Bench Memos

Law & the Courts

Judge Lynch’s Notable Dissent in Second Circuit Case on Sex Discrimination

On Monday, in Zarda v. Altitude Express, the en banc Second Circuit, overturning longstanding circuit precedent, ruled by a vote of 10 to 3 that Title VII’s ban on discrimination in employment “because of … sex” encompasses a ban on discrimination on the basis of sexual orientation. The majority opinion, four concurring opinions, and three dissents are available at separate links here.

I haven’t waded through, and won’t attempt to summarize, all the opinions. But I was struck that the very thorough lead dissent (joined nearly in its entirety by the other two dissenters) was authored by the highly respected Obama appointee Gerard E. Lynch. Reciting the history of the enactment of the Civil Rights Act of 1964 (of which Title VII is part), Lynch argues that that history

makes it obvious to me … that the majority misconceives the fundamental public meaning of the language of the Civil Rights Act. The problem sought to be remedied by adding “sex” to the prohibited bases of employment discrimination was the pervasive discrimination against women in the employment market, and the chosen remedy was to prohibit discrimination that adversely affected members of one sex or the other. By prohibiting discrimination against people based on their sex, it did not, and does not, prohibit discrimination against people because of their sexual orientation.

Lynch repeatedly cites with approval Judge Diane Sykes’s similar dissent from the Seventh Circuit’s en banc ruling in Hively v. Ivy Tech Community College. (Sykes’s dissent begins at page 41.)

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