Thanks to the Twitter habit of Donald Trump and those on his White House team, the public has been treated to a number of disturbing exchanges in which they spew accusations, threats, and other attacks against one another, as well as on members of the other two branches of government. (After you’ve ensured that no children are looking over your shoulder, you can view the most recent example of this infighting.) But below the radar, the Executive Branch is engaging in the same type of infighting—on issues that matter and have the potential to harm LGB people across the country.

Attorney General Jeff Sessions filed an unsolicited brief in Zarda v. Altitude Express, Inc., a case pending before the U.S. Court of Appeals for the Second Circuit, which raises the question whether Title VII’s ban on sex discrimination encompasses a ban on sexual orientation discrimination. By arguing that Title VII permits employers to discriminate against employees because they love or enter sexual relationships with people of the same sex, the Department of Justice broke with the Equal Employment Opportunity Commission (EEOC), the attorneys general of Connecticut, New York, and Vermont, and dozens of major corporations.

As we argue, here, the DOJ’s position in Zarda is not only morally repugnant but also analytically weak. Moreover, by filing a brief that urges the opposite conclusion of that urged in a separate brief by the EEOC, a federal agency charged with enforcing federal anti-discrimination, the federal government is bizarrely at war with itself, a fight that undermines the authority of the Executive Branch to enforce federal anti-discrimination laws, a harm that will outlast this attorney general.
Zarda v. Altitude Express, Inc.

This case was brought by Donald Zarda, who alleges he was fired from his job as a skydiving instructor because he is gay, in violation of Title VII of the Civil Rights Act of 1964, the nation’s main federal anti-discrimination law.

The firing seems to have arisen from a customer complaint. Rosanna Orellana and her boyfriend David Kengle purchased tandem skydives, in which a customer is tied to an instructor who takes responsibility for deploying the parachute. Zarda was the instructor assigned to help with Rosanna’s jump. He informed her that he was gay and had recently broken up with a boyfriend; he said that he would often reveal his sexual orientation to clients, particularly to women who were accompanied by a husband or boyfriend who might be jealous when another man was tightly strapped to her for the jump.

Kengle only learned later about Zarda’s disclosure to his girlfriend, but, when he did, he called the company to complain about Zarda’s behavior. Zarda was then fired. The parties make different claims about what motivated Zarda’s firing—facts that would get hashed out only if summary judgment is reversed and the case is sent back for trial. The employer claims that summary judgment is appropriate because even if Zarda was fired because of his sexual orientation, that does not violate Title VII.

The trial court granted summary judgment to the employer, Skydive Long Island, on Zarda’s Title VII claim on the theory that the statute does not protect against sexual orientation discrimination. On appeal, a three-judge panel of the Second Circuit was sympathetic to Zarda’s Title VII claim, but held that it was bound by prior opinions in the circuit that could only be overturned by an en banc panel. The Second Circuit did agree to rehear the case en banc, and that is the stage at which both the EEOC and the DOJ filed friend-of-the-court briefs—urging opposite conclusions.
A Recurring Question: Is Sexual Orientation Discrimination Sex Discrimination?

Zarda is certainly not the first case to raise this question. It has been raised periodically for decades, but as the understanding of sex and gender has evolved, many courts have taken a fresh look in recent years.

Title VII prohibits employers with at least fifteen employees from discriminating on the basis of race, color, religion, sex, or national origin. Sexual orientation is not on the list—nor would one to expect it to be specifically identified in a statute drafted when that term was not routinely used. But courts early on were asked to treat claims of sexual orientation discrimination as a form of sex discrimination.

Even in the earliest cases, the argument being made was logical and straightforward: Men should not be discriminated against for being attracted to men, when women are not punished for the same thing, and vice versa. But courts engaged in only the most superficial analysis in these cases and rejected the claim. Sex discrimination occurs when an employer discriminates “against women because they are women and men because they are men,” the Seventh Circuit wrote, simplistically, in Ulane v. Eastern Airlines, Inc. (1984).

Other courts rely on the lack of congressional intent to protect gays and lesbians from employment discrimination at the time Title VII was enacted. That is probably a correct understanding, but Congress probably did not contemplate many of the things we have come to understand as clear examples of sex discrimination, such as charging women more for employer-provided retirement benefits because they are actuarially likely to outlive men or discriminating only against women with preschool age children. Our understanding of sex discrimination has evolved incrementally as courts, especially the Supreme Court, have considered different theories and manifestations of discrimination.

During the decades when federal courts were simply unwilling to interpret Title VII in a way that protected LGBT employees, some stop-gap measures were put in place, including Bill Clinton’s executive order banning sexual orientation discrimination in the civilian federal workforce and Barack Obama’s revocation of the Don’t Ask, Don’t Tell policy that kept gays and lesbians from serving openly in the military. Meanwhile, bills to amend Title VII to add express protection against sexual orientation discrimination were introduced in one congressional session after another, never to become law.

But while Congress was busily not amending Title VII on this point, the Supreme Court was issuing opinions that radically transformed our understanding of sex discrimination. First, in Price Waterhouse v. Hopkins (1989), the Supreme Court ruled that reliance on sex-role stereotyping can be an actionable form of employment discrimination. A woman who was denied partnership in an accounting firm for being insufficiently feminine in her dress and manner of communication suffered sex discrimination. This launched sex stereotyping as an actionable type of sex discrimination. This case was used by effeminate gay men and masculine lesbian women who claimed, often successfully, that the hostility and adversity they experienced was sex, rather than sexual orientation, discrimination.

Second, in Oncale v. Sundowner Services (1998), the Court held that same-sex harassment could be actionable under Title VII as long as the plaintiff had some proof that the conduct was undertaken “because of sex.” Among other ways of satisfying this requirement, a plaintiff can show that the harassment was designed to police gender roles or that it was motivated by homosexual desire. This ruling reinforced the emphasis on stereotyping and supported claims for gender-targeted bullying.

Armed with these instructive precedents, lower federal courts have begun to reconsider their initial reactions to sexual orientation discrimination claims. The re-examination was also propelled by a 2015 EEOC ruling, in which it held, as a matter of agency interpretation, that discrimination against a man because he was gay constituted a form of actionable sex discrimination. The EEOC’s ruling depended on its view that “[d]iscrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, or norms.” There is no way to understand this type of discrimination, the ruling reasons, without reference to a person’s sex.

After the EEOC ruling, several federal district courts reached the same conclusion. (Discussion of some of those cases can be found here and here.) Even more notably, the U.S. Court of Appeals for the Seventh Circuit recently issued an en banc ruling, in which it held that sexual orientation discrimination is sex discrimination under Title VII. Chief Judge Diane Wood began with the observation that while a court cannot add a word to a statute (i.e., it cannot make the words “sexual orientation” magically appear in Title VII), it can interpret the words already there, including “sex.” The court also avoided the red-herring arguments that Congress’s attempt to amend the statute proves that it did not already cover sexual orientation discrimination—or that Congress clearly did not want the statute to cover such discrimination. A legislative body’s failure to adopt a law could mean any number of things—including two things that are diametrically opposed. Congress might not have amended Title VII because it thought the coverage already existed, or it might not have amended because it did not want that coverage. There is no way to know which, if either, of these explanations is correct.

Rather than reading tea leaves, a notoriously unsound method of statutory interpretation, the Seventh Circuit focused on the Supreme Court’s rulings in Oncale and Price Waterhouse. In Oncale, Justice Scalia explained that courts are charged with interpreting words in the statute and prohibiting any type of discrimination “that meets the statutory criteria.”

The meaning of “sex” discrimination, the Hively court concluded, clearly applies to sexual orientation discrimination. First, sexual orientation discrimination, at its core, punishes a woman for being attracted to another woman, when it would not punish a man for being attracted to a woman. This “tried-and-true comparative method” shows the significance of the plaintiff’s sex to the employer’s decision. Second, the court drew on Loving v. Virginia, in which the Supreme Court struck down Virginia’s interracial marriage ban and rejected the state’s “equal application” theory of neutrality. Relevant to the question of sexual orientation discrimination, the Hively court cited Loving for the proposition that “[i]t is now accepted that a person who is discriminated against because of the protected characteristic of one with whom she associates is actually being disadvantaged because of her own traits.”
DOJ’s Brief in Zarda v. Atlantic Express

The opinions discussed above should make clear that discrimination against gays, lesbians, and bisexuals in the workplace is a form of sex discrimination. Yet, the Department of Justice took the position that an employee’s sexual orientation is unrelated to his sex. And it did so in a routine case, in which its views were not solicited, and in which the EEOC had already filed a brief arguing to the contrary.

The simple fact that DOJ filed this brief, under these circumstances, is remarkable. Not only does DOJ urge a different conclusion than the EEOC, it argues that the EEOC’s opinion should be ignored and given no deference. This, too, is remarkable in that the EEOC is the agency charged with enforcing federal anti-discrimination laws and has far greater expertise in employment discrimination law than DOJ, which deals only with a narrow slice of such cases. This attack on the EEOC can only undermine its power in future cases. In other words, Attorney General Sessions’s commitment to throwing LGBT individuals under the bus is so strong that he is willing to undermine his own branch’s power in future cases. DOJ’s brief warns that the “EEOC is not speaking for the United States.” If this is how Executive Branch officials treat sister agencies in writing, just imagine what conversations must be like behind closed doors.

Beyond the odd circumstances of the filing, though, is the odd substance of the brief. It recycles a series of bad arguments might have been persuasive to a court in the 1970s, hearing for the first time a claim of “gay rights.” But in 2017, more sophistication is required.

The DOJ brief first argues that Title VII’s ban on sex discrimination is not violated unless an employer treats men and women unequally. This is not untrue, but it doesn’t prove the result for which DOJ argues. A simple hypothetical reveals the Trump Administration’s error. If an employer fires a female worker because she has relationships with other women, that employee is mistreated because of her sex. She would not have been wronged by her employer if her intimate partners were solely men. In other words, sex was the dispositive factor when her employer decided to unjustifiably terminate her employment.

The DOJ brief also argues that Title VII should be read to exclude sexual orientation discrimination because “until recently” that is what courts had held. But given the significance of the recent, game-changing U.S. Supreme Court decisions, the opposite is probably a better argument. The early cases, as discussed above, were uniform in their superficial treatment of the question before them—and their unwillingness to engage with argument about the nature of sexual orientation discrimination. More recent cases dug deeper, took a more nuanced view of sex and gender, took account of highly relevant Supreme Court precedents and drew a well-supported conclusion that sexual orientation discrimination is, by its nature, sex discrimination. DOJ should not be persuaded by those thin, early opinions any more than it should cite the early sexual harassment cases in which courts said that the only way to avoid sexual harassment would be to hire only asexual employees or that rape did not become actionable discrimination just because it occurred in an office rather than a back alley.

The DOJ brief then makes two spectacularly bad arguments about the meaning of congressional action. First, it argues that because Congress has amended Title VII since courts decided that sexual orientation discrimination was not covered, Congress is presumed to have ratified that understanding of the statute. The brief points to the amendments contained in the Pregnancy Discrimination Act (PDA) of 1978 and those contained in the Civil Rights Act (CRA) of 1991. This argument makes no sense given that neither of these acts would reasonably have addressed the issue of sexual orientation discrimination; it is thus inappropriate to draw any inference about Congress’s state of mind. This is especially so when the only rulings were from lower federal courts rather than the Supreme Court. Moreover, when the PDA was enacted, no court had issued a ruling on sexual orientation discrimination yet, a temporal problem that the DOJ brief just glosses over. The 1991 amendments did not touch the provision in which the protected traits are listed.

Second, it argues that Congress’s failure to approve the proposed amendments to add express protection for sexual orientation discrimination proves that Congress did not want to extend such protection. As explained above, though, legislative silence tells us nothing.

Third, it lists the usual arguments about the nature of sex and sexual orientation discrimination. They are just not convincing.
The EEOC and the Seventh Circuit are Right

While the plain reading of Title VII should readily resolve this case, there are other reasons that federal employment anti-discrimination law prohibits sexual orientation bias in the workplace.

In Loving v. Virginia, the Supreme Court rejected Virginia’s argument that anti-miscegenation laws did not discriminate on the basis of race because white and black Virginians were punished equally if they married outside their race. The Supreme Court held that each partner in an interracial relationship was denied the fundamental right to marry solely on the basis of their race. While that was a constitutional case, courts used the same logic to safeguard workers’ rights who were in interracial relationships.

In 1988, a federal appellate court in Atlanta decided that Title VII protects interracial associations. Don Parr, who was white, applied for an insurance salesman position but was rejected after white hiring managers learned about his interracial marriage. Don Parr was not discriminated against because management held animosity towards whites, but the court ruled that just like in Loving he was nevertheless denied employment because of his race.

It is nonsensical to deny these associational employment protections in federal law after the Supreme Court’s decision in Obergefell v. Hodges, which held the right to marry extends to same-sex couples. As Chief Judge Wood explained in Hively, “if it is race discrimination to discriminate against interracial couples, it is sex discrimination to discriminate against same‐sex couples.”

A second theory also supports the position that sexual orientation discrimination is banned under the Civil Rights Act. The sex stereotyping theory recognized in Price Waterhouse means that “gender must be irrelevant to employment decisions” and that “in the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.” Simply put, this stands for the proposition that Title VII doesn’t permit an employee to be treated adversely because their appearance or conduct fails to conform to stereotypical gender roles.

The animus aimed at gay, lesbian, and bisexual Americans stems from an outmoded societal belief that men should be exclusively attracted to women and women should be exclusively attracted to men. This is a quintessential stereotype—no different from antiquated expectations that women should be feminine and men should be masculine.

The Trump Administration woefully misunderstands the nature of anti-gay animus. The DOJ brief claims that employers’ “moral beliefs” about sexuality could “not be based on views about gender at all” and thus not a form of sex-based discrimination. This claim made on behalf of the United States is disingenuous. Individuals’ beliefs about homosexuality are inherently based on stereotypes and the “proper role” of how men and women should behave. You cannot harbor ill will towards gays, lesbians, and bisexuals unless you also take into account the sex of their intimate partners.
Conclusion: Actions Speak Louder Than Words

The Department of Justice’s position will have dangerous consequences if it prevails. In a small Georgia town, one man faced an excruciatingly painful choice: remain in an unhealthy, corrosive marriage or risk losing his employment. Despite loving his job and coworkers, the man feared his managers deeply disliked gay men and would fire him if they knew his true identity. Because Georgia has no protections against employment discrimination, he stayed in his marriage fearing that if he filed for a divorce and his husband subpoenaed his employment records, he’d lose everything.

There are far too many Americans like that Georgia man who are torn over living their authentic lives at the office or who wonder if they’ll have a job on Monday after getting married the weekend before. The Trump Administration has shamefully asked federal judges to dilute of one of this nation’s greatest civil rights achievements for the sole purpose of keeping LGB persons second class. Judges must reject the invitation.

President Trump made repeated assertions on the campaign trail that his administration would support the rights of lesbian, gay, bisexual, and transgender Americans. If President Trump’s knee-jerk action banning transgender persons from military service (by tweet, no less) was not sufficient to prove otherwise, the Department of Justice has made clear it was a farce.