Zarda v. Altitude Express, Inc.

Filing 385

AMICUS BRIEF, on behalf of Amicus Curiae Lambda Legal Defense and Education Fund, Inc., FILED. Service date 06/28/2017 by CM/ECF.[2068609] [15-3775] [Entered: 06/28/2017 05:39 PM]

15-3775
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
MELISSA ZARDA, co-independent executor of the estate of Donald Zarda; WILLIAM
ALLEN MOORE, JR., co-independent executor of the estate of Donald Zarda,
Plaintiffs-Appellants,
v.
ALTITUDE EXPRESS, INC., d/b/a SKYDIVE LONG ISLAND; and RAYMOND MAYNARD,
Defendants-Appellees.
On Appeal from the U.S. District Court for the Eastern District of New York
Hon. Joseph Bianco, Judge
BRIEF OF LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC.
AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS-APPELLANTS
AND REVERSAL
GREGORY R. NEVINS
LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC.
730 Peachtree Street NE, Suite 640
Atlanta, Georgia 30308
[phone]

OMAR GONZALEZ-PAGAN
SHARON M. MCGOWAN
LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC.
120 Wall Street, 19th Floor
New York, New York 10005
[phone]

MICHAEL D.B. KAVEY
ATTORNEY AT LAW
144 North 7th Street #235
Brooklyn, New York 11249
[phone]
Counsel for Amicus Curiae Lambda Legal Defense and Education Fund, Inc.

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

ii

TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT .........................................................2
TABLE OF CONTENTS ........................................................................................3
TABLE OF AUTHORITIES ..................................................................................5
STATEMENT OF INTEREST ..................................................................................1
INTRODUCTION .....................................................................................................2
ARGUMENT .............................................................................................................3
I.

SEXUAL ORIENTATION DISCRIMINATION IS A
FORM OF SEX DISCRIMINATION. ............................................................ 3
A.

When Employers Discriminate Based On Sexual Orientation,
They Necessarily Consider An Employee’s Sex. ......................................4

B.

Discrimination Based On Same-Sex Relationships Is
Analogous To Discrimination Based On Interracial
Relationships, And Therefore Equally Violates Title VII. ........................6

C.

Tite VII Protects All Employees, Including LGB Employees,
From Discrimination Based On Sex Stereotypes. ......................................8

D.

The Statutory Text And The Changed Legal Landscape
Support Title VII Coverage of Sexual Orientation. ...................................9

II. ARGUMENTS AGAINST TITLE VII’S COVERAGE OF SEXUAL
ORIENTATION DISCRIMINATION ARE WITHOUT MERIT. .............. 12
A.

The Hively Dissent Poses the Wrong Questions, and
Misapplies Doctrines of Statutory Interpretation. ....................................12

B.

The Correct Comparator to a Man Attracted to Men
is a Woman Attracted to Men. .................................................................16

1. Analogies to Interracial Association Cases Are Apt................................16
2. Manhart makes clear that the proper comparator in
this case is a woman attracted to men. ....................................................19
C.

That Discrimination Based on Sex Stereotypes is
Prohibited by Title VII is Firmly Settled Law. ........................................22

D.

Antigay Discrimination is Actionable Under Title VII
Under a Simple Sex-Plus Theory. ............................................................23

iii

E.

Statutory Stare Decisis Is Of Relatively Little Weight in
the Context of Courts of Appeals Decisions and of No Relevance
When Such Decisions Conflict With Supreme Court Precedent. ............24

F.

Courts Must Condemn All Discrimination “Because of . . . Sex,”
Irrespective of Whether the Discrimination is Motivated by a
Person’s Status, Behavior, Or Some Combination Thereof. ...................26

CONCLUSION ........................................................................................................28
CERTIFICATE OF COMPLIANCE .......................................................................30
CERTIFICATE OF SERVICE ................................................................................31

iv

TABLE OF AUTHORITIES
Cases
Adarand Constructors, Inc. v. Pena,
515 U.S. 200 (1995) .............................................................................................18
Adkins v. City of New York,
143 F. Supp. 3d 134 (S.D.N.Y. 2015) ..................................................................11
Back v. Hastings on Hudson Union Free Sch. Dist.,
365 F.3d 107 (2d Cir. 2004) ............................................................ 4, 9, 21, 22, 27
Baldwin v. Foxx,
Appeal No. 0120133080, 2015 WL 4397641 (E.E.O.C. 2015) .........................5, 6
Boutillier v. Hartford Pub. Sch.,
221 F. Supp. 3d 255 (D. Conn. 2016) ..............................................................7, 17
Bragdon v. Abbott,
524 U.S. 624 (1998) ...............................................................................................1
Brown v. Henderson,
257 F.3d 246 (2d Cir. 2001) .................................................................................21
Connecticut v. Teal,
457 U.S. 440 (1982) .............................................................................................23
Centola v. Potter,
5 183 F. Supp. 2d 403 (D. Mass. 2010)................................................................19
Christian Legal Soc’y Chapter of the Univ. of Cal.,
Hastings Coll. of the Law v. Martinez,
561 U.S. 661 (2010) .............................................................................................27
Christiansen v. Omnicom Grp., Inc.,
852 F.3d 195 (2d Cir. 2017) ......................................................................... passim
City of Los Angeles Dep’t of Water & Power v. Manhart,
435 U.S. 702 (1978) ..................................................................................... passim
Dawson v. Bumble & Bumble,
398 F.3d 211 (2d Cir. 2005) .............................................................. 2, 3, 7, 10, 11
v

EEOC v. Abercrombie & Fitch Stores, Inc.,
135 S. Ct. 2028 (2015)..........................................................................................28
EEOC v. Boh Bros. Constr. Co.,
731 F.3d 444 (5th Cir. 2013) (en banc) ................................................................22
EEOC v. Scott Med. Health Ctr., P.C.,
217 F. Supp. 3d 834 (W.D. Pa. 2016) ..............................................................2, 17
Evans v. Ga. Reg’l Hosp.,
850 F.3d 1248 (11th Cir. 2017), pet. for reh’g en banc pending ................. passim
Fabian v. Hosp. of Cent. Conn.,
172 F. Supp. 3d 509 (D. Conn. 2016) ..................................................................14
Faragher v. City of Boca Raton,
524 U.S. 775 (1998) ...............................................................................................7
Foray v. Bell Atlantic,
56 F. Supp. 2d 327 (S.D.N.Y. 1999) ....................................................................10
Glenn v. Brumby,
663 F.3d 1312 (11th Cir. 2011) ........................................................................2, 22
Hall v. BNSF Ry. Co.,
No. C13-2160, 2014 WL 4719007 (W.D. Wash. Sept. 22, 2014) .....................2, 6
Heller v. Columbia Edgewater Country Club,
195 F. Supp. 2d 1212 (D. Or. 2002) .......................................................................6
Hively v. Ivy Tech Cmty. Coll.,
853 F.3d 339 (7th Cir. 2017) (en banc) ........................................................ passim
Holcomb v. Iona Coll.,
521 F.3d 130 (2d Cir. 2008) .................................................................. 7, 8, 13, 21
Isaacs v. Felder Servs., LLC,
143 F. Supp. 3d 1190 (M.D. Ala. 2015) ...........................................................6, 17
Kimble v. Marvel Entertainment, LLC,
135 S. Ct. 2401 (2015)..........................................................................................24

vi

Koren v. Ohio Bell Tel. Co.,
894 F. Supp. 2d 1032 (N.D. Ohio 2012) ................................................................6
Lawrence v. Texas,
539 U.S. 558 (2003) ............................................................................ 1, 10, 25, 26
Lewis v. City of Chicago,
560 U.S. 205 (2010) .............................................................................................28
Loving v. Virginia,
388 U.S. 1 (1967) .................................................................................... 16, 17, 18
McLaughlin v. Florida,
379 U.S. 184 (1964) .............................................................................................17
Meritor Sav. Bank v. Vinson,
477 U.S. 57 (1986) .................................................................................................8
Newport News Shipbuilding & Dry Dock Co. v. EEOC,
462 U.S. 669 (1983) ...............................................................................................5
Obergefell v. Hodges,
135 S. Ct. 2584 (2015)................................................................... 1, 10, 11, 25, 26
Oncale v. Sundowner Offshore Servs.,
523 U.S. 75 (1998) ...................................................................................... 8, 9, 28
Parr v. Woodmen of the World Life Ins. Co.,
791 F.2d 888 (11th Cir. 1986) ..............................................................................13
Phillips v. Martin Marietta Corp.,
400 U.S. 542 (1971) ............................................................................ 4, 20, 21, 27
Pond v. Braniff Airways, Inc.,
500 F.2d 161 (5th Cir. 1974) ................................................................................27
Price Waterhouse v. Hopkins,
490 U.S. 228 (1989) .......................................................................... 3, 7, 8, 11, 22
Rene v. MGM Grand Hotel,
305 F.3d 1061 (9th Cir. 2002) (en banc) ................................................................2

vii

Roberts v. United Parcel Serv., Inc.,
115 F. Supp. 3d 344 (E.D.N.Y. 2015) ..................................................................10
Romer v. Evans,
517 U.S. 620 (1996) .................................................................................. 1, 25, 26
Sassaman v. Gamache,
566 F.3d 307 (2d Cir. 2009) ...................................................................... 9, 11, 22
Simonton v. Runyon,
232 F.3d 33 (2d Cir. 2000) ................................................................ 2, 3, 7, 10, 11
Smiley v. Citibank N.A.,
517 U.S. 735 (1996) .............................................................................................15
SmithKline Beecham Corp. v. Abbott Labs.,
740 F.3d 471 (9th Cir. 2014) ................................................................................11
Sobel v. Yeshiva Univ.,
839 F.2d 18 (2d Cir. 1988) ...................................................................................27
Sprogis v. United Airlines,
444 F.2d 1194 (7th Cir. 1971) ..............................................................................26
TerVeer v. Billington,
34 F. Supp. 3d 100 (D.D.C. 2014)..........................................................................2
Thompson v. N. Am. Stainless, LP,
562 U.S. 170 (2011) .............................................................................................28
Tomkins v. Pub. Serv. Elec. & Gas Co.,
422 F. Supp. 553 (D.N.J. 1976)............................................................................14
United States v. Windsor,
133 S. Ct. 2675 (2013)............................................................................... 1, 25, 26
Vega v. Hempstead Union Free Sch. Dist.,
801 F.3d 72 (2d Cir. 2015) .....................................................................................5
Videckis v. Pepperdine Univ.,
150 F. Supp. 3d 1151 (C.D. Cal. 2015) ............................................................6, 19

viii

Vill. of Freeport v. Barrella,
814 F.3d 594 (2d Cir. 2016) .................................................................................16
Weinberger v. Wiesenfeld,
420 U.S. 636 (1975) .............................................................................................27
Williams v. Consol. Edison Corp. of N.Y.,
255 F. App’x 546 (2d Cir. 2007) ............................................................................8
Williams v. Saxbe,
413 F. Supp. 654 (D.D.C. 1976)...........................................................................14
Windsor v. United States,
699 F.3d 169 (2d Cir. 2012), aff’d, 133 S. Ct. 2675 (2013).......................... 11, 26
Zarda v. Altitude Express,
855 F.3d 76 (2d Cir. 2017) .................................................................................3, 5
Statutes
20 U.S.C. § 1092(f)(1)(F)(ii) ...................................................................................15
42 U.S.C. § 13925(b)(13)(A) ...................................................................................13
42 U.S.C. § 2000e et seq. ...........................................................................................2
42 U.S.C. § 2000e-2(a)(1)..........................................................................................2
42 U.S.C. § 2000e-2(e) ..............................................................................................7
42 U.S.C. § 2000e-2(m) .........................................................................................3, 5
Rules
Fed. R. App. P. 29(a)(4)(E)........................................................................................1
Fed. R. App. P. 29(b)(4) ..........................................................................................30
Fed. R. App. P. 32(a)(5) ...........................................................................................30
Fed. R. App. P. 32(a)(6) ...........................................................................................30
Fed. R. App. P. 32(g) ...............................................................................................30
ix

Fed. R. App. P. 32(g)(1) ..........................................................................................30
L.R. 29.1(b) ................................................................................................................1
Other Authorities
Andrew Koppelman, Defending the Sex Discrimination Argument for Lesbian and
Gay Rights,
49 U.C.L.A. L. Rev. 519 (2001) ...........................................................................17
Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men Is Sex
Discrimination,
69 N.Y.U. L. Rev. 197, 234-257 (1994 ......................................................... 18, 19
Cary Franklin, Inventing the “Traditional Concept” of Sex Discrimination,
125 Harv. L. Rev. 1307 (2012).............................................................................13
Frank Easterbrook, Stability & Reliability in Judicial Decisions,
73 Cornell L. Rev. 422 (1988)..............................................................................24
Gary Mucciaroni, Same Sex, Different Politics: Success and
Failure in the Struggles over Gay Rights (2008)..................................................14
Matt Wilstein, Boehner Calls LGBT Employment Non-Discrimination Act
‘Unecessary,’
Mediaite (Nov. 14, 2013) .....................................................................................25
Order, Zarda v. Altitude Express, Inc.,
No. 15-3775 (2d Cir. May 25, 2017) (ECF No. 271) .............................................2
Plaintiffs-Appellants' Pet. for Reh’g En Banc, Zarda v. Altitude Express,
No. 15-3775 (2d Cir. May 2, 2017) (ECF No. 255) ...............................................1
Sexual Orientation,
Oxford English Dictionary (2009 ed.) ..................................................................12

x

STATEMENT OF INTEREST1
Formed in 1973, Lambda Legal Defense and Education Fund, Inc. is the
nation’s oldest and largest legal organization committed to achieving full recognition
of the civil rights of lesbian, gay, bisexual, and transgender (“LGBT”) people and
everyone living with HIV through impact litigation, education, and public policy
work. Lambda Legal has served as counsel or amicus in seminal cases regarding the
rights of LGBT people and people living with HIV. See, e.g., Obergefell v. Hodges,
135 S. Ct. 2584 (2015); United States v. Windsor, 133 S. Ct. 2675 (2013); Lawrence
v. Texas, 539 U.S. 558 (2003); Bragdon v. Abbott, 524 U.S. 624 (1998); Romer v.
Evans, 517 U.S. 620 (1996).
Of special relevance here, Lambda Legal successfully represented the
plaintiff-appellant in Hively v. Ivy Tech Community College, 853 F.3d 339 (7th Cir.
2017) (en banc), in which the Seventh Circuit recently held en banc “that
discrimination on the basis of sexual orientation is a form of sex discrimination.” Id.
at 341. It has also served as counsel or amicus curiae in many other employment

Amicus certifies that no party’s counsel authored this brief in whole or in part, and
no person other than Amicus, its members, or its counsel made a monetary
contribution to the preparation or submission of this brief. Fed. R. App. P.
29(a)(4)(E); L.R. 29.1(b).
1

Amicus’s counsel assisted with the petition for rehearing en banc in this case, see
Plaintiffs-Appellants’ Pet. for Reh’g En Banc at 17, Zarda v. Altitude Express, No.
15-3775 (2d Cir. May 2, 2017) (ECF No. 255); this brief, however, reflects solely
the work of Amicus’s counsel.
1

discrimination cases involving the rights of LGBT people. See, e.g., Evans v. Ga.
Reg’l Hosp., 850 F.3d 1248 (11th Cir. 2017), pet. for reh’g en banc pending; Glenn
v. Brumby, 663 F.3d 1312 (11th Cir. 2011); Rene v. MGM Grand Hotel, 305 F.3d
1061 (9th Cir. 2002) (en banc); EEOC v. Scott Med. Health Ctr., P.C., 217 F. Supp.
3d 834 (W.D. Pa. 2016) ; Hall v. BNSF Ry. Co., No. C13-2160, 2014 WL 4719007
(W.D. Wash. Sept. 22, 2014); TerVeer v. Billington, 34 F. Supp. 3d 100 (D.D.C.
2014).
Amicus files this brief pursuant to the Court’s May 25, 2017 Order inviting
“amicus curiae briefs from interested parties.” See Order, Zarda v. Altitude Express,
Inc., No. 15-3775 (2d Cir. May 25, 2017) (ECF No. 271).
INTRODUCTION
In enacting Title VII, 42 U.S.C. § 2000e et seq., Congress established a
statutory imperative to extinguish discrimination in employment “because of . . .
sex.” 42 U.S.C. § 2000e-2(a)(1). Now, this Court sitting en banc must decide
whether Title VII’s prohibition against sex discrimination encompasses sexual
orientation discrimination claims. The panel in this case felt bound by Simonton v.
Runyon, 232 F.3d 33 (2d Cir. 2000), and Dawson v. Bumble & Bumble, 398 F.3d
211 (2d Cir. 2005), both of which rejected Title VII coverage of sexual orientation;
the panel thus adhered to a Title VII interpretation allowing employers to fire male
employees, such as Donald Zarda, based on their attraction to men, even where
2

women with identical attractions face no such adverse treatment, see Zarda v.
Altitude Express, 855 F.3d 76, 80-82 (2d Cir. 2017). However, neither Simonton nor
Dawson—nor any other opinion of this Court—has addressed the multiple
“persuasive” reasons that support a holding that Title VII’s bar on sex discrimination
encompasses antigay discrimination. See Christiansen v. Omnicom Grp., Inc., 852
F.3d 195, 202 (2d Cir. 2017) (Katzmann, C.J., concurring). This full Court should
endorse these “persuasive” arguments and overrule Simonton and Dawson, thereby
bringing this Court’s caselaw into compliance with Title VII’s mandate to “treat[]
each of the enumerated categories exactly the same,” Price Waterhouse v. Hopkins,
490 U.S. 228, 243 n.9 (1989) (plurality), superseded by statute on other grounds, 42
U.S.C. § 2000e-2(m), and fulfilling the Court’s obligation to entertain all claims
alleging adverse treatment in employment based on “sex-based considerations.” Id.
at 242.
ARGUMENT
After elaborating in Part I on the principal rationales supporting Title VII
coverage of sexual orientation, Part II addresses and refutes recent counterarguments
from a few judges in other cases, particularly in Hively.
I.

SEXUAL ORIENTATION DISCRIMINATION IS A FORM OF
SEX DISCRIMINATION.
For at least three reasons, “discrimination on the basis of sexual orientation is

a form of sex discrimination.” Hively, 853 F.3d at 341. First, under a basic sex
3

discrimination (or “sex-plus”) theory,2 such discrimination necessarily involves sexbased considerations because the discrimination endured by a man based on his
attraction to men is not suffered by any woman with an identical attraction to men.
Second, just as discrimination against an employee who is romantically involved
with someone of a different race has universally been recognized as race
discrimination barred by Title VII, discrimination against an employee who is
attracted to someone of the same sex must be recognized as sex discrimination
equally barred by that law.

Finally, under a sex stereotyping theory, sexual

orientation discrimination is sex discrimination because it rests on the sex-specific
stereotype that men are or should be attracted only to women, and that women are
or should be attracted only to men.
A. When Employers Discriminate Based On Sexual Orientation,
They Necessarily Consider An Employee’s Sex.
First, “sexual orientation discrimination is sex discrimination for the simple
reason that such discrimination treats otherwise similarly-situated people differently
solely because of their sex.” Christiansen, 852 F.3d at 202 (Katzmann, C.J.,

“Sex-plus” is the term for discrimination occurring not categorically against all
members of one sex, but only those members sharing a certain trait (for instance,
having young children), when members of the other sex who share that trait suffer
no discrimination. Title VII unquestionably bars sex-plus discrimination. See
Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971); cf. Back v. Hastings on
Hudson Union Free Sch. Dist., 365 F.3d 107, 119 n.9 (2d Cir. 2004) (“any
meaningful regime of antidiscrimination law must encompass” sex-plus claims).
2

4

concurring). That is because “sexual orientation is inseparable from and inescapably
linked to sex.” Baldwin v. Foxx, Appeal No. 0120133080, 2015 WL 4397641, at *5
(E.E.O.C. 2015).3 Conceptually, this is a straightforward formulation. The Court
need only ask whether the employee would have faced discrimination if the
employee had been of a different sex. See City of Los Angeles Dep’t of Water &
Power v. Manhart, 435 U.S. 702, 711 (1978) (articulating the controlling, yet
“simple[,] test of whether the evidence shows treatment of a person in a manner
which but for that person’s sex would be different” to determine whether a sex-based
violation of Title VII occurred) (internal quotation marks omitted); see also Newport
News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 682-83 (1983).4 If the
employee would have been treated differently had they been of the other sex, then
the discrimination was based on sex.
Thus, where an employer fires a female employee because the employee is
married to (or lives with, dates, or is attracted to) a woman but would not fire a male

This is not to say that “sex” and “sexual orientation” are interchangeable concepts
or terms, see infra Part II.A; the salient point is, rather, that an individual’s sexual
orientation is defined in relation to sex, and that antigay discrimination necessarily
takes account of an individual’s sex.
3

While a plaintiff satisfying Manhart’s “but-for” test necessarily satisfies Title VII’s
causation requirement, Title VII plaintiffs may also prevail based on “the less
stringent ‘motivating-factor’ test.” Zarda, 855 F.3d at 81-82 (quoting Vega v.
Hempstead Union Free Sch. Dist., 801 F.3d 72, 86 (2d Cir. 2015)); see also 42
U.S.C. § 2000e–2(m).
4

5

employee for identical conduct with (or attraction to) a woman, the employer has
engaged in “paradigmatic sex discrimination.” Hively, 853 F.3d at 345. See also
Isaacs v. Felder Servs., LLC, 143 F. Supp. 3d 1190, 1194 (M.D. Ala. 2015) (“If a
business fires Ricky because of his sexual activities with Fred, while this action
would not have been taken against Lucy if she did exactly the same things with Fred,
then Ricky is being discriminated against because of his sex.”) (alterations, citation
omitted).
A growing number of courts have recognized the logic of this position. See,
e.g., Hively, 853 F.3d at 350-51; id. at 358 (Flaum, J., concurring); Hall, 2014 WL
4719007, at *3; Koren v. Ohio Bell Tel. Co., 894 F. Supp. 2d 1032, 1038 (N.D. Ohio
2012); Heller v. Columbia Edgewater Country Club, 195 F. Supp. 2d 1212, 1223
(D. Or. 2002); see also Videckis v. Pepperdine Univ., 150 F. Supp. 3d 1151, 1161
(C.D. Cal. 2015); Baldwin, 2015 WL 4397641, at *5.
B. Discrimination Based On Same-Sex Relationships Is
Analogous To Discrimination Based On Interracial
Relationships, And Therefore Equally Violates Title VII.
Second, sexual orientation discrimination is sex discrimination because it
treats otherwise similarly-situated people differently because of their sex, viewed in
relation to the sex of the individuals with whom they associate (or to whom they are
attracted). Christiansen, 852 F.3d at 204 (Katzmann, C.J., concurring); see also
Hively, 853 F.3d at 347-48; id. at 359 (Flaum, J., concurring).
6

This Court and many others have already adopted this reasoning in the context
of race discrimination. In Holcomb v. Iona College, 521 F.3d 130 (2d Cir. 2008), a
case post-dating Simonton and Dawson, this Court held for the first time that “where
an employee is subjected to adverse action because an employer disapproves of
interracial association, the employee suffers discrimination because of the
employee’s own race.” Id. at 139; see also id. (citing district and appellate decisions
endorsing this reasoning). Holcomb’s holding that discrimination based on an
employee’s interracial associations constitutes race discrimination cannot “be
legitimately reconciled” with an argument that discrimination based on a worker’s
same-sex intimate relationships is not sex discrimination. Boutillier v. Hartford Pub.
Sch., 221 F. Supp. 3d 255, 268 (D. Conn. 2016).
It bears emphasizing that, notwithstanding the sometimes considerable
difference, historically and socially, among the kinds of discrimination prohibited
under Title VII, the Supreme Court has made clear that courts should treat
discrimination under the enumerated traits the same, because the statue “on its face
treats each of the enumerated categories exactly the same.”5 Price Waterhouse, 490
U.S. at 243 n.9; see also Faragher v. City of Boca Raton, 524 U.S. 775, 787 n.1

5

The statute delineates limited, narrow exceptions to this rule that are not relevant
here. See 42 U.S.C. § 2000e–2(e); Christiansen, 852 F.3d at 204 n.1 (Katzmann,
C.J., concurring).

7

(1998); Meritor Sav. Bank v. Vinson, 477 U.S. 57, 66 (1986); Manhart, 435 U.S. at
709; Williams v. Consol. Edison Corp. of N.Y., 255 F. App’x 546, 549 n.2 (2d Cir.
2007); cf. Oncale v. Sundower Offshore Servs., 523 U.S. 75, 78 (1998) (rejecting
attempt to exclude all same-sex harassment from Title VII’s scope, noting that “we
have rejected any conclusive presumption that an employer will not discriminate
against members of his own race”).
Accordingly, this Court should apply Holcomb’s straightforward and widely
accepted reasoning to claims under Title VII’s sex-discrimination provision, and
hold that Title VII protects employees from employment discrimination based on
their association with persons of a particular sex, just as it protects against
discrimination based on interracial association.
C. Tite VII Protects All Employees, Including LGB Employees,
From Discrimination Based On Sex Stereotypes.
Finally, sexual orientation discrimination is sex discrimination “because such
discrimination is inherently rooted in gender stereotypes,” Christiansen, 852 F.3d at
205 (Katzmann, C.J., concurring), and because discrimination based on such
stereotypes indisputably violates Title VII. See Price Waterhouse, 490 U.S. at 251
(“As for the legal relevance of sex stereotyping, we are beyond the day when an
employer could evaluate employees by assuming or insisting that they match[] the

8

stereotype associated with their group.”); Christiansen, 852 F.3d at 200; Sassaman
v. Gamache, 566 F.3d 307, 312-13 (2d Cir. 2009); Back, 365 F.3d at 130.6
An individual’s same-sex attraction “represents the ultimate case of failure to
conform to [a sex] stereotype (at least as understood in a place such as modern
America, which views heterosexuality as the norm and other forms of sexuality as
exceptional).” Hively, 853 F.3d at 346; see also Christiansen, 852 F.3d at 205
(Katzmann, C.J., concurring); Evans, 850 F.3d at 1264 (Rosenbaum, J., dissenting).
It is thus untenable to suggest that Title VII does not cover discrimination based on
this attraction.
D. The Statutory Text And The Changed Legal Landscape
Support Title VII Coverage of Sexual Orientation.
Hively and the Christiansen concurrence not only endorsed each of the three
arguments discussed above for Title VII coverage of sexual orientation, but they
also noted the flaw in arguments that emphasize what words are not in the statute,
rather than “the scope of the language that already is in the statute.” Hively, 853 F.3d
at 344-49; see also Christiansen, 852 F.3d at 207 (Katzmann, C.J., concurring)
(criticizing reliance on subsequently proposed, unenacted bills to interpret Title VII).
Focusing on non-statutory considerations contravenes Oncale, which emphasized

6

While Back was brought under 42 U.S.C. § 1983, this Court made clear that the
analysis was the same under Title VII. See also Sassaman, 566 F.3d at 313 (relying
on Back in Title VII case).
9

that “it is ultimately the provisions of our laws rather than the principal concerns of
our legislators by which we are governed.” 523 U.S. at 79.
The above three arguments for coverage also “reflect the evolving legal
landscape since [Simonton and Dawson],” Christiansen, 852 F.3d at 202 (Katzmann,
C.J., concurring), including the changed “backdrop of the Supreme Court’s decisions
. . . in the area of broader discrimination on the basis of sexual orientation.” Hively,
853 F.3d at 349; see also Roberts v. United Parcel Serv., Inc., 115 F. Supp. 3d 344,
348 (E.D.N.Y. 2015).
For example, while the right of same-sex couples to marry is now recognized
as fundamental, see Obergefell, 135 S. Ct. at 2604-05, not a single state recognized
same-sex marriage at the time Simonton was decided. Indeed, Simonton predates
even Lawrence, 539 U.S. 558, before which intimate relations between same-sex
couples could be criminalized. It is thus not surprising that courts at that time did not
consider the arguments advanced here. Cf. Foray v. Bell Atlantic, 56 F. Supp. 2d
327, 329-30 (S.D.N.Y. 1999) (noting support for plaintiff’s claim that benefits
eligibility based on one’s sex in relation to the sex of one’s partner is actionable sex
discrimination under Title VII if same-sex and different-sex couples were similarly
situated with respect to marriage, which was not the case in 1999). In the postLawrence, post-Obergefell world, however, such perspectives must be reconsidered.
See Christiansen, 852 F.3d at 204 (Katzmann, C.J., concurring) (“[I]t makes little
10

sense to carve out same-sex relationships as an association to which [Title VII’s]
protections do not apply, particularly where, in the constitutional context, the
Supreme Court has held that same-sex couples cannot be ‘lock[ed] . . . out of a
central institution of the Nation’s society.’” (quoting Obergefell, 135 S. Ct. at
2602)).
Moreover, Simonton’s and Dawson’s sexual orientation analysis under Title
VII is inconsistent with, and raises constitutional concerns under this Court’s ruling
in Windsor v. United States, 699 F.3d 169 (2d Cir. 2012), aff’d, 133 S. Ct. 2675
(2013), adopting heightened constitutional protection for lesbians and gay men. Id.
at 181-82.7 It would be untenable for this Court, having deemed sexual orientation
classifications “quasi-suspect,” id., to perpetuate a judicial bar on otherwise viable
sex-stereotyping and associational-gender claims precisely because they involve
sexual orientation discrimination, or to again single out sex-discrimination claims
by “avowedly homosexual” plaintiffs as a “problem.” Dawson, 398 F.3d at 218.8

Windsor’s test for heightened scrutiny remains the law in this circuit, see Adkins v.
City of New York, 143 F. Supp. 3d 134, 139–40 (S.D.N.Y. 2015), even if the
Supreme Court was not explicit about the application of heightened scrutiny when
affirming this Court’s decision on the merits. See SmithKline Beecham Corp. v.
Abbott Labs., 740 F.3d 471, 480-84 (9th Cir. 2014) (interpreting Supreme Court’s
Windsor decision as requiring heightened scrutiny for sexual orientation).
7

This Court’s straightforward application of Price Waterhouse in Sassaman, 566
F.3d 307, which involved a stereotype about male-female sexual harassment,
sharpens the tension between the Court’s general acceptance of sex-stereotyping
doctrine and its suspicion of sex-stereotyping claims by gay plaintiffs, Dawson, 398
8

11

II.

ARGUMENTS AGAINST TITLE VII’S COVERAGE OF SEXUAL
ORIENTATION DISCRIMINATION ARE WITHOUT MERIT.
While a majority of appellate judges to have addressed the issue at bar within

the last year have found convincing all or some of the above-noted arguments for
Title VII coverage of sexual orientation,9 the three dissenting judges in Hively, as
well as the concurrence in Evans, raise opposing arguments that, while
unconvincing, warrant analysis and refutation.
A. The Hively Dissent Poses the Wrong Questions, and Misapplies
Doctrines of Statutory Interpretation.
The Hively dissent belabors the irrelevant point that “‘sexual orientation’. . .
is not synonymous with ‘sex.’” Hively, 853 F.3d at 363 n.3 (Sykes, J., dissenting)
(hereinafter “Hively dissent”) (citing Sexual Orientation, Oxford English Dictionary
(2009 ed.)); see also id. at 363 (“The two terms are never used interchangeably
. . . .”). The issue before this Court, however, is whether antigay discrimination is
discrimination because of a person’s sex. To prevail on that issue, it is wholly
unnecessary for Plaintiffs-Appellants to demonstrate that “sexual orientation” and
“sex” are synonyms or that they are interchangeable concepts or terms. The terms

F.3d at 218.
9

This includes not only Chief Judge Katzmann (joined by District Judge Brodie),
see Christiansen, 852 F.3d at 204-07 (Katzmann, C.J., concurring), and eight of
eleven judges in Hively, see 853 F.3d at 345-59, but also Judge Rosenbaum of the
Eleventh Circuit, who called on her circuit to reconsider the issue en banc, see
Evans, 850 F.3d at 1261-73 (Rosenbaum, J., dissenting).
12

“race” and “interracial marriage” are not synonyms and not used interchangeably;
nevertheless, this Court and many others have recognized that “[w]here a plaintiff
claims discrimination based upon an interracial marriage or association, he alleges,
by definition, that he has been discriminated against because of his race.” Holcomb,
521 F.3d at 139 (quoting Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888,
892 (11th Cir. 1986)).10
The Hively dissent fares no better when it contends that subsequent legislative
enactments expressly prohibiting discrimination based on both “sexual orientation”
and “sex” somehow confirm that these types of discrimination do not overlap under
Title VII.
For one, Title VII and the subsequent enactments to which the Hively dissent
refers were not enacted in the same legal era. The first statutory provision cited in
this section of the Hively dissent, for example, is 42 U.S.C. § 13925(b)(13)(A),
enacted as part of the 2013 Violence Against Women Reauthorization Act. In
contrast, Title VII passed in 1964, when the practice of expressly and separately

The Hively dissent also insists on adherence to Title VII’s “original public
meaning”—employing a phrase popular among some professors but wholly absent
from the Supreme Court’s voluminous Title VII jurisprudence. See Hively dissent,
853 F.3d at 360, 362. Ascertaining Title VII’s “original public meaning” is not,
moreover, the simple exercise that the Hively dissent assumes. See generally Cary
Franklin, Inventing the “Traditional Concept” of Sex Discrimination, 125 Harv. L.
Rev. 1307 (2012). And even under a narrow definition of sex discrimination, sexual
orientation discrimination fits the definition. See Hively, 853 F.3d at 345-46.
10

13

enumerating “sexual orientation” in civil rights legislation had not yet emerged. The
first ordinance and state statute expressly banning such discrimination in private
employment were passed respectively in East Lansing, Michigan in 1972, and in
Wisconsin in 1982. Gary Mucciaroni, Same Sex, Different Politics: Success and
Failure in the Struggles over Gay Rights 213 n.12 (2008). But even though a
particular manifestation of discrimination covered by Title VII has become so
pronounced or well-understood that it now has a separate designation (“sexual
harassment,” “Islamaphobia,” “sexual orientation discrimination”), that does not
change the coverage analysis or require specific, separate statutory enumeration. See
Hively, 853 F.3d at 350 n.5.11 It is anachronistic to rely on recent legislation
specifically enumerating “sexual orientation” to justify a narrow interpretation of a
broadly worded statutory provision from fifty years ago that prohibits discrimination
“because of . . . sex.” See Fabian v. Hosp. of Cent. Conn., 172 F. Supp. 3d 509, 527
n.12 (D. Conn. 2016) (interpreting sex discrimination provision in Connecticut state
law to cover discrimination against transgender individuals even before specific

“Sexual harassment” was not in the legal or social lexicon in 1964, and four of the
first five courts to consider whether sexual harassment was discrimination “because
of . . . sex” answered in the negative. See Tomkins v. Pub. Serv. Elec. & Gas Co.,
422 F. Supp. 553, 556 (D.N.J. 1976) (noting that, of the first five cases deciding
whether Title VII covers sexual harassment, Williams v. Saxbe, 413 F. Supp. 654
(D.D.C. 1976), stood alone as the only court holding in the affirmative).
Nevertheless, Title VII’s coverage of sexual harassment has been hornbook law for
over three decades.
11

14

amendment “that added ‘gender identity or expression’ to the list of protected
classes” because the added “language does not require the conclusion that gender
identity was not already protected by the plain language of the statute, because
legislatures may add such language to clarify or to settle a dispute about the statute’s
scope rather than solely to expand it.”).
Arguing that discrimination “because of . . . sex” in Title VII excludes sexual
orientation discrimination could possibly make sense if, for example, Title II, passed
the same year, had proscribed discrimination based on both “sex” and “sexual
orientation.” There are occasions when significance may be attached to the fact that
the same statute uses two terms in a way suggesting they are mutually exclusive, see
Smiley v. Citibank N.A., 517 U.S. 735, 746 (1996), but of course, that is not the case
here. As Smiley explained, a “word often takes on a more narrow connotation when
it is expressly opposed to another word: ‘car,’ for example, has a broader meaning
by itself than it does in a passage speaking of ‘cars and taxis.’” 517 U.S. at 746. But
“sex” in Title VII “is not used in contradistinction to” the term “sexual orientation,”
and therefore, “there is no reason why” discrimination because of an individual’s
sex “cannot include” sexual orientation discrimination. Id. at 746-47.
The Hively dissent’s logic would also disrupt other areas of Title VII law. For
example, the dissent cites 20 U.S.C. § 1092(f)(1)(F)(ii) as evidence that Congress
distinguishes between discrimination based on “sex” and discrimination based on
15

“sexual orientation,” noting that this statute enumerates the traits separately. But
that statute also enumerates “ethnicity” separately from “race” and “national origin.”
Under the Hively dissent’s logic, therefore, Title VII—which does not enumerate
“ethnicity”—should not be interpreted to cover discrimination based on ethnicity.
This is untenable under Second Circuit precedent. See Vill. of Freeport v. Barrella,
814 F.3d 594, 606-607 (2d Cir. 2016) (holding “that discrimination based on
ethnicity, including Hispanicity or lack thereof, constitutes racial discrimination
under Title VII.”).
B. The Correct Comparator to a Man Attracted to Men is a Woman
Attracted to Men.
When using a comparator analysis to determine whether discrimination
against a gay person is based on sex, the proper comparator to a gay man, i.e. a man
attracted to men, is a woman attracted to men, as Chief Judge Katzmann noted in his
Christiansen concurrence. See 852 F.3d at 203. The counterargument espoused by
the Hively dissent, 853 F.3d at 366, that the correct comparator to a gay man fired
because of his attraction to men is a lesbian, cannot be squared with logic or wellsettled law, including Loving v. Virginia, 388 U.S. 1 (1967), and Manhart, 435 U.S.
at 711.
1. Analogies to Interracial Association Cases Are Apt.
Contrary to the Hively dissent’s contention, analogies to cases on interracial

16

association, including Loving, are apt.12

As the Christiansen concurrence

recognized, the Supreme Court held that treating all members of interracial
relationships the same, but less favorably than members of intraracial relationships,
was a race–based classification. 852 F.3d at 203 (Katzmann, C.J., concurring)
(alteration in original). “The same logic suggests that it is sex discrimination to treat
all individuals in same–sex relationships the same, but less favorably than
individuals in opposite–sex relationships.” Id.
Loving invalidated Virginia’s anti-miscegenation law not only because it
endorsed “White Supremacy,” 388 U.S. at 11, but also based on the racial
classification on the law’s face, see id. at 8-9. And, Loving was preceded by
McLaughlin v. Florida, 379 U.S. 184 (1964), which invalidated a Florida law
criminalizing interracial cohabitation—without any discussion of “White
Supremacy.” See id. at 188, 191-92, 195 (holding that law impermissibly classified
based on race even though law applied equally to “all whites and [blacks] who
engage in the forbidden conduct”). As one scholar has explained, “McLaughlin did
not rely on any claims whatsoever about the motive for the law or about the class

12

As noted above, see Part I.B, supra, support for Title VII coverage of sexual
orientation discrimination by analogy to discrimination against those in interracial
relationships has enjoyed wide and enthusiastic judicial support. See, e.g., Hively,
853 F.3d at 359 (Flaum, J., concurring); Boutillier, 221 F. Supp. 3d at 268; Scott
Med. Health Ctr., P.C., 217 F. Supp. 3d at 840 n.5; Isaacs v. Felder Servs., LLC,
143 F. Supp. 3d 1190, 1193-94 (M.D. Ala. 2015).
17

that was harmed by the law,” yet “noted that there was a racial classification and
applied heightened scrutiny”; the “sex discrimination argument for protecting gays
from discrimination requires nothing more.” Andrew Koppelman, Defending the
Sex Discrimination Argument for Lesbian and Gay Rights, 49 U.C.L.A. L. Rev. 519,
522-23 & n.19 (2001) (footnote omitted).
In any event, the Hively dissent ignores decades of constitutional and statutory
case law by suggesting that a law or policy that draws distinctions based on race or
sex should not be analyzed as a racial or sex-based classification unless it aims to
promote racial supremacy or the subjugation of women. See, e.g., Adarand
Constructors, Inc. v. Pena, 515 U.S. 200, 226-27 (1995) (holding that “all racial
classifications” by governmental actors trigger strict judicial scrutiny, regardless of
motive).
Finally, while the above-noted reasoning more than suffices to expose the
error in the Hively dissent’s Loving analysis, it is also worth pointing out that the
dissent’s error runs even deeper: By claiming that “[n]o one argues that sexualorientation discrimination aims to promote or perpetuate the supremacy of one sex,”
853 F.3d at 368, the Hively dissent overlooks decades of extensive scholarship and
advocacy—and numerous judicial opinions—exploring the relationship between
antigay oppression and the gender norms that have traditionally privileged men and
masculinity. See, e.g., Andrew Koppelman, Why Discrimination Against Lesbians
18

and Gay Men Is Sex Discrimination, 69 N.Y.U. L. Rev. 197, 234-257 (1994)
(discussing “[t]he connection between sexism and the homosexuality taboo”);
Centola v. Potter, 183 F. Supp. 2d 403, 410 (D. Mass. 2010); Videckis, 150 F. Supp.
3d at 1160.
2. Manhart makes clear that the proper comparator in this case is a
woman attracted to men.
As Chief Judge Katzmann explains, “Manhart tells us that sex discrimination
is treating someone ‘in a manner which but for that person’s sex would be
different,’” Christiansen, 852 F.3d at 203 (Katzmann, C.J., concurring) (quoting
Manhart, 435 U.S. at 711); this suggests that when we “evaluat[e] a comparator for
a gay, lesbian, or bisexual plaintiff” to determine whether sex discrimination has
occurred, “we must hold every fact except the sex of the plaintiff constant—
changing the sex of both the plaintiff and his or her partner would no longer be a
‘but–for–the–sex–of–the–plaintiff’ test.” Id. Thus, when using a comparator method
to determine whether an employer has discriminated against a gay male plaintiff
because of sex, the relevant inquiry is whether the employer treats a man attracted
to men differently than it treats a woman attracted to men.
Under the Hively dissent’s reasoning, however, comparing a man attracted to
a man with a woman attracted to a man involves changing “two variables—the
plaintiff’s sex and sexual orientation,” and the comparison therefore fails, in the
dissent’s view, to “hold everything constant except the plaintiff’s sex.” 853 F.3d at
19

366 (citing majority opinion, 853 F.3d at 345-46). The logic of this counterargument,
however, unravels on inspection: The dissent’s framing is premised on the notion
that a man attracted to men and a woman attracted to men have different sexual
orientations, see id.; the dissent thus acknowledges (implicitly, and perhaps
unwittingly) that a person’s sexual orientation is necessarily defined, in part, by his
or her own sex. That acknowledgment effectively concedes Amicus’s and the Chief
Judge’s point.
Put more simply, the Hively dissent cheats by including the “sum” in the
equation. Consider this scenario: if you take vodka and orange juice, and then swap
grapefruit juice for the orange juice, have two things changed, or just one thing?
Under Chief Judge Katzmann’s logic, the answer is clearly “one thing,” while the
Hively dissent would argue that what was a screwdriver is now a greyhound, so two
things have changed. Thus, the Hively dissent’s cute parlor trick, if adopted, could
be used to defeat any application of the comparator method. For example, one could
argue that a company’s policy of firing women with small children cannot properly
be compared to its policy of hiring men with small children, because such a
comparison changes too many variables; rather than simply comparing women to
men, it compares women who are mothers to men who are fathers. This absurd
application of the comparator method, however, should and would fail. See Phillips,
400 U.S. at 544.
20

Perhaps recognizing that its argument falls flat, the Hively dissent denigrates
the very exercise of comparator framing. See 853 F.3d at 366 (“the comparative
method of proof is an evidentiary test; it is not an interpretive tool.

It tells

us nothing about the meaning or scope of Title VII.” (emphasis omitted)). The
dissent cites no support for its far-fetched theory that courts can learn “nothing”
about Title VII’s scope by comparing the treatment of men and women, and case
law does not support it. There was no evidentiary dispute before the Court in
Phillips, for example; rather, the Justices compared the employer’s policy on women
with small children to the employer’s very different policy on men with small
children, and held that the Fifth Circuit “erred in reading [Title VII] as permitting
one hiring policy for women and another for men . . . .” 400 U.S. at 544. Under this
Court’s precedent, moreover, if an employer punishes a white man who marries a
black woman but does not punish a similarly situated black man for marrying a black
woman, the employer violates Title VII as a matter of law; this isn’t a claim about
facts or evidence, but about the “meaning and scope” of Title VII’s protections, as
determined in Holcomb, 521 F.3d at 139-40.13
13

To the extent the Hively dissent merely believes that disputes over comparators
are often an unnecessary distraction in Title VII cases, Amicus could not agree more.
A plaintiff may prove discrimination even without the existence of comparators or
“similarly situated” employees, Back, 365 F.3d at 121, “because the ultimate issue
is the reasons for the individual plaintiff’s treatment, not the relative treatment of
different groups within the workplace.” Id. (quoting Brown v. Henderson, 257 F.3d
246, 252 (2d Cir. 2001)).
21

C. That Discrimination Based on Sex Stereotypes is Prohibited by Title
VII is Firmly Settled Law.
Perhaps the Hively dissent’s most radical argument is its challenge to Price
Waterhouse’s universally-recognized and still current holding that Title VII
prohibits discrimination based on sex stereotypes. It is simply wrong to suggest there
was any daylight between the four-justice plurality and the two concurring justices
regarding whether Ann Hopkins had proven discrimination based on impermissible
stereotypes. See Price Waterhouse, 490 U.S. at 259 (White, J., concurring) (“her
burden was to show that the unlawful motive was a substantial factor in the adverse
employment action. . . . and I agree that the finding was supported by the record.”);
id. at 272 (O’Connor, J., concurring) (“Hopkins proved that Price Waterhouse
‘permitt[ed] stereotypical attitudes towards women to play a significant, though
unquantifiable, role in its decision not to invite her to become a partner,’” and thus
“proved discriminatory input [in] the decisional process” (citation omitted)).
It is thus not surprising that this Court, and every other appellate court of
which Amicus is aware, has agreed that Title VII condemns sex stereotyping
discrimination. See Christiansen, 852 F.3d at 200 (observing that six Justices in
Price Waterhouse endorsed view that discrimination based on sex stereotypes
violates Title VII); Back, 365 F.3d at 119; Sassaman, 566 F.3d at 312-14; see also
EEOC v. Boh Bros., (5th Cir. 2014) (en banc); Glenn, 663 F.3d 1312.

22

D. Antigay Discrimination is Actionable Under Title VII Under a Simple
Sex-Plus Theory.
Perhaps the weakest anti-coverage argument advanced is that sexual
orientation discrimination does not involve wholesale discrimination against either
gender, but only discrimination against a particular subset of a gender sharing the
same attribute. This hasn’t been a tenable argument since 1971, when the Supreme
Court unanimously held that Martin Marietta’s impressive track record of giving
women jobs didn’t save a policy whereby some women – those with young children
– were fired, while men with young children kept their jobs. Thus the response to
the Hively dissent’s odd assertion of how difficult it would be to “explain . . . to a
jury” that sex discrimination had occurred if Kim Hively had been replaced with
heterosexual women, see Hively dissent, 853 F.3d at 373, would be to posit a
scenario where six women were fired for refusing their supervisor’s sexual demands.
Even if all six positions were later backfilled by other women, no jury would struggle
to grasp that the fired women had suffered discrimination because of sex. See
Connecticut v. Teal, 457 U.S. 440, 455 (1982) (“It is clear that Congress never
intended to give an employer license to discriminate against some employees on the
basis of . . . sex merely because [it] favorably treats other members of the employees’
group.”); Hively, 853 F.3d at 346 n.3 (“A failure to discriminate against all women
does not mean that an employer has not discriminated against one woman on the
basis of sex.”).
23

E. Statutory Stare Decisis Is Of Relatively Little Weight in the Context
of Courts of Appeals Decisions and of No Relevance When Such
Decisions Conflict With Supreme Court Precedent.
Statutory stare decisis carries little weight when one relies only on the
authority of lower courts, in the face of conflicting, better reasoned lower court
decisions and legal scholarship. As Hively points out, the Supreme Court, when
pronouncing definitively the law of the land, has not been shy about rejecting the
view of the law held by the overwhelming majority of lower courts. See Hively, 853
F.3d at 350 n.6. In a recent case that was a high water mark for endorsing statutory
stare decisis, the Supreme Court made clear that it considered the principle to be
applicable to its decisions. Kimble v. Marvel Entertainment, LLC, 135 S. Ct. 2401
(2015) (defining “statutory stare decisis” as when “this Court interprets and
Congress decides whether to amend” and that the principle “assumes Congress will
correct whatever mistakes we commit.”) (emphasis added).
Among the many concerns regarding how much weight to give Congressional
inaction is the constitutional problem associated with giving either house a
“legislative veto” over an attempt to cure a judicial misinterpretation.

Frank

Easterbrook, Stability & Reliability in Judicial Decisions, 73 Cornell L. Rev. 422,
426-28 (1988). This concern is far from academic. In November 2013, the Senate
passed, 64-32, legislation prohibiting sexual orientation discrimination (the
24

Employment Non-Discrimination Act, or “ENDA”) that the President was willing
to sign. However, the House of Representatives refused to act on the bill. See Matt
Wilstein, Boehner Calls LGBT Employment Non-Discrimination Act ‘Unecessary,’
Mediaite (Nov. 14, 2013), at http://www.mediaite.com/tv/boehner-calls-lgbtemployment-non-discrimination-act-unnecessary.
Despite its acknowledgment that the Supreme Court has not “weigh[ed] in”
on this issue, see Hively dissent, 853 F.3d at 361, the Hively dissent also makes the
unsupported claim that four Supreme Court cases are “irreconcilable” with Title VII
coverage of sexual orientation. Id. at 372 (citing Romer, 517 U.S. 620; Lawrence,
539 U.S. 558; Windsor, 133 S. Ct. 2675; and Obergefell, 135 S. Ct. 2584)).
However, none of these decisions addressed—much less rejected—the argument
that sexual orientation discrimination constitutes sex discrimination. The Hively
dissent does not point to any language from any of the cases suggesting otherwise;
instead, its argument appears to rest on the manifestly mistaken premise that the
Supreme Court’s endorsement of one constitutional argument to invalidate a legal
provision necessarily implies the rejection of alternative arguments that were or
could have been advanced in support of the Court’s judgment. See Hively dissent,
853 F.3d at 372. This is not the law, as the very cases cited by the dissent make
clear. For example, in holding that Texas’s Homosexual Conduct Law violated the
Due Process Clause, Lawrence did not expressly invoke the language of
25

“fundamental rights,” nor did it adopt any of the equal protection rationales
advanced by the parties and amici. See 538 U.S. at 574-75. None of this, however,
stood in the way of the Court’s fundamental-rights and equal-protection rulings in
later cases recognizing constitutional protections for same-sex relationships. See
Obergefell, 135 S. Ct. at 2604-05; Windsor, 133 S. Ct. at 2695-96. Similarly, while
Romer and Lawrence declined to address whether discrimination based on sexual
orientation triggers heightened scrutiny under the Equal Protection Clause, they did
not preclude lower courts from addressing that issue themselves or from resolving it
in favor of heightened scrutiny, as this Court made clear in Windsor. See, e.g.,
Windsor, 699 F.3d at 179-185.
F. Courts Must Condemn All Discrimination “Because of . . . Sex,”
Irrespective of Whether the Discrimination is Motivated by a Person’s
Status, Behavior, Or Some Combination Thereof.
In his Evans concurrence, Judge William Pryor posits that Title VII cannot
provide “relief based on status,” because that “would undermine the relationship
between the doctrine of gender nonconformity and the enumerated classes protected
by Title VII.” Evans, 850 F.3d at 1258 (Pryor, J., concurring). But case law makes
clear that, if the employer is taking gender into account, it violates Title VII even if
the discrimination also arises from a “status” that is covered in some
antidiscrimination laws, but is not enumerated in Title VII. Plainly, the termination
of married women in Sprogis v. United Airlines, 444 F.2d 1194 (7th Cir. 1971), and
26

of women with young children in Phillips and in Back, could also be deemed
discrimination based on “marital status” or “parental status/familial status.” Under
Title VII, the relevance of “status” is that if men and women have the same status
(e.g., “married,” or “with young children,” or “in a relationship with a man”), an
employer cannot treat the men having that status differently than the women having
that status.
And contrary to the Evans’s concurrence limited view of what constitutes sex
stereotyping, many cases throughout Title VII’s history reflect the broad
understanding of sex stereotypes that the statute combats, including stereotypes
about life choices about families and relationships. See, e.g., Sobel v. Yeshiva Univ.,
839 F.2d 18, 33 (2d Cir. 1988) (refusing to credit “stereotype” that men are more
often sole wage earners); Pond v. Braniff Airways, Inc., 500 F.2d 161, 166 (5th Cir.
1974) (discrimination based on “stereotypical culturally-based concepts of the
abilities of people to perform certain tasks because of their sex” violates Title VII);
cf. Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) (holding statute rooted in
stereotype that families depend on male breadwinners unconstitutional).
Moreover, Judge Pryor’s attempt at distinguishing between status and conduct
in his Evans concurrence has been resoundingly repudiated by the Supreme Court.
See Christian Legal Soc. Chapter of the Univ. of California, Hastings Coll. of the

27

Law v. Martinez, 561 U.S. 661, 689 (2010) (“Our decisions have declined to
distinguish between status and conduct in this context.”).
In short, the Evans concurrence’s creation of a status/conduct distinction is
another example of a judge-crafted exception to the full coverage of Title VII’s
proscription against sex discrimination, a trend that has been decried by the Supreme
Court in Oncale and frequently thereafter. See Lewis v. City of Chicago, 560 U.S.
205, 215 (2010) (It is not for the courts “to rewrite the statute so that it covers only
what we think is necessary to achieve what we think Congress really intended.”); id.
at 217 (court’s “charge is to give effect to the law Congress enacted” even if “effect
was unintended”); see also Thompson v. N. Am. Stainless, LP, 562 U.S. 170, 175
(2011); EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2033 (2015).
CONCLUSION
Therefore, Amicus Lambda Legal respectfully urges the Court to hold that
sexual orientation discrimination is a form of sex discrimination prohibited by Title
VII.
Dated this 26th day of June, 2017.

28

Respectfully submitted,
/s/ Gregory R. Nevins
GREGORY R. NEVINS
LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC.
730 Peachtree Street NE, Suite 640
Atlanta, Georgia 30308
[phone]

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

MICHAEL D.B. KAVEY
ATTORNEY AT LAW
144 North 7th Street #235
Brooklyn, New York 11249
[phone]
Counsel for Amicus Curiae Lambda Legal Defense and Education Fund, Inc.

29

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upon the word count feature of this word processing system in preparing this
certificate.
Dated this 26th day of June, 2017.
/s/ Omar Gonzalez-Pagan
OMAR GONZALEZ-PAGAN
LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC.
120 Wall Street, 19th Floor
New York, New York 10005

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CERTIFICATE OF SERVICE
I hereby certify that I filed the foregoing brief with the Clerk of the United
States Court of Appeals for the Second Circuit via the CM/ECF system this 26th day
of June, 2017. I certify that all participants in the case are registered CM/ECF users
and that service will be accomplished by the CM/ECF system.

/s/ Omar Gonzalez-Pagan
OMAR GONZALEZ-PAGAN
LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC.
120 Wall Street, 19th Floor
New York, New York 10005

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