On Monday, Chief Judge Robert Katzmann of the 2nd Circuit U.S. Court of Appeals wrote that anti-gay employment discrimination is almost certainly prohibited under existing federal law. Katzmann urged the 2nd Circuit to reconsider precedent holding that employees cannot sue for sexual orientation discrimination under Title VII of the Civil Rights Act of 1964, citing recent legal developments that support an expansive interpretation of “sex discrimination.” If Katzmann’s court accepts his challenge, the 2nd Circuit will further a growing consensus among the federal judiciary that Title VII already protects gay employees from workplace throughout the country.
Katzmann’s entreaty comes in the form of a concurrence to a three-judge panel’s majority opinion in Christiansen v. Omnicom Group. The panel ruled on an employment discrimination lawsuit filed by Matthew Christiansen, an HIV-positive gay man. According to Christiansen, his supervisor drew sexually explicit drawings of him on an office whiteboard—including an image of a buff, naked Christiansen with an erect penis holding an air pump accompanied by text reading, “I’m so pumped for marriage equality.” Another drawing depicted Christiansen in tights and a low‐cut shirt “prancing around.” Yet another portrayed Christiansen’s torso on the body of “a four legged animal with a tail and penis, urinating and defecating.” The supervisor also circulated a “Muscle Beach Party” poster that depicting Christiansen’s head attached to a female body clad in a bikini, lying on the ground with her legs upright in the air.
Then it got worse. “Christiansen’s supervisor also made remarks about the connection between effeminacy, sexual orientation, and HIV status,” the majority explained:
The supervisor allegedly told other employees that Christiansen “was effeminate and gay so he must have AID[S].” Additionally … in a meeting of about 20 people, the supervisor allegedly told everyone in the room that he felt sick and then said to Christiansen, “It feels like I have AIDS. Sorry, you know what that’s like.” At that time, Christiansen kept private the fact that he was HIV‐positive.
Christiansen sued under Title VII, which prohibits employment discrimination “because of sex.” A district court threw out his claim, holding that Title VII doesn’t bar sexual orientation discrimination. The 2nd Circuit panel unanimously reversed the judgment, albeit on narrow grounds. In Price Waterhouse v. Hopkins, the majority noted, the Supreme Court found that sex discrimination encompasses “sex stereotyping”—mistreating employees because they do not conform to gender norms. Christiansen was ridiculed as overly feminine, an insufficiently masculine “sissy.” That discrimination, the majority concluded, qualified as sex stereotyping under Price Waterhouse, allowing his Title VII suit to move forward.
But Katzmann, joined by Judge Margo K. Brodie, wrote separately to explain why, in his view, the 2nd Circuit should go further and acknowledge that sexual orientation discrimination is “almost by definition” sex discrimination. Katzmann discussed the three theories advanced by the Equal Employment Opportunity Commission in 2015 when it found that sex discrimination includes sexual orientation discrimination:
1. Sexual orientation discrimination as traditional sex discrimination
Katzmann first noted that anti-gay discrimination is, in a very literal sense, always sex discrimination: “Such discrimination,” he explained, “treats otherwise similarly‐situated people differently solely because of their sex.” When an employer mistreats a worker because she dates other women, sex is the key factor: If the employer were male, he could date women without a problem—but because she is female, she faces discrimination. That makes sex the “but for” cause of discrimination: But for the worker’s sex, he would not be mistreated. The EEOC illustrated this theory nicely:
[A]ssume that an employer suspends a lesbian employee for displaying a photo of her female spouse on her desk, but does not suspend a male employee for displaying a photo of his female spouse on his desk. The lesbian employee in that example can allege that her employer took an adverse action against her that the employer would not have taken had she been male. That is a legitimate claim under Title VII that sex was unlawfully taken into account in the adverse employment action.
2. Sexual orientation discrimination as associational sex discrimination
Next, Katzmann described what I call the Loving theory of sex discrimination, which appealed to the 7th Circuit U.S. Court of Appeals when it confronted this issue in November. In Loving v. Virginia, the Supreme Court rejected the argument that anti-miscegenation laws do not discriminate on the basis of race because whites and blacks in interracial relationships were punished equally. The Loving court found that anti-miscegenation laws still constituted race discrimination because they punished romantic association on the basis of race. Courts have since extended that logic to Title VII, holding that when an employer discriminates against an employee for associating with black people, it has engaged in race discrimination.
“Once we accept this premise,” Katzmann wrote, “it makes little sense to carve out same‐sex relationships as an association to which these 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,” citing Obergefell v. Hodges and United States v. Windsor. “In sum, if it is race discrimination to discriminate against interracial couples, it is sex discrimination to discriminate against same‐sex couples.”
3. Sexual orientation discrimination as gender stereotyping
Finally, Katzmann explained that anti-gay discrimination is “inherently rooted in gender stereotypes” and thus forbidden by Price Waterhouse. Under the 2nd Circuit’s current precedent, anti-gay discrimination only constitutes sex stereotyping if an employer takes issue with a gay employees’ manner or behavior—i.e., discriminating against a gay man for being effeminate or a lesbian for being butch. But a deeper stereotype, Katzmann asserted, is always at work in these situations: a belief that men must date women and women must date men.
“[N]egative views of sexual orientation,” Katzmann wrote, “are often, if not always, rooted in the idea that men should be exclusively attracted to women and women should be exclusively attracted to men—as clear a gender stereotype as any. Thus, in my view, if gay, lesbian, or bisexual plaintiffs can show that they were discriminated against for failing to comply with some gender stereotype, including the stereotype that men should be exclusively attracted to women and women should be exclusively attracted to men, they have made out a cognizable sex discrimination claim.”
Many courts, Katzmann observed, have already agreed with one or more of these theories. The 2nd Circuit ought to do the same, “reexamining” and overruling earlier precedent that locked gay employees out of Title VII. The chief judge’s opinion is lucid, comprehensive, and compelling—the opposite of the recent 11th Circuit decision that reached the opposite conclusion and mangled Title VII in the process. Katzmann’s colleagues should heed his call as soon as possible and contribute to the growing judicial consensus that Title VII already protects gay employees in every state.
