On Monday the Supreme Court granted review in three cases concerning the scope of Title VII’s ban on employment practices that “discriminate … on the basis of … sex.” Two of the cases (Altitude Express Inc. v. Zarda and Bostock v. Clayton County) present the question whether Title VII prohibits discrimination on the basis of sexual orientation, and the third (R.G & G.R. Harris Funeral Homes v. EEOC) asks whether it bars discrimination on the basis of gender identity. The cases will be argued and decided in the Court’s October 2019 term.
For a road map on how I think the Court should, and how I think it will, decide these cases, I highly recommend Second Circuit judge Gerard E. Lynch’s 74-page dissenting opinion in the Zarda case. In his dissent, Judge Lynch concludes that the original “public meaning” of Title VII’s ban on discrimination on the basis of sex does not extend to discrimination on the basis of sexual orientation. He also persuasively explains how this conclusion fits within the broader context of Title VII rulings. Judge Debra Livingston joined the major parts of his dissent, and Judge Reena Raggi likewise stated that her own dissent was “substantially for the reasons stated by Judge Lynch” in those parts.
Lynch, I’ll note, was appointed to the Second Circuit by President Obama (and, before that, to the district court by President Clinton). His sterling credentials include a Supreme Court clerkship for Justice Brennan, and he is highly respected. His repeated statements in his dissent of his own strong policy support for a ban on sexual-orientation discrimination should further immunize him from ad hominem attacks from the Left.
I encourage you to read Judge Lynch’s whole dissent with care. In the meantime, here’s a selective summary (all italics in original):
1. Title VII’s bar on discrimination on the basis of sex was “aimed at producing gender equality in the workplace,” “not at other forms of discrimination that were understood at the time, and continue to be understood, as a different kind of prejudice.” (Pp. 17-18; see also pp. 3-8.)
2. The term “discriminate” in Title VII refers to “invidious distinctions”—not to any distinction, and “still less [to] any distinction that so much as requires the employer to know an employer’s sex in order to be applied.” (Pp. 29-31.)
3. That’s why it’s okay for employers to have separate men’s and women’s toilet facilities, different hair-length requirements for men and women, some forms of dress codes (“a more complicated example”), and “gender-normed physical fitness standards.” (Pp. 33-35.)
4. These examples of permissible sex-based distinctions refute two large claims made by the majority:
First, it is not the case that any employment practice that can only be applied by identifying an employee’s sex is prohibited. Second, neither can it be the case that any discrimination that would be prohibited if race were the criterion is equally prohibited when gender is used. Obviously, Title VII does not permit an employer to maintain racially segregated bathrooms, nor would it allow different-designed bathing costumes for white and black lifeguards. [Pp. 35-36.]
5. It’s one thing for Title VII’s ban on sex discrimination to “have unanticipated consequences when courts are asked to consider carefully whether a given practice does, in fact, discriminate against members of one sex.” It’s quite another thing to extend Title VII “by judicial construction to protect an entirely different category of people.” So the application of Title VII to such things as sexual harassment, a hostile work environment, and sex discrimination against men “do[es] not say anything about whether discrimination based on other social categories is covered by the statute.” [Pp. 21-26.]
6. The various legislative efforts in recent decades to bar discrimination on the basis of sexual orientation confirm that discrimination against persons based on sex “has had, in law and in politics, a meaning that is separate from that of discrimination based on sexual orientation.” (P. 44; see pp. 37-44.)
7. Sexual-orientation discrimination also doesn’t qualify as “gender stereotyping” that constitutes discrimination on the basis of sex. The employer who discriminates on the basis of sexual orientation “is not deploying a stereotype about men or about women to the disadvantage of either sex.” Such an employer is instead “expressing disapproval of the behavior or identity of a class of people that includes both men and women.” (Pp. 51-52.; see pp. 46-52.)
8. Sexual-orientation discrimination is also not associational discrimination on the basis of sex. Cases about associational race discrimination are very different, as they involve an animus against protected members of the race with whom plaintiffs associated. “There is no allegation in this case, nor could there plausibly be, that the defendant discriminated against Zarda because it had something against men, and therefore discriminated not only against men, but also against anyone, male or female, who associated with them.” Discrimination against gay men “plainly is not rooted in animus toward “protected third persons with whom [they] associate.” (Pp. 56-57; see pp. 52-57.)
(At various points throughout his opinion, Lynch cites with approval Judge Diane Sykes’s similar dissent from the Seventh Circuit’s en banc ruling in Hively v. Ivy Tech Community College.)
As a final point, I’ll simply note that Lynch’s analysis applies with equal force against the claim that Title VII’s ban on sex discrimination forbids discrimination on the basis of gender identity.