Monday, February 26, 2018

Zarda v. Altitude Express: Hooray, sexual orientation discrimination is sex discrimination; but wait, did the court just open the door to racially segregated bathrooms?

So the Second Circuit, joining the Seventh, has held in Zarda v. Altitude Express (Feb. 26, 2018) that Title VII of the Civil Rights Act of 1964 prohibits sexual orientation discrimination. As usual, I'm going to rain on everyone's parade. Here, for the first time, a court has been forced to reconcile Title VII coverage of sexual orientation discrimination with case law allowing sex-based grooming standards and sex-segregated bathrooms. Unfortunately, the Second Circuit's attempt to bring harmony to these competing lines of cases is a miserable failure.

Most problematic is the main opinion by Judge Robert Katzmann, which was joined in full by four other judges. The upshot of that opinion is that sexual orientation discrimination is a form of sex discrimination. But that doesn't mean that sex-segregated bathrooms are unlawful. And here's the kicker, that also doesn't mean that race-segregated bathrooms are unlawful.

This is the relevant discussion:
The government further counters that the comparative test produces false positives in instances where it is permissible to impose different terms of employment on men and women because "the sexes are not similarly situated."  For example, the government posits that courts have rejected the comparative test when assessing employer policies regarding sex-segregated bathrooms and different grooming standards for men and women. Similarly, the lead dissent insists that our holding would preclude such policies if "t]aken to its logical conclusion."  Both criticisms are misplaced.
A plaintiff alleging disparate treatment based on sex in violation of Title VII must show two things: (1) that he was "discriminate[d] against . . . with respect to his compensation, terms, conditions, or privileges of employment," and (2) that the employer discriminated "because of . . . sex." The comparative test addresses the second prong of that test; it reveals whether an employment practice is "because of . . . sex" by asking whether the trait at issue (life expectancy, sexual orientation, etc.) is a function of sex. In contrast, courts that have addressed challenges to the sex-specific employment practices identified by the government have readily acknowledged that the policies are based on sex and instead focused their analysis on the first prong: whether the policies impose "disadvantageous terms or conditions of employment." . . .  Whether sex-specific bathroom and grooming policies impose disadvantageous terms or conditions is a separate question from this Court's inquiry into whether sexual orientation discrimination is "because of . . . sex," and has no bearing on the efficacy of the comparative test.
Now, let's consider the implications. This analysis does not undermine the permissibility of sex-based grooming policies and sex-segregated bathrooms since even if those practices can be considered sex-based under Title VII, there is the separate issue of whether those practices impose disadvantageous terms or conditions of employment. Consequently, if sex-segregated bathrooms do not result in disadvantageous terms or conditions of employment, then requiring a transgender woman to use the men's bathroom would presumably not violate Title VII, regardless of whether Title VII prohibits gender identity discrimination. And if sex-segregated grooming policies do not result in disadvantageous terms of employment, then it would be perfectly fine under Title VII I would think to require a transgender woman to dress in traditionally male attire. 

Likewise for potentially race-based policies. In the recent case of EEOC v. Catastrophe Management, 852 F.3d 1018 (11th Cir. 2016), the Commission argued that the refusal to hire an African American job applicant because she refused to cut off her dreadlocks constituted race discrimination. The Eleventh Circuit disagreed that such a policy is facially race-based, but now the Commission may also face another obstacle to such a suit, namely that a race-based hairstyle policy may be permissible under Title VII because it does not result in disadvantageous terms or conditions of employment. 

And starkly, as Judge Gerald Lynch observed in his dissent in Zarda, "Obviously, Title VII does not permit an employer to maintain racially segregated bathrooms, nor would it allow different-colored or different-designed bathing costumes for white and black lifeguards." Yet, under Judge Katzmann's analysis, this is not obvious at all. Racially segregated bathrooms would seem to be just hunky dory unless they were shown to result in worse terms or conditions for members of one race than for members of another race. In other words, "separate but equal" racially segregated facilities -- just like sex-segregated bathrooms -- do not necessarily violate Title VII.

Now, I certainly don't believe that, and I presume Judge Katzmann doesn't believe it either. Still, that's where his legal analysis leads. Notably, only four of the nine other judges who ruled for Zarda joined the portion of Katzmann's decision I've been discussing, but silence is hardly good enough. When you consider that Judge Lynch specifically raised the issue of race-based practices, the majority's failure to address the potentially disastrous implications of Katzmann's analysis is unconscionable.

I believe the right answer, as I discussed in a prior post, lies in whether members of different sexes or different races are similarly situated:
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. . . . 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.
Racially segregated bathrooms, by contrast, would not be lawful because there are no privacy considerations that would justify them. 

In EEOC v. Harris Funeral Homes, the Sixth Circuit is also grappling with the tension between recognizing coverage of LGBT discrimination under Title VII and longstanding precedent upholding sex-specific grooming policies. Let's hope that it does a better job than the Second Circuit.

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.