Wednesday, September 27, 2017

The Zarda Oral Argument: Politics, Bathrooms, and Hair Length

DOJ and the EEOC are play-fighting, how adorable!
On September 26, 2017, the Second Circuit heard oral argument in the en banc rehearing in Zarda v. Altitude Express, in which the full court is considering the question of whether Title VII of the Civil Rights Act of 1964 prohibits sexual orientation discrimination. The advocates (all six of them) were well prepared, and they addressed a number of issues that have not been raised previously. This post looks briefly at three of these issues: 1) the EEOC's and DOJ's conflicting interpretation of Title VII; 2) sex-segregated bathrooms; and 3) and sex-based grooming standards.

Politics:In this case, the EEOC and DOJ are on opposite sides of the fence when it comes to whether Title VII prohibits sexual orientation discrimination. Some members of the court pressed DOJ's representative, Mooppan Hashim, regarding how DOJ came to adopt its position, and Hashim respectfully begged off. To my mind, there is little doubt that the election of a Republican President was a key factor in DOJ's decision to reject the EEOC's position. On the other hand, the EEOC's decision to interpret Title VII as protecting sexual orientation discrimination was almost certainly no less political. At oral argument, the EEOC's representative, Jeremy Horowitz, could offer little explanation for why the EEOC took over 50 years before finally concluding that sexual orientation discrimination is covered by Title VII. Without question, the EEOC, like DOJ, was influenced by the political winds, and it was finally safe in 2015 for the EEOC to adopt an interpretation of Title VII that had been staring it in the face for decades.

None of this, however, is to fault the EEOC or DOJ. The question of whether Title VII covers sexual orientation discrimination is not an easy one, and there are reasonable arguments on both sides. In the absence of an obviously correct legal interpretation, political considerations are fair game.

Notably, DOJ has also taken the opposite position as the NLRB in a case currently before the Supreme Court involving agreements to resolve disputes through individual arbitration.

Bathrooms: In arguing that the EEOC's literal application of a but-for test is mistaken, Hashim and the court-appointed amicus Adam Mortara pointed to the example of bathrooms. The EEOC has contended that sexual orientation discrimination is sex discrimination because but for the victim's sex, he or she would not have been treated adversely. In particular, if a man who is sexually attracted to men is treated worse than a woman who is sexually attracted to men, then but for his sex, he would have been treated better. Hashim and Mortara note that sex-segregated bathrooms violate Title VII under the EEOC's but-for test, so if sex-segregated bathrooms are lawful, then the but-for test must be overinclusive, meaning that some actions that would not have been taken but for the victim's sex do not violate Title VII.

In response, Horowitz distinguished bathrooms as involving a trivial matter while sexual orientation involves a fundamental right, namely the right to marry and engage in intimate conduct with the person to whom you are sexually attracted. Here, I think Horowitz has confused two different issues: the kinds of employment actions covered by Title VII and the subset of a protected class that is protected against discrimination. As Horowitz noted, bathroom access may be relatively trivial, and therefore, discriminatory bathroom access may not be covered by Title VII since it might not constitute an adverse action. If so, then requiring gay men to use different bathrooms from heterosexual men would not violate Title VII, regardless of whether sexual orientation discrimination implicates a fundamental right. Moreover, contrary to what the EEOC has contended in the past, it would not violate Title VII to require a transgender woman to use the men's room.

If single-sex bathrooms are lawful, then what gives? The answer, I think, is that men and women are not similarly situated with respect to bathroom access. Mainstream American society continues to believe that bathroom usage implicates privacy concerns that require sex-segregated bathrooms. Thus, barring women from using the men's room does not discriminate against men because men and women have different genitals. Similarly, in Bauer v. Lynch -- although I disagree with the decision -- the court concluded that treating men and women differently with respect to the number of push-ups required to pass a physical fitness test did not discriminate based on sex because men and women are not similarly situated with respect to upper body strength. By contrast, when it comes to a typical employment decision, like hiring or promotion, there is nothing that distinguishes men from women in general or that distinguishes gay men from heterosexual women or lesbians from heterosexual men that would justify treating them differently.

Grooming requirements: As noted by some members of the court, there is case law allowing employers to adopt sex-based grooming standards, such as allowing women, but not men, to have long hair. This is where the issue of fundamental rights is relevant. In a line of cases sometimes referred to as "sex plus," courts have held that it is unlawful to discriminate against someone based on sex plus another characteristic. For example, in Phillips v. Martin Marietta, 400 U.S. 542 (1971), the Supreme Court held that Title VII prohibits an employer from treating men with preschool-age children better than women with preschool-age children. If an employer adopts sex-based grooming standards, then it is engaging in a form of sex-plus discrimination because it is treating an individual adversely not merely, for instance, because he is a man but because he is a man with long hair. In upholding such a requirement, some courts have reasoned that sex-plus discrimination only covers discrimination based on sex in combination with a fundamental right, such as childrearing. In my view, the sex-plus cases are flawed. If an employer fires a woman who engages in misconduct but not a man who engages in similar misconduct, we don't ask whether engaging in misconduct is a fundamental right, so it makes no sense to ask that question when sex is combined with a factor like hair length.

As Horowitz pointed out, sexual intimacy has been recognized as a fundamental right by the Supreme Court, so sexual orientation discrimination is distinguishable from the cases addressing sex-based grooming standards. The same may not be true of discrimination based on transgender status, however. Some courts, along with the EEOC, have concluded that discrimination based on transgender status constitutes sex discrimination because it is grounded in sex stereotypes. But if dressing a certain way is not a fundamental right, then under the sex-plus theory, treating a man who dresses femininely differently from a woman who dresses femininely would not be unlawful.

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.