A few days ago, a fellow student wrote an opinion column in the Technician condemning the 2nd Circuit’s decision in Zarda v. Altitude Express. Within his column, this student painted the judges as radical activists who recklessly added a protected class to Title VII that, in his view, simply wasn’t there. Within this short response, I hope to demonstrate not only that the 2nd Circuit, sitting en banc, was correct in its decision, but also that discriminating against an individual due to their sexual orientation is inherently discrimination on the basis of sex under Title VII.
There are three main legal arguments for this viewpoint. First, the “but for” theory. Let’s say person “A,” a man, is dating person “B,” a woman, and there’s no discrimination at hand. If we change one variable, the sex of person “A,” and discrimination begins, we can fairly assume that the discrimination took place based on this variable. So, “but for” the person’s sex, the discrimination would not have occurred.
Second, associational discrimination theory. Think about nondiscrimination law on the basis of interracial marriage. The same basic concept applies here. Consider “A,” a man, is in a relationship with “B,” a woman. Switch one variable: the sex of person “B.” All of a sudden, following this variable change, let’s say discrimination begins against person “A.” If it were not for the sex of the person that “A” is in a relationship with, the discrimination would not have happened.
Third, sex stereotyping. This theory is based off of the Supreme Court’s ruling in Price Waterhouse v. Hopkins (1989). Employers cannot discriminate against employees based on sex stereotypes, or the way we, as a society, expect men and women to act. Our society expects men to date women and vice versa. An individual breaking this trend is breaking a societal stereotype.
Discriminating against someone for dating someone of a sex society doesn’t expect them to date, such as a woman dating a woman, is discrimination due to sex stereotyping, and therefore included under sex discrimination.
Further, speaking to the point made on original meaning, the Supreme Court has, in the past, viewed certain actions as violations of Title VII, even if the original writers of the bill wouldn’t have viewed said actions as violations. This is a natural evolution of what is considered sex discrimination.
Some examples of this include sexual harassment, which was first affirmed as sex discrimination in the 1986 Supreme Court decision in Meritor Savings Bank v. Vinson, same-sex sexual harassment, which was first affirmed as sex discrimination in the 1998 Supreme Court decision in Oncale v. Sundowner Offshore Services, Inc., and sex stereotyping, which was first affirmed as sex discrimination in the 1989 Supreme Court decision in Price Waterhouse v. Hopkins.
Note that Title VII is a section of the Civil Rights Act of 1964, passed decades before some of these affirmations. Are we to believe that sexual harassment and sex stereotyping are acts of judicial activism that shouldn’t be considered sex discrimination? This evolution isn’t judicial overreach, but rather development as we as a society gain a greater understanding of what constitutes sex discrimination. The inclusion of sexual orientation is just the next step in that development.
Above, I’ve explained three clear reasons why discriminating against someone due to their sexual orientation constitutes sex discrimination under Title VII. I’ve also explained how what constitutes sex discrimination under Title VII is constantly developing, and rightly so, over time. I hope, if Zarda v. Altitude Express ends up at the Supreme Court, that the court will stand with LGB Americans* and fight for the Zarda estate against his former employer.
*I say LGB because this case applies specifically to Sexual Orientation. Transgender individuals are also arguably protected under Title VII by a similar set of arguments.
David Hallen is a fifth-year studying business administration, and is the former president of the GLBT Community Alliance at NC State.
