Mark Joseph Stern

Resolving the Paradox

How marriage equality paved the way for anti-gay employment discrimination to be ruled illegal.

On Monday, the 2nd U.S. Circuit Court of Appeals ruled 10–3 that Title VII of the Civil Rights Act of 1964 prohibits anti-gay employment discrimination. The court found that Title VII’s ban on discrimination “because of sex” encompasses sexual orientation, protecting gay employees in all 50 states. Its decision, Zarda v. Altitude Express, closely tracked the reasoning of Hively v. Ivy Tech, a 2017 decision by the 7th U.S. Circuit Court of Appeals that also interpreted Title VII to bar anti-gay discrimination.

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Greg Nevins, the director of Lambda Legal’s Employment Fairness Project, argued in favor of gay employees in both Zarda and Hively. On Tuesday, we spoke about 2nd Circuit’s ruling, the Trump administration’s position, and Attorney General Jeff Sessions’ criticism of the court’s decision. Our interview has been edited and condensed.

The 7th Circuit’s Hively opinion was authored by Chief Judge Diane Wood. Zarda was penned by Chief Judge Robert Katzmann. How do you think Katzmann’s opinion stacks up against Judge Wood’s?

That’s like asking a parent which of their twins is more adorable! I thought they were both really strong. Katzmann is a guru when it comes to statutory interpretation, and that certainly shone through in the opinion. He also had a more lengthier dissent to contend with. Most majority decisions don’t respond to everything in the dissents, but Katzmann was very conscientious.

Katzmann wrote that after marriage equality, a legal regime that allows gay people to get married on Saturday and fired for it on Monday is “paradoxical.” How do you think the Supreme Court’s gay rights cases have affected Title VII jurisprudence?

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Before Lawrence v. Texas [which struck down sodomy bans], if a male employee asked why he faces discrimination for dating men but female employees don’t, his employer could say, “Because sodomy is illegal!” After Lawrence, the employer could still point out that same-sex relationships weren’t recognized equally under the law. But under Obergefell v. Hodges [which legalized same-sex marriage nationwide], there’s no question that gay employees are “similarly situated” to straight employees.

I wonder if, when one of these cases reaches the Supreme Court, Kennedy will recognize how his own gay rights opinions compel a gay-inclusive reading of Title VII. I think he will.

That’s optimistic! I hope he recognizes how a cramped reading of Title VII threatens to undermine the “equal dignity” rationale that was the centerpiece of his marriage-equality opinion. “Well, I’m allowed to go through that ceremony and get the certificate … and then I get a pink slip from my boss as a wedding present.” Huh? That would, I think, be of some concern.

Judge Dennis Jacobs, a George H.W. Bush appointee, joined only part of Katzmann’s opinion, then dismissed the rest of it as “woke dicta.” What did you make of his concurrence?

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Judge Jacobs liked the associational discrimination claim, the idea that discriminating against a male employee for marrying a man is sex discrimination—just like discriminating against a white employee for marrying a black man is race discrimination. He pushed back on the stereotype claim; the Supreme Court has held that “sex stereotyping” is unlawful sex discrimination, and Katzmann wrote that anti-gay discrimination falls into that category by punishing employees for their failure to conform to gender norms.

Jacobs’ resistance to that section surprised me, because it seemed like a pretty straightforward adoption of what Hively and other courts did. Gender nonconformity can be a woman who rides a Harley, or plays rugby, or dates women. It’s all the same thing. Insisting that people behave in a “traditional” way can result in the sex stereotypes that Title VII prohibits.

Judge José Cabranes, a Bill Clinton appointee, concurred only in the judgment, asserting that the case is so easy that it can be resolved with three sentences of analysis. He seemed to question Katzmann for devoting so many words to the subject, which I found a bit unfair.

I’m loath to criticize anyone who voted for me! Really, I can’t criticize it, because if I’m talking to somebody in an elevator, I’m gonna say something along the lines of: “It has to be sex discrimination if it’s OK for a woman to marry a man but not OK for a man to marry a man.” And we’re done here! Saves a lot of trees. So I understood where Cabranes was coming from.

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Look, Katzmann set a table with all of the courses available. Some judges had their fill of everything. Some judges thought the macaroni and cheese looked delicious but didn’t have enough room and decided to stick with the steak. I’m OK with that.

The Department of Justice filed an unsolicited brief weighing in against employees and argued against you in court …

I do think the Justice Department’s participation is what prompted the 2nd Circuit to invite me to oral arguments, so I can’t be too upset!

Sure. But I was surprised to see Judge Gerard Lynch, a Barack Obama appointee, take Jeff Sessions’ side.

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Yes—the DOJ beat some of the old dead horses, but it was interesting to see the extent to which Judge Lynch was on the same page as them. For instance, the DOJ brief said that workplace discrimination only violates Title VII if it’s based on some idea about the “inferiority” of men or women. It has to be sinister, invidious discrimination to be illegal.

But that is a radical rethinking of what constitutes illegal discrimination. I use this example to illustrate why. Title VII also bars discrimination on the basis of religion. Imagine if an employer said, “Based on divorce statistics, we’re going to fire anyone who enters into an interfaith marriage, because those marriages are less stable.” If they retain a Jewish employee who marries a Jew but fire a Baptist employee who marries a Jew, most people would look at that as illegal religious discrimination. And they’d be right! But it’s not necessarily based on any notion of inferiority.

The DOJ’s theory runs into problems in the race context, too. If a black supervisor fires a black woman for marrying a white man, he has engaged in unlawful race discrimination—even if he doesn’t think white people are “inferior” to blacks.

Yep. And Jeff Sessions wants to open up a can of worms by saying it has to be evil racism to be race discrimination. But look—he only persuaded three of the 13 judges. So I feel pretty good that we can push back against some of the arguments that Lynch made, which we didn’t really know anyone was taking seriously.

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In a speech on Tuesday, Sessions criticized the court’s decision, stating: “I guess maybe the judges woke up that morning, read the New York Times or something, and decided their previous ruling was wrong.”

Wow! That would’ve saved me a lot of time and effort. But really, it’s pretty darn obvious that this was a thoughtful opinion that carefully considered, among other things, the way that Lawrence and Obergefell affected the decisions it overruled. How can discrimination against someone in an interracial relationship be race discrimination, but discrimination against someone in a same-sex relationship not be sex discrimination? The Supreme Court has really cemented that analogy—no matter what Jeff Sessions says.