TABLE OF CONTENTS

TABLE OF AUTHORITIES.................................................................................... iii

STATEMENT OF INTEREST................................................................................ 1

STATEMENT OF THE ISSUE............................................................................... 2

STATEMENT OF THE CASE................................................................................ 2

1. Nature of the Case and Course of Proceedings......................................... 2

2. Statement of Facts............................................................................................. 3

3. District Court Decision..................................................................................... 8

ARGUMENT................................................................................................................. 8

I. Sexual orientation discrimination is cognizable as sex discrimination

under Title VII.......................................................................................................... 9

A. Sexual orientation discrimination necessarily involves sex

stereotyping, which Title VII prohibits. .............................................. 10

B. By its definition, sexual orientation is discrimination “because

of . . . sex” and therefore violates Title VII....................................... 14

C. Sexual orientation discrimination constitutes associational

discrimination, which violates Title VII. .............................................. 16

D. This Court should reconsider Simonton and Dawson........................... 18

1. The legal landscape has shifted..................................................... 19

2. Congressional inaction does not provide support.................... 20

3. Simonton’s reliance on circuit precedent was misplaced............ 22

4. Simonton has proven unworkable and leads to absurd results. 23

TABLE OF CONTENTS (cont’d)

II. A jury could find that Magnusson was discriminated against for failing

to conform her appearance and behavior to a traditional feminine

stereotype, which constitutes discrimination because of sex.................. 24

CONCLUSION........................................................................................................... 28

STATEMENT OF RELATED CASE............................................................... C-1

CERTIFICATE OF COMPLIANCE................................................................. C-2

CERTIFICATE OF SERVICE............................................................................ C-3

TABLE OF AUTHORITIES

CASES Page(s)

Back v. Hastings on Hudson Union Free School District,

365 F.3d 107 (2d Cir. 2004)............................................................................. 11, 16, 26

Baldwin v. Foxx,

Appeal No.0120133080, 2015 WL 4397641 (EEOC July 15, 2015).......... passim

Bowers v. Hardwick,

478 U.S. 186 (1986).......................................................................................................... 19

Centola v. Potter,

183 F. Supp. 2d 403 (D. Mass. 2002).......................................................................... 28

City of Los Angeles, Department of Water & Power v. Manhart,

435 U.S. 702 (1978) .................................................................................................. 11, 15

Dawson v. Bumble & Bumble,

398 F.3d 211 (2d Cir. 2005).................................................................................. passim

DeCintio v. Westchester County Medical Center,

807 F.2d 304 (2d Cir. 1986)................................................................................... 22, 23

Diebold Foundation v. Commissioner of Internal Revenue,

736 F.3d 172 (2d Cir. 2013)............................................................................................. 19

Doe v. City of Belleville,

119 F.3d 563 (7th Cir. 1997),

vacated and remanded on other grounds, 523 U.S. 1001 (1998)...................................... 13

EEOC v. Boh Brothers Construction Co.,

731 F.3d 444 (5th Cir. 2013) (en banc)................................................................ 12, 24

Glenn v. Brumby,

663 F.3d 1312 (11th Cir. 2011)....................................................................................... 12

Hall v. BNSF Railway Co.,

2014 WL 4719007 (W.D. Wash. Sept. 22, 2014)....................................................... 15

TABLE OF AUTHORITIES (cont’d)

Heller v. Columbia Edgewater Country Club,

195 F. Supp. 2d 1212 (D. Or. 2002) ............................................................................ 13

Hively v. Ivy Tech. Cmty., - F.3d - 2016 WL 4039703 (7th Cir. July 28, 2016),

petition for rehearing en banc filed, No. 15-1720 (Aug. 25, 2016) ............... 13, 16, 20

Holcomb v. Iona College,

521 F.3d 130 (2d Cir. 2008)............................................................................. 16, 17, 18

Isaacs v. Felder Services,

2015 WL 6560655 (M.D. Ala. Oct. 29, 2015).................................................... 18, 19

Lawrence v. Texas,

539 U.S. 558 (2003)......................................................................................................... 19

McGinest v. GTE Serv. Corp., 360 F.3d 1103 (9th Cir. 2004).......................................... 17

Nichols v. Azteca Restaurant Enterprises,

256 F.3d 864 (9th Cir. 2001)......................................................................................... 12

Obergefell v. Hodges,

135 S. Ct. 2584 (2015)............................................................................................... 19, 24

Oncale v. Sundowner Offshore Services,

523 U.S. 75 (1998)............................................................................................................ 21

Price Waterhouse v. Hopkins,

490 U.S. 228 (1989)................................................................................................ passim

Prowel v. Wise Business Forms,

579 F.3d 285 (3d Cir. 2009)................................................................................... 24, 27

Simonton v. Runyon,

232 F.3d 33 (2d Cir. 2000).................................................................................... passim

Smith v. City of Salem,

378 F.3d 566 (6th Cir. 2004)......................................................................................... 12

TABLE OF AUTHORITIES (cont’d)

Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick & GMC Trucks,

173 F.3d 988 (6th Cir. 1999)........................................................................................... 17

United States v. Windsor,

133 S. Ct. 2675 (2013)....................................................................................................... 19

Videckis v. Pepperdine University,

150 F. Supp. 3d 1151 (C.D. Cal. 2015) .......................................................... 13, 15, 24

Whidbee v. Garzarelli Food Specialties, 223 F.3d 62 (2d Cir. 2000)................................... 17

STATUTES AND RULES

Defense of Marriage Act,

Pub. L. No. 104-199, 110 Stat. 2419 (Sept. 21, 1996)............................................. 19

Title VII of the Civil Rights Act of 1964,

42 U.S.C. §§ 2000e et seq.,...................................................................................... passim

42 U.S.C. § 2000e-2(a)(1)................................................................................................... 9

42 U.S.C. § 2000e-2(e)(1)............................................................................................... 17

42 U.S.C. § 2000e-5(m).................................................................................................. 28

Federal Rule of Appellate Procedure 29(a)................................................................. 1

OTHER

Jill D. Weinberg, Gender Non-Conformity: An Analysis of Perceived Sexual Orientation and Gender Identity Protection Under the Employment Non-Discrimination Act,

44 U.S.F.L. Rev. 1, 8 (2009)................................................................................................... 21

Kate B. Rhodes, Defending ENDA: The Ramifications of Omitting

the BFOQ Defense in the Employment Non-Discrimination Act,

19 Law & Sexuality 1 (2010).................................................................................................. 22

STATEMENT OF INTEREST

The Equal Employment Opportunity Commission (“EEOC” or “Commission”) is charged with interpreting and enforcing Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. This case raises two significant legal issues. The first is whether sexual orientation discrimination is cognizable under Title VII as sex discrimination. This Court has held that it is not. See Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000); Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005). This unduly restrictive interpretation of Title VII is contrary to the view of the Commission and an increasing number of courts, which recognize that sexual orientation discrimination necessarily involves illegal sex stereotyping, impermissible consideration of the plaintiff’s sex, and illegal gender-based associational discrimination, placing such discrimination squarely within the statute’s prohibition against discrimination on the basis of sex. Second, this case raises the alternate issue of whether a jury could find that the plaintiff was discriminated against because of her sex when she failed to conform her appearance and behavior to a traditional feminine stereotype. Because resolution of these issues will impact the ability of the Commission and private parties to vindicate their rights under Title VII, the Commission offers its views to the Court. Fed. R. App. P. 29(a).

STATEMENT OF THE ISSUE^{^[1]}

1. Whether this Court should use one of its en banc processes to reconsider its precedent in Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), and Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005), to hold that discrimination on the basis of sexual orientation is cognizable under Title VII, as such discrimination necessarily is based on illegal sex stereotyping, impermissible consideration of the plaintiff’s sex, and illegal gender-based associational discrimination.

2. Even if sexual orientation discrimination is not actionable under Title VII, whether a jury could find that the plaintiff was discriminated against for her failure to conform her appearance and behavior to a feminine stereotype of how women should look and act, which constitutes discrimination based on sex under Title VII.

STATEMENT OF THE CASE

1. Nature of the Case and Course of Proceedings

This is an employment discrimination case alleging sex discrimination under Title VII. The district court granted the defendants’ motion for summary judgment, and the plaintiff appealed.

2. Statement of Facts

Plaintiff Arline Magnusson is a fifty-six year old gay woman. SPA-2.[2] In 2000, she began working for Defendant County of Suffolk (“County”) as a custodial worker at the County Department of Public Works. SPA-2. She remains employed by the County as a “Custodial Worker III.” SPA-3. Magnusson did not inform her co-workers of her sexual orientation until 2014. SPA-3.

Magnusson describes herself as having had short hair during most of her employment. SPA-3. She always wears jeans, a T-shirt or white button-down shirt, and boots to work, and she carries her wallet in the back pocket of her jeans instead of in a purse. SPA-3-4. She never wears make-up to work and only rarely wears it outside of work. SPA-4. She wears only pants with a blazer to work-related events. SPA-4. Other female employees, including female custodians, wear their hair long, carry purses, and wear women’s sneakers or shoes to work. SPA-4; App-891, ¶ 25.

At various times, Magnusson worked under the direction of Kevin Spence and Robert Beck. SPA-2-3. Spence was the Assistant Director of Custodial and Security Services between 2001 and August 2010. SPA-3. He was then promoted to Director of Custodial and Security Services and held that position until his June 2012 retirement. SPA-3. Magnusson reported indirectly to Spence through her direct supervisors before 2008; she reported directly to him between 2008 though his 2010 promotion to Director. SPA-3. Beck worked as Custodial Worker III before becoming in 2010 the acting Assistant Director of Services and Public Safety. SPA-3. Since Spence’s June 2012 retirement, Beck has acted as Director of Custodial and Security Services. SPA-3. Magnusson reported directly to Beck from 2005 through 2008 and from 2010 to the present. SPA-3.

Throughout her employment, Beck treated Magnusson with less respect than he treated other employees. App-891, ¶ 26. He snapped his fingers at her, as if she were a dog; regularly raised his voice at her; and consistently gave her tougher assignments, like shoveling snow. App-891, ¶ 26. Magnusson believed Beck treated her differently because she did “not conform to his stereotype of women.” App-891, ¶ 26. As early as 2002 and as recently as November 2010, Beck and Spence would try to goad Magnusson into discussing her sexuality by falsely stating that she had sexual affairs with co-workers. App-894, ¶ 49.

Spence harassed Magnusson about her appearance. App-892, ¶ 34. In March 2003, Spence told Magnusson she “needed to lose weight to look more like a woman.” App-892, ¶ 34. He insisted she come to his office to be weighed and, when she refused, he repeatedly asked her at work about getting weighed and then called her at home about it. App-892, ¶ 34. On April 28, 2003, Magnusson was cleaning a building when Spence directed her to follow him to a conference room, which she did. App-892, ¶ 35. Spence said she “needed to lose weight to look the way a woman should,” and he said he would measure her to see “how big [she] was.” App-892, ¶ 36. Spence directed Magnusson to take off her shirt and pants and strip down to her underwear so he could photograph and measure her. App-892, ¶ 377. In a state of shock, Magnusson complied. App-892, ¶ 37. Spence order her to spread out her arms and turn around so he could take full-body pictures from the front and behind. App-892, ¶ 37; App-899 (photos). He slowly measured each body part, including her legs, thighs, breasts, waist, and hips; he also reached insider her bra and touched her breast while measuring her. App-892, ¶¶ 38-39. Spence dragged out the process by measuring each part separately before writing it down, making the process last between thirty and forty-five minutes. App-892, ¶ 40. Magnusson believed Spence did this to further humiliate her. App-893, ¶ 40. When Spence was done, he told Magnusson he would continue to measure her over the next four weeks. App-893, ¶ 41. Magnusson broke down crying and ran out of the building. App-893, ¶ 41. Magnusson is the only employee Spence “measure[d], touch[ed], or humiliate[d] . . . in this manner.” App-893, ¶ 42.

Magnusson told her uncle, also a County custodial worker, about the incident. App-893, ¶ 44. Her uncle complained to the Deputy Commissioner, who called Magnusson to his office along with Spence. App-893, ¶ 44. The Deputy Commissioner put the photos of Magnusson on the desk for all to see, yelled at Magnusson and told her not to discuss the incident with anyone, and said he would transfer her if she talked again about it. App-893, ¶ 44. At the end of the meeting, the Deputy Commissioner asked Magnusson if she would take her shirt off for him as well. App-893, ¶ 44.

Beck “made offensive comments speculating about [Magnusson’s] sexuality since at least 2005.” App-891, ¶ 28. For instance, in 2005 Beck told Magnusson that carrying a wallet in her back pocket was “gay” and that, as a woman, she should carry her money in a pocketbook. App-891, ¶ 28. In 2006 or 2007, Beck started asking Magnusson if she was “one of those gay people.” App-891, ¶ 29. Magnusson believed he asked this “because of the way [she] look[s], which does not conform to the appearance of a stereotypical heterosexual female.” Id. Beck asked this question in front of Magnusson’s co-workers, which humiliated Magnusson. Id.

In 2006, Beck told Magnusson in front of her colleagues that he had seen her emerge from a gay bar, and he asked “is that why you go to Fire Island because you are gay?” App-952. Around 2007, Beck also started asking whether Magnusson had a boyfriend, or a girlfriend. App-891, ¶ 30. When she refused to answer, he badgered her, saying he would “figure [her] out.” App-891, ¶ 30. In 2009, Beck, Magnusson and their co-workers were at a diner; Beck stated loudly that Magnusson should be in a “lovers booth” with her colleague Michael Crispino, which humiliated Magnusson. App-894, ¶ 50. According to Crispino, Beck’s comments about Magnusson’s appearance and sexuality frequently left her crying. App-952.

In February 2010, Beck again attempted to ascertain Magnusson’s sexuality when he asked her to go with him for a weekend in Atlantic City. SPA-5. Magnusson viewed this as another attempt to ascertain Magnusson’s sexuality. SPA-5. In her declaration, Magnusson said Beck made the request when he and Magnusson were alone and that it was a romantic advance; in her deposition, however, she denied that it was a romantic overture. According to Beck, he asked about a group trip to Atlantic City. SPA-5, 17. In any event, Magnusson refused, and the next day Beck and Spence transferred her from her current assignment, where she could earn overtime, to an assignment with almost no overtime opportunities. SPA-22.

In March 2011, Beck asked Magnusson whether her friendship ring was “a gay thing.” App-891, ¶ 31. The question humiliated Magnusson, as Beck posed it in front of her co-workers. Id. Shortly afterwards, another co-worker (Beck’s brother) began “repeatedly mock[ing] [her] ring as ‘gay.’” App-892, ¶ 32. Beck also condoned comments other employees made about Magnusson’s appearance in his presence, such as telling her she “dressed like a farmer.” App-892, ¶ 33.

In March 2012, Spence and Beck showed co-workers the 2003 photos that Spence had taken of Magnusson at the “weigh-in.” SPA-5-6. Beck and the co-workers denied having seen the photos. SPA-6. As a result of the way she was treated, including retaliation she endured after complaining of discrimination, Magnusson sees a physician and takes medication. App-897, ¶ 75.

Magnusson filed suit under Title VII alleging, inter alia, that the County “discriminated against [her] on the basis of her sex, including but not limited to gender identity and gender stereotyping, in violation of Title VII.” App-19, ¶ 44.

3. District Court’s Decision

The district court disaggregated Magnusson’s harassment allegations into two categories: sexual harassment, and sexual orientation harassment. SPA-13. According to the court, the sexual harassment included the April 2003 photo/body measurement incident and the May 2012 incident in which Spence and Beck showed the photos to Magnusson’s co-workers. SPA-14. The court acknowledged that a jury could reasonably find these incidents “severe and humiliating.” SPA-18. But, the court said, they were not actionable because they occurred nine years apart and did not unreasonably interfere with Magnusson’s job performance. SPA-18.

As to the harassment the court characterized as based on her sexual orientation, the court held that Magnusson could not recover because this Court has held that “sexual orientation discrimination is not actionable under Title VII[.]” SPA-17 (citing Dawson, 398 F.3d 211, and Simonton, 232 F.3d 33). Further, the court held, Magnusson could not “shoehorn what are truly claims of sexual orientation discrimination into Title VII by framing” her claim as based on gender stereotypes. Id. Therefore, the court held, summary judgment was appropriate. SPA-20.

ARGUMENT

Title VII prohibits employers from discriminating against individuals “because of such individual’s . . . sex.” 42 U.S.C. § 2000e2(a)(1). Here, the district court applied this Court’s precedent to conclude that discrimination Magnusson endured due to her sexual orientation was not “because of . . . sex.” As discussed below, the Commission urges this Court to reconsider that precedent, which is outdated and incorrect. But even if this Court affirms its precedent holding that sexual orientation discrimination is not actionable under Title VII, this Court should hold that Magnusson offered sufficient evidence for a jury to find that she was discriminated against based on her failure to conform her appearance and actions to the traditional feminine stereotype, which the Supreme Court and this Court have long held constitutes discrimination based on sex under Title VII.

I. Sexual orientation discrimination is cognizable as sex discrimination under Title VII.

This Court held in Simonton, and again in Dawson, that sexual orientation discrimination is not actionable under Title VII. See Simonton, 232 F.3d at 38; Dawson, 398 F.3d at 217-18. The Commission disagrees. Sexual orientation discrimination can be considered sex discrimination under Title VII under any of three theories: unlawful sex stereotyping, impermissible consideration of a plaintiff’s sex, and illegal gender-based associational discrimination. This Circuit’s contrary precedent is outdated and unworkable, as even this Court has acknowledged the difficulty in drawing a line between sexual orientation discrimination and gender stereotyping discrimination. This Court should therefore reconsider—en banc, if necessary—and overturn its precedent.

A. Sexual orientation discrimination necessarily involves sex stereotyping,

which Title VII prohibits.

The Supreme Court and this Court have long recognized that sex stereotyping violates Title VII’s prohibition against discrimination against employees “because of . . . sex.” See Price Waterhouse v. Hopkins, 490 U.S. 228, 240, 250 (1989). Sexual orientation discrimination necessarily involves sex stereotyping, and therefore constitutes discrimination “because of . . . sex,” because at its core such discrimination involves the adverse treatment of individuals because they do not conform to the traditional gender stereotype of opposite-sex attraction.

Price Waterhouse involved a woman perceived by her employer as insufficiently feminine. In denying her bid for partnership, several male partners commented that she was “macho” and “overcompensated for being a woman”; she would have a better chance of becoming a partner if she took “a course at charm school” or would “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” 490 U.S. at 235. The Supreme Court concluded that these comments indicated illegal sex discrimination.[3] Writing for the plurality, Justice Brennan explained that “[i]n 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.” Id. at 250. This conclusion followed from the Court’s earlier recognition that Congress passed Title VII “‘to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.’” Id. at 251 (quoting L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702, 707 n.13 (1978)).

This Court has consistently recognized and applied Price Waterhouse. Although this Court disallowed sexual orientation claims in Simonton, this Court acknowledged that Price Waterhouse implied that plaintiffs may base a Title VII claim on evidence that they faced discrimination because they failed to meet stereotypical expectations of masculinity or femininity. 232 F.3d at 38 (but stating that the plaintiff did not preserve the issue). Likewise, this Court reiterated in Dawson that sexual orientation discrimination is not actionable but again acknowledged that “sex stereotyping by an employer based on a person’s gender non-conforming behavior is impermissible discrimination.” Dawson, 398 F.3d at 218, 221 (finding no sex-stereotyping evidence was presented) (internal quotation marks, brackets, and citation omitted). Finally, in Back v. Hastings on Hudson Union Free School District, this Court applied Price Waterhouse to hold that a plaintiff may utilize a sex-stereotyping theory to prove sex discrimination under 42 U.S.C. § 1983 where the employer denies tenure to a woman with small children on the assumption that she will not be committed to her job. 365 F.3d 107, 120-22 (2d Cir. 2004).

Other circuits have also recognized that Title VII prohibits sex stereotyping. The en banc Fifth Circuit recently upheld a jury verdict for the Commission in a Title VII same-sex harassment case under a sex-stereotyping theory. EEOC v. Boh Bros. Constr. Co., 731 F.3d 444 (5th Cir. 2013) (en banc). The court concluded that the jury reasonably could have found that the victim, a heterosexual construction worker, was targeted because he “fell outside of [his supervisor’s] manly-man stereotype.” Id. at 459-60. Numerous other circuits likewise have held that employers violate Title VII’s ban on sex discrimination when they discriminate against employees for failing to conform to traditional gender-based stereotypes. See, e.g., Glenn v. Brumby, 663 F.3d 1312, 1318 (11th Cir. 2011) (holding that all individuals, including those who are transgender, “are protected from discrimination on the basis of gender stereotype”); Smith v. City of Salem, 378 F.3d 566, 574 (6th Cir. 2004) (stating that discriminating against men for wearing make-up or acting femininely constitutes sex discrimination

“because the discrimination would not occur but for the victim’s sex”); Nichols v. Azteca Rest. Enters., 256 F.3d 864, 874 (9th Cir. 2001) (reinstating gay waiter’s Title VII claim, reasoning that “[a]t its essence, the systematic abuse directed at [plaintiff] reflected a belief that [he] did not act as a man should act”); Doe v. City of Belleville, 119 F.3d 563, 580 (7th Cir. 1997) (“Title VII does not permit an employee to be treated adversely because his or her appearance or conduct does not conform to stereotypical gender roles.”), vacated and remanded on other grounds, 523 U.S. 1001 (1998).

There is no reason why the well-established sex-stereotyping theory—premised, as it is, on an individual’s failure to conform to traditional gender stereotypes of dress, conduct, or appearance—should not include sexual orientation discrimination. As courts have recognized, discrimination based on an individual’s sexual orientation is, at its core, discrimination based on that individual’s failure to conform to what is arguably society’s most central gender-based stereotype: the stereotype of opposite sex attraction. See Hively v. Ivy Tech. Cmty. Coll., _ F.3d _ , 2016 WL 4039703, at *5 (7th Cir. July 28, 2016) (“Discrimination against gay, lesbian, and bisexual employees comes about because their behavior is seen as failing to comply with the quintessential gender stereotype about what men and women ought to do . . . that men should have romantic and sexual relationships only with women, and women should have romantic and sexual relationships only with men. In this way, almost all discrimination” based on sexual orientation “can be traced back to some form of discrimination on the basis of gender nonconformity.”), pet. for rehearing and rehearing en banc filed, No. 15-1720 (Aug. 25, 2016)); Videckis v. Pepperdine Univ., 150 F. Supp. 3d 1151, 1160 (C.D. Cal. 2015) (“Stereotypes about lesbianism, and sexuality in general, stem from a person’s views about the proper roles of men and women—and the relationships between them.”); Heller v. Columbia Edgewater Country Club, 195 F. Supp. 2d 1212, 1224 (D. Or. 2002) (jury question existed as to whether supervisor harassed and ultimately fired plaintiff because she did not conform to his “stereotype of how a woman ought to behave,” as the plaintiff was “attracted to and dates other women, whereas [her harasser] believe[d] that a woman should be attracted to and date only men”).

B. Sexual orientation discrimination is, by definition, discrimination

“because of . . . sex” and therefore violates Title VII.

Title VII prohibits employers from considering sex when taking actions affecting employees’ terms or conditions of employment. Because discrimination based on sexual orientation necessarily involves consideration of an employee’s sex, it falls within the statutory ban on sex discrimination.

“In passing Title VII, Congress made the simple but momentous announcement that sex,” like other protected characteristics, is “not relevant” to the selection, evaluation, or compensation of employees, or to other terms or conditions of employment. Price Waterhouse, 490 U.S. at 239. That is, employers may not “take gender into account in making employment decisions.” Id. An employer that discriminates on the basis of sexual orientation, however, violates this simple principle because, by definition, the employer is taking account of the employee’s sex, in conjunction with the sex of those to whom the individual is sexually and/or emotionally attracted. See Baldwin, 2015 WL 4397641, at *5 (noting that “sexual orientation is inseparable from and inescapably linked to sex”). For example, if an employer fires a lesbian employee for displaying a photo of her female spouse at work but does not fire a male employee for doing the same, the employer has impermissibly taken the employee’s sex into consideration. Id.; see also Manhart, 435 U.S. at 711 (“Such a practice does not pass the simple test of whether the evidence shows treatment of a person in a manner which but for that person’s sex would be different.”) (internal quotation marks omitted).

Several courts have already taken this straightforward approach to sexual orientation discrimination cases, eschewing the distinction between discrimination based on sexual orientation and sex discrimination more generally. In Hall v. BNSF Railway Co., the court held that the male plaintiff, married to another man, successfully alleged sex discrimination under Title VII based on the denial of spousal health benefits available to similarly situated women married to men. 2014 WL 4719007, at *3 (W.D. Wash. Sept. 22, 2014). Likewise, in Videckis, where the plaintiffs were told “lesbianism” would not be tolerated, the court stated that if “Plaintiffs had been males dating females, instead of females dating females, they would not have been subjected to the alleged different treatment,” and the court therefore concluded that the plaintiffs “have stated a straightforward claim of sex discrimination.” Videckis, 150 F. Supp. 3d at 1161.

The consideration of sex exists even though employers discriminating on the basis of sexual orientation do not discriminate against all men or women, but only against those who are gay or lesbian. Title VII has never required an employer to discriminate against all employees in a protected class before recognizing an individual employee’s claim. See Back, 365 F.3d at 118 (need not be “all members of the disfavored class”).

C. Sexual orientation discrimination constitutes associational discrimination, which violates Title VII.

Sexual orientation discrimination treats individuals differently because of their personal associations. Just as it is race discrimination to discriminate against individuals based on the race of their associates, it should be considered sex discrimination to discriminate against individuals based on their associates’ sex. See Baldwin v. Foxx, 2015 WL 4397641, at *6 (EEOC July 15, 2015) (just as Title VII prohibits discrimination based on an employee’s association with an individual of another race, it prohibits discrimination based on an employee’s association with an individual of the same sex); see also Hively, 2016 WL 4039703, at *12 (pointing out the “inconsistency” in interpreting Title VII to prohibit race association claims but not sex association claims).

This Court has recognized that race association claims are cognizable under Title VII, stating that “an employer may violate Title VII if it takes adverse action against an employee because of the employee’s association with a person of another race.” Holcomb v. Iona Coll., 521 F.3d 130, 132 (2d Cir. 2008). “The reason is simple: where an employee is subjected to adverse action because an employer disapproves of interracial association, the employee suffers discrimination because of the employee’s own race.” Id. at 139. Applying that rule, this Court held in Holcomb that the white plaintiff had alleged discrimination based on his race where he was fired for marrying an African-American woman. Id.; see also McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1118 (9th Cir. 2004) (interracial friendships); Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick & GMC Trucks, 173 F.3d 988, 994-95 (6th Cir. 1999) (having a biracial child).

Aside from the availability of the narrow defense for bona fide occupational qualifications based on sex, but not race (42 U.S.C. §2000e-2(e)(1)) – not relevant here – Title VII “on its face treats each of the enumerated categories exactly the same.” Price Waterhouse, 490 U.S. at 243 n.9. Because the same standards apply to both race-based and sex-based discrimination claims, see Whidbee v. Garzarelli Food Specialties, 223 F.3d 62, 69 n.6 (2d Cir. 2000), associational claims based on sex, like those based on race, should be considered actionable. An employer may therefore violate Title VII if it takes adverse action against an employee because of the employee’s association with a person of the same sex.

Again, the reason is straightforward. The behavior of an employer that discriminates against a gay employee because it disapproves of same-sex dating is not materially different from the behavior of an employer that discriminates against an employee because it disapproves of interracial dating. In both cases, the employer bases its actions on the protected characteristic of its employee, viewed in relation to the individuals with whom that employee associates. Just as Holcomb was a victim of race discrimination, Holcomb, 521 F.3d at 139, Magnusson was a victim of sex discrimination to the extent she was targeted for mistreatment because she is attracted to, or dates, women. Accordingly, this Court should hold that an employee who is subjected to an adverse action because his employer disapproves of the sex of his or her associates suffers discrimination because of the employee’s own sex. See Isaacs v. Felder Servs., LLC, 143 F. Supp. 3d 1190, 1193 (M.D. Ala. 2015) (agreeing with the EEOC that sexual orientation is cognizable under Title VII and finding “[p]articularly compelling” the agency’s reliance on Eleventh Circuit precedent prohibiting race association discrimination).

D. This Court should reconsider Simonton and Dawson.

In Simonton, this Court held that Title VII does not prohibit discrimination based on sexual orientation. 232 F.3d at 35; see also Dawson, 398 F.3d at 218 (same). In reaching this conclusion, this Court suggested that it was effectively pre-determined by circuit precedent. See Simonton, 232 F.3d at 36 (relying on circuit precedent stating that Title VII does not protect disparate treatment based on “sexual affiliations”). Also, the Simonton court held, Congress had strongly signaled – through its repeated failure to amend the statute to prohibit discrimination based on sexual preference – that sexual orientation is not covered by Title VII. While Simonton was within the mainstream when it was decided sixteen years ago, it is now outdated. The broader legal landscape has changed dramatically, and, as discussed above, other courts and the EEOC now recognize that three legal theories support the conclusion that sexual orientation is cognizable under Title VII. This Court should therefore reconsider and overrule its circuit precedent, either in a formal en banc proceeding or through this Court’s “mini-en banc” process. See Diebold Found v. Comm’r, 736 F.3d 172, 183 n.7 (2d Cir. 2013) (acknowledging that a panel is bound by earlier panel decisions until they are overruled en banc or by the Supreme Court).

1. The legal landscape has shifted.

In the last sixteen years since Simonton was decided, there has been a sea change in the law. In Lawrence v. Texas, the Supreme Court overruled Bowers v. Hardwick, 478 U.S. 186, 192-93 (1986) – which predated Simonton – to hold that a state law criminalizing consensual homosexual conduct violates due process. 539 U.S. 558, 578 (2003). The Court also struck down the Defense of Marriage Act (“DOMA”), which had defined “marriage” and “spouse” under federal laws and regulations to exclude same-sex partners, United States v. Windsor, 133 S.Ct. 2675 (2013), and held that same-sex couples have the right to marry, Obergefell v. Hodges, 135 S.Ct. 2584 (2015).

As the legal landscape has changed, the EEOC’s interpretation of Title VII has evolved as well. In 2015, the Commission held in Baldwin, a federal sector case, that discrimination based on sexual orientation constitutes sex discrimination in violation of Title VII. 2015 WL 4397641. An increasing number of courts have agreed with the EEOC’s view, while others—including district courts in this Circuit—have openly questioned the validity of precedent disallowing sexual orientation claims under Title VII. See, e.g., Isaacs, 143 F. Supp. 3d at 1193 (agreeing with EEOC that sexual orientation is cognizable); Hively, 2016 WL 4039703, at *10 (discussing Baldwin and stating that “the district courts . . . are beginning to ask whether the sexual orientation-denying emperor of Title VII has no clothes[,]” but concluding it was bound by circuit precedent disallowing sexual orientation claims); Christiansen, 2016 WL 951581, at *15 (acknowledging Simonton but asking whether, “[i]n light of the EEOC’s recent decision on Title VII’s scope” and the difficulty in parsing out sexual orientation and gender stereotyping claims, whether the line between the two “should be erased”).

2. Congressional inaction does not provide support.

In Simonton this Court justified its holding that sexual orientation discrimination is not cognizable on the ground that “[w]hen interpreting a statute, the role of a court is limited to discerning and adhering to legislative meaning.” 232 F.3d at 35. Noting a dearth of legislative history as to the meaning of based on sex, this Court stated it was “informed by Congress’s rejection, on numerous occasions, of bills that would have

extended Title VII’s protection to people based on their sexual preferences.” Id. This reasoning does not withstand scrutiny.

Congress may not have intended in 1964 that the statute’s prohibition on sex discrimination would encompass sexual orientation discrimination, and it is true that Congress has not since amended the statute to expressly include sexual orientation. But the Supreme Court has repeatedly cautioned that analysis of a statute does not end with consideration of Congress’s initial intent, and it follows that analysis does not end with consideration of Congress’s subsequent intent. The Supreme Court has explained, “statutory prohibitions often go beyond the principal evil [they were passed to combat] to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Oncale v. Sundowner Offshore Oil Servs., Inc., 523 U.S. 75, 79 (1998). Thus, the Court has recognized that Title VII’s prohibition against discrimination in the terms and conditions of employment encompasses sexual harassment, see Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986), and that the term “because of . . . sex” can include same-sex harassment, see Oncale, 523 U.S. at 79-80, though it is unlikely that Congress considered either issue when it enacted Title VII.

In any event, Simonton itself recognized that “congressional inaction subsequent to the enactment of a statute is not always a helpful guide[.]” 232 F.3d at 35. Such is the case here. An early proposed bill to amend Title VII to include sexual orientation included other protections as well. See, e.g., Jill D. Weinberg, Gender Non-Conformity: An Analysis of Perceived Sexual Orientation and Gender Identity Protection Under the Employment Non-Discrimination Act, 44 U.S.F.L. Rev. 1, 8 (2009) (noting that proposed Equality Act of 1974 would have added sexual orientation and marital status to Title VII’s protections). It is therefore difficult to determine why the bill failed. Bills proposed in the mid-1990s, to which Simonton referred directly, would not have amended Title VII at all. Rather, they would have created a stand-alone statute, the Employment Non-Discrimination Act (ENDA). Id. at 9. In 1996, the Senate was one vote away from approving ENDA; the bill had been expected to pass, but one senator was unexpectedly unable to vote. Id. at 9 n.38. More recent versions of ENDA have lost support because they failed to prohibit transgender discrimination. See Kate B. Rhodes, Defending ENDA: The Ramifications of Omitting the BFOQ Defense in the Employment Non-Discrimination Act, 19 Law & Sexuality 1, 4 (2010) (noting, e.g., that an openly gay House member refused to support one version of ENDA in 2007 because it omitted coverage for transgender people). Congress’s failure to pass any particular bill – either to amend Title VII or to create a stand-alone bill to prohibit sexual orientation discrimination – therefore shows only that a majority of legislators could not agree on any single proposed bill.

3. Simonton’s reliance on circuit precedent was misplaced.

This Court stated in Simonton that it was “not writing on a clean slate” and that circuit precedent compelled the conclusion that sexual orientation discrimination is not cognizable. 232 F.3d at 36. But the slate was relatively clean. Simonton was referring to this Court’s statement in DeCintio v. Westchester County Medical Center, 807 F.2d 304, 306-07 (2d Cir. 1986), that “the other categories afforded protection under Title VII refer to a person’s status as a member of a particular race, color, religion, or nationality. ‘Sex,’ when read in this context, logically could only refer to membership in a class delineated by gender, rather than sexual activity regardless of gender. . . .The proscribed differentiation under Title VII, therefore, must be a distinction based on the person’s sex, not his or her sexual affiliations.” From this, Simonton concluded that “[b]ecause the term ‘sex’ in Title VII refers only to membership in a class delineated by gender, and not to sexual affiliation, Title VII does not proscribe discrimination because of sexual orientation.” 232 F.3d at 36.

DeCintio was not controlling in Simonton because it has nothing to do with sexual orientation. A “paramour preference” case, DeCintio rejected the notion that the phrase “discrimination on the basis of sex encompasses disparate treatment premised not on one’s gender, but rather on a romantic relationship between an employer and a person preferentially hired.” 807 F.2d at 306. When DeCintio used the phrase “a distinction based on . . . his or her sexual affiliations,” id. at 306-07, it meant favoritism based on romantic relationships. Simonton was incorrect, then, in holding that DeCintio was controlling as to the question of whether sexual orientation discrimination is cognizable.

4. Simonton has proven unworkable and leads to absurd results.

Simonton’s disallowance of sexual orientation claims, and its simultaneous acknowledgment that Title VII prohibits gender stereotyping, has led to an unworkable rule. Simply put, it is impossible to coherently parse out sexual orientation discrimination from gender stereotyping discrimination, as this Court has itself recognized. See Dawson, 398 F.3d at 218 (acknowledging that gender stereotyping claims brought by homosexual plaintiffs “can easily present problems for an adjudicator” because stereotypes “about how men and women should behave will often necessarily blur into ideas about heterosexuality and homosexuality”) (internal quotation marks and citation omitted); see also Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285, 291 (3d Cir. 2009) (line can be “difficult to draw”). As one court explained, the “distinction” between sex discrimination and sexual orientation discrimination is “illusory and artificial”; the line is difficult to draw because it “does not exist, save as a lingering and faulty judicial construct.” Videckis, 150 F. Supp. 3d at 1159. And it is this very insistence on drawing an artificial line between sexual orientation discrimination and gender stereotyping that “has been an invitation to the precise bootstrapping that the Simonton Court intended to avoid.” Christiansen, 2016 WL 951581, at *14.

Finally, this Court should reverse Simonton because disallowing sexual orientation claims leads to absurd results. Under this view of the statute, Title VII protects persons like the heterosexual employee in Boh Brothers, 731 F.3d at 459-60, from egregious same-sex harassment but does not protect a homosexual man from similarly egregious harassment, as in Simonton. 232 F.3d at 35 (noting that the plaintiff was subjected to vulgar, graphic comments and conduct). Likewise, Simonton’s holding means that effeminate gay males (or masculine lesbians) can recover under Title VII but manly gay males (and feminine lesbians) cannot, even if the underlying discrimination is motivated by sexual orientation animus. Even more absurd, as the law now stands in this Circuit, employees are free to marry their same-sex partners, as the Supreme Court so held in Obergefell, but they can, under Simonton, lawfully be fired for doing so.

II. A jury could find that Magnusson was discriminated against for

failing to conform her appearance and behavior to a traditional

feminine stereotype, which constitutes discrimination because of sex.

Even if sexual orientation discrimination is not actionable, summary judgment should be reversed as to the court’s holding that Magnusson was not discriminated against based on sex. The court concluded summarily that Magnusson could not “shoehorn” her sexual orientation discrimination claim into a claim based on gender stereotypes. SPA-17. The court erred, as Magnusson adduced more than sufficient evidence for a jury to conclude that the discrimination she endured was due to her failure to conform her appearance and conduct to a traditional feminine stereotype, which constitutes discrimination based on sex.

Although Simonton held that sexual orientation discrimination is not cognizable under Title VII, Simonton also acknowledged that Price Waterhouse implied that Title VII permits claims based on an employee’s failure to conform to gender stereotypes. Id. at 38. This Court further noted that a claim based on sex stereotypes “would not bootstrap protection for sexual orientation into Title VII because not all homosexual men are stereotypically feminine, and not all heterosexual men are stereotypically masculine.” Id. (emphasis added). Thus, this Court has specifically recognized that gay and lesbian employees are not per se precluded from bringing sex stereotyping claims. Notably, in Dawson this Court did not hold that gay and lesbian employees cannot bring gender stereotyping claims. To the contrary, this Court acknowledged that, under Price Waterhouse, such claims are cognizable when supported by evidence that the plaintiff’s “behavior” or “appearance” failed to conform to gender stereotypes. Id. at 221; see also Back, 365 F.3d at 122 (relying on Price Waterhouse to hold that “stereotypical remarks about the incompatibility of motherhood and employment” can provide evidence of gender discrimination). In Dawson, this Court held that the plaintiff, a lesbian, failed to offer evidence that she suffered any adverse actions due to her alleged failure to conform her appearance to feminine stereotypes, defeating her claim.[4] 398 F.3d at 222-23.

Unlike the plaintiff in Dawson, Magnusson adduced sufficient evidence of gender stereotyping to overcome summary judgment. See Price Waterhouse, 490 U.S. at 235, 250-52 (recognizing a claim based on sex stereotyping where the plaintiff was denied partnership and told she should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry”) (quotation marks and citation omitted). Specifically, Magnusson offered evidence that, unlike other female custodial workers, she had short hair, wore boots to work, did not wear make-up, and carried her wallet in her jeans pocket instead of in a purse. SPA3-4. She also offered evidence that Beck and Spence were preoccupied with her non-feminine appearance and that this motivated their conduct toward her.

For example, in March 2003, Spence told Magnusson “‘needed to lose weight to look more like a woman.’” SPA-4; App-967, ¶ 34. In April 2003, Spence insisted Magnusson strip down to be weighed and measured and told her she “needed to lose weight to look the way a woman should” before he measured each of her body parts, including her breasts and hips. App-967, ¶ 36; App-976. In 2005, Beck told Magnusson that carrying a wallet in her pocket was “gay” and that, as a woman, she should carry money in a pocketbook. App-966, ¶ 28. Beck condoned co-worker comments about Magnusson’s appearance, such as telling her she dressed “like a farmer.” App-967, ¶ 33. Magnusson believed that Beck treated her with less respect (including snapping his fingers at her as if she were a dog and raising his voice), and gave her tougher assignments because of her failure to conform to the stereotype of a typical woman. App-966, ¶ 26.

These allegations would allow a reasonable jury to find that the harassment was based on Magnusson’s failure to make her “appearance” and/or “behavior” conform to a stereotypically feminine look, making summary judgment inappropriate. Dawson, 398 F.3d at 221 (failure to conform to “appearance” or “behavior” stereotypes can support a claim of gender stereotyping). To be sure, the record also contains evidence that Beck and Spence targeted Magnusson because they suspected she is gay. But the possibility Magnusson was harassed because of her sexual orientation “does not vitiate the possibility that [Magnusson] was also harassed for her failure to conform to gender stereotypes.” Prowel, 579 F.3d at 292 (holding that because a jury could find that harassment was due to plaintiff’s sexual orientation or effeminacy, summary judgment was inappropriate); see also 42 U.S.C. § 2000e-2(m) (unlawful employment practice is established where sex “was a motivating factor . . . even though other factors also motivated the practice”).

Moreover, Magnusson did not disclose her sexual orientation to her coworkers until 2014. App-966, ¶ 27. It appears, based on this record, that the reason Spence and Beck suspected Magnusson is gay is because of her masculine appearance and behavior. That clearly constitutes prohibited gender stereotyping, making summary judgment inappropriate. See Centola v. Potter, 183 F. Supp. 2d 403, 410 (D. Mass. 2002) (noting that the plaintiff had never disclosed his sexual orientation at work and stating that if his “co-workers leapt to the conclusion that [he] ‘must’ be gay because they found him to be effeminate, Title VII’s protections should not disappear[,]” and denying summary judgment).

CONCLUSION

For the foregoing reasons, the Commission respectfully asks this Court to reconsider en banc its existing precedent and hold that Title VII’s ban on sex discrimination includes discrimination based on sexual orientation. Alternatively, the Commission asks this Court to find that Magnusson adduced sufficient evidence for a jury to find that she was discriminated against for being insufficiently feminine, which violates Title VII’s prohibition on sex discrimination.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

LORRAINE C. DAVIS

Assistant General Counsel

s/Anne Noel Occhialino

ANNE NOEL OCCHIALINO

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Fl.

Washington, D.C. 20507

(202) 663-4724 (phone)

(202) 663-7090 (fax)

Annenoel.Occhialino@eeoc.gov

[1] EEOC takes no position on any other issue raised in this appeal. We therefore limit our discussion of the record and opinion to these two issues.

[2] As does the plaintiff, we use “SPA-*” to refer to the plaintiff’s Special Appendix. “App-*” refers to the Joint Appendix.

[3] The four-Justice plurality, as well as Justices White and O’Connor, who concurred separately, all agreed with this conclusion. See Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 119 (2d Cir. 2004).

[4] In Dawson, this Court picked up the “bootstrap” language from Simonton to warn that “a gender stereotyping claim should not be used to ‘bootstrap protection for sexual orientation into Title VII.’” 398 F.3d at 218 (quoting Simonton, 232 F.3d at 38). In the Commission’s view, Dawson misconstrued Simonton’s “bootstrap” reference, which actually underscored that gay and lesbian plaintiffs can pursue gender stereotyping claims, as not all lesbians are masculine, and not all gay men are effeminate.