Title VII and Sexual Orientation Discrimination: What would Justice Scalia have said?

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On January 20, 2017, as Donald Trump was being sworn in as President, a three-judge panel of the U.S. Court of Appeals for the Second Circuit heard oral arguments regarding whether Title VII of the Civil Rights Act of 1964 prohibits sexual orientation discrimination. The case is Christiansen v. Omnicom Group, No. 16-748-cv, in which Matthew Christiansen, a marketing firm employee, has alleged that he was harassed for being gay. As discussed below, one of the arguments raised for covering sexual orientation under Title VII blatantly misappropriates the words of the late Justice Antonin Scalia and has him rolling over in his grave.

In order for Christiansen to prevail on his sexual orientation claim, the panel must overturn Simonton v. Runyon, which concluded that Title VII does not cover sexual orientation discrimination. Interestingly, one of the members of the Christiansen panel, Judge Robert Katzmann, was also on the Simonton panel that rejected a Title VII sexual orientation claim.

During the Christiansen oral argument, Judge Katzmann highlighted Justice Scalia's opinion for a unanimous Supreme Court in Oncale v. Sundowner Offshore Services, holding that Title VII prohibits sex discrimination between members of the same sex. In that opinion, Justice Scalia wrote:

[S]tatutory prohibitions often go beyond the principal evil 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.

Relying on the first part of this quote -- Justice Scalia's observation that "statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils" -- Judge Katzmann pressed counsel for one of the defendants to state whether he believed sexual orientation discrimination is a "comparable evil." The attorney, however, refused to take the bait. Although conceding that sexual orientation discrimination may be an evil, he would not concede that it is a "comparable evil."

But frankly, I don't see why it's the least bit relevant whether sexual orientation discrimination is comparable to forms of discrimination clearly covered by Title VII. Discrimination based on parental status, marital status, political affiliation, and physical appearance may all be as morally reprehensible as sexual orientation discrimination, but nobody is arguing that any of the former are covered by Title VII. Whether sexual orientation is a comparable evil is nothing more than a red herring.

And for gay and lesbian employees, that is a good thing. Ask yourself whether you think Justice Scalia would have likely regarded sexual orientation discrimination as a comparable evil. In Lawrence v. Texas, Justice Scalia dissented from the Court's holding that the criminalization of gay and lesbian sexual conduct violates the Constitution, and he endorsed the right of Americans to discriminate against gay men and lesbians in order to "protect[] themselves and their families from a lifestyle that they believe to be immoral and destructive." So if the question is what should be illegal, then Justice Scalia wouldn't be my go-to guy to support an interpretation of Title VII that prohibits sexual orientation discrimination.

Fortunately, however, that is not the question. As Justice Scalia and the rest of the Supreme Court recognized in Oncale, "[I]t is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed." In prohibiting sex discrimination, Congress was undoubtedly primarily concerned about men discriminating against women, but Congress did not draft the statutory prohibition to focus with laserlike precision on that particular issue. Rather, it drafted the prohibition more broadly to encompass all forms of sex discrimination.

As Judge Katzmann noted during oral argument, if it is race discrimination to conclude, as all courts have, to treat a white man married to a black woman worse than a black man married to a black woman, then, by analogy, it is sex discrimination to treat a man married to a man worse than a woman married to man. It is irrelevant whether the enactment of Title VII was motivated by concerns about protecting either interracial or same-sex relationships.

If Judge Katzmann changes his mind about whether Title VII covers sexual orientation discrimination, he would do well to eschew the issue of whether sexual orientation discrimination is a comparable evil and stick with the statutory text. That would surely have Justice Scalia smiling down on him.



(For more about the Christiansen case, please see my previous posts here and here.)



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.