead of some 400”); Corne, 390 F. Supp. at 163 (given the “[little] legislative
history surrounding the addition of the word ‘sex’ to the employment
discrimination provisions of Title VII,” it would “be ludicrous to hold that the sort
of activity involved here was contemplated by the Act”).
The jurisprudential tide began to turn in the late 1970s (as evidenced in part
by the appellate reversals of the above-cited decisions), and in 1980 the EEOC
updated its Guidelines on Discrimination Because of Sex to declare that sexual
harassment of a female employee could not be disentangled from her sex. 29
C.F.R. § 1604.11(a) (1980). The 1980 Guidelines recognized that it is not

13

“personal” to disadvantage a female employee because of her supervisor’s sexual
conduct toward her; it is illegal.
The Supreme Court continued this evolution in 1986, when it ruled that
severe or pervasive conduct that creates a sexually hostile work environment
violates Title VII by altering the “terms, conditions, or privileges” of employment.
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 63-67 (1986). But the Vinson
Court took it as a given that sexual harassment was sex discrimination; its analysis
centered on whether a plaintiff’s “voluntary” acquiescence to sexual demands and
her failure to lodge a formal complaint negated her Title VII claim. As the Court
put it, “Without question, when a supervisor sexually harasses a subordinate
because of the subordinate’s sex, that supervisor ‘discriminate[s]’ on the basis of
sex.” Id. at 64
Roughly a decade later, the Court extended Vinson – unanimously – to
encompass same-sex sexual harassment. See Oncale v. Sundowner Offshore
Servs., 523 U.S. 75, 79-80 (1998). In so doing, the Oncale Court rejected various
attempts to define sexual harassment narrowly. For example, the Court declined to
hold that whether an employee is the victim of sex (or race) discrimination turns on
the sex (or race) of the harasser. Id. at 78-79. The Court likewise did away with
the argument that sexual harassment must be motivated by sexual desire to be
actionable under Title VII. Id. at 80-81. Rather, the Court adopted perhaps the

14

simplest test for whether discrimination had occurred: whether the conduct at
issue met Title VII’s “statutory requirements,” i.e., whether the harassment
occurred because of the employee’s sex. Id. at 80. The same test applies to
discrimination against lesbian, gay, and bisexual employees, for the reasons
explained below.
II.

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

does not prohibit only discrimination against women in favor of men. Oncale, 523
U.S. at 78. Rather, the statute protects “all individuals” from differential
treatment because of their sex. Newport News, 462 U.S. at 681. This includes
lesbian, gay, and bisexual individuals, as the en banc Seventh Circuit recently held
and Chief Judge Katzmann recognized in his concurrence in Christiansen. See
Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339 (7th Cir. 2017) (en banc);
Christiansen v. Omnicom Grp., Inc., 852 F.3d 195, 201 (2d Cir. 2017) (Katzmann,
C.J., concurring).
A.

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

Discrimination on the basis of sexual orientation is sex discrimination under
the plain meaning of the term, because sexual orientation turns on one’s sex in
relation to the sex of one’s partner. Consideration of an employee’s sexual

15

orientation therefore necessarily involves consideration of the employee’s sex.
Hively, 853 F.3d at 345-47; Isaacs v. Felder Servs., LLC, 143 F. Supp. 3d 1190
(M.D. Ala. 2015) (holding that “claims of sexual orientation-based discrimination
are cognizable under Title VII”); Baldwin v. Foxx, EEOC Doc. 0120133080, 2015
WL 4397641, at *5 (EEOC July 15, 2015).
That discrimination because of sexual orientation involves impermissible
consideration of sex is particularly apparent in the employee benefits context.
When an employer refuses to provide insurance coverage to an employee’s samesex spouse, but would provide such benefits to a different-sex spouse, the
employment benefit depends on the sex of the employee. For example, a female
employee who is denied fringe benefits because she is married to a woman
experiences sex discrimination, because she would be provided those benefits if
she were a man married to a woman. See Final Determination, Cote v. Wal-Mart
Stores E., LP, EEOC Charge No. 523-2014-00916 (Jan. 29, 2015),
https://www.glad.org/wp-content/uploads/2014/09/cote-v-walmart-probable-causenotice.pdf. In addition to the EEOC, several federal courts have reached the same
conclusion in analogous contexts. For example, in Foray v. Bell Atlantic, the court
recognized that a male plaintiff could advance a sex discrimination theory based on
the denial of benefits to his same-sex partner. See 56 F. Supp. 2d 327, 329-30
(S.D.N.Y. 1999) (recognizing sex discrimination theory under Title VII and the

16

Equal Pay Act “because all things being equal, if [plaintiff’s] gender were female,
he would be entitled to claim his domestic partner as an eligible dependent under
the benefits plan” but dismissing both claims because plaintiff and his partner were
not similarly situated to married couples (internal quotation marks omitted)); see
also In re Levenson, 560 F.3d 1145, 1147 (9th Cir. 2009) (holding that denial of
benefits for same-sex spouse of federal public defender constituted discrimination
on the basis of sex or sexual orientation).
Numerous federal courts have concluded that sexual orientation
discrimination is sex discrimination in cases seeking the freedom to marry for
same-sex couples. As Judge Berzon recognized, the Equal Protection Clause
forbids marriage bans for same-sex couples as a form of impermissible sex
discrimination, because “[o]nly women may marry men, and only men may marry
women.” Latta v. Otter, 771 F.3d 456, 480 (9th Cir. 2014) (Berzon, J.,
concurring); see also Jernigan v. Crane, 64 F. Supp. 3d 1260, 1286-87 (E.D. Ark.
2014), aff’d on other grounds, 796 F.3d 976 (8th Cir. 2015); Rosenbrahn v.
Daugaard, 61 F. Supp. 3d 845, 859-60 (D.S.D. 2014), aff’d on other grounds, 799
F.3d 918 (8th Cir. 2015); Lawson v. Kelly, 58 F. Supp. 3d 923, 934 (W.D. Mo.
2014); Kitchen v. Herbert, 961 F. Supp. 2d 1181, 1206 (D. Utah 2013), aff’d on
other grounds, 755 F.3d 1193 (10th Cir. 2014), cert. denied, 135 S. Ct. 265 (2014);
Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 996 (N.D. Cal. 2010), appeal

17

dismissed sub nom. Perry v. Brown, 725 F.3d 1140 (9th Cir. 2013); cf. Golinski v.
U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968, 982 n.4 (N.D. Cal. 2012) (“Ms.
Golinski is prohibited from marrying Ms. Cunninghis, a woman, because Ms.
Golinski is a woman. If Ms. Golinski were a man, [the Defense of Marriage Act
(“DOMA”)] would not serve to withhold benefits from her. Thus, DOMA operates to
restrict Ms. Golinski’s access to federal benefits because of her sex.”), initial hearing
en banc denied, 680 F.3d 1104 (9th Cir. 2012) and appeal dismissed, 724 F.3d 1048
(9th Cir. 2013). This reasoning applies with equal force to Title VII as it does to
the Equal Protection Clause.
B.

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

As the Supreme Court recognized in Price Waterhouse, the prohibition
against discrimination “because of sex” is not limited to discrimination based on
the fact that an individual is male or female, but also discrimination based on other
aspects of a person’s sex, such as gender expression and conformity (or lack of
conformity) with social sex roles. 490 U.S. at 250 (employers discriminate
“because of sex” when they rely on sex-specific stereotypical beliefs, such as the
notion that “a woman cannot be aggressive, or that she must not be”); id. at 256
(“[I]f an employee’s flawed ‘interpersonal skills’ can be corrected by a soft-hued
suit or a new shade of lipstick, perhaps it is the employee’s sex and not her
interpersonal skills that has drawn the criticism.”); see also Macy v. Holder, EEOC
18

Doc. 0120120821, 2012 WL 1435995, at *6 (EEOC Apr. 20, 2012) (Title VII
prohibits discrimination based “not only [on] a person’s biological sex but also the
cultural and social aspects associated with masculinity and femininity”).
While discrimination because of sexual orientation often is accompanied by
explicit evidence of disparate treatment because of an individual’s failure to
conform with sex stereotypes about dress and appearance, it need not be to
constitute sex discrimination. See Hively, 853 F.3d at 346; Baldwin, 2015 WL
4397641, at *7-8. Since 2011, the EEOC has recognized that discrimination
against lesbian, gay, and bisexual employees is unlawful to the extent that it turns
on the sex-role expectation that women should be attracted to only men (and not
women), and that men should be attracted to only women (and not men). See
Veretto v. Donahoe, EEOC Doc. 0120110873, 2011 WL 2663401, at *3 (EEOC
July 1, 2011) (Title VII prohibits adverse employment action “motivated by the
sexual stereotype that marrying a woman is an essential part of being a man”); see
also Complainant v. Johnson, EEOC Doc. 0120110576, 2014 WL 4407457, at *7
(EEOC Aug. 20, 2014) (collecting cases).
Because nonconformity with sex-role expectations is the very quality that
defines lesbian, gay, and bisexual people, federal courts (including in this Circuit)
likewise have begun to recognize that discrimination against members of those
groups is a form of sex stereotyping without requiring additional evidence of

19

gender nonconformity. See, e.g., Hively, 853 F.3d at 346 (noting that the
plaintiff’s same-sex attraction was “the ultimate case of failure to conform to the
female stereotype”); Philpott v. New York, No. 16 Civ. 6778 (AKH), 2017 WL
1750398, at *2 (S.D.N.Y. May 3, 2017) (“[B]ecause plaintiff has stated a claim for
sexual orientation discrimination, ‘common sense’ dictates that he has also stated a
claim for gender stereotyping discrimination, which is cognizable under Title
VII.”); EEOC v. Scott Med. Health Ctr., P.C., 217 F. Supp. 3d 834, 841 (W.D. Pa.
2016) (“There is no more obvious form of sex stereotyping than making a
determination that a person should conform to heterosexuality.”); Videckis v.
Pepperdine Univ., 100 F. Supp. 3d 927, 936 (C.D. Cal. 2015) (“[A] policy that
female basketball players could only be in relationships with males inherently
would seem to discriminate on the basis of gender.”); Boutillier v. Hartford Pub.
Sch., No. 3:13CV1303 WWE, 2014 WL 4794527, at *2 (D. Conn. Sept. 25, 2014)
(denying motion to dismiss where plaintiff alleged that “she was subjected to
sexual stereotyping during her employment on the basis of her sexual orientation”);
Hall v. BNSF Ry. Co., No. C13-2160, 2014 WL 4719007, at *3 (W.D. Wash. Sept.
22, 2014) (denying motion to dismiss where plaintiff alleged that “he (as a male
who married a male) was treated differently in comparison to his female coworkers
who also married males”); Terveer v. Billington, 34 F. Supp. 3d 100, 116 (D.D.C.
2014) (denying motion to dismiss where “Plaintiff has alleged that he is ‘a

20

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

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

This Court first recognized that associational discrimination violates Title
VII in Holcomb v. Iona College, which involved a white man who alleged he was
fired in part because of his interracial marriage to a Black woman. 521 F.3d 130
(2d Cir. 2008). “The reason is simple: where an employee is subjected to adverse
action because an employer disapproves of interracial association, the employee
suffers discrimination because of the employee’s own race.” Id. at 139.

21

The same standard, and the same reasoning, apply to discrimination against
an employee because he or she is in a relationship, or seeks to be in one, with a
person of the same sex. See Williams v. Consol. Edison Corp. of N.Y., 255 F.
App’x 546, 549 n.2 (2d Cir. 2007) (noting that this Court “appl[ies] the same
standard to both race-based and sex-based hostile work environment claims”);
Boutillier v. Hartford Pub. Sch., 221 F. Supp. 3d 255 (D. Conn. 2016) (applying
Holcomb to same-sex relationships); Baldwin, 2015 WL 4397641, at *6-7; see also
Price Waterhouse, 490 U.S. at 243 n.9 (plurality opinion) (noting that Title VII “on
its face treats each of the enumerated categories exactly the same”). The
employer’s disapproval of same-sex relationships depends on the employee’s sex:
If the employee were of a different sex, he or she would not be in (or seek to be in)
a same-sex relationship and, therefore, would not be subject to the employer’s
adverse action. Cf. Foray, 56 F. Supp. 2d at 329 (“[A]ll things being equal, if
[plaintiff’s] gender were female, he would be entitled to claim his domestic partner
as an eligible dependent under the benefits plan.”); Final Determination, Cote v.
Wal-Mart Stores E., LP, EEOC Charge No. 523-2014-00916 (Jan. 29, 2015),
https://www.glad.org/wp-content/uploads/2014/09/cote-v-walmart-probable-causenotice.pdf (a female employee is “subjected to employment discrimination
[where] she was treated differently and denied benefits because of her sex, since
such coverage would be provided if she were a woman married to a man”). As the

22

en banc Seventh Circuit noted, this exercise “reveals that the discrimination rests
of distinctions drawn according to sex” – distinctions prohibited by Title VII. See
Hively, 853 F.3d at 349.
III.

Simonton should be overruled in light of the Supreme Court’s expansive
interpretation of what constitutes discrimination “because of sex.”
Simonton was wrongly decided because it ignored the meaning of sex

discrimination discussed above. The occasion of rehearing this case en banc
presents an opportunity for this Court to revisit and overrule that decision in light
of the history of Title VII jurisprudence described above, the Seventh Circuit’s
recent en banc decision, Hively, 853 F.3d 339, and the concurring opinion by the
Chief Judge in another case before it, Christiansen, 852 F.3d at 201 (Katzmann,
C.J., concurring), recognizing that sexual orientation discrimination is necessarily
sex discrimination within the meaning of Title VII. See also Evans v. Ga. Reg’l
Hosp., 850 F.3d 1248, 1261 (11th Cir. 2017) (Rosenbaum, J., dissenting).
This Court first held that Title VII does not prohibit sexual orientation
discrimination in Simonton v. Runyon, a case brought by a postal worker who
claimed he was subjected to an abusive and hostile work environment because he
was gay. 232 F.3d 33. Simonton, in turn, relied in part on DeCintio v. Westchester
County Medical Center, 807 F.2d 304 (2d Cir. 1986), a decision that did not
involve sexual orientation discrimination at all. Rather, DeCintio involved male
plaintiffs who were denied promotion in favor of a woman who was involved in a
23

heterosexual relationship with their supervisor. Id. at 305. In ruling that the male
applicants did not have a Title VII claim, this Court observed that “[s]ex, when
read in this context, logically could only refer to membership in a class delineated
by gender, rather than sexual activity.” Id. at 306 (internal quotation marks
omitted).
Simonton relied on this language from DeCintio to rule that Title VII does
not proscribe discrimination based on sexual orientation, 232 F.3d at 36, but its
reliance was misplaced. First, the language was taken out of context; the “sexual
activity” at issue was the male employer’s romantic relationship with a woman.
More significantly, it was inconsistent with Price Waterhouse, in which the
Supreme Court held that sex means more than the fact of being a man or a woman
and encompasses the full range of gender expression in the workplace. See supra
Part II.B. What is more, the language relied on in DeCintio was derived from
cases from other circuits, see 807 F.2d at 307 (citing Ulane v. E. Airlines, Inc., 742
F.2d 1081 (7th Cir. 1984); Sommers v. Budget Mktg., Inc., 667 F.2d 748 (8th Cir.
1982)), whose reasoning has now been soundly rejected. See Glenn v. Brumby,
663 F.3d 1312, 1318 n.5 (11th Cir. 2011); Smith v. City of Salem, 378 F.3d 566,
573 (6th Cir. 2004).
This Court in Simonton also gave great weight to the fact that Congress has
refused to amend Title VII to explicitly prohibit discrimination because of sexual

24

orientation. As an initial matter, the Supreme Court has repeatedly cautioned that
acts of subsequent Congresses “deserve little weight in the interpretive process”
regarding federal statutes. Cent. Bank of Denver, N.A. v. First Interstate Bank of
Denver, N.A., 511 U.S. 164, 187 (1994). Moreover, congressional failure to act
could just as easily establish the opposite conclusion from the one the Simonton
Court drew: that amendment of the statute was unnecessary because sexual
orientation discrimination already is covered by the prohibition against
discrimination because of sex. See Br. Amici Curiae of 128 Members of Congress,
Christiansen v. Omnicom Grp.., Inc., No. 16-748-cv, 2016 WL 3551468, at *8 (2d
Cir. June 28, 2016) (“[I]t is equally plausible that [the Employment NonDiscrimination Act] was introduced to clarify as well as expand Title VII’s
protections . . . .” (emphasis added)); cf. Fabian v. Hosp. of Cent. Conn., 172 F.
Supp. 3d 509, 527 n.12 (D. Conn. 2016) (“The fact that the Connecticut legislature
added [language explicitly protecting gender identity] does not require the
conclusion that gender identity was not already protected by the plain language of
the statute [prohibiting sex discrimination], because legislatures may add such
language to clarify or settle a dispute about the statute’s scope rather than solely to
expand it.”). At a bare minimum, subsequent legislative action (or inaction) has no
bearing on what Congress intended (or did not intend) in 1964 when it enacted
Title VII. Nor can congressional intent – whatever it may have been – alter the

25

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

26

to stylist because she was a lesbian who did not conform to sex stereotypes about
femininity. Id. at 213-16. The Dawson Court noted that the plaintiff asserted a sex
stereotyping claim and recognized that “[w]hen utilized by an avowedly
homosexual plaintiff, however, gender stereotyping claims can easily present
problems for an adjudicator. This is for the simple reason that ‘[s]tereotypical
notions about how men and women should behave will often necessarily blur into
ideas about heterosexuality and homosexuality.’” Id. at 218. Despite recognizing
that sexual orientation necessarily implicates sex, this Court nevertheless cited
Simonton for the proposition that “a gender stereotyping claim should not be used
to ‘bootstrap protection for sexual orientation into Title VII.’” Id. (quoting
Simonton, 232 F.3d at 38).
The Court’s discussion regarding “bootstrapping” reveals the tension
between the categorical rejection of sexual orientation claims, on the one hand,
with the expansive definition of sex discrimination adopted in Price Waterhouse,
on the other. Dawson purported to limit sex stereotyping claims to those premised
on an employee’s “behavior” or “appearance.” 398 F.3d at 221. But that
limitation is not found in Price Waterhouse and, in fact, is contradicted by decades
of case law – both before and after Price Waterhouse. See, e.g., Manhart, 435 U.S.
at 707 n.13 (noting that Title VII prohibits “the entire spectrum of disparate
treatment of men and women resulting from sex stereotypes”); see generally supra

27

Part I. Those decisions make clear that employers may not make adverse decisions
based on any aspect of a person’s sex, including the respective roles of men and
women as spouses, breadwinners, or caregivers at home. Just as employers may
not refuse to hire a woman because she is married, see Sprogis, 444 F.2d at 1197,
or because she is a mother, see Back v. Hastings on Hudson Union Free Sch. Dist.,
365 F.3d 107, 120 (2d Cir. 2004), or because she is the sole wage-earner in her
household, see Sobel v. Yeshiva Univ., 839 F.2d 18, 33 (2d Cir. 1988), so too they
may not refuse to hire a woman because she is married to a person of the same sex.
As one judge of this Circuit has recognized, the results of the Dawson decision are
“logically untenable.” Christiansen, 852 F.3d at 205-06 (Katzmann, C.J.,
concurring); see also Hively, 853 F.3d at 342, 350 (observing that attempting to
parse sexual orientation discrimination and sexual stereotyping claims led to “a
‘confused hodge-podge of cases’” with “bizarre,” “confusing and contradictory
results”).
This Court should no longer adhere to pre-Price Waterhouse precedent and
reasoning. Instead, this Court should apply the principles mandated by the
Supreme Court to determine whether sexual orientation claims are covered by Title
VII. Applying those principles leads to the conclusion that sexual orientation
discrimination is a form of sex discrimination prohibited by Title VII.

28

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

Dated: June 26, 2017

Respectfully submitted,
s/ Ria Tabacco Mar
RIA TABACCO MAR
LESLIE COOPER
JAMES D. ESSEKS
Lesbian Gay Bisexual Transgender
& HIV Project
LENORA M. LAPIDUS
GILLIAN L. THOMAS
Women’s Rights Project
American Civil Liberties Union
Foundation
125 Broad Street, 18th Floor
New York, NY 10004
[phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
ERIN BETH HARRIST
CHRISTOPHER DUNN
New York Civil Liberties Union
Foundation
125 Broad Street, 19th Floor
New York, NY 10004
[phone]
[e-mail]
[e-mail]

29

FATIMA GOSS GRAVES
National Women’s Law Center
11 Dupont Circle, N.W., Suite 800
Washington, DC 20036
[phone]
[e-mail]
Attorneys for Amici Curiae

30

CERTIFICATE OF COMPLIANCE
1.

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

32(a)(7)(B) and Local Rules 32.1 and 29.1(c) because it contains 6,976 words,
excluding the parts of the brief exempted by Fed. R. App. P. 32.
2.

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

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

Dated: June 26, 2017

s/ Ria Tabacco Mar
RIA TABACCO MAR
American Civil Liberties Union
Foundation
125 Broad Street, 18th Floor
New York, NY 10004
[phone]
[e-mail]
Attorney for Amici Curiae

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CERTIFICATE OF SERVICE FOR ELECTRONIC FILINGS
I hereby certify that on June 26, 2017, I electronically filed the foregoing
Brief of Amici Curiae American Civil Liberties Union; New York Civil Liberties
Union; National Women’s Law Center; 9to5, National Association of Working
Women; A Better Balance; California Women’s Law Center; Equal Rights
Advocates; Feminist Majority Foundation; Gender Justice; Legal Voice; National
Organization for Women (NOW) Foundation; National Partnership for Women &
Families; Southwest Women’s Law Center; Women Employed; Women’s Law
Center of Maryland, Inc.; and Women’s Law Project in Support of PlaintiffsAppellants Melissa Zarda and William Allen Moore, Jr. with the United States
Court of Appeals for the Second Circuit by using the appellate CM/ECF system. I
certify that all participants in this case are registered CM/ECF users and that
service will be accomplished by the appellate CM/ECF system.

s/ Ria Tabacco Mar
RIA TABACCO MAR
American Civil Liberties Union
Foundation
125 Broad Street, 18th Floor
New York, NY 10004
[phone]
[e-mail]
Attorney for Amici Curiae

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APPENDIX: INTERESTS OF AMICI CURIAE
The American Civil Liberties Union is a nationwide, nonprofit,
nonpartisan organization with over one million members dedicated to defending
the principles embodied in the Constitution and our nation’s civil rights laws.
The ACLU has long fought to ensure that lesbian, gay, bisexual, and
transgender people are treated equally and fairly under law. The New York
Civil Liberties Union (“NYCLU”), the New York affiliate of the American
Civil Liberties Union, is a nonprofit, nonpartisan organization with
approximately 80,000 members founded in 1951 to protect and advance civil
rights in New York. The NYCLU has long fought to ensure that lesbian, gay,
bisexual, and transgender New Yorkers are treated equally and fairly under New
York and federal law.
The National Women’s Law Center is a nonprofit legal advocacy
organization dedicated to the advancement and protection of women’s legal
rights and opportunities since its founding in 1972. The Center focuses on
issues of key importance to women and their families, including economic
security, employment, education, health, and reproductive rights, with special
attention to the needs of low-income women and women of color, and has
participated as counsel or amicus curiae in a range of cases before the Supreme
Court and the federal Courts of Appeals to secure the equal treatment of women

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under the law, including numerous cases addressing the scope of Title VII’s
protection. The Center has long sought to ensure that rights and opportunities
are not restricted for women or men on the basis of gender stereotypes and that
all individuals enjoy the protection against such discrimination promised by
federal law.
9to5, National Association of Working Women is a 44-year-old national
membership organization of women in low-wage jobs dedicated to achieving
economic justice and ending all forms of discrimination. Our membership
includes transgender individuals. 9to5 has a long history of supporting local,
state and national measures to combat discrimination. The outcome of this case
will directly affect our members’ and constituents’ rights and economic wellbeing, and that of their families.
A Better Balance is a national legal advocacy organization dedicated to
promoting fairness in the workplace and helping employees meet the conflicting
demands of work and family. Through its legal clinic, A Better Balance
provides direct services to low-income workers on a range of issues, including
employment discrimination based on pregnancy and/or caregiver status. A
Better Balance is also working to combat LGBTQ employment discrimination
through its national LGBT Work-Family project. The workers we serve, who
are often struggling to care for their families while holding down a job, are

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particularly vulnerable to retaliation that discourages them from complaining
about illegal discrimination.
California Women’s Law Center (“CWLC”) is a statewide, nonprofit
law and policy center dedicated to advancing the civil rights of women and girls
through impact litigation, advocacy and education. CWLC’s issue priorities
include gender discrimination, reproductive justice, violence against women, and
women’s health. Since its inception in 1989, CWLC has placed an emphasis on
eliminating all forms of gender discrimination, including discrimination based on
sexual orientation. CWLC remains committed to supporting equal rights for
lesbians and gay men, and to eradicating invidious discrimination in all forms,
including eliminating laws and policies that reinforce traditional gender roles.
CWLC views sexual orientation discrimination in the workplace as a form of
illegal gender discrimination that is harmful to our state and country, and needs to
be eradicated.
Equal Rights Advocates (“ERA”) is a national non-profit legal
organization dedicated to protecting and expanding economic and educational
access and opportunities for women and girls. Since its founding in 1974, ERA
has litigated numerous class actions and other high-impact cases on issues of
gender discrimination and civil rights. ERA has appeared as amicus curiae in
numerous Supreme Court cases involving the interpretation of anti-

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discrimination laws, including Burlington Northern & Santa Fe Ry. Co. v. White,
548 U.S. 53 (2006); Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998);
Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993); and Meritor Savings Bank,
FSB v. Vinson, 477 U.S. 57 (1986).
Founded in 1987, the Feminist Majority Foundation (“FMF”) is a
cutting-edge organization devoted to women’s equality, reproductive health, and
non-violence. FMF uses research and action to empower women economically,
socially, and politically through public policy development, public education
programs, grassroots organizing, and leadership development. Through all of its
programs, FMF works to end sex discrimination and achieve civil rights for all
people, including people of color and LGBTQ individuals.
Gender Justice is a nonprofit advocacy organization based in the
Midwest that works to eliminate gender barriers based on sex, sexual
orientation, gender identity, or gender expression. Gender Justice targets the
root causes of gender discrimination, such as cognitive bias and stereotyping.
We believe that courts should take an expansive, and inclusive, interpretation
of what constitutes discrimination “because of sex.” Consistent with that view,
we represent the transgender plaintiff in Rumble v. Fairview Health Services,
No. 0:14-cv-02037-SRN-FLN (D. Minn.), whose right to sue under the
Affordable Care Act, Section 1557, was recognized by the court in 2015.

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Legal Voice is a nonprofit public interest organization in the Pacific
Northwest that works to advance the legal rights of women and girls through
litigation, legislation, and public education on legal rights. Since its founding in
1978, Legal Voice has been at the forefront of efforts to combat sex
discrimination in the workplace, in schools, and in public accommodations. We
have served as counsel and as amicus curiae in numerous cases involving
workplace gender discrimination throughout the Northwest and the country.
Legal Voice serves as a regional expert advocating for legislation and for robust
interpretation and enforcement of anti-discrimination laws to protect women and
LGBTQ people. Legal Voice has a strong interest in ensuring that Title VII is
interpreted to cover discrimination based on sexual orientation and sex
stereotyping.
The National Organization for Women (NOW) Foundation is a
501(c)(3) entity affiliated with the National Organization for Women, the largest
grassroots feminist activist organization in the United States with chapters in
every state and the District of Columbia. NOW Foundation is committed to
advancing equal opportunity, among other objectives, and works to assure that
women and LGBTQIA persons are treated fairly and equally under the law. As
an education and litigation organization dedicated to eradicating sex-based
discrimination, we believe that the Civil Rights Act of 1964, Title VII provision

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prohibiting sex discrimination extends to sexual orientation.
The National Partnership for Women & Families (formerly the
Women’s Legal Defense Fund) is a national advocacy organization that develops
and promotes policies to help achieve fairness in the workplace, reproductive
health and rights, quality health care for all, and policies that help women and
men meet the dual demands of their jobs and families. Since its founding in
1971, the National Partnership has worked to advance women’s equal
employment opportunities and health through several means, including by
challenging discriminatory employment practices in the courts. The National
Partnership has fought for decades to combat sex discrimination, including on
the basis of sex stereotypes, and to ensure that all people are afforded protections
against discrimination under federal law.
The Southwest Women’s Law Center is a legal, policy and advocacy
law center that utilizes law, research and creative collaborations to create
opportunities for women and girls in New Mexico to fulfill their personal and
economic potential. Our mission is: (1) to eliminate gender bias; and (2) to
utilize the provisions of Title IX to protect women against violence in schools
and on college campuses and to protect the rights of LGTB individuals. We
collaborate with community members, organizations, attorneys and public
officials to ensure that the interests of all individuals are protected.

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Women Employed’s mission is to improve the economic status of women
and remove barriers to economic equity. Since 1973, the organization has
assisted thousands of working women with problems of discrimination and
harassment, monitored the performance of equal opportunity enforcement
agencies, and developed specific, detailed proposals for improving enforcement
efforts, particularly on the systemic level. Women Employed believes that
barring discrimination “because of sex” encompasses discrimination against an
employee because of his/her sexual orientation because women’s rights and
LGBT rights are inextricable.
The Women’s Law Center of Maryland, Inc. is a non-profit,
membership organization established in 1971 with a mission of improving and
protecting the legal rights of women, particularly regarding gender
discrimination, employment law, family law and reproductive rights. Through
its direct services and advocacy, the Women’s Law Center seeks to protect
women’s legal rights and ensure equal access to resources and remedies under
the law. The Women’s Law Center is participating as an amicus in Zarda v.
Altitude Express, Inc. because it agrees with the proposition that sex, gender,
and sexual orientation are intrinsically intertwined, particularly in the realm of
discrimination. The concerns and struggles of the LGBTQ community impact
all women, regardless of sexual orientation.

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

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