Amicus Curiae Brief — Gerald Lynn Bostock, Petitioner v. Clayton County, Georgia

Supreme Court briefAug 23, 2019

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No. 17-1623

IN THE

3Jn tbe ~upreme Qtourt of tbe ffiniteb ~tateg

Altitude Express, Inc., et al.,

Petitioners,

Melissa Zarda, et al.,

Respondents.

On Writ of Certiorari to the United States Court of

Appeals for the Second Circuit

BRIEF OF AMICUS CURIAE

PROFESSOR W. BURLETTE CARTER IN

SUPPORT OF PETITIONERS

W. (Willieta) Burlette Carter

Counsel ofRecord

Professor Emerita of Law

The George Washington

University Law School

2000 H Street, NW

Washington, DC 20052

(202) 994-5155

bcarter@law.gwu.edu

QUESTION PRESENTED

Whether the prohibition in Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e-2(a) (1), against

employment discrimination "because of . . . sex"

encompasses discrimination based on an individual's

sexual orientation

TABLE OF CONTENTS

Table of Authorities .................................................... v

The Interests of Amicus Curiae .................................. I

Summary of the Argument ........................................ .4

Argument ..................................................................... 7

Under the "Plain Language" of the Statute,

Male-bodied and Female-bodied is the Proper

Framework from which to Center the

Analysis of Title VII ........................................... 7

II.

Congress Clearly Understood Title VII as Not

Covering Sexual Orientation or Gender

Identity ............................................................... 9

III. The Price Waterhouse Plurality Opinion Does

Not Support the EEOC's Interpretation or

the View that Stereotyping Theory is Distinct

from Title VII; Manhart and Prior Cases

Affirm the Strong Value of Stereotyping

Evidence, Irrespective of Intent ...................... 16

IV. This Court Rejected the Opportunity to Adopt

the Extended Price Waterhouse Theory in

Oncale ............................................................... 20

Errors in the EEOC's Approach Demonstrate

and the Wisdom of Oncale ............................... 22

Bundling Disparate Claims Together

Making them Impenetrable to ClaimSpecific Review and Using the Mixed-

111

Motive Test and Stereotyping Claims to

Eliminate Legitimate Motives ................... 22

Ignoring Conflicts of Interest Between

Stakeholders and Subjugating Claims

That were Congress' Principal Concern to

Claims that are Derivative ........................ 23

Creating New Rights ................................. 28

D. Ignoring the Need for Mutuality ............... 30

Attempting to Use Title VII To Answer

Constitutional Questions ........................... 31

F. Replacing One Set of Social Norms With

Another ....................................................... 32

VI. Oncale Provides the Proper Standard for

Derivative Claims ............................................ 32

Under Oncale and Title VII, the Court

Must Ask Whether Each Claim Concerns

"Evil"

that

"Reasonably

Comparable" to the "Principle Evil

Congress was Concerned With." ................ 32

Under Oncale and Title VII, Courts Must

Inquire into the Motives for the Actions ... 33

Under Oncale and Title VII, Courts Must

Consider Whether Recognizing the

Derivative Claim Would Be Inconsistent

With Title VII Goals; If So, the Claim

Should Be Denied or the McDonald

Douglas Burdens Test Should Apply ........ 34

D. The Verdict in Altitude Express Should

Stand .......................................................... 35

Conclusion ................................................................ 37

TABLE OF AUTHORITIES

CASES

Bomba v. Borowicz, 265 A.D. 198 (1942) ......... 35

Bradwell v. Illinois, 83 U.S. 130 (1873) ............. 8

City of Cleburne v. Cleburne Living Ctr, 4 73

U.S. 432 (1985) .................................................. 24

EEOCv. CatastropheMgt. Sol's, 11 F. Supp.

3d 1139 (2014), aff'd, 837. F.3d 1176 (11th

Cir. 2016), opinion withdrawn, and

substitute inserted, 852 F.3d 1018 (11 th Cir.

2016), reh'g en bane denied, 876 F.3d 1273

(11 th Cir. 2017), motion to intervene to file

cert. petition denied, 138 S. Ct. 2015 (2018) ...... 3

Hively v. Ivy Tech Comm. College ofInd., 853

F.3d 339 (7 th Cir. 2017) ..................................... 28

Holcomb v. Iona College, 521 F.3d 130 (2d

Cir. 2008) ........................................................... 28

Lawrence v. Texas, 539 U.S. 558 (2003) .......... 28

Mayorga v. Merdon 928 F.3d 84 (D.C. Cir.

2019) .................................................................. 35

McDonald Douglas v. Green, 411 U.S. 792

(1973) ................................................................... 6

10. McDonald v. Santa Fe Trail Transp. Co, 427

U.S. 273 (1976) .................................................. 30

11. Obergefell v. Hodges, 135 S. Ct. 2584 (2015). 14,

12. Pidgeon v. Turner, 538 S.W.3d 73 (2017),

cert. denied, 138 S. Ct. 505 (2017) ................... 31

13. Shelly v. Kramer, 334 U .S. 1 (1948) ................. 26

14. Sprogis v. United Air Lines, Inc., 444 F. 2d

1194, 1198 (7th Cir. 1971), cert. denied, 404

U.S. 991 (1971) .................................................. 19

STATUTES/COURT RULES

15. 42 U.S.C. § 2000e-2(a) ......................................... 7

16. 42 U.S.C. § 2000e-2(e)(l) ........................ 5, 15, 34

17. 42 U.S.C. § 2000e-5(g)(2)(B) ......................... 7, 37

18. An Act to Secure All Persons Freedom in the

Selection of an Occupation, Profession or

Employment, Mar. 22, 1872, 27th Gen.

Assembly, Reg., Special Sess. and 1st & 2nd

Adjourned Sess., in Public Laws Passed By

the State ofIllinois (1872) .................................. 8

19. Equal Pay Act of 1963, 29 U.S.C. 206(d) ............ 7

20. Fed. R. Civ. Proc. 20 .......................................... 28

21. Fed. R. Civ. Proc. 23 .......................................... 27

Vll

22. Pregnancy Discrimination Act of 1978, 42

U.S.C. 2000e(k) ................................................... 7

23. Sup. Ct. R. 21 (approved June 4 1980) in

Rules of the Supreme Court of the United

States,

https://www.supremecourt.gov/pdfs/rules/rule

s_1980r.pdf ........................................................ 17

CONSTITUTIONAL PROVISIONS

24. U.S. Const. am. XIX ............................................ 8

EEOC DECISIONS/MATERIALS

25. Baldwin v. Foxx, EEOC No.

0120133080, 2015 EEOPUB LEXIS 1905

(E.E.O.C July 16, 2015) .................................... 20

CONGRESSIONAL BILLS

26. H. R. 1490, 102nd Cong. (1991), Congress.gov.

https://www .congress.gov/bill/102ndcongress/housebill/1430/text?q=¾ 7B%22search %22%3A%5B

%22H.

R. + 1430+and+ 102nd+and+weiss%22%5D% 7

D&r=l&s=l ....................................................... 11

27. H. R. 1755, 113th Cong. (2013),

Congress.gov,

https://www.Congress.gov/113/bills/hrl 755/BI

LLS-113hrl 755ih.pdf.. ...................................... 15

Vlll

28. H . R. 2981, 111th Cong.(2009), Congress.gov,

https://www.Congress.gov/bill/111 thcongress/house-bill/2981/text ............................ 15

29. H . R. 3017, 111th Cong. (2009),

Congress.gov,

https://www.Congress.gov./bill/lllthcongress/house-bill/3017 ................................... 15

30. H. R. 3017, 111th Cong. (2009),

Congress.gov,

https://www.Congress.gov/bill/111 thcongress/house-bill/3017 ................................... 15

31. S. 1584, 111th Cong., (2009), Congress.gov,

https://www.Congress.gov/bill/111 thcongress/senate-bill/1584 .................................. 15

32. S. 1745, 102 nd Cong. (1991), Congress.gov,

https://www .congress.gov/bill/102ndcongress/senate-bill/1745 .................................. 12

33. S. 574, 102 nd Cong. (1991), Congress.gov,

https://www .congress.gov/bill/102ndcongress/ senatebill/ 5 74?q=% 7B%22search%22%3A%5B%22S

574+cranston%22%5D%7D&r=l ...................... 11

34. S. 811, 112th Cong. (2011) Congress.gov,

https://www.Congress.gov/bill/112thcongress/senate-bill/811/text ............................ 15

35. S. 815, 113th Cong. (2013), Congress.gov,

https://www.congress.gov/bill/113thcongress/senate-bill/815 .................................... 15

CONGRESSIONAL DEBATES/REPORTS/HEARINGS

36. 110 Cong. Rec. 2583 (1964) (Remarks of Rep.

Kelly) ................................................................... 7

37. 110 Cong. Rec.. H2579, H2580 (1979)

(Remarks of Rep. Griffiths) ................................ 7

38. 110 Cong. Rec.. H2575 (1964) (Remarks of

Rep. Poff) ............................................................. 7

39. Charles V. Dale, et al. (CRS), Sexual

Orientation Discrimination in Employment:

Legal Analysis of Title VII ofS. 16, the

Employment Nondiscrimination Act of2003,

April 15, 2003 .................................................... 13

40. Hearing Before the Subcommittee on

Employment Opportunities of the Committee

on Education and Labor H.R., 9(Jth Cong., 2d

Bess., H.R. 2074 (1980) ..................................... 15

41. Hearings Before the Subcommittee on Civil

and Constitutional Rights of the Committee

on the Judiciary, House ofRepresentatives,

102nd Cong. (Feb. 7, 28, & Mar. 7, 1991) ........ 12

42. Jody Feder & Cynthia Brougher (CRS),

Sexual Orientation and Gender Identity

Discrimination in Employment: A Legal

Analysis of the Employment

NonDiscrimination Act, July 15, 2013 ............. 14

43. Jody Feder & Cynthia Brougher, Sexual

Orientation and Gender Identity

Discrimination in Employment: A Legal

Analysis of the Employment

NonDiscrimination Act, June 8, 2012 .............. 14

44. Jody Feder (CRS), Sexual Orientation and

Gender Identity Discrimination in

Employment: A Legal Analysis of the

Employment NonDiscrimination Act, Jan. 6,

2011 ................................................................... 13

45. S. Rep. No. 107-341 (2002) ................................ 15

46. S. Rep. No. 113-105 (2013) ................................ 15

47. The Employment Nondiscrimination Act of

1994: Hearingofthe Committee on Labor

and Human Resources, U.S. Senate, 103rd

Congress, 2d Bess., on S. 2238 to Prohibit

Employment Discrimination On the Basis of

Sexual Orientation, July 29, 1994 .................... 13

48. To Prohibit Discrimination in Employment

Because ofRace, Creed, Color, National

Origin or Ancestry, Hearings on H. R. 2232

Before the Comm. on Rules, H. R., 79th Cong.,

1st Sess. (1945) ..................................................... 7

BRIEFS/COURT RECORDS

49. Aff. of Gary M. Segura, accompanying Mot.

For Summ. Jud., Gill v. Office ofPers.

Mgmt., 699 F. Supp. 2d 37 4, 397 (D. Mass.

2010) (No. 09-10309-JLT) (executed Nov. 17,

2009) .................................................................. 24

50. Br. of Amici Curiae Corpus-Linguistics

Scholars Professors Brian Slocum, Stefan Th.

Gries, and Lawrence Solan ... , Altitude

Express v. Zarda, 139 S. Ct. 1599 (2019) (No.

17-1618) ............................................................... 9

51. Br. of Amicus Curiae Professor W. Burlette

Carter, R.G. & G.R. Harris Funeral Homes v.

EEOC, 139 S. Ct. 2049 (2019) (No. 18-107) ..... 14

52. Br. of Respondents Melissa Zarda, et al.,

Altitude Express v. Zarda, 139 S. Ct. 1599

(2019 .................................................................. 28

53. Pet. Reply Br., Price Waterhouse v. Hopkins,

490 U.S. 228 (1988), U.S. S.Ct. Briefs LEXIS,

1250 ................................................................... 19

54. Plt'fs Second Am. Complt., Zarda v. Altitude

Express, 883 F.3d 100 (2018) (No. 15-3775) .... 28

55. Respondent's Br., Price Waterhouse v.

Hopkins, 490 U.S. 228, 1988 U.S. S. Ct.

Briefs LEXIS 1253 ............................................ 16

56. Transcript, No. 87-1167, Price Waterhouse,

490 U.S. at 228,

https://www.supremecourt.gov/pdfs/transcrip

ts/1988/87-1167_10-31-1988.pdf.. ............... 18, 20

BOOKS/SCHOLARLY ARTICLES

57. 2 Restatement, Law ofAgency, § 505 (Am.

Law Inst. 1933) ................................................. 46

Xll

58. W. Burlette Carter, Sexism in the Bathroom

Debates: How Bathrooms Really Became

Separated By Sex. 37 Y.J. L. Pub. Pol'y 227

(2018) ................................................................. 34

59. William Blackstone, Commentaries ................. 46

OTHER AUTHORITIES

60. E. W. Kenworthy, Senators Receive Rights

Revisions, Amendments Said to Retain Key

Parts ofHouse Bill, N.Y. Times, May 19,

1964 ................................................................... 10

61. John M. Goshko, House Group Continues

Homosexuality Hearing, Wash. Post, Aug.

10, 1963; 109 Cong. Rec.. (July 8, 1963) ........... 10

62. Letter from Stephanie D. Garner, (EEOC

Office of Legal Counsel) to W. B. Carter,

Professor Emerita, Geo. Wash. U. L. Sch.),

April 11, 2019 ...................................................... 3

63. Lynching TriaJ.· Accused Freed, Sequel to

Death ofNegro on Lonely Hillside, The

Lancashire Daily Post, May 22, 1947 ............... 25

64. Robert Trumbull, Homosexuals Proud of

Deviancy Medical Academy Study Finds,

N.Y. Times, May 19, 1964 ................................. 10

65. Sally Field, Oscars.org, Academy Award

Acceptance Speech Database.

http://aaspeechesdb.oscars.org/link/057-3/ ....... 29

THE INTERESTS OF AMICUS CURIAE

Amicus Curiae, W. Burlette Carter, is Professor

Emerita of Law at the George Washington University

Law School in Washington, D.C. ("the University").

She is a legal scholar with expertise in the history of

sex and gender discrimination 1 and files this brief on

her own behalf. Any reference to the University is for

identification only.

Amicus is filing a companion brief in the related

case of R. G. & G.R. Harris Funeral Homes v. EEOC,

139 S. Ct. 1599 (2019) (No. 18-107) ("Funeral Homes

Companion Brief' or "Companion Brief'). Recognizing

the related nature of these two cases, and Bostock v.

Clayton Cty, 139 S. Ct. 1599 (2019) (No. 17-1618),

1Petitioners filed a blanket consent for all amicus briefs

pursuant to Rule 37. Respondents have granted consent for the

filing of this brief and such consent is filed herewith. Amicus

serves and files this brief at her own cost. No counsel for a party

authored the brief in whole or in part; no counsel or a party made

a monetary contribution intended to fund the preparation or

submission of the brief; no person or entity, other than amicus

curiae, made any monetary contribution intended to fund the

preparation or submission of this brief.

Amicus retired from her position as a tenured full Professor

in July of 2018 and was awarded emeritus status. In that role,

she continues to write and engage in other scholarly endeavors.

Any general support that Amicus has received is of the type the

University or its law school regularly provides to all Professors

Emeriti.

Amicus has served courtesy copies of both briefs upon

those appearing in all three cases.

Amicus has several interests. First, she has an

interest in ensuring that the Court rests its decisions

upon a sound legal, historical and scholarly basis.

Second, she has an interest in protecting free

speech and academic freedom. These briefs are based,

in substantial part, upon a law review article that was

scheduled for publication in the fall of 2018. Amicus

withdrew the article, when, late into the editing

process, a small group of student executive editors

conditioned publication upon the deletion of specific

content that discussed conflicts of interest between

women and trans women, criticism of the EEOC, and

other issues. These content cuts were not based on

length or concerns about support for the arguments.

The cuts targeted arguments at very heart of the

article. 2 The conditions followed other actions that

Amicus believed were efforts to prevent the work from

being published. (In future references, I will call the

article the "unpublished article.") As discussed

further in the Funeral Homes Companion Brief,

Amicus has faced censorship efforts with respect to

other articles touching upon LGBT+ litigation. She

believes that the suppression of academic scholarship

(including that by women and minorities), and of

other writings and opinions is a political tactic used

2 The article was entitled "Sexism in in the Bathroom

Debates If.• How the Merger of Sex and Gender Violates Title

VIL" It was a companion to another article on whichAmicuswas

working contemporaneously that same fall: W. Burlette Carter,

Sexism in the Bathroom Debates: How Bathrooms Really

Became Separated by Sex, 37 Yale 227 (2018). For further

discussion of censorship efforts and deanship responses, see the

Funeral Homes Companion Brief at§ II(B)(2).

in the U.S. and abroad. 3 Amicus believes that the

EEOC's

interpretations-and

those

of the

government at large once adopted in tandem-as well

as its close connections to partisan advocacy groupsencouraged and provided justification for such

censorship.

Third, Amicus is interested in ensuring that

governmental processes are well-considered and that

citizens have input into them. On March 7, 2019,

Amicus filed a Freedom of Information Act request

with the EEOC. The request sought information

about communications related to the interpretations

at issue here. It also sought information about the

EEOC's refusal to assert a disparate impact claim in

EEOCv. CatastropheMgt. Sol's., 11 F. Supp. 3d 1139

(2014), aff'd, 837.F.3d 1176 (11 th Cir .. 2016), opinion

withdrawn, and substitute inserted, 852 F.3d 1018

(11 th Cir. 2016), reh'g en bane denied, 876 F.3d 1273

(2017), motion to intervene to file cert. petition

denied, 138 S. Ct. 2015 (2018). On April 11, 1991, the

EEOC denied Amicus request for an educational fee

waiver, claiming that granting it "has been found not

to be in the public interest." Letter from Stephanie D.

Garner, EEOC Office of Legal Counsel, to Professor

Emerita W. B. Carter, Geo. Wash. U. L. Sch., April 11,

2019. For the same alleged reason, the EEOC claimed

Amicus was not entitled to a reduced fee rate. Id.

Amicus appealed. On July 3, 1991, an EEOC appeals

panel reversed the waiver denial. Amicus now is in

3 For further discussion of censorship, see the Funeral

Homes Companion Brief.

discussions regarding compliance. Amicus did not

coordinate with anyone in making her FOIA request.

SUMMARY OF THE ARGUMENT

The Second Circuit erred in adopting the EEOC's

interpretation of Title VIL The interpretation is

contrary to the plain language of the statute, the

original public meaning, Congressional intent and

public policy.

Claims of sexual orientation and gender identity

discrimination are "derivative" in nature, that is, they

are of the type Congress did not intend to include, but

are claimed to be within the statute. The appropriate

test is the unanimously adopted standard in Oncale

v. Sundowner Offshore Serv's, 523 U.S. 75 (1998).

Oncale requires a Court to find that the derivative

claims are reasonably comparable to the evils that

were Congress' principal concern. Stereotyping

evidence can be compelling, but it must relate to

claims that meet this standard.

The faults in the EEOC's interpretation

demonstrate why Oncale is the test. The EEOC

bundles disparate claims together making them

impenetrable to claim-specific review, thus

eliminating the required inquiry into "motive." The

interpretation ignores conflicts of interest between

stakeholders and creates a superminorityof Title VII

plaintiffs, making the rights of more vulnerable Title

VII stakeholders dependent upon the needs and

litigation preferences of that superminority. It lacks

mutuality of responsibility. It attempts to use Title

VII to settle Constitutional issues. And, it merely

seeks to replace one social norm with another.

Title VII requires that a court examine the

motives behind conduct, not merely assume them by

slapping on a label. History reveals four motivations

behind the disparate treatment of sexual minorities

that are consistent with motivations that courts have

deemed inappropriate with respect to discrimination

because of sex under Title VIL They are (1) sexual

assault; (2) motivations relating to appropriate

appearances and behavior of the sexes, (3)

motivations about the appropriateness of certain jobs

for the sexes, and (4) motivations related to the

morality of legal sex-related conduct.

In addition, we find five motivations that might

exempt distinctions, even if they fit categories 1-4

above: (a) religion, (b) safety (including avoiding

employee conflict); (c) privacy, (d) ensuring

opportunities for underrepresented classes; and (e)

biology/procreation. But whether these categories, if

applicable, are exempted depends upon a balancing of

factors. And finally, Title VII expressly provides that

discrimination motivated by bona fide occupational

qualification ("BFOQ") is exempt from its

prohibitions. 42 U.S.C. § 2000e-2(e)(l).

The policies behind Title VII and Oncale also

require that the Court examine whether the

derivative claim raises conflicts of interest that would

argue against its recognition, or its full recognition.

This case presents such a conflict.

Applying this framework to Altitude Express,

Zarda 4 should not prevail. He claims a violation

because, in firing him, his employer relied upon the

false allegations of an allegedly homophobic customer

who claimed Zarda sexual harassed her. But applying

the mixed-motive test to an employer's reasonable

response to an allegation of sexual harassment would

be contrary to the goals of Title VIL Thus, when a jury

finds that an employer reasonably based its action on

a credible allegation of sexual harassment, either

toward a coworker or a customer, the more restrictive

test of McDonald Douglas v. Green, 411 U.S. 792

(1973) should apply, not the mixed-motive test. In this

case, the jury verdict against Zarda included such a

finding. As the jury apparently followed an

instruction comparable to McDonald Douglas, the

Altititude Express verdict should stand. But even if a

mixed-motive theory applies to some claims, then

recovery 1s limited to injunctive relief and the

4 Zarda died in an accident before these proceedings. By

"Zarda" this brief refers him or, where the context suggests, to

his representatives.

recovery of certain attorney's fees and costs, as

indicated in 42 U.S.C. § 2000e-5(g)(2)(B).

THE ARGUMENT

Under the "Plain Language" of the Statute, Malebodied and Female-bodied is the Proper

Framework from which to Center the Analysis of

Title VII

Title VII prohibits discrimination in employment

''because of such individual's ... sex." 42 U.S.C. §

2000e-2(a). When Congress used the phrase ''because

of ..." in 1964, it was borrowing from a very old term:

"on account of ...."5

Thus, in 1964, Rep. Poff, described Title VII as

banning discrimination "on account of ... race." 110

Cong. Rec.. 2575 (1964) (Feb. 8). Rep. Griffiths, who

offered the amendment to add "sex," used the phrase

"on account of sex." Id. at 2579, 2580. Rep. Kelly

bemoaned, "It is unfortunate that there is not equal

opportunity on account of economic status." Id. at

2583.

The terms ''because of' and "on account of' were

used interchangeably in prior legislative actions. "On

account of' was used in the Equal Pay Act of 1963, 29

U.S.C. 206(d). See also To Prohibit Discrimination in

Employment Because ofRace, Creed, Color, National

Origin or Ancestry, Hearings on H. R. 2232 Before

the Comm. on Rules, H. R., 79 th Cong., 1st Sess., 95

(1945) (discussion between Reps. Fisher and Brown

5 The Pregnancy Act of 1978, an amendment to Title VII,

uses "on the basis of .... " 42 U.S.C. § 2000e(k).

where Rep. Fisher uses ''because of' and Rep. Brown

uses "on account of') . The Nineteenth Amendment,

ratified in 1920, says the right to vote "shall not be

denied or abridged .. . on account of sex." U.S. Const.

am. XIX.

States used "on account of." In 1872, Illinois

legislators provided that no person could be barred

from "any occupation, profession or employment . ..

on account of sex." An Act to Secure All Persons

Freedom in the Selection of an Occupation, Profession

or Employment, Mar. 22, 1872, 27th Gen. Assembly,

Reg., Special Sess. and 1st & 2nd Adjourned Sess. in

Public Laws Passed By the State of Illinois (1872)

("Illinois Act"). The action was taken as this court was

deciding Bradwell v. Illinois, 83 U.S. 130 (1873)

(states can ban married women from law practice).

(Still, the Illinois Act did not permit women to serve

in the military, to be elected to office, to serve on juries

or to work on streets or roads.)

Thus, the "because of . .. sex" language Congress

used in Title VII is framed by a larger, centuries-old

movement for women's rights. Indeed, Rep. Catherine

May noted, in speaking of adding "sex" to the Act in

1964, "since 1923 more and more members have

offered this amendment, but we have never gotten the

bill out of the Committee on the Judiciary." 110 Cong.

Rec.. H2582 (Feb. 8, 1964) (Rep. May).

The language ''because of . . . sex" is indisputably

broad enough to encompass discrimination against

males because of sex. But throughout history, because

they were male-bodied gay men and transwomenlike men generally -already had many of the rights

women were seeking. Their economic opportunities

were made broader by the deprivations that the

female-bodied experienced, even as they experienced

their own discrimination. On the other hand, bans on

discrimination "on account of . . . sex" aided transmen

and women because they were female-bodied. This

framework - male-bodied and female-bodied-is the

proper framework from which to center Title VII's

concerns.

Using the Corpus of Historical American English

("COHA"), the respondents' linguistic scholars amici

make several claims. Br. of Amici Curiae CorpusLinguistics Scholars Professors Brian Slocum, Stefan

Th. Gries, and Lawrence Solan ... , Altitude Express

v. Zarda, 139 S. Ct. 1599 (2019) (No. 17-1618), at 14.

But as the linguists did not provide the sample used

for their analyses, they have denied the Court, parties

and amici a fair opportunity to assess their claims.

Given COHA's heavy emphasis on literature, one can

debate whether, in the racially segregated, sex and

economically stratified world of the 1960s, one can

find "ordinary" meaning there. Moreover, there is

likely not a word in the English language that has

only one meaning. To extend statutory interpretation

to embrace every meaning would hobble both that

enterprise and law.

II. Congress Clearly Understood Title VII as Not

Covering Sexual Orientation or Gender Identity

Respondents and their amici now concede that

Congress knew about the existence of gay men and

lesbians at the time Congress passed the 1964 act. I

will add here two sources to frame that knowledge

and also the treatment of gay men, at least, in the

era.

In 1963 and 1964 some Congressmembers

protested efforts of the Mattachine Society to gain

charitable status in the District of Columbia and to

seek donations to protect the rights of gay men and

lesbians. Opponents sought to alter the DC

solicitations act to ban the Society from seeking

donations on "morality" grounds (because it

supported "homosexuals") and to force the Society's

members to apply for a license in their real names,

thus subjecting them to more discrimination. See,

e.g., John M. Goshko, House Group Continues

Homosexuality Hearing, Wash. Post, Aug. 10, 1963;

109 Cong. Rec.. A211-A212 (July 8 1963); 109 Cong.

Rec.. 14616-17 (Aug. 8 1963). But see id. at 14596

(unsigned statement saying group has right to solicit).

In the midst of such harsh opposition, the Mattachine

Society withdrew its application. 110 Cong. Rec..

18864, 18943 (Aug. 11, 1964).

On May 19, 1964, the New York Times ran a frontpage article reporting on the progress of the Title VII

bill. E. W. Kenworthy, Senators Receive Rights

Revisions, Amendments Said to Retain Key Parts of

House Bill, N.Y. Times, May 19, 1964, 1. On the same

page, next to that story, the Times ran another article:

Robert Trumbull, Homosexuals Proud of Deviancy

Medical Academy Study Finds, N.Y. Times, May 19,

1964, 1, 75.

These

two

sources

alone

provide

sad

documentation of a history of discrimination against

sexual minorities. They also establish indisputably

that, when it passed Title VII, Congressmembers

knew

at least about gay men's agitation, for

recognition of basic human rights.

Congress did not formally begin to address the

issue of federal protections against sexual orientation

discrimination until the 1970s. From 197 4 forward, in

every year except one, Congress has passed on bills to

include sexual orientation within Title VIL The court

below declined to read much into this silence or to

assume that Congress' 1991 amendments "were in

any way premised on or made assumptions about

whether sexual orientation was protected by Title

VIL" Zarda, 833 F.3d at 128-129.

closer

look

undercuts

the

Court's

interpretation. In March of 1991, Representative

Theodore Weiss (D-NY) and Senator Alan Cranston

(D-CA) each introduced bills to add sexual orientation

as a protected class under Title VIL Weiss' bill was

H. R. 1430, the Civil Rights Amendments Act of 1991.

The bill had more than 90 cosponsors and sought to

amend Title VII and the Fair Housing Act. See H. R.

1490, 102 nd Cong. (1991). In introducing it,

Representative Weiss, said, "To this day, there exist

no Federal laws and no legal recourse to protect this

minority when they encounter discrimination based

on their private lifestyle or their public

comportment." See 137 Cong. Rec. 6161 (Mar. 13,

1991) (statement of Rep. Weiss). Senator Cranston's

bill was S. 574 and sought to amend only Title VIL It

was also called the "Civil Rights Amendments Act of

1991." S. 574, 102 nd Cong. (1991). Eight other

Senators joined Cranston in introducing the bill.

Upon introduction, Cranston said, "This legislation is

needed to bring an end to that discrimination, to

provide a clear remedy to redress violations of

individual rights, and to make it clear that this type

of discrimination is wrong and unlawful." 137 Cong.

Rec. 85261-62 (March 6, 1991) (comments of Sen.

Cranston). Surely, in looking for additional cosponsors, Cranston and Weiss, discussed their

concern that Title VII did not offer legal protections

for sexual orientation discrimination

The Court should also note the timing and purpose

of these proposed amendments. Some Congress

members wanted to reverse the recently decided Price

Waterhouse case (holding that an employer could

escape liability for a violation if it showed it would

have been fired the complainant anyway for a

nondiscriminatory reason. Price Waterhouse, 490

U.S. at 228. At least four other holdings also were

challenged as inconsistent with the goals of Title VIL

One effort to overcome these precedents was H. R.

1, introduced in January of 1991. H. R. 1, 102 nd Cong.

(1991). A subcommittee of the House Judiciary

Committee held hearings on the bill on February 7,

28 and March 7. That last date was only a week before

Weiss introduced his bill and a day before Cranston

introduced his. See Civil Rights Act of 1991 [H. R. 1],

Hearings Before the Subcommittee on Civil and

Constitutional Rights of the Committee on the

Judiciary, House of Representatives, 102nd Cong.

(1991) (Feb. 7, 28, & Mar. 7). One has to believe that

Cranston and Weiss argued to include provisions of

their bills in this effort.

Eventually on Sept. 24, 1991, an alternative, S.

1745, was introduced. That bill became the Civil

Rights Act of 1991, an amendment to Title VIL S.

1745, 102nd Cong. (1991). Thus, reversing Price

Waterhouse, Congress adopted the "mixed-motive"

burdens test, providing that a claim of discrimination

could not be defeated entirely by an employer offering

an alternative, legitimate, reason for its action. The

Weiss and Cranston bills died in committee.

Later evidence more clearly indicates Congress'

understanding. In 1994, Chai Feldblum (an EEOC

Commissioner during the time of the interpretations

at issue here), then with the Leadership Conference

and a consultant to the LGBT+ rights group, the

Human Rights Campaign, testified at hearings on a

bill to include sexual orientation under Title VIL As

an appendix to her presentation, Feldblum presented

to the eighteen Senators on that Committee, an

extensive list of cases, demonstrating how Courts had

ruled. The Employment Nondiscrimination Act of

1994: Hearing ofthe Committee on Labor and Human

Resources, U.S. Senate, 103rd Congress, 2d Session,

on S. 2238 to Prohibit Employment Discrimination on

the Basis ofSexual Orientation, July 29, 1994, at 94116.

The Congressional Research Service ("CRS") also

told Congress several times that courts had

overwhelmingly

ruled

sexual

orientation

discrimination or gender identity was not covered by

Title VIL See, e.g., Charles V. Dale, et al. (CRS),

Sexual Orientation Discrimination in Employment:

Legal Analysis of Title VII of S. 16, the Employment

Nondiscrimination Act of2003, April 15, 2003, at 2-3,

6; Jody Feder (CRS), Sexual Orientation and Gender

Identity Discrimination in Employment: A Legal

Analysis of the Employment NonDiscrimination Act,

Jan. 6, 2011, at 3-5; Jody Feder & Cynthia Brougher,

Sexual

Orientation

and

Gender

Identity

Discrimination in Employment: A Legal Analysis of

the Employment NonDiscrimination Act, June 8,

2012, at 3-6; Jody Feder & Cynthia Brougher, Sexual

Orientation and Gender Identity Discrimination in

Employment: A Legal Analysis of the Employment

NonDiscrimination Act, July 15, 2013, at 3-5.

Over time, the number of cosponsors of bills to add

protections for sexual minorities under Title VII grew.

The bills were generally called Employment

Nondiscrimination Acts (ENDA).

In 2007, Congress considered a bill that included

both gender identity and sexual orientation. In the

face of a sure Presidential veto in any event, advocacy

groups fought to defeat the bill after transgender

persons were cut out of it. See Funeral Homes

Companion Brief, at§ IL

A core set of concerns and controversies are

reflected in bills to incorporate sexual orientation and

gender identity into Title VIL These controversies

included (1) whether quotas or affirmative action

would be required (given the view of some that male

sexual minorities, at least, were already wellrepresented in numbers and economically; (2)

application to the armed forces & veterans

preferences; (3) the extent of religious exemptions, (4)

banning or allowing disparate impact theory, (5)

whether an employer could discriminate against

harassers by sexual orientation in responding to

sexual harassment charges or penalties (6) whether

domestic partner benefits were to be required; (7) how

to define marriage (pre Obergefell v. Hodges, 135 S.

Ct. 2584 (2015)) including the effect of the Defense of

Marriage Act; (8) whether the statute should

incorporate or replace state laws allowing marriage

etc., where applicable; (9) whether benefits could be

conditioned on marriage (given that same sex couples

could then not marry); (10) whether the EEOC could

keep employment statistics on sexual orientation or

require employers to do so; (11) punitive damages

against the government; (12) in 2013, application to

gender identity and sexual orientation of the Title VII

recovery limit in a mixed-motive case; and,

particularly as to bills including transgender persons

(13) whether persons could groom and present

according to gender identity despite a BFOQ, and (14)

whether they could access intimate spaces based on

gender identity. One can see these recurring issues by

comparing the language in bills considered between

2009-2013. 6 Of course, bias, although less and less

prevalently expressed on the surface, remained.

In 2014, advocates abandoned the approach of

pursuing ENDAs. Bills from that point on, were called

"Equality Acts," and sought protections across a broad

6 See, e.g., H. R. 3017, 111th Cong. (2009); H. R. 2981, 111th

Cong. (2009); S. 1584, 111th Cong. (2009); H. R. 3017, 111th

Cong. (2009) ; S. 811, 112th Cong. (2011); H. R. 1755, 113th

Cong. (2013); S. 815, 113th Cong. (2013), Congress.gov,

https://www .congress.gov/bill/113th-congress/senate-bill/815.

See also S. 815, S. Rep. No. 113-105, at 24 (2013) (Minority

complaints bill had not proceeded through regular order); S. Rep.

No. 107-341 (2002) (on earlier S. 1284, Act of 2001). For an

earlier view, se, e.g. Hearing Before the Subcommittee on

Employment Opportunities of the Committee on Education and

Labor HR., 96th Cong., 2d Bess., HR. 2074 (1980) (Oct. 10).

range of statutes, without limitations. That is the

modern approach. Congress still has not passed a bill

III. The Price Waterhouse Plurality Opinion Does

Not Support the EEOC's Interpretation or the

View that Stereotyping Theory is Distinct from

Title VII; Manhart and Prior Cases Affirm the

Strong Value of Stereotyping

Evidence,

Irrespective of Intent

To support their freestanding stereotyping theory,

the EEOC and Respondents rely heavily upon the

plurality opinion in Price Waterhouse. In the case, a

female passed over for a corporate partnership,

alleged sex discrimination. In response, the company

claimed she had a difficult personality in dealing with

staff and others. Work evaluations indicated that

some of those judging the plaintiff embraced

stereotypes about how women were to behave. A

plurality of the Court specifically noted the

importance of such sex stereotyping evidence in

disparate treatment cases saying "[W[e are beyond

the day when an employer could evaluate employees

by assuming or insisting that they matched the

stereotype associated with their group" and that

"'Congress intended strike at the entire spectrum of

disparate treatment of men and women resulting

from sex stereotypes."' Price Waterhouse, 490 U.S. at

251, citing Los Angeles Dept. of Water and Power v.

Manhart, 435 U.S. 702, 707, n. 13 (1978), quoting

Sprogis v. United Air Lines, Inc., 444 F. 2d 1194, 1198

(7th Cir. 1971)."

In the years afterward, however, advocates fought

to expand the meaning of the plurality's language into

a new and freestanding "sex stereotyping" theory of

sex discrimination.

But close examination shows that the plurality

merely reaffirmed the definite relevance of sexstereotyping evidence in disparate treatment cases,

against its concern that Price Waterhouse's counsel

was waffling too much. First, this Court did not grant

certiorari on stereotyping-and petitioners did not

ask them to. The petition sought review on "whether

the court of appeals was in error in shifting the

burden of persuasion ... and in defining that burden

in accordance with the 'clear and convincing' standard

...." See Petition for a Writ of Certiorari to the United

States Court of Appeals for the District of Columbia

Circuit, No. 87-1167, 1988 U.S. S. Ct. Briefs LEXIS

1260, *2 (Jan 12, 1988). The Court's grant stated,

"The petition ... is granted." Price Waterhouse v.

Hopkins, 485 U.S. 933 (1988) At the start of the

opinion, the plurality acknowledged this limited

grant. Price Waterhouse, 490 U.S. at 232. At the time,

Rule 21, the predecessor to Rule 14, stated "Only the

questions set forth in the petition or fairly included

therein will be considered by the Court." Sup. Ct. R.

21 (approved June 4 1980). The Respondent's merits

brief permissibly asserted three questions. Two dealt

with burdens. The third was: "Whether it was clearly

erroneous for the district court below to find that

petitioner's denial of partnership to respondent was

caused, in part, by her sex." Respondent's Br., Price

Waterhouse, 490 U.S. at 228 1988 U.S. S. Ct. Briefs

LEXIS 1253 * . *6-7 (June 17, 1988). It's brief did

discuss stereotypes, e.g., id. at *16-22, *35-36; *55.

and accused petitioner of trying to downplay it. Id. at

16.

The plurality tells us whyit reached out to address

sex stereotyping. It says it noticed that Price

Waterhouse repeatedly placed "sex stereotyping" in

quotation marks in its briefs which it took to suggest

that "such stereotyping was not present in this case

or that it lacks legal relevance." Id. at 250. This

reading is confirmed by oral argument. Justice

O'Conner (who did not join the plurality) specifically

asked whether Price Waterhouse's counsel viewed

such comments as relevant both generally and to

disparate treatment cases (given that they require

intent). Justice Marshall also asked questions

apparently to confirm the relevance of sex

stereotyping evidence, irrespective of intent. See

Transcript, No. 87-1167, Price Waterhouse, 490 U.S.

228 (1989), ("PWTranscript") at 16; 21-23; 38. 7 Price

Waterhouse's counsel tactically chose to minimize the

significance of the stereotyping comments and to

suggest such evidence was most appropriate in

disparate impact cases. But some members of the

Court viewed this trial tactic as waffling on a key

issue. 8

This background tells us that the Price

Waterhouse plurality meant to affirm strongly that

7 The Official Transcript does not identify the questioners by

name. However, audio of oral argument appearing on Oyez.org

does indicate that Justices O'Connor and Marshall were the key

questioners. See Price Waterhouse v. Hopkins, Oyez.org,

https://www.oyez.org/cases/1988/87-1167.

8 See PWTranscript at 16 ("a few sex-based comments" that

"were probably inappropriate.") Price Waterhouse argued that

such evidence was more relevant to a claim under Section

703(a)(2) (disparate impact). Id. at 21-23; counsel eventually

decisions cannot be based on sex stereotypes, even if

there is no subjective intent to harm. However, it did

not intend to create a free-standing theory. Further

support for this reading is indicated by the plurality's

Manhart citation, which properly noted that Manhart

was quoting a 1971 case, Sprogis v. United Air Lines,

Inc., 444 F . 2d 1194, 1198 (7th Cir. 1971), cert. denied,

404 U.S. 991 (1971). Price Waterhouse, 490 U .S. at

251. Sprogis invalidated a United Airline's rule that

female flight attendants were fired if they married.

United claimed the rule was not discrimination based

on sex. The Sprogis court would have none of it. The

full quote is worth considering:

The scope of Section 703(a)(l) is not confined

to explicit discriminations based "solely" on sex.

In forbidding employers to discriminate against

individuals because of their sex, Congress

intended to strike at the entire spectrum of

disparate treatment of men and women

resulting from sex stereotypes. Section 703

(a)(l) subjects to scrutiny and eliminates such

irrational impediments to job opportunities and

enjoyment which have plagued women in the

past.

Sprogis, 444 F. 2d at1198.

The Price Waterhouse plurality also made clear

that sex stereotyping is but "evidence" of an unfair

employment practice. The plaintiff must prove the

conceded their relevance with reservations. Id. at 23 ("It's

relevant, but . . . "). See also Pet. Reply Br., Price Waterhouse v.

Hopkins, 490 U.S. 228 (1988), U.S. S. Ct. Briefs LEXIS, 1250, at

*21 ·23.

employer relied upon it in taking negative

employment action. Price Waterhouse, 490 U.S. at

251. In Sprogis, the stereotype was embedded in the

reason for the policy itself. In Price Waterhouse, the

company didn't deny the statements were made, they

denied that they should be attributable to Price

Waterhouse or were the basis for action (PW

Transcript at 18-19).

IV. This Court Rejected the Opportunity to Adopt the

Extended Price Waterhouse Theory in Oncale

The EEOC seeks to fit sexual orientation (and

gender identity) claims into stereotyping not

sometimes but always. For sexual orientation, it

claims (1) it necessarily entails treating an employee

less favorably because of the employee's sex; (2) it

"necessarily involves discrimination based on gender

stereotypes;"

and (3) it "is associational

discrimination on the basis of sex" because it

references the sex of the person with whom one would

associate. See also Baldwin v. Foxx, No.

0120133080, 2015 EEOPUB LEXIS 1905, (E.E.O.C

July 16, 2015), at 17-23. But this theory does not

answer the statutory question. Even if one wished to

call the numerous types of actions the EEOC would

sanction "stereotypes," the question remains whether

it is the type ofstereotype Congress intended to target

by passing Title VIL

The types of claims the EEOC presses are best

deemed "derivative," that is, they are not the core

claims about which Congress was concerned, but are

nevertheless claimed to be covered under Title VIL So

too was the claim in Oncale, raising a male victim's

claims of same-sex sexual harassment. But in Oncale,

the Court rejected pleas to apply an extended Price

Waterhouse stereotyping theory. See Brief of Lambda

Legal Defense and Education Fund, et al. as Amicus

Curiae in Support of Petitioner, Oncale v. Sundowner

Offshore Serv's, 523 U.S. 75 (1998), 1997 U .S. S. Ct.

Briefs LEXIS 529, at *16 ("The use of gender

stereotypes is a violation of Title VII"); Id. at 17

("statute does not always require showing that

another group was better treated); Brief of Law

Professors as Amici Curiae . . . , Oncale v. Sundowner

Offshore Serv's, 523 U.S. 75 (1998), 1997 U.S. S. Ct.

Briefs LEXIS 4 70 (1997) at *9 (citing Price

Waterhouse for proposition "when an employer acts

on the basis of sex stereotyping" the employer has

acted on the basis of gender"); id. at 37-38 (using Price

Waterhouse and "referring to Hopkins' sex as her

"gender identity") . The EEOC, while continuing to

differentiate

between

sexual

orientation

discrimination and gender identity discrimination on

the one hand and discrimination because of "sex" on

the other, was a bit more muted. See Br. of the United

States and the Equal Opportunity Employment

Commission as Amici Curiae Supporting Petitioner,

Oncale v. Sundowner Offshore Serv's, 523 U.S. 75

(1998), 1997 U.S. S. Ct. Briefs LEXIS 546, at *34, n .

9 (not arguing stereotyping expressly but in a

footnote, describing Price Waterhouse as "prima facie

case of sex discrimination is shown by evidence that

officials involved in decision submitted comments

that "stemmed from sex stereotypes"). But see Brief

for Respondents, Oncale v. Sundowner Offshore

Serv's, 523 U.S. 75 (1998), 1997 U.S. S. Ct. Briefs 628,

(1997) at *66 (noting amici and courts have

misconstrued Price Waterhouse as holding that

gender stereotyping is per se discrimination; gender

stereotyping comments "would swallow whole the oftrejected congressional proposal to prohibit sexual

orientation discrimination under Title VI")). Instead,

the Oncale Court chose a different standard, asking

whether evil alleged was "reasonably comparable" to

the principal evils Congress was concerned about in

passing Title VIL Oncale, 525 U.S. at 79.

Errors in the EEOC's Approach Demonstrate and

the Wisdom of Oncale

One can appreciate the wisdom of the Oncale

test, by considering the wrong-headedness of the

EEOC's approach. (In the Funeral Homes Companion

Brief, I will deal with other concerns including the

EEOC's sad failure to consider the needs of core Title

VII claimants (women and girls), its mowing down of

the First Amendment, and the extra sharp clippers it

used to take out religious freedom.)

Bundling Disparate Claims Together

Making them Impenetrable to ClaimSpecific Review and Using the MixedMotive Test and Stereotyping Claims to

Eliminate Legitimate Motives

The EEOC's approach bundles disparate

claims together to make them impenetrable to claimspecific review. In labeling everything a "stereotype,"

it eliminates the requirement that a court consider

the motive behind challenged actions as disparate

treatment requires. It also uses the mixed-motive test

to destroy the relevance of any assertion of legitimate

counter-motive. The result deprives the employer

(and in some cases coworkers and supervisors) of the

opportunity to show the context for the actions that is

necessary in order to assess them under Title VIL

Using the mixed-motive test, then, it can obtain

injunctive relief to stop any legitimate public goals

not favored by the EEOC's superminority. It rips Title

VII from its historical moorings-the experiences of

women and girls with discrimination-and creates

"stereotyping in the air."

Ignoring Conflicts of Interest Between

Stakeholders and Subjugating Claims

That were Congress' Principal Concern to

Claims that are Derivative

When new plaintiffs are added to a class they

are able to affect the law that defines the processes

and remedies for that class. Because of our country's

history of sex and race discrimination, a segment of

LGBT+ persons belong to classes that have

historically promoted and substantially benefitted

from discrimination against women and racial

minorities. Litigation over "sex" in Title VII should

not be controlled by such derivative stakeholders. Any

stakeholder with conflicting interest will minimize

more vulnerable stakeholders' injuries for their own

causes. Consider, for example, that Zarda answered a

female customer's charge of sexual harassment by

saying he was gay. The claim trots out old tropes: that

sexual harassment is about sex (not power) and that

only straight men would harass a woman. See, e.g.,

Pltfs Second Amend. Complt., Zarda, 883 F.3d 100

(2018), ,r,r38, 43.

Conflicts between stakeholder interests have

appeared in other, related, litigation. In the marriage

cases, advocates decided that they needed to show

that gay men lacked political power to argue for the

heightened scrutiny Equal Protection standard of

City of Cleburne v. Cleburne Living Ctr, 473 U.S. 432

(1985). Thus, they repeatedly misrepresented the

history of black Americans and of women. Consider

the Segura Affidavit filed (in only slightly varying

forms) in cases all across this country, 9 including

before this Court in Obergefell. Aff. of Gary M.

Segura, Obergefell v. Wymyslo, S.D. Ohio, 962 F.

Supp. 968 (S. D. Ohio 2013) (No. 1:-13-cv-501)

(executed Oct. 9, 2013) (on motion for prelim.

injunction, etc.), in l Joint Appendix, Obergefell v.

Hodges, 135 S. Ct. at 2584, at p. 321. Purporting to

compare white gay men's political power with that of

women generally, the affidavit stated: "While sexism

certainly existed (and still exists), and political

activism could be costly, identity as a woman was not

socially controversial, did not attract familial scorn,

and did not bar one from such a large range of social

institutions,

though some institutions were

exclusively male." [Emphasis added] It continued,

"Women could freely identify one another, gather,

coordinate, and act largely free of fear of repressive

9 The affidavit was first filed as early as 2009, submitted by

Gay and Lesbian Advocates and Defenders ("GLAD") and also

three private law firms . See Aff. of Gary M. Segura, Gill v. Of.ice

of Pers. Mgmt., 699 F . Supp. 2d 374, 397 (D. Mass. 2010) (No.

09-10309-JLT) (executed Nov. 17, 2009) (accompanying motion for

summary judgment).

tactics"; and that ''Women are and were a majority of

the population and, if they so choose, could

theoretically determine most political outcomes." Id.

at ,r 89.

The affidavit reduced the "exclusively male"

venues women faced to simply a sideshow in the fight

against sex discrimination. It ignored that it included:

educational institutions, politics and political

positions, juries, voting, male-only business clubs

that were major venues for client-access. It ignored

economic discrimination against women through

marriage and procreation policies. The white and

male-bodied were allowed to be members of these

clubs, if they could afford it; albeit, sexual minorities,

often had to be closeted.

The same offense was committed under the guise

of presenting "expertise," with respect to race. The

affidavit stated, "in the 1940s and 1950s, African

Americans and other racial and ethnic minorities had

similar disadvantages to gays in terms of resources

and social sanction ...." Id. at ,r 91. But in fact, at no

time in history was this statement true. And while the

affidavit attempted to narrow its reach by claiming a

focused on comparing "resources and social

sanctions," it still failed miserably. Racial violence

and segregation (in every aspect of life) were

governmental and social sanctions. Lynching was

also a social sanction. See, e.g., Lynching Trial:

Accused Freed, Sequel to Death of Negro on Lonely

Hillside, The Lancashire Daily Post, May 22, 1947

(lynching of a black man on a hillside after acquittal

of charges he killed a white taxi driver). Racially

restrictive covenants blocking blacks from purchasing

property were social sanctions. See Shelly v. Kramer,

334 U.S. 1 (1948). These restrictions cost blacks huge

losses in economic value that could have contributed

to their political power. Meanwhile, the majority of

LGBT+ persons were relatively privileged-white

and approximately half were male-bodied.

Amicus recently chronicled how LGBT+

advocates (including professors) peddled false stories

claiming that bathroom sex separation emerged as a

norm in the 19th to as a patronizing extension of

Victorian oppression. These approaches put a dagger

in the heart of women's history, suppressing a long

relationship between sex separation in intimate

spaces and women's struggles for safety and privacy.

See W. Burlette Carter, Sexism in the Bathroom

Debates: How Bathrooms Really Became Separated

By Sex. 37 Y.J. L. Pub. Pol'y 227 (2018).

Nor do the histories of oppression of male-bodied

persons, gay men and trans women, justify complete

merger. 10 Consider William Ragley, put on trial in

1732 in Rochester, New York. Ragley apparently

carried on an affair with his male servant in his

marital home. He asked his wife to make up "his" bed

(the one in which he and his partner had apparently

slept). The wife refused, saying that she would not do

it for him or for his "dog of a boy." She called him a

"Sodomitical Dog." Ragley took his long gun, filled

with buckshot, and blasted her in the chest. She

languished for a week and died. He was found guilty

10 Trans men share much of women's history of oppression.

of murder. Rochester, Mar. 18, New-England Weekly

Journal , June 19, 1732.11

Who was William Ragley? Was he gay? Was he

bisexual? Was s/he a transwoman oriented toward

men? We will never know. What we do know is that,

in that era, a male body gave Ragley privilege over

those who were female-bodied. With limited access to

economic capital limited because of their sex, women

often could not find relief from domestic violenceuntil it was too late.

Most male-bodied persons were and are not

violent, irrespective of their orientation or gender

identity. But gay and bisexual men and trans women

did not have less power than other men over women

because they were gay, or bisexual, or a closeted

transwoman.

The EEOC's merger of disparate claimant

interests is also inconsistent with basic joinder

principles. Fed. R. Civ. Proc. 23 allows certification of

a class only if there are questions of law and fact

common to the class, the claims or defenses of the

representative parties are typical of the claims and

defenses of the class and the representative parties

will fairly and adequately protect the class. Rule 20

allows permissive joinder inter alia when there are

11 I came across Ragley's case in research on a multi-volume

work in progress cataloging the lives of sexual minorities in

earlier eras. While his male-body would have granted privilege

on any account, I am among the historians who reject widely

disseminated claims that gender identity or sexual orientation

did not emerge until the nineteenth century.

"question of law or fact common to all plaintiffs." Fed.

R. Civ. Proc. 20.

Creating New Rights

The EEOC's interpretation also creates new

rights. Consider the EEOC's claim that Title VII,

"discrimination" against gay or lesbian persons is

necessarily associational. Most courts so holding have

done so in cases alleging claims under both Title VII

and §1981. See Respondents' Br., Altitude Express v.

Zarda, 139 S. Ct. 1599 (2019), 32 & n. 9. But

Respondents focus instead on two that do not involve

§1981. In one, involving a lesbian plaintiff, the

Seventh Circuit adopted wholesale the EEOC's

position. Hively v. Ivy Tech Comm. College of Ind.,

853 F.3d 339, 348-49 (7 th Cir. 2017) (en bane). The

other involved an interracial marriage. Holcomb v.

Iona College, 521 F.3d 130, 138 (2d Cir. 2008). See of

Respondent's Br. at 32. Both of these cases relied

heavily on cases asserting §1981. Id at 139; Hively,

853 F.3d at 347-48.

But also note that the EEOC's "association" theory

does not require actual relationships. It asks courts to

impute a relationship whenever a gay or lesbian

person faces discrimination (or differentiation). (It

also skips over the tricky question of whether the

associational right is in Title VII or the Constitution.)

Obergefell v. Hodges, 135 S. Ct. at 2584; Lawrence v.

Texas, 539 U.S. 558 (2003))

As applied to Zarda, the EEOC's theory also claims

that Title VII guarantees a right to talk about oneself

in the workplace. Zarda was openly gay at work. Plt'fs

Second Am. Complt., Zarda, 883 F.3d at 100, if 25. He

claimed that he was fired for speaking about his

sexual orientation with an allegedly homophobic

customer. 883 F.3d at 111. (By contrast, the customer

"alleged that Zarda inappropriately touched her and

disclosed his sexual orientation to excuse his

behavior." Zarda, 883 F.3d at 108).

Now imagine a religious person who seeks to

proselytize to coworkers (or customers) who feel

threatened by that religion, but don't mind listening

to other religious talk they deem more "inclusive."

Does Title VII require an employer to force other

employees (or customers) to listen? Social water

cooler banter alone is simply not a term, condition or

privilege of employment, nor does Title VII assure

every employee a "Places in the Heart" Oscar

moment. 12

This Court has urged that the way to avoid making

Title VII "a general civility code" is to pay "careful

attention to the requirements of the statute." Oncale,

523 U.S. at 80. Racial minority groups or women are

always "out" in the workplace. Social groups formed

there regularly exclude them (and sometimes those

groups include white, gay, men who have joined with

the white, straight, ones). What Title VII requires is

that those social groups not become de facto

12 In 1985, accepting her "Best Actress" Oscar for her movie,

Places in the Heart, Sally Field ended her speech by saying, "The

first time I didn't feel it, but this time I feel it. And I can't deny

the fact that you like me. Right now, you like me!" Sally Field,

Oscars.org, Academy Award Acceptance Speech Database.

http://aaspeechesdb.oscars.org/link/057·3/.

workgroups that categorically exclude protected

classes from benefits secured by that statute.

D. Ignoring the Need for Mutuality

"Title VIl's prohibition of discrimination "because

of . . . sex" protects men as well as women, Newport

News Shipbuilding & Dry Dock Co. v. EEOC, 462 U .S.

669, 682, 77 L. Ed. 2d 89, 103 S. Ct. 2622 (1983)"

Oncale, 523 U .S. at 78. Its prohibition on

discrimination ''because of . . . race" operates

similarly. McDonald v. Santa Fe Trail Transp. Co, 427

U.S. 273 (1976). By contrast, the EEOC's theory lacks

such mutuality.

Consider, for example, a boss who will not hire

anyone he suspects (1) is LGB or T+, or (2)

sympathizes with LGBT+ persons, (3) speaks about

being LGBT. The EEOC says the boss has violated the

Title VII by discriminating ''because of ... sex." Now

turn the tables. Instead, the boss refuses to hire

anyone who is he suspects (1) is not LGBT, or (2)

suspects sympathizes with persons or groups that are

contraryto the interests of LG BT+ persons or (3) talks

about being associated with groups that are "antiLGBT+." This boss's exclusion list has people from a

wide array of groups: whites, women, men, religious

people, black or Latino people or even a few LGBT+

people who criticize the movement. Faced with a sex

discrimination charge, he will say that he is only

making sure his company stands for certain "values."

Using "values," he can wipe out wide swaths of people

whose "values" are directly derived from their

experience-just as much of the EEOC's theory is

derived from the experiences of LGBT+ --and

particularly male-bodied persons.

The EEOC's claim that mutuality is present isn't

credible. Baldwin, supra p. 20, at *17 It says,

"Similarly, a heterosexual man who alleges a gay

supervisor denied him a promotion because he dates

women instead of men states an actionable Title VII

claim of discrimination because of his sex." As did the

Segura Affidavit, supra at p.24, the EEOC makes a

the experiences of male-bodied, white gay or trans

persons the standard and filters everyone else's rights

through that lens. No other category of protected

persons under Title VII receives such a benefit.

Attempting to Use Title VII To Answer

Constitutional Questions

The EEOC has also asserted that Title VII

requires that same sex and opposite sex couples must

have the same benefits associated with marriage.

Examples of LGBT-Related Sex Discrimination

Claims,

eeoc.gov,

https://www.eeoc.gov/eeoc/newsroom/wysk/enforceme

nt_protections_lgbt_workers.cfm (using example of

spousal health insurance). In some cases, Title VII

does not answer the question; it is a Constitutional

one. This Court recently left standing a Texas

Supreme Court holding that Obergefell did not

resolve the question of whether a government can

provide different benefits to same-sex and opposite

sex coupled employees. Pidgeon v. Turner, 538 S.W.3d

73 (2017), cert. denied, 138 S. Ct. 505 (2017). As a

statutory matter, what Title VII requires in a given

case likely depends, upon what the benefit is, why it

is given, and why the distinction made-and not on a

blanket rule such as that the EEOC urges.

Replacing One Set of Social Norms With

Another

In the end, the EEOC merely seeks to replace one

set of social norms (or stereotypes) with another. The

standard that emerges is that norms based on the

experiences and preferences of sexual minorities

(mainly white and male-bodied) are fine; those based

on the experiences of others are not. The EEOC's

theory does for example, address cases in which

persons are considered too masculine, a common

trope that assumes black men can only be security

guards, lift heavy boxes and or engage in sports.

VI. Oncale

Provides the Proper Standard for

Derivative Claims

Under Oncale and Title VII, the Court

Must Ask Whether Each Claim Concerns

an "Evil" that is "Reasonably Comparable"

to the "Principle Evil Congress was

Concerned With."

In short, Oncale asks not what name is given to a

practice, but whether the practice is of the kind about

which Congress was principally concerned or

reasonably comparable to its concerns. I suggest here

a way to apply the standard.

Under Oncale and Title VII, Courts Must

Inquire into the Motives for the Actions

Stereotyping theory eliminates inquiry into

motive. While for core claims that may make sense,

the Court should reject it in these cases. History

reveals four

overlapping motives involving

discrimination because of sex. They are (1) sexual

assault; (2) motivations relating to appropriate

appearances or behavior for the sexes; (3) motivations

about the appropriateness of certain jobs for the

sexes, and (4) motivations related to the morality of

legal sex-related conduct.

In addition, Title VII, reflects that five motivations

might exempt distinctions even if they fit into

categories 1-4 above. These possible exemptions are

(a) accommodation of religion, (b) ensuring safety

(including avoiding employee conflict); (c) ensuring

privacy and (d) ensuring opportunities for

underrepresented classes; (e) in limited cases, policies

related to biology/procreation. Whether these

categories, if applicable, are exempted should depend

upon a balancing of various factors. I discuss this

scheme also in the Companion Brief.

Finally, Title VII exempts discriminatory or

differentiating behavior if it satisfies a BFOQ.

Under Oncale and Title VII, Courts Must

Consider Whether Recognizing the

Derivative Claim Would Be Inconsistent

With Title VII Goals; If So, the Claim

Should Be Denied or the McDonald

Douglas Burdens Test Should Apply

I believe that both Oncale and Title VII also

require that a derivative claim do no harm to Title

VII's overall objectives. It is telling that, in its amicus

brief below, the EEOC did not mention that a

customer had made an allegation of sexual

harassment against Zarda. It stated only that

"Following one jump, a customer complained that

Zarda had disclosed his homosexuality and other

personal details during the jump. Zarda was fired

soon thereafter." EEOC 2d Cir. Zarda En Banc Brief

at 8.

The omission shows that the EEOC gave short

shrift to conflicts of interest that might arise under its

new theory-(or to how the sexual harassment

allegation affects the employer's duty). While here

the accuser was a customer, in another case, she

might be a coworker. The mixed-motive test was

intended to remove roadblocks to the claims about

which Congress was principally concerned, not add

more. Congress likely did not imagine a situation in

which males would have a claim for discrimination

because of sex that would enable them to take

advantage of the mixed-motive test and offset a

womans claim of discrimination because of sex. While

Congress did limit recovery in mixed-motive cases,

see, e.g., Mayorga v. Merdon 928 F.3d 84 (D.C. Cir.

2019); Morris v. Wheeler, 2019 U.S. Dist. LEXIS

23245, *11-12 (D.D.C. 2019), it was considering

motives other than sexually harassing another

coworker or a customer. 42 U.S.C. §2000-e5(g)(2)(B).

Thus, I believe that in all cases in which there is

credible evidence that an employer acted in response

to allegations of sexual harassment within the

workplace or while on duty, courts should apply the

McDonald Douglas test. McDonald Douglas Corp. v.

Green, 411 U.S. at 792. Applying the mixed motive

test in such situations, would be inconsistent with

Title VII's core goals. 13

D. The Verdict m Altitude Express Should

Stand

In Altitude Express, because there is a conflict,

McDonald Douglas should apply to the Title VII

13 An employer had a common law duty to take care in hiring

his workers and could be held responsible for intentional torts

they committed. Bomba v. Borowicz, 265 A.D. 198, 199 (1942)

(holding employer liable for intentional tort of employee wife

causing harm to another employee and saying, "He was plainly

guilty of a breach of the "non-delegable duty of care to select and

retain in his employ only servants from whose conduct there is

not an unreasonable risk of harm to other servants.") Id. at 199

citing Restatement, Law of Agency, §§ 505. See. e.g., 2

Restatement, Law of Agency, § 505 <Am. Law Inst. 1933) (noting

"non-delegable duty of care to select and retain in his employ

only servants from whose conduct there is not an unreasonable

risk of harm .... ") The court also relied upon the duty to provide

a safe place to work, id. at 199. 13 and the duty not to maintain

claim. 14 This was apparently the standard the jury

used, and the verdict should stand.

However, there is no such conflict evident in the

case in Bostock v. Clayton County Bd. ofCommiss'rs,

723 Fed. Appx. 964 (11 th Cir. 2018), reh'g en bane

denied, 894 F.3d 1335 (11 th Cir. 2018), cert. granted,

139 S. Ct. 1599 (2019). Thus, the plaintiffs recovery

should depend on demonstrating that the employer's

motive fit under one of the impermissible motives

under Title VIL And the mixed-motive test should

a nuisance. Id. Finally, the court said that in theory no

distinction can be made between a customer who is injured by a

nuisance and a fellow employee. Id. See also 1 William

Blackstone, Commentaries, *417 (Master & Servant), (master

may be responsible for acts of servants; failure to employ good

servants who harmed others leading to master responsibility).

(The "fellow servant" rule, which sometimes barred claims

applied to negligence cases, not intentional torts.)

14 I also believe Zarda had the burden of proving that the

customer's motivation was impermissible before he could argue

that the employer's reliance upon it was impermissible.

apply, although, relief might be limited by 42 U .S.C.

§ 2000e-5(g)(2)(B).

CONCLUSION

The judgment of the U .S. Court of Appeals for the

Second Circuit should be reversed.

August 23, 2019

Respectfully Submitted,

(Willieta)

Burlette

Carter

Counsel ofRecord

Professor of Law

The George Washington

University Law School

2000 H Street, NW

Washington, DC 20052

bcarter@law.gwu.edu

(202) 994-5155

bcarter@law.gwu.edu

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