§2.2 III. The Status Under Federal Law

• Jurisdiction: New York

III. The Status Under Federal Law

In spite of the upward trajectory for expanding protections in some states, such as New York, federal law and federal court decisions across the United States did not protect sexual orientation as a class²³⁰ until very recently. The basis for rejection of the claims in federal court, under Title VII, had historically been that:

by considering the ordinary meaning of the word "sex" in Title VII, as enacted by Congress, and by determining that "[t]he phrase in Title VII prohibiting discrimination based on sex, in its plain meaning, implies that it is unlawful to discriminate against women because they are women and against men because they are men." . . . "Congress had a narrow view of sex in mind when it passed the Civil Rights Act." . . . "[courts] were confident that Congress had nothing more than the traditional notion of 'sex' in mind when it voted to outlaw sex discrimination, and that discrimination on the basis of sexual orientation and transsexualism, for example, did not fall within the purview of Title VII." ²³¹

An argument persisted that because gender stereotyping (gender non-conformity) and same-sex discrimination (discrimination by a male or a female against one of the same sex/gender) may be maintained as claims under Title VII,²³² the statute could therefore be expanded to include sexual orientation as the next logical, included class. The argument met with no success, although some courts did begin to "chip away" and question prior holdings prior to Bostock v. Clayton County.²³³ Courts tended to reject attempts at what they viewed as impermissible efforts to expand the language of Title VII through the courts rather than the legislature.

In 2014–2015, the EEOC tried once more to bring a claim under Title VII based on sexual orientation. It was initially rebuffed by the U.S. District Court for the Northern District of Indiana²³⁴ and the Seventh Circuit Court of Appeals.²³⁵ However, the landscape changed when the Seventh Circuit voted to rehear the case en banc. A decision by the full Seventh Circuit broke ground when that court reversed and vacated the panel opinion and held, for the first time, that Title VII does protect against discrimination based on sexual orientation—a bellwether on this front.²³⁶

From there, the ground started to shift—not an earthquake at first, but certainly some large rumbles. First came the Second Circuit's 2017 decision in Christiansen v. Omnicom Group, Inc.²³⁷ That court was not as wide-sweeping as the Seventh Circuit in Hively, but rather addressed claims as they would be analyzed pursuant to gender stereotyping, sending the case back to the district court for further proceedings. The concurrence in Christiansen, though, spoke strongly about expanding protections for sexual orientation.²³⁸

Then came U.S. District Judge Alvin K. Hellerstein's decision in Philpott v. New York, which set forth in a stern and unmistakable holding: "Simply put, the line between sex discrimination and sexual orientation discrimination is 'difficult to draw' because that line does not exist, save as a lingering and faulty judicial construct," and "[t]he law with respect to this legal question is clearly in a state of flux, and the Second Circuit, or perhaps the Supreme Court, may return to this question soon. In light of the evolving state of the law, dismissal of plaintiff's Title VII claim is improper."²³⁹ Thereafter, an opinion of the U.S. District Court for the Southern District of Ohio seemed to cite Philpott with approval but was ultimately constrained by Sixth Circuit precedent.²⁴⁰

Thereafter, we turn back to the Second Circuit, for discussion of the case of Zarda v. Altitude Express.²⁴¹ The three-judge panel of the Second Circuit in Zarda held that a panel of the court could not overrule prior precedent (another panel's decision), as that was within the purview and prerogative of the full court en banc.²⁴² Thus, the panel, similar to the court in Grimsley, found itself constrained by a prior holding in the Second Circuit that Title VII did not provide protection for sexual orientation.²⁴³ Thereafter, the Second Circuit agreed to rehear the case en banc, and followed the lead of the Seventh Circuit in holding for an expansion of Title VII.²⁴⁴ When resolving the troubling "because of . . . sex" wording in order to bring sexual orientation under Title VII, the majority of the full court held:

Because one cannot fully define a person's sexual orientation without identifying his or her sex, sexual orientation is a function of sex. Indeed sexual orientation is doubly delineated by sex because it is a function of both a person's sex and the sex of those to whom he or she is attracted. Logically, because sexual orientation is a function of sex and sex is a protected characteristic under Title VII, it follows that sexual orientation is also protected. ²⁴⁵

Certiorari was granted for the appeal of the Zarda en banc decision to the U.S. Supreme Court. Additionally, although the Supreme Court declined to hear an appeal of the Eleventh Circuit's holding in Evans v. Georgia Regional Hosp., another decision of the Eleventh Circuit that likewise held Title VII did not protect sexual orientation, was granted certiorari by the Court: Bostock v. Clayton County, Georgia.²⁴⁶ Bostock was consolidated on appeal with Zarda,²⁴⁷ and with a third case, Equal Employment Opportunity Commission v. R.G. &. G.R. Harris Funeral Homes, Inc.,²⁴⁸ out of the Sixth Circuit, such that the Court's 2019–2020 Term was set for resolution of the Circuit split.²⁴⁹

R.G. &. G.R. Harris Funeral Homes, Inc. was a case on a related issue: whether adverse action against transgender individuals violates Title VII, as discrimination "because of . . . sex" or "based on . . . sex." In R.G. &. G.R. Harris Funeral Homes, Inc.,²⁵⁰ a case out of Michigan, the employer was alleged to have terminated the plaintiff, a transgender individual, because of her transitioning and transgender status, and gender stereotyping, among other claims.²⁵¹ The District Court dismissed plaintiff's claims, but the Sixth Circuit affirmed in part, reversed in part and remanded. The Circuit held, inter alia, that gender stereotyping is a violation of Title VII, that a claim could be brought alleging violation of Title VII due to discrimination on the basis of transgender and transitioning status, and that there was no substantial burden to the employer's religious practice meaning that employer could not utilize a defense under the Religious Freedom Restoration Act, and the strict scrutiny/compelling government interest standard was not applicable (although the Sixth Circuit did find the standard met, in any event).²⁵²

Interestingly, at the time of briefing over the summer of 2019, the Department of Justice's position and the EEOC's position—as two agencies in the Administration of Donald Trump—diverged. EEOC brought the case on behalf of the employee, but the Justice Department argued against it. The disagreement was so extreme that EEOC's General Counsel—who usually signs all of the agency's briefs to the Supreme Court—refused to sign onto the Justice Department's briefing that argued discrimination against a transgender female only exists and violates Title VII if treatment differed from that of a transgender male, because Title VII addresses unequal treatment of women and men; and, further, that transgender status is not protected and therefore discrimination on that basis does not violate Title VII.²⁵³ In a further cause for division, the Justice Department's briefing, and defendant funeral home's briefing, took care never to refer to plaintiff employee by any gender pronouns, while the ABA's amicus curiae brief and the Sixth Circuit's decision both used female pronouns, as plaintiff employee preferred.²⁵⁴

Finally, in 2020, the Earth did quake following the Supreme Court's holding in Bostock v. Clayton County.²⁵⁵ Via a 6-3 decision, issued by Justice Neil Gorsuch over the dissents of Justices Thomas, Alito and Kavanaugh, the Court held that Title VII's "because of . . sex" language was inclusive of both sexual orientation and gender identity—affirming the Second Circuit's Zarda decision and...