Statutory interpretation hardly is a sexy subject. But, competing views on how statutes should be interpreted are very much a current issue with respect to whether Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment on the basis of sexual orientation.

The text of Title VII provides, in relevant part:

It shall be an unlawful employment practice for an employer … to fail or refuse to hire or to discharge … or otherwise to discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin ….

In 2015, the Equal Employment Opportunity Commission (EEOC) for the first time held that “an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.” Baldwin v. Foxx, EEOC Decision No. 0120133080, 2015 WL 4397641, at *5 (July 15, 2015). Up to that point in time, federal appellate courts unanimously had rejected the argument that the word “sex” in Title VII included “sexual orientation.” However, since then, two federal appellate courts sitting en banc, the Second Circuit and the Seventh Circuit, have held that Title VII prohibits discrimination on the basis of sexual orientation even though the drafters of Title VII in 1964 contemplated no such thing. See Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018); Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339 (7th Cir. 2017). Each case had multiple opinions and spirited dissents.

The two cases are notable not only because of their groundbreaking holdings, but because of the differing views of statutory interpretation espoused by the judges in the cases, including several well-known judicial titans.

Judge Gerald E. Lynch, whose background qualifications include having been a full professor at Columbia University School of Law prior to his appointment to the District Court bench by President Clinton and the Second Circuit by President Obama, took the traditionalist position in Zarda. His lengthy discourse on the history of the Civil Rights Act is well-distilled in the introduction to his dissent:

Speaking solely as a citizen, I would be delighted to awake one morning and learn that Congress had just passed legislation adding sexual orientation to the list of grounds of employment discrimination prohibited under Title VII of the Civil Rights Act of 1964. I am confident that one day—and I hope that day comes soon—I will have that pleasure.

I would be equally pleased to awake to learn that Congress had secretly passed such legislation more than a half century ago—until I actually woke up and realized that I must have been still asleep and dreaming. Because we all know that Congress did no such thing.

Zarda, 883 F.3d at 137.

The majority opinion in the Second Circuit was authored by Chief Judge Robert A. Katzman, who was a professor of law at Georgetown University prior to his appointment to the District Court bench by President Clinton and Second Circuit by President Obama. He also is the author of Judging Statutes (Oxford University Press 2014), which is a critique of the late Justice Antonin Scalia’s textualist approach to interpreting statutes. The majority opinion of the Seventh Circuit was authored by Chief Judge Diane Wood, who was a professor at the University of Chicago Law School prior to her appointment to the Seventh Circuit by President Clinton; she was on President Obama’s short lists for Supreme Court vacancies during his tenure. Judges Katzman and Wood took somewhat nuanced views of the relationship between “sex” and “sexual orientation” to come to their respective conclusions. Judge Katzman wrote:

To determine whether a trait operates as a proxy for sex, we ask whether the employee would have been treated differently “but for” his or her sex. In the context of sexual orientation, a woman who is subject to an adverse employment action because she is attracted to women would have been treated differently if she had been a man who was attracted to women. We can therefore conclude that sexual orientation is a function of sex and, by extension, sexual orientation discrimination is a subset of sex discrimination.

Zarda, 883 F.3d at 119.

Similarly, Judge Wood wrote:

It would require considerable calisthenics to remove the “sex” from “sexual orientation.” The effort to do so has led to confusing and contradictory results, as our panel opinion illustrated so well.5 The EEOC concluded, in its Baldwin decision, that such an effort cannot be reconciled with the straightforward language of Title VII.

Hively, 853 F.3d at 350.

Judge Richard Posner, who also was a noted academic at the University of Chicago prior to his appointment to the Seventh Circuit by President Reagan, suggested a more bold approach to statutory interpretation in his concurring opinion in Hively.

Finally and most controversially, interpretation can mean giving a fresh meaning to a statement (which can be a statement found in a constitutional or statutory text)—a meaning that infuses the statement with vitality and significance today. An example of this last form of interpretation—the form that in my mind is most clearly applicable to the present case—is the Sherman Antitrust Act, enacted in 1890, long before there was a sophisticated understanding of the economics of monopoly and competition. Times have changed; and for more than thirty years the Act has been interpreted in conformity to the modern, not the nineteenth-century, understanding of the relevant economics. The Act has thus been updated by, or in the name of, judicial interpretation—the form of interpretation that consists of making old law satisfy modern needs and understandings. And a common form of interpretation it is, despite its flouting “original meaning.” Statutes and constitutional provisions frequently are interpreted on the basis of present need and present understanding rather than original meaning—constitutional provisions even more frequently, because most of them are older than most statutes.

Hively, 853 F.3d at 352–53. The approach that Judge Posner suggested was espoused over 40 years ago in then-Professor Guido Calabresi’s 1977 Holmes Lecture at the Harvard Law School and expanded in A Common Law for the Age of Statutes (Harvard University Press 1982). However, then-Judge Calabresi had the following to say about the subject in 2006:

And some scholars, myself included, have suggested that it might be a good idea if, as a starting point, in certain circumstances, courts were permitted to read the law according to what they perceived to be the will of the current Congress, rather than that of a long-gone-by one. See Guido Calabresi, A Common Law for the Age of Statutes (1982); see also William N. Eskridge, Jr., Dynamic Statutory Interpretation (1994). But whatever the merits of such an arrangement in the abstract, it is simply not a part of our legal system.

Hayden v. Pataki, 449 F.3d 305, 367 (2d Cir. 2006).

The various opinions in Zarda and Hively will engage both commentators and those of us who litigate the meaning of statutes for some time to come. There is much to be said for each of the approaches taken by the various judges who wrote opinions in the two cases. One thing that is striking is that the ideological leanings and the identities of the presidents who appointed various judges do not line up neatly on the subject.

Insofar as the substantive holding of the cases – that discrimination based on sexual orientation is prohibited by Title VII – the Supreme Court of the United States ultimately will have to decide the issue. In 2017, the Eleventh Circuit, in a divided en banc decision, declined to find that sexual orientation was protected by Title VII notwithstanding the EEOC’s 2015 decision. See Evans v. Georgia Regional Hospital, 850 F.3d 1248 (11th Cir. 2017). The Supreme Court denied Evans’ petition for a writ of certiorari to review the decision. See Evans, 138 S. Ct. 557 (2017). On May 10, 2018, the Eleventh Circuit, relying on Evans, again denied relief to a Title VII plaintiff claiming discrimination based on sexual orientation. See Bostock v. Clayton County Board of Commissioners, 723 Fed. Appx. 964 (11th Cir. 2018). On June 1, 2018, both the plaintiff employee in Bostock and the defendant employer in Zarda petitioned the Supreme Court of the United States for writs of certiorari. Given the circuit split, the potential that the Supreme Court will grant certiorari in the two cases is substantial. However, it hardly is assured. If the Supreme Court follows its usual practice, decisions on the certiorari petitions should be forthcoming soon after the Court begins its October 2018 Term.

Until the Supreme Court rules on the pending certiorari petitions in Bostock and Zarda, the battleground now has shifted to the Eighth Circuit where the issue of whether sexual orientation is within the protections of Title VII is pending in Horton v. Midwest Geriatric Management, LLC., No. 18-1104. Horton, the appellant, filed his opening brief in early March 2018 and several amici, including the Attorney General of Maryland, have filed briefs urging the Eighth Circuit to follow the holdings of Zarda and Hively. Horton’s reply brief was filed on July 10, 2018, and the case is pending the scheduling of an oral argument date.

In 2001, Maryland prohibited discrimination on the basis of sexual orientation. See 2001 Md. Laws ch. 340; see also Md. Code State Government §20-606. However, the issue presented in Zarada, Hively and Horton is important even in states such as Maryland. As the amicus brief the Attorney General of Maryland and 15 other state attorneys general filed in Horton explained:

[E]ven in States where sexual orientation discrimination is prohibited, Title VII plays a complementary role by making additional remedies and resources available to victims of discrimination. First, Title VII prohibits discrimination by employers that are not generally subject to state antidiscrimination laws, such as federal employers. See, e.g., Mathis v. Henderson, 243 F.3d 446, 450 (8th Cir. 2001). Second, a claim brought under Title VII triggers the jurisdiction of the U.S. Equal Employment Opportunity Commission (EEOC), providing additional resources and the opportunity to have parallel or coordinated investigations with state agencies. Finally, in private enforcement actions, Title VII provides victims of discrimination with remedies that may not be available under some States’ laws, such as the ability to recover punitive damages. [Note: In 2007, Maryland’s statute prohibiting sexual orientation discrimination was amended to allow for the recovery of punitive damages.]

The Fourth Circuit, whose decisions are binding in the United States District Court for the District of Maryland, held in 1996 that Title VII did not protect against discrimination based upon sexual orientation. See Wrightson v. Pizza Hut of America, Inc., 99 F.3d 138 (4th Cir. 1996). Whether the Fourth Circuit would revisit the issue and reject the holding of Wrightson is an open issue.

If you have questions about employment law, Astrachan Gunst Thomas, P.C. can help. Contact Mark Stichel at (410-783-3547) or Elizabeth Harlan at (410-783-3528).