Opposition Brief — Gerald Lynn Bostock, Petitioner v. Clayton County, Georgia
Supreme Court briefAug 10, 2018
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No. 17-1618
================================================================
In The
Supreme Court of the United States
-----------------------------------------------------------------GERALD LYNN BOSTOCK,
Petitioner,
v.
CLAYTON COUNTY, GEORGIA,
Respondent.
-----------------------------------------------------------------On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Eleventh Circuit
-----------------------------------------------------------------RESPONDENT’S BRIEF IN OPPOSITION
TO PETITION FOR WRIT OF CERTIORARI
-----------------------------------------------------------------JACK R. HANCOCK
Counsel of Record
WILLIAM H. BUECHNER, JR.
FREEMAN MATHIS & GARY, LLP
661 Forest Parkway
Suite E
Forest Park, Georgia 30297-2256
(404) 366-1000
jhancock@fmglaw.com
================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
TABLE OF CONTENTS
Page
TABLE OF CONTENTS ......................................
i
TABLE OF AUTHORITIES .................................
iv
INTRODUCTION ................................................
1
STATEMENT OF THE CASE..............................
2
Statement of the Facts .....................................
2
Course of Proceedings ......................................
3
REASONS WHY THE PETITION FOR WRIT
OF CERTIORARI SHOULD BE DENIED .......
7
I.
THE COURT SHOULD DENY CERTIORARI AND AWAIT FURTHER DEVELOPMENT IN THE CIRCUIT COURTS
CONCERNING A RECENT CIRCUIT SPLIT
AS TO WHETHER OR NOT TITLE VII
PROHIBITS DISCRIMINATION ON THE
BASIS OF SEXUAL ORIENTATION .........
9
A. The Circuit Courts Have Held For
Decades That Title VII Does Not Prohibit Discrimination On The Basis Of
Sexual Orientation ..............................
9
B. A very Recent Circuit Split Does Not
Warrant Granting Certiorari In This
Case ..................................................... 11
ii
TABLE OF CONTENTS – Continued
Page
II.
THE COURT SHOULD DENY CERTIORARI BECAUSE PETITIONER HAS
FAILED TO DEMONSTRATE THAT THE
ELEVENTH CIRCUIT ERRED IN RULING THAT TITLE VII DOES NOT PROHIBIT DISCRIMINATION ON THE BASIS
OF SEXUAL ORIENTATION .................... 16
A. Petitioner’s Contention That Discrimination Because Of “Sex” Includes Discrimination Because Of “Sexual Orientation”
Is Meritless ........................................... 16
B. Price Waterhouse Did Not Abrogate Circuit Case Law Holding That Title VII
Does Not Prohibit Discrimination On
The Basis Of Sexual Orientation .......... 25
C. Oncale Did Not Abrogate Circuit Case
Law Holding That Title VII Does Not
Prohibit Discrimination On The Basis
Of Sexual Orientation ......................... 28
III.
PETITIONER’S ADDITIONAL REASONS
AS TO WHY CERTIORARI SHOULD BE
GRANTED ARE IRRELEVANT TO THIS
CASE.......................................................... 30
IV.
THIS COURT SHOULD DECLINE PETITIONER’S INVITATION TO GRANT
CERTIORARI, SEIZE LEGISLATIVE
POWER FROM CONGRESS AND REWRITE TITLE VII ..................................... 33
iii
TABLE OF CONTENTS – Continued
Page
V.
THIS CASE IS NOT THE APPROPRIATE
VEHICLE TO RESOLVE WHETHER OR
NOT TITLE VII PROHIBITS DISCRIMINATION ON THE BASIS OF SEXUAL
ORIENTATION ......................................... 34
CONCLUSION..................................................... 36
iv
TABLE OF AUTHORITIES
Page
CASES
AT&T, Inc. v. U.S. ex rel. Heath, 136 S. Ct. 2505
(2016) .......................................................................12
Baldwin v. Foxx, EEOC Decision No.
0120133080, 2015 EEOPUB LEXIS 1905,
2015 WL 4397641 (July 15, 2015) ................ 4, 15, 18
Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d
257 (3d Cir. 2001), cert. denied, 534 U.S. 1155
(2002) .........................................................................9
Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir.
1979) ............................................................ 4, 5, 6, 10
Bostock v. Clayton Cty. Bd. of Comm’rs, 723 F.
App’x 964 (11th Cir. 2018) ........................................6
Bostock v. Clayton Cty., 2017 U.S. Dist. LEXIS
217815 (N.D. Ga. July 21, 2017) ...............................5
Bostock v. Clayton Cty. Bd. of Comm’rs, 2018 U.S.
App. LEXIS 19835, 2018 WL 3455013 (11th
Cir. July 18, 2018) ...................................................35
Brandon v. Sage Corp., 808 F.3d 266 (5th Cir.
2015) ........................................................................10
Christiansen v. Harris Cty., 529 U.S. 576 (2000) .......15
City of Los Angeles, Dep’t of Water and Power v.
Manhart, 435 U.S. 702 (1978) .................................28
Clemons v. City of Memphis, Tn., 2016 U.S. Dist.
LEXIS 179037, 2016 WL 7471412 (W.D. Tenn.
Dec. 28, 2016) ..........................................................16
v
TABLE OF AUTHORITIES – Continued
Page
Cooper v. U.S. Postal Service, 471 U.S. 1022
(1985) .......................................................................12
Crawford v. LVNV Funding, LLC, 135 S. Ct.
1844 (2015) ..............................................................12
E.I. Dupont de Nemours & Co. v. Smiley, 138
S. Ct. 2563 (2018) ....................................................12
Evans v. Ga. Reg’l Hosp., 138 S. Ct. 557 (2017) ..... 8, 13
Evans v. Ga. Reg’l Hosp., 850 F.3d 1248 (11th
Cir. 2017), cert. denied, 138 S. Ct. 557
(2017) ..................................................... 5, 6, 7, 10, 15
Girouard v. United States, 328 U.S. 61 (1946) ...........23
Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011) ......... 5
Harris v. Forklift Systems, Inc., 510 U.S. 17
(1993) .......................................................................29
Higgins v. New Balance Athletic Shoe, Inc., 194
F.3d 252 (1st Cir. 1999) .............................................9
Hinton v. Virginia Union Univ., 185 F.Supp.3d
807 (E.D. Va. 2016) ..................................................16
Hively v. Ivy Tech. Comm. Coll. of Indiana, 853
F.3d 339 (7th Cir. 2017) ................................... passim
Hopkins v. Baltimore Gas & Elec. Co., 77 F.3d 745
(4th Cir.), cert. denied, 519 U.S. 818 (1996) ........... 9, 20
Lackey v. Texas, 514 U.S. 1046 (1995) ........................14
Lawrence v. Texas, 539 U.S. 558 (2003) ......................19
McCarthan v. Collins, 138 S. Ct. 502 (2017) ..............12
McCray v. New York, 461 U.S. 961 (1983) ..................14
vi
TABLE OF AUTHORITIES – Continued
Page
McKethen v. United States, 439 U.S. 936 (1978) ........13
Medina v. Income Support Div., 413 F.3d 1131
(10th Cir. 2005).................................................. 10, 27
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57
(1986) .......................................................................34
Metheny v. Hamby, 488 U.S. 913 (1988) .....................12
Newport News Shipbuilding and Dry Dock Co. v.
E.E.O.C., 462 U.S. 669 (1983)..................................28
Obergefell v. Hodges, 135 S. Ct. 2584 (2015) ........ 19, 33
Oncale v. Sundowner Offshore Servs., Inc., 523
U.S. 75 (1998) .................................................. passim
Pension Ben. Guar. Corp. v. LTV Corp., 496 U.S.
633 (1990) ................................................................23
Perrin v. United States, 444 U.S. 37 (1979) ................18
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)... passim
Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285 (3d
Cir. 2009) .................................................................27
Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061
(9th Cir. 2002), cert. denied, 538 U.S. 922
(2003) .......................................................................10
Romer v. Evans, 517 U.S. 620 (1996) ..........................19
Sandifer v. U.S. Steel Corp., 571 U.S. 220 (2014) .......18
Skidmore v. Swift & Co., 323 U.S. 134 (1944) ............15
Stuckett v. U.S. Postal Service, 469 U.S. 898
(1984) .......................................................................13
vii
TABLE OF AUTHORITIES – Continued
Page
U.S. Dep’t of Hous. & Urban Dev., Washington,
D.C. v. Fed. Labor Relations Auth., 964 F.2d 1
(D.C. Cir. 1992) ........................................................11
United States v. Kaley, 579 F.3d 1246 (11th Cir.
2009) ..........................................................................7
United States v. Price, 361 U.S. 304 (1960) ................23
United States v. Steele, 147 F.3d 1316 (11th Cir.
1998) ..........................................................................7
Vickers v. Fairfield Med. Ctr., 453 F.3d 757 (6th
Cir. 2006), cert. denied, 551 U.S. 1104 (2007) .... 10, 27
Williams v. Dist. of Columbia, 2018 U.S. Dist.
LEXIS 109515, 2018 WL 3213319 (D.D.C.
June 30, 2018) .........................................................10
Williamson v. A.G. Edwards & Sons, Inc., 876
F.2d 69 (8th Cir. 1989) .............................................10
Winstead v. Lafayette Cty. Bd. of Cty. Comm’rs,
197 F.Supp.3d 1334 (N.D. Fla. 2016) ......................15
Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d
Cir. 2018), cert. petition filed, Case No. 171623 (May 29, 2018) ........................................ passim
Zuber v. Allen, 396 U.S. 168 (1969)....................... 23, 24
STATUTES
18 U.S.C. § 249(a)(2)(A) ........................................ 17, 24
20 U.S.C. § 1092(f )(1)(F)(ii) .................................. 17, 24
34 U.S.C. § 12291(b)(13)(A) .................................. 17, 24
viii
TABLE OF AUTHORITIES – Continued
Page
34 U.S.C. § 30503(a)(1)(C) .................................... 17, 24
42 U.S.C. § 2000e-2(a) ............................................. 6, 17
42 U.S.C. § 2000e-16(c) ...............................................13
OTHER AUTHORITIES
Brief for the United States as Amicus Curiae
filed in Zarda v. Altitude Express, Inc., 2017
U.S. 2nd Cir. Briefs LEXIS 5, 2017 WL
3277292 ...................................................................15
Daniel J. Meador, A Challenge to Judicial Architecture: Modifying the Regional Design of the
U.S. Court of Appeals, 56 U. Chi. L. Rev. 603
(1989) .......................................................................14
Dictionary.com ............................................................19
EEOC Dec. No. 76-75 (Dec. 4, 1975), 1975 WL
342769 .....................................................................23
http://www.atlantic.com/politics/archive/2018/04/
chai-feldblum/558593/Why-Is-A-Liberal-LGBTActivist-One-of-Trump’s-Nominees? (The Atlantic, April 24, 2018) ..............................................15
Oxford English Dictionary (2009 ed.) ........................19
Samuel Estreicher & John E. Sexon, A Managerial Theory of the Supreme Court’s Responsibilities: An Empirical Study, 59 N.Y.U. L. Rev.
681 (1984) ................................................................14
1
INTRODUCTION
This case is not about whether Congress should
enact a statute prohibiting employment discrimination on the basis of sexual orientation as a matter of
desirable public policy. Instead, the issue presented in
this Petition is whether Congress did so more than 50
years ago when it enacted Title VII of the Civil Rights
Act of 1964 that prohibited employment discrimination on the basis of “sex” and other protected classes,
including race, color, religion and national origin. The
United States Court of Appeals for the Eleventh Circuit, following established circuit precedent, correctly
answered “no” to this question.
The inconvenient reality for Petitioner is that the
text of Title VII does not include sexual orientation as
a protected class. Undeterred, Petitioner advances various novel legal theories in hopes of persuading the
Court to grant certiorari to extend discrimination on
the basis of “sex” under Title VII to also prohibit discrimination on the basis of sexual orientation. The
novel legal theories advanced by Petitioner, however,
are solely intended to entice the Court to seize legislative power from Congress and do what Congress has
declined to do for more than 50 years: amend Title VII
by adding sexual orientation as a protected class.
The Court should decline Petitioner’s invitation
and deny certiorari in this case.
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2
STATEMENT OF THE CASE
Statement of the Facts
Petitioner alleges that he is a gay male who
worked for Clayton County as the Child Welfare Services Coordinator assigned to the Juvenile Court of
Clayton County. App. 6-7. Petitioner asserts that he
was responsible for the Clayton County Court Appointed Special Advocate. Id. at 7.
Petitioner claims that, beginning in January 2013,
he began playing in a gay recreational softball league.
App. 7. Petitioner alleges “on information and belief ”
that his participation in the league and his sexual orientation were criticized by one or more (unnamed) persons who had significant influence on the County’s
decision making, and that the County subjected him to
an internal audit of the funds he managed. Id. Petitioner claims that the audit was a pretext for discrimination against him based on his sexual orientation
and his failure to conform to a gender stereotype. Id. at
7-8. On or about June 3, 2013, the County terminated
Petitioner’s employment. Id. at 8. The stated reason for
Petitioner’s termination was conduct unbecoming of a
County employee. Id. Petitioner contends that the real
reason for his termination was discrimination on the
basis of his sexual orientation and gender nonconformity, rather than due to the findings of the audit.
Id. Based solely upon these allegations, Petitioner alleges that he was discriminated against due to his
“sex” in violation of Title VII of the Civil Rights Act of
1964. Id. at 8-9.
3
The County denies that Petitioner’s sexual orientation was a motivating factor in its decision to conduct
an audit of the program he managed or its decision to
terminate his employment after the audit was completed. App. 7-8. The County contends that it terminated Petitioner for legitimate, non-discriminatory
reasons based on the results of the audit. Id. at 8.
Course of Proceedings
After filing a charge with the Equal Employment
Opportunity Commission (“EEOC”) and receiving a
right to sue letter from the EEOC, Petitioner filed this
action pro se on May 5, 2016 in the United States District Court for the Northern District of Georgia. App.
28. After retaining counsel and filing a First Amended
Complaint, Petitioner filed his Second Amended Complaint (“SAC”) on September 12, 2016. Id. In his SAC,
Petitioner asserted that he was terminated in violation
of Title VII because of his sexual orientation and because he did not conform with gender stereotypes. Id.
Clayton County (“the County”) filed a Motion to
Dismiss the SAC on September 26, 2016, arguing that
Petitioner’s claim that he was terminated because he
is gay should be dismissed because Title VII does not
prohibit discrimination on the basis of sexual orientation. App. 9-17. The County also argued that Petitioner’s claim that he was terminated because he did
not conform with gender stereotypes should be dismissed because (among other reasons) the SAC did not
4
sufficiently allege a gender stereotyping claim. Id. at
17-22.
After receiving briefs from the parties, the magistrate judge issued a Report and Recommendation
(“R&R”) on November 3, 2016 recommending dismissal
of the SAC. App. 5-25. With respect to Petitioner’s
claim that he was terminated because of his sexual orientation, the magistrate judge wrote that Title VII
does not encompass claims of discrimination on the basis of sexual orientation. Id. at 9-17. The R&R determined that Petitioner’s contention to the contrary was
precluded by binding circuit precedent in Blum v. Gulf
Oil Corp., 597 F.2d 936 (5th Cir. 1979) (per curiam),
which held that Title VII does not prohibit discrimination on the basis of sexual orientation. App. 12-13. The
R&R recognized that the EEOC changed its position in
2015 in Baldwin v. Foxx, EEOC Decision No.
0120133080, 2015 EEOPUB LEXIS 1905, 2015 WL
4397641 (July 15, 2015) and interpreted Title VII as
encompassing sexual orientation, but the magistrate
judge explained that the district court should not defer
to the EEOC’s new position in light of the binding precedent set forth in Blum. Id. at 15-17. The R&R also recommended
dismissal
of
Petitioner’s
gender
stereotyping claim. Id. at 17-24.
Petitioner filed Objections to the R&R on November 17, 2016, asserting that Title VII encompasses discrimination on the basis of sexual orientation and that
the SAC adequately pled a gender stereotyping claim.
App. 26. After considering briefs by the parties, the district court issued an Order on February 2, 2017
5
deferring consideration of the R&R until after the
Eleventh Circuit issued its decision in Evans v. Ga.
Reg’l Hosp. Id. at 29.
On March 10, 2017, the Eleventh Circuit issued its
decision in Evans v. Ga. Reg’l Hosp., 850 F.3d 1248
(11th Cir. 2017), which held that Blum remained binding precedent in the Eleventh Circuit and that Title
VII therefore does not prohibit discrimination on the
basis of sexual orientation. Relying on Evans, the district court entered an Order on July 21, 2017 adopting
the R&R and dismissing Petitioner’s Title VII claim
that he was terminated because of his sexual orientation. App. at 31. Bostock v. Clayton Cty., 2017 U.S. Dist.
LEXIS 217815, at *6-7 (N.D. Ga. July 21, 2017). The
district court also adopted the R&R and dismissed Petitioner’s gender stereotyping claim on the ground that
the SAC did not plead any facts supporting this claim.
App. 32. Accordingly, the district court entered judgment in favor of the County on July 21, 2017. Id. at 3435.
Petitioner appealed the district court’s judgment
in favor of the County to the Eleventh Circuit. Petitioner, however, did not appeal the district court’s dismissal of his gender stereotyping claim. App. 41 n.1.
Instead, Petitioner argued that Title VII encompasses
sexual orientation and that the Eleventh Circuit’s rulings to the contrary in Evans and Blum conflicted with
this Court’s decisions in Price Waterhouse v. Hopkins,
490 U.S. 228 (1989) and Oncale v. Sundowner Offshore
Servs., Inc., 523 U.S. 75 (1998), as well as the Eleventh
Circuit’s decision in Glenn v. Brumby, 663 F.3d 1312
6
(11th Cir. 2011). App. 36-59. Petitioner also filed a preliminary petition for rehearing en banc on November
13, 2017 asserting similar arguments. Id. at 60-77. The
Eleventh Circuit denied Petitioner’s preliminary petition for rehearing en banc on May 3, 2018. Id. at 4.
On May 10, 2018, the Eleventh Circuit issued an
opinion affirming the district court’s dismissal of Petitioner’s Title VII claim on the ground that, under binding Eleventh Circuit precedent, Title VII does not
prohibit discrimination on the basis of sexual orientation. App. 1-3; Bostock v. Clayton Cty. Bd. of Comm’rs,
723 F. App’x 964 (11th Cir. 2018).
The Eleventh Circuit stated as follows:
Title VII prohibits employers from discriminating against employees on the basis of their
sex. 42 U.S.C. § 2000e-2(a). This circuit has
previously held that “[d]ischarge for homosexuality is not prohibited by Title VII.” Blum v.
Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir.
1979) (per curiam) (emphasis added). And we
recently confirmed that Blum remains binding precedent in this circuit. See Evans v. Ga.
Reg’l Hosp., 850 F.3d 1248, 1256 (11th Cir.
2017), cert. denied, 138 S. Ct. 557 (2017). In
Evans, we specifically rejected the argument
that Supreme Court precedent in Oncale v.
Sundowner Offshore Servs., 523 U.S. 75, 79
(1998), and Price Waterhouse v. Hopkins, 490
U.S. 228, 250-51 (1989), supported a cause of
action for sexual orientation discrimination
under Title VII.
7
App. 2-3 (footnote omitted). Accordingly, the Eleventh
Circuit held as follows:
[T]he district court did not err in dismissing
Bostock’s complaint for sexual orientation discrimination under Title VII because our holding in Evans forecloses Bostock’s claim. And
under our prior panel precedent rule, we cannot overrule a prior panel’s holding, regardless of whether we think it was wrong, unless
an intervening Supreme Court or Eleventh
Circuit en banc decision is issued. United
States v. Kaley, 579 F.3d 1246, 1255-56 (11th
Cir. 2009); United States v. Steele, 147 F.3d
1316, 1317-18 (11th Cir. 1998) (en banc).
App. 3.
Petitioner filed his Petition for Writ of Certiorari
on June 1, 2018.
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REASONS WHY THE PETITION FOR WRIT
OF CERTIORARI SHOULD BE DENIED
As discussed in more detail below, Petitioner contends that certiorari should be granted because the
United States Courts of Appeals for the Second Circuit
and Seventh Circuit recently have held that Title VII
prohibits discrimination on the basis of sexual orientation, thereby creating a split from the nine other circuits that have held for decades that Title VII does not
prohibit discrimination on the basis of sexual orientation. However, the Court has declined certiorari on
8
many occasions despite a circuit split, and the Court
should do so in this instance as well in order to give
the circuit courts an opportunity to address the arguments made in the recent Second Circuit and Seventh
Circuit decisions. Moreover, the Court recently denied
certiorari in Evans v. Ga. Reg’l Hosp., 138 S. Ct. 557
(2017), which presented the identical issue that Petitioner seeks to present to the Court in this case.
In addition, the legal theories asserted by Petitioner in support of his contention that Title VII prohibits discrimination on the basis of sexual orientation,
even though sexual orientation is not included as a
protected class in the text of Title VII, are meritless
and thus do not warrant granting certiorari. Contrary
to Petitioner’s assertions, discrimination on the basis
of “sexual orientation” is not equivalent to or a subset
of discrimination on the basis of “sex.” Furthermore,
neither Price Waterhouse, 490 U.S. 228 (1989) nor Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75
(1998) hold or suggest that Title VII prohibits discrimination on the basis of sexual orientation.
In an attempt to buttress his Petition, Petitioner
also asserts additional grounds for granting certiorari
that have nothing to do with the claims asserted in this
case or the arguments raised by Petitioner in his appeal to the Eleventh Circuit. These additional grounds
therefore do not provide any basis for granting certiorari.
Finally, this is not an appropriate case in any
event for the Court to address whether or not Title VII
9
applies to discrimination because of sexual orientation.
The County denies that sexual orientation was a motivating factor in its decision to conduct the audit or its
decision to terminate Petitioner, and the County contends that it terminated him because of the results of
the audit. App. 8. For these and additional reasons discussed below, certiorari should be denied in this case.
I.
THE COURT SHOULD DENY CERTIORARI
AND AWAIT FURTHER DEVELOPMENT
IN THE CIRCUIT COURTS CONCERNING
A RECENT CIRCUIT SPLIT AS TO
WHETHER OR NOT TITLE VII PROHIBITS DISCRIMINATION ON THE BASIS OF
SEXUAL ORIENTATION
A. The Circuit Courts Have Held For Decades That Title VII Does Not Prohibit
Discrimination On The Basis Of Sexual
Orientation
As Petitioner acknowledges (Pet. 13), most of the
circuit courts have held that Title VII does not prohibit
discrimination on the basis of sexual orientation, and
this has been the consensus of the circuit courts for
decades. See, e.g., Higgins v. New Balance Athletic
Shoe, Inc., 194 F.3d 252, 259 (1st Cir. 1999) (“Title VII
does not proscribe harassment simply because of sexual orientation.”); Bibby v. Phila. Coca Cola Bottling
Co., 260 F.3d 257, 261, 263-65 (3d Cir. 2001) (“Title VII
does not prohibit discrimination based on sexual orientation.”), cert. denied, 534 U.S. 1155 (2002); Hopkins
v. Baltimore Gas & Elec. Co., 77 F.3d 745, 751-52 (4th
10
Cir.) (“Title VII does not prohibit conduct based on the
employee’s sexual orientation” as opposed to “the fact
that the employee is a man or a woman.”), cert. denied,
519 U.S. 818 (1996); Blum v. Gulf Oil Corp., 597 F.2d
936, 938 (5th Cir. 1979) (“Discharge for homosexuality
is not prohibited by Title VII or Section 1981.”); Brandon v. Sage Corp., 808 F.3d 266, 270 n.2 (5th Cir. 2015)
(“Title VII in plain terms does not cover ‘sexual orientation.’ ”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757,
763-66 (6th Cir. 2006), cert. denied, 551 U.S. 1104
(2007); Williamson v. A.G. Edwards & Sons, Inc., 876
F.2d 69, 70 (8th Cir. 1989) (per curiam) (“Title VII does
not prohibit discrimination against homosexuals.”);
Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061, 106364 (9th Cir. 2002) (en banc) (“[A]n employee’s sexual
orientation is irrelevant for purposes of Title VII. It
neither provides nor precludes a cause of action for
sexual orientation.”), cert. denied, 538 U.S. 922 (2003);
Medina v. Income Support Div., 413 F.3d 1131, 1135
(10th Cir. 2005) (holding that “Title VII’s protections
. . . do not extend to harassment due to a person’s sexuality”); Evans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1255
(11th Cir.) (re-affirming Blum as binding circuit precedent and holding that allegations of discrimination on
the basis of sexual orientation do not state a claim under Title VII), cert. denied, 138 S. Ct. 557 (2017). See
also Williams v. Dist. of Columbia, 2018 U.S. Dist.
LEXIS 109515, at *8 n.1, 2018 WL 3213319 (D.D.C.
11
June 30, 2018) (noting that D.C. Circuit “has not yet
confronted this question”).1
B. A very Recent Circuit Split Does Not
Warrant Granting Certiorari In This Case
Petitioner points out that the Second Circuit and
the Seventh Circuit recently have reversed their own
circuit precedents and have held that Title VII prohibits discrimination on the basis of sexual orientation.
(Pet. 4) (citing Zarda v. Altitude Express, Inc., 883 F.3d
100 (2d Cir. 2018) (en banc), cert. petition filed, Case
No. 17-1623 (May 29, 2018) and Hively v. Ivy Tech.
Comm. Coll. of Indiana, 853 F.3d 339 (7th Cir. 2017)
(en banc)). Petitioner contends that Zarda and Hively
create a circuit split as to whether Title VII prohibits
discrimination on the basis of sexual orientation, and
that this Court should grant his Petition to resolve this
circuit split. (Pet. 12-13).
However, the existence of a split among the circuits – especially a recent split involving only two circuits – is not itself a reason to grant petitions for
certiorari. Indeed, just a few months ago, the Court declined to grant certiorari as to whether an agency may
1
U.S. Dep’t of Hous. & Urban Dev., Washington, D.C. v. Fed.
Labor Relations Auth., 964 F.2d 1, 2 (D.C. Cir. 1992), cited by Petitioner (Pet. 13) did not address this issue. The passage cited by
Petitioner simply recited the arguments made before an agency
by the Department of Housing and Urban Development (“HUD”)
before it filed a petition for review with the D.C. Circuit. The court
declined to consider new arguments raised by HUD in the petition
for review and denied the petition on that basis. Id. at 3-5.
12
“advance an interpretation of a statute for the first
time in litigation and then demand deference for its
view” even though “[t]here is a well-defined circuit
split on the question” and “[t]he issue surely qualifies
as an important one.” E.I. Dupont de Nemours & Co. v.
Smiley, 138 S. Ct. 2563, 2564 (2018) (Gorsuch, J., Roberts, C.J., and Thomas, J., concurring in denial of certiorari).
Smiley is just one of countless examples of cases
where the Court has declined to grant certiorari in
spite of a circuit split on an important question. See,
e.g., McCarthan v. Collins, 138 S. Ct. 502 (2017) (denying certiorari as to whether prisoner may file otherwise unauthorized habeas petition challenging his
sentence when case law changes, in spite of circuit
split); AT&T, Inc. v. U.S. ex rel. Heath, 136 S. Ct. 2505
(2016) (denying certiorari in spite of circuit split as to
whether False Claim Act’s first-to-file bar is jurisdictional); Crawford v. LVNV Funding, LLC, 135 S. Ct.
1844 (2015) (denying certiorari in spite of circuit split
as to whether filing proof of claim in bankruptcy court
for time-barred debt violates Fair Debt Collection
Practices Act); Metheny v. Hamby, 488 U.S. 913, 913-14
(1988) (White, J., dissenting from denial of certiorari
and urging that circuit split be resolved as to whether
violations of Interstate Agreement on Detainers warrants relief in federal habeas corpus proceedings);
Cooper v. U.S. Postal Service, 471 U.S. 1022, 1024
(1985) (White, J., dissenting from denial of certiorari
and urging that circuit split be resolved as to whether
13
30-day filing deadline set forth in 42 U.S.C. § 2000e16(c) is a jurisdictional deadline); Stuckett v. U.S.
Postal Service, 469 U.S. 898, 899 (1984) (same);
McKethen v. United States, 439 U.S. 936 (1978) (Stewart, J., and Marshall, J., dissenting from denial of certiorari and urging that circuit split be resolved as to
interpretation of “specifically covered” language in
catch-all hearsay rule).
In addition, this Court denied certiorari on December 11, 2017 on the same question Petitioner presents
here: whether Title VII prohibits discrimination on the
basis of sexual orientation, even though a circuit split
existed at the time by virtue of the Hively decision. Evans v. Ga. Reg’l Hosp., 138 S. Ct. 557 (2017). Although
the Second Circuit subsequently issued its decision in
Zarda, Petitioner otherwise has not demonstrated that
circumstances have materially changed during the approximately eight months that have elapsed since the
Court denied certiorari in Evans.
Moreover, as set forth above, there has been a
strong and unanimous consensus among all of the circuit courts (except for the D.C. Circuit, which has not
considered the issue) for decades that Title VII does
not encompass sexual orientation. No circuit court deviated from this long-standing and unanimous consensus until the Seventh Circuit issued its decision in
Hively last year. Accordingly, the Court should await
further development as to whether other circuit courts
adopt or reject Hively and Zarda and the novel legal
theories articulated in those cases as to why Title VII
prohibits discrimination on the basis of sexual
14
orientation even though “sexual orientation” is not included among the protected classes contained in the
text of Title VII. See Lackey v. Texas, 514 U.S. 1046,
1047 (1995) (Stephens, J., noting with respect to denial
of certiorari on an otherwise important and novel issue, that “[o]ften, a denial of certiorari on a novel issue
will permit the state and federal courts to ‘serve as laboratories in which the issue receives further study before it is addressed by the Court’ ”) (quoting McCray v.
New York, 461 U.S. 961, 963 (1983) (Stevens, J., respecting denial of certiorari)). See also Samuel Estreicher &
John E. Sexon, A Managerial Theory of the Supreme
Court’s Responsibilities: An Empirical Study, 59 N.Y.U.
L. Rev. 681, 716 (1984) (suggesting that Supreme Court
sometimes will allow a circuit split to continue because
“independent evaluation of a legal issue by different
courts . . . allows a period of exploratory consideration
and experimentation by lower courts before the Supreme Court ends the process with a nationally binding rule”); Daniel J. Meador, A Challenge to Judicial
Architecture: Modifying the Regional Design of the U.S.
Court of Appeals, 56 U. Chi. L. Rev. 603, 633 (1989) (“It
is important that the Supreme Court have the benefit
of as much thinking on the question as is feasible before it makes this final resolution.”).
Accordingly, the very recent development of a circuit split as to whether or not Title VII prohibits discrimination on the basis of sexual orientation2 does not
2
Petitioner also points out (Pet. 14) that the EEOC has concluded that Title VII prohibits discrimination on the basis of sexual orientation, whereas the Department of Justice took the
15
in and of itself warrant certiorari review. Instead, the
Court should allow further development of this issue
in the circuit courts in light of Hively and Zarda.3
contrary position as amicus curiae in Zarda. Compare Baldwin v.
Foxx, EEOC Decision No. 0120133080, 2015 EEOPUB LEXIS
1905, 2015 WL 4397641 (July 15, 2015) with Brief for the United
States as Amicus Curiae filed in Zarda v. Altitude Express, Inc.,
2017 U.S. 2nd Cir. Briefs LEXIS 5, 2017 WL 3277292. The County
notes that the EEOC (correctly) took the position that Title VII
does not encompass sexual orientation for decades, until it reversed course and took the opposite position in 2015 during the
Obama administration; the DOJ took the position that it took in
Zarda after President Trump took office. In any event, the
EEOC’s interpretations of Title VII are not binding on this Court
and are entitled to deference “only to the extent that [they have]
the power to persuade.” Christiansen v. Harris Cty., 529 U.S. 576,
587 (2000). See also Skidmore v. Swift & Co., 323 U.S. 134, 140
(1944). Moreover, the EEOC remains under the control of President Obama’s appointees because of a political impasse concerning the slate of nominees submitted by President Trump to the
U.S. Senate for confirmation that would give Republicans a 3-2
majority on the EEOC. See http://www.atlantic.com/politics/
archive/2018/04/chai-feldblum/558593/Why-Is-A-Liberal-LGBTActivist-One-of-Trump’s-Nominees? (The Atlantic, April 24, 2018)
(last viewed on July 28, 2018). If and when this political impasse
is resolved, control of the EEOC will shift from President Obama’s
appointees to President Trump’s appointees, which could result in
another change in the EEOC’s position. Thus, the conflicting positions of the EEOC and the DOJ, while irrelevant to this case,
may ultimately be resolved by the normal political processes.
3
In a similar vein, Petitioner argues that the existence of
conflicting district court decisions on this issue support his request for certiorari. (Pet. 14-15). However, any such conflicts may
be resolved by the relevant circuit courts in the same manner as
any other issue. For example, Petitioner’s citation (Pet. 14) to Winstead v. Lafayette Cty. Bd. of Cty. Comm’rs, 197 F.Supp.3d 1334,
1346-47 (N.D. Fla. 2016) is inapposite because Winstead is no
longer good law after the Eleventh Circuit re-affirmed in Evans
16
II.
THE COURT SHOULD DENY CERTIORARI
BECAUSE PETITIONER HAS FAILED TO
DEMONSTRATE THAT THE ELEVENTH
CIRCUIT ERRED IN RULING THAT TITLE
VII DOES NOT PROHIBIT DISCRIMINATION ON THE BASIS OF SEXUAL ORIENTATION
A. Petitioner’s Contention That Discrimination Because Of “Sex” Includes Discrimination Because Of “Sexual Orientation”
Is Meritless
The provision of Title VII at issue states as follows:
Employer practices. It shall be an unlawful
employment practice for an employer –
(1) to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate
against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or
national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any
(and again in this case) that, under binding circuit precedent, Title VII does not prohibit discrimination on the basis of sexual orientation. Additional district court decisions cited by Petitioner
(Pet. 15) such as Hinton v. Virginia Union Univ., 185 F.Supp.3d
807, 816 (E.D. Va. 2016), and Clemons v. City of Memphis, Tn.,
2016 U.S. Dist. LEXIS 179037, at *7, 2016 WL 7471412, at *3
(W.D. Tenn. Dec. 28, 2016) likewise are inapposite because they
properly followed circuit precedent and held that Title VII does
not prohibit discrimination on the basis of sexual orientation.
17
way which would tend to deprive any individual of employment opportunities or
otherwise adversely affect his status as
an employee, because of such individual’s
race, color, religion, sex, or national
origin.
42 U.S.C. § 2000e-2(a).
The text of Title VII does not include sexual orientation as a protected class. The fact that Title VII does
not include sexual orientation as a protected class is
particularly glaring in light of the fact that Congress
repeatedly has included sexual orientation as a protected class in numerous other statutes. See, e.g., 34
U.S.C. § 12291(b)(13)(A) (prohibiting funded programs
and activities from discriminating on numerous
grounds, including sexual orientation, under Violence
Against Women Act); 18 U.S.C. § 249(a)(2)(A) (imposing heightened punishment for causing or attempting
to cause bodily injury to any person because of (among
other traits) the person’s sexual orientation); 34 U.S.C.
§ 30503(a)(1)(C) (providing federal assistance to local
law enforcement for investigation of certain crimes
motivated by (among other traits) sexual orientation);
20 U.S.C. § 1092(f )(1)(F)(ii) (requiring colleges and
universities to collect and report information regarding crimes on campus, including crimes where victim
is selected because of (among other traits) sexual orientation).
These deliberate decisions by Congress are
hardly “hypertechnical distinctions” as Petitioner dismissively suggests (Pet. 32), in order to argue that, by
18
prohibiting discrimination against an employee because of “sex,” Title VII also prohibits discrimination
against an employee because of “sexual orientation” as
follows:
In discriminating against an employee on the
basis of his sexual orientation, the employer
has “taken gender into account,” because
“ ‘[s]exual orientation’ as a concept cannot be
defined or understood without reference to
sex.” Id. That is, “sexual orientation is inseparable from and inescapably linked to sex and,
therefore . . . allegations of sexual orientation
discrimination [necessarily] involve sex-based
considerations.” Id. at *5.
(Pet. 29-30) (quoting Baldwin, 2015 WL 4397641, at *4,
5 and citing Zarda). Petitioner’s assertions are meritless.
As this Court has recognized, “[i]t is a fundamental canon of statutory construction that, unless otherwise defined, words will be interpreted as taking their
ordinary, contemporary, common meaning.” Sandifer v.
U.S. Steel Corp., 571 U.S. 220, 227 (2014) (quoting Perrin v. United States, 444 U.S. 37, 42 (1979)). The term
“contemporary” refers to the time frame when the statute at issue was enacted, not when a court is interpreting it years later in litigation. Id. (identifying and
applying relevant dictionary definitions in use at time
statute at issue was enacted).
The term “sex” as commonly understood in 1964
when Title VII was enacted and today “means biologically male or female; it does not also refer to sexual
19
orientation.” Hively, 853 F.3d at 362-63 (Sykes, J., dissenting) (surveying various dictionary definitions).
The term “sexual orientation” on the other hand,
means, “Originally: (the process of ) orientation with
respect to a sexual goal, potential mate, partner, etc.
Later chiefly: a person’s sexual identity in relation to
the gender to who he or she is usually attracted;
(broadly) the fact of being heterosexual, bisexual, or
homosexual.” Oxford English Dictionary (2009 ed.). Accord Dictionary.com (defining “sexual orientation” as
“one’s natural preference in sexual partners; predilection for homosexuality, heterosexuality, or bisexuality”) (last viewed August 4, 2018).
Thus, Petitioner’s assertion that an allegation of
discrimination on the basis of sexual orientation is necessarily an allegation of sex discrimination is incorrect.
Indeed, this Court has not treated sexual orientation
discrimination as synonymous with or a subset of sex
discrimination, and thereby subject to intermediate
scrutiny. Romer v. Evans, 517 U.S. 620, 632-34 (1996)
(invalidating state constitutional amendment targeting local laws prohibiting sexual orientation discrimination, on ground that amendment did not survive
rational basis review); Lawrence v. Texas, 539 U.S. 558,
564-78 (2003) (invalidating state statute criminalizing
same-sex sexual intimacy as violation of liberty and
privacy interest in due process clause); id. at 579-85
(concluding that statute did not survive rational basis
review under equal protection clause) (O’Connor, J.,
concurring). See also Obergefell v. Hodges, 135 S. Ct.
20
2584, 2597-2605 (2015) (holding that excluding samesex couples from marriage violates fundamental right
to marry in due process clause and equal protection
clause).
Moreover, in the context of Title VII, sexual orientation discrimination is separate and distinct from sex
discrimination. Hopkins, 77 F.3d at 751-52 (“Title VII
does not prohibit conduct based on the employee’s sexual orientation, whether homosexual, bisexual or heterosexual. Such conduct is aimed at the employee’s
sexual orientation and not at the fact that the employee is a man or a woman.”); Hively, 853 F.3d at 363
(“Classifying people by sexual orientation is different
than classifying them by sex. The two traits are categorically distinct and widely recognized as such.”)
(Sykes, J., dissenting). Accordingly, the fact that Title
VII prohibits discrimination because of “sex” does not
establish that Title VII also prohibits discrimination
on the basis of sexual orientation.
Simply put, the novel legal theory presented by
Petitioner is nothing more than a thinly-veiled invitation for the Court to re-write Title VII to add a protected class that Congress did not include and did not
intend to include. This inescapable reality is further
demonstrated by the fact that numerous members of
Congress have introduced legislation to amend Title
VII to add sexual orientation as a protected class almost every year since 1974.4 These legislative efforts
4
See, e.g., Equality Act of 1974, H.R. 14752, 93d Cong. (1974),
Civil Rights Amendments Act of 1975, H.R. 166, 94th Cong.
21
(1975), A Bill to Prohibit Discrimination on the Basis of Sex, Marital Status, Affectional or Sexual Preference, H.R. 2667, 94th
Cong. (1975), Civil Rights Amendments of 1975, H.R. 5452, 94th
Cong. (1975), Civil Rights Amendments of 1975, H.R. 10389, 94th
Cong. (1975), Civil Rights Amendments of 1976, H.R. 13019, 94th
Cong. (1976), Civil Rights Amendments of 1975, H.R. 451, 95th
Cong. (1977), Civil Rights Amendments of 1977, H.R. 2998, 95th
Cong. (1977), Civil Rights Amendments of 1977, H.R. 4794, 95th
Cong. (1977), Civil Rights Amendments of 1977, H.R. 5239, 95th
Cong. (1977), Civil Rights Amendments Act of 1977, H.R. 7775,
95th Cong. (1977), Civil Rights Amendments Act of 1977, H.R.
8268, 95th Cong. (1977), Civil Rights Amendments Act of 1977,
H.R. 8269, 95th Cong. (1977), Civil Rights Amendments Act of
1979, H.R. 2074, 95th Cong. (1979), A Bill to Prohibit Employment
Discrimination on the Basis of Sexual Orientation, S. 2081, 96th
Cong. (1979), Civil Rights Amendments Act of 1981, H.R. 1454,
97th Cong. (1981), Civil Rights Amendments Act of 1981, H.R.
3371, 97th Cong. (1981), A Bill to Prohibit Employment Discrimination on the Basis of Sexual Orientation, S. 1708, 97th Cong.
(1981), A Bill to Prohibit Employment Discrimination on the Basis of Sexual Orientation, S. 430, 98th Cong. (1983), Civil Rights
Amendments Act of 1983, H.R. 427, 98th Cong. (1983), Civil
Rights Amendments Act of 1983, H.R. 2624, 98th Cong. (1983),
Civil Rights Amendments Act of 1985, H.R. 230, 99th Cong.
(1985), Civil Rights Amendments Act of 1985, S. 1432, Amendments Act of 1987, S. 464, 100th Cong. (1987), Civil Rights Amendments Act of 1991, S. 574, 102d Cong. (1991), Civil Rights
Amendments Act of 1991, H.R. 1430, 102d Cong. (1991), Civil
Rights Amendments Act of 1993, H.R. 423, 103d Cong. (1993),
Civil Rights Act of 1993, H.R. 431, 103d Cong.(1993), Employment
Non-Discrimination Act of 1994, H.R. 4636, 103d Cong. (1994),
Employment Non-Discrimination Act of 1994, S. 2238, 103d Cong.
(1994), Civil Rights Amendments Act of 1995, H.R. 382, 104th
Cong. (1995), Employment Non-Discrimination Act of 1995, H.R.
1863, 104th Cong. (1995), Employment Non-Discrimination Act of
1995, S. 932, 104th Cong. (1995), Employment Non-Discrimination Act of 1996, S. 2056, 105th Cong. (1996), Employment NonDiscrimination Act of 1997, H.R. 1858, 105th Cong. (1997), Employment Non-Discrimination Act of 1997, S. 869, 105th Cong.
(1997), Civil Rights Amendments Act of 1998, H.R. 365, 105th
22
have not succeeded, as Congress has not passed any
legislation amending Title VII to add sexual orientation as a protected class. Distilled to its essence, therefore, Petitioner is asking this Court to grant certiorari
and amend Title VII to add sexual orientation as a protected class because Congress thus far has not seen fit
to do so.
Petitioner nevertheless contends that Congress’s
repeated decisions not to amend Title VII to add sexual
orientation as a protected class does not undermine his
position that the current version of Title VII already
Cong. (1998), Civil Rights Amendments Act of 1999, H.R. 311,
106th Cong. (1999), Employment Non-Discrimination Act
of 1999, H.R. 2355, 106th Cong. (1999), Employment NonDiscrimination Ad of 1999, S. 1276, 106th Cong. (1999), Civil
Rights Amendments Act of 2001, H.R. 217, 107th Cong. (2001),
Employment Non-Discrimination Act of 2001, H.R. 2692, 107th
Cong. (2001), Employment Non-Discrimination Act of 2002, S.
1284, 107th Cong. (2001), Civil Rights Amendments Act of 2003,
H.R. 214, 108th Cong. (2003), Employment Non-Discrimination
Act of 2003, S. 1705, 108th Cong. (2003), Employment NonDiscrimination Act of 2003, H.R. 3285, 108th Cong. (2003), Civil
Rights Amendments Act of 2005, H.R. 288, 109th Cong. (2005),
Employment Non-Discrimination Act of 2007, H.R. 2015, 110th
Cong. (2007), Employment Non-Discrimination Act of 2007, H.R.
3685, 110th Cong. (2007), Employment Non-Discrimination Act of
2009, H.R. 3017, 111th Cong. (2009), Employment Non-Discrimination Act of 2009, S. 1584, 111th Cong. (2009), Employment NonDiscrimination Act of 2011, H.R. 1397, 112th Cong. (2011), Employment Non-Discrimination Act of 2011, S. 811, 112th Cong.
(2011), Employment Non-Discrimination Act of 2013, S. 815 113th
Cong. (2013), Employment Non-Discrimination Act of 2013, H.R.
1755, 113th Cong. (2013), Equality Act, H.R. 3185, 114th Cong.
(2015), Equality Act, S. 1858, 114th Cong. (2015), Equality Act,
H.R. 2282, 115th Cong. (2017), Equality Act, S. 1006, 115th Cong.
(2017).
23
prohibits discrimination on the basis of sexual orientation. In support, Petitioner cites various Supreme
Court decisions for the proposition that courts should
not read too much into a legislature’s failure to act or
failure to amend previous legislation. (Pet. 30-31) (citing Pension Ben. Guar. Corp. v. LTV Corp., 496 U.S. 633,
650 (1990); Zuber v. Allen, 396 U.S. 168, 185 n.21 (1969);
Girouard v. United States, 328 U.S. 61, 69 (1946); and
United States v. Price, 361 U.S. 304, 310-11 (1960)). Petitioner argues that this is so because “Congressional
inaction lacks persuasive significance because several
equally tenable inferences may be drawn from such inaction, including the inference that the existing legislation already incorporates the offered change. (Pension
Ben. Guar. Corp., 496 U.S. at 650 (internal quotations
omitted) (emphasis supplied).” (Pet. 31).
Petitioner’s suggestion that Congress has not
amended Title VII at any point during the last 50 years
to add sexual orientation as a protected class because
Congress thought that Title VII in its existing form already includes sexual orientation as a protected class
is utter nonsense. As discussed in Section I above, the
circuit courts unanimously held for decades that Title
VII does not encompass sexual orientation, and the
EEOC’s position for decades likewise was that Title
VII does not encompass sexual orientation. App. 11-12
(citing EEOC Dec. No. 76-75 (Dec. 4, 1975), 1975 WL
342769, at *2). The absence of an amendment by Congress in light of this unanimity of rulings confirms that
it did not intend Title VII to include sexual orientation
24
discrimination. Stated otherwise, had Congress intended it to so include, it would have amended the statute to legislate its intent.5 Notably, even after the
EEOC took the position that Title VII encompasses
sexual orientation in 2015, no circuit court read the
statute in that manner until the Seventh Circuit issued its en banc decision in Hively in 2017.
Thus, Petitioner has not and cannot demonstrate
that Congress’s failure to amend Title VII to add sexual orientation as a protected class was because Congress thought that sexual orientation already was
included as a protected class. Nor can Petitioner
demonstrate that Congress’s failure to amend Title VII
to add sexual orientation as a protected class during
the past 50 years was the result of “unawareness, preoccupation, or paralysis.” (Pet. 31 n.7) (quoting Zuber,
396 U.S. at 185 n.21). The sheer number of acts of legislation introduced over the course of more than 50
years seeking to amend Title VII to add sexual orientation as a protected class alone demonstrates that
Congress has not been unaware of this issue or preoccupied with other issues. The simple reality is that
“[t]here may be many reasons why each proposal ultimately failed, but it cannot reasonably be claimed that
the basic reason that Congress did not pass such an
amendment year in and year out was anything other
5
Indeed, Congress repeatedly and expressly included sexual
orientation as a protected class in numerous other statutes when
it has intended to do so. See, e.g., 18 U.S.C. § 249(a)(2)(A); 20 U.S.C.
§ 1092(f )(1)(F)(ii); 34 U.S.C. §§ 12291(b)(13)(A), 30503(a)(1)(C).
25
than that there was not yet the political will to do so.”
Zarda, 883 F.3d at 152 (Lynch, J., dissenting).
The Court therefore should deny certiorari because sexual orientation discrimination is not a subset
of sex discrimination. Moreover, Petitioner has not and
cannot demonstrate that Congress declined to amend
Title VII to include sexual orientation as a protected
class because it thought that sexual orientation already was included as a protected class.
B. Price Waterhouse Did Not Abrogate Circuit Case Law Holding That Title VII
Does Not Prohibit Discrimination On
The Basis Of Sexual Orientation
Petitioner also argues that Price Waterhouse, 490
U.S. 228 (1989), “sounded the death knell for [the] myopic interpretation” that Title VII does not prohibit
sexual orientation discrimination. (Pet. 3). Petitioner
contends that Price Waterhouse “forbid[s] discrimination against a gay person for failing to conform to a
stereotype about how he should act in terms of who he
should be attracted to or romantically involved with.”
(Pet. 27-28). Price Waterhouse, however, does no such
thing.
In Price Waterhouse, a female senior manager, was
not invited to become a partner with an accounting
firm. The plaintiff introduced evidence that various
male partners made stereotypical comments about her
when considering her candidacy. These comments included that the plaintiff was “macho,” that she
26
“overcompensated for being a woman,” that she should
take “a course at charm school,” that certain partners
objected to her swearing only “because it’s a lady using
foul language” and similar comments. Id. at 235. The
partner who informed the plaintiff of the decision to
place her candidacy on hold told her that, if she wanted
to improve her chances for partnership in the future,
she should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her
hair styled and wear jewelry.” Id. at 235.
A plurality of four justices, joined by two concurring justices, held that such evidence that an employer
took adverse action against an employee for failure to
conform to a stereotype associated with the employee’s
protected class was sufficient to establish a violation
under Title VII. Price Waterhouse, 490 U.S. at 251; id.
at 258-61 (White, J., concurring); id. at 302 (O’Connor,
J., concurring). The Court explained that “[a]n employer who objects to aggressiveness in women but
whose positions require this trait places women in an
intolerable and impermissible catch 22: out of a job if
they behave aggressively and out of a job if they do not.
Title VII lifts women out of this bind.” Id. at 251.
Contrary to Petitioner’s assertions, Price Waterhouse’s holding that an employer violates Title VII by
making employment decisions because of gender stereotypes such as how a female should dress or wear
her hair, what personality traits (such as “aggressiveness”) a female should have, or how a female should
talk, does not remotely suggest that Title VII prohibits
discrimination on the basis of sexual orientation. See,
27
e.g., Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285,
290 (3d Cir. 2009) (observing that Price Waterhouse
prohibits discrimination against women “for failing to
conform to a traditionally feminine demeanor and appearance” and observing that employer “argues persuasively that every case of sexual orientation cannot
translate into a triable case of gender stereotyping discrimination, which would contradict Congress’s decision not to make sexual orientation discrimination
cognizable under Title VII”); Vickers, 453 F.3d at 763
(rejecting plaintiff ’s claim that his sexual practices as
a homosexual did not conform to gender stereotype because “the theory of sex stereotyping in Price Waterhouse is not broad enough to encompass such a theory”
and limiting Price Waterhouse to the plaintiff ’s appearance or behavior in the workplace); Medina, 413 F.3d
at 1135 (rejecting plaintiff ’s claim that she was harassed for failing to conform with gender stereotypes
and holding that plaintiff alleged harassment because
of her sexual orientation, which is not actionable under
Title VII). Accord Hively, 853 F.3d at 370 (gender stereotyping theory does not apply to sexual orientation
claim because sexual orientation is not a sex-specific
stereotype) (Sykes, J., dissenting); Zarda, 883 F.3d at
158 (sexual orientation discrimination does not rest on
a belief “about what men or women ought to be or do;
it is a belief about what all people ought to be or do”)
(Lynch, J., dissenting) (emphasis in original).
Accordingly, Price Waterhouse does not provide
any basis for Petitioner’s contention that Title VII
28
prohibits discrimination on the basis of sexual orientation. The instant Petition therefore should be denied.6
C. Oncale Did Not Abrogate Circuit Case
Law Holding That Title VII Does Not
Prohibit Discrimination On The Basis
Of Sexual Orientation
Petitioner also contends that Oncale v. Sundowner
Offshore Servs., Inc., 523 U.S. 75 (1998), was “[t]he nail
in the coffin” demonstrating that Title VII prohibits
discrimination on the basis of sexual orientation. (Pet.
3, 28). This contention is incorrect, as Oncale simply
held that same-sex sexual harassment is actionable
under Title VII and extended the Court’s previous rejection of any conclusive presumption that an
6
Petitioner also argues that the Court has held that an employer engages in prohibited sex discrimination when it takes adverse action “simply on the basis of that employee being one
gender or another.” (Pet. 30 n.6) (emphasis in original) (citing
Newport News Shipbuilding and Dry Dock Co. v. E.E.O.C., 462
U.S. 669, 683-85 (1983) (exclusion of pregnant spouses from employer’s health insurance plan constituted unlawful sex discrimination) and City of Los Angeles, Dep’t of Water and Power v.
Manhart, 435 U.S. 702, 710-11 (1978) (requiring female employees
to contribute more than male employees to pension fund based on
longer life expectancy of women constituted unlawful sex discrimination under Title VII)). These decisions, however, are inapposite
because, unlike pregnancy or life expectancy, sexual orientation is
not a “proxy” for either being male or female. In other words,
same-sex attraction is not a trait that is present solely or primarily in one sex or the other. See Zarda, 883 F.3d at 152 (“[S]amesex attraction is not ‘a function of sex’ or ‘associated with sex’ in
the sense that life expectancy or childbearing capacity are.”)
(Lynch, J., dissenting).
29
employer will not discriminate against members of the
same protected class. Oncale, 523 U.S. at 78-79.
As the Court explained in Oncale, “ ‘[t]he critical
issue, Title VII’s text indicates, is whether members of
one sex are exposed to disadvantageous terms or conditions of employment to which members of the other
sex are not exposed.’ ” Oncale, 523 U.S. at 80 (quoting
Harris v. Forklift Systems, Inc., 510 U.S. 17, 25 (1993)
(Ginsburg, J., concurring)). In the male-female harassment context, the inference of discrimination is easy to
draw because “the challenged conduct typically involves explicit or implicit proposals of sexual activity;
it is reasonable to assume those proposals would not
have been made to someone of the same sex.” Id. Thus,
if the harasser is a heterosexual male, it is safe to assume that women, but not men, are exposed to disadvantageous terms and conditions of employment.
As the Court explained in Oncale, essentially the
same analysis may apply if the alleged harasser is a
homosexual male. Oncale, 523 U.S. at 80. In that circumstance, it is reasonable to assume that proposals
for sexual activity would be made to someone of the
same sex, and thus that men, but not women, are exposed to disadvantageous terms and conditions of employment. Id. The Court in Oncale also emphasized
that a claim for same-sex harassment does not require
a showing that the harassing conduct was motivated
by sexual desire, but also may be established by proving (for example), that a female employee is harassed
by another woman because of her “general hostility to
the presence of women in the workplace.” Id.
30
In other words, if the alleged harasser is a heterosexual male, women are subjected to disadvantageous
terms and conditions of employment and men are not.
If the alleged harasser is a homosexual male, men are
subjected to disadvantageous terms and conditions of
employment and women are not. In both situations,
the target of the harassment is selected because of the
employee’s biological sex and thus easily falls within
Title VII’s prohibition of discrimination because of
“sex.”
Thus, “[n]othing in Oncale eroded the distinction
between sex discrimination and sexual-orientation discrimination or opened the door to a new interpretation
of Title VII.” Hively, 853 F.3d at 372 (Sykes, J., dissenting). Accordingly, Petitioner’s request for certiorari on
this ground should be denied.
III. PETITIONER’S ADDITIONAL REASONS
AS TO WHY CERTIORARI SHOULD BE
GRANTED ARE IRRELEVANT TO THIS
CASE
Petitioner advances a number of additional reasons why certiorari should be granted in this case.
None of them have any bearing on this case, the claims
he has asserted in this case or the Eleventh Circuit’s
ruling in this case.
For example, Petitioner argues that certiorari
should be granted in this case because the scope of Title VII’s anti-retaliation provisions (more specifically,
the opposition clause thereto) may be unclear to the
31
extent that it is unclear whether Title VII prohibits
sexual orientation discrimination. (Pet. 16). Petitioner,
however, has not asserted a retaliation claim in this
case. Moreover, Petitioner cites to one published district court decision and two unpublished district court
decisions in support of his contention that the alleged
lack of clarity as to the scope of Title VII’s prohibition
against retaliation for opposing an employment practice made unlawful by Title VII is a critical issue that
requires resolution by this Court. (Pet. 16-17 n.3).
Therefore, the Court should decline Petitioner’s invitation to grant certiorari in this case to rectify any alleged lack of clarity with respect to the scope of Title
VII’s opposition clause.
Petitioner also contends that the Court should
grant certiorari in this case to clarify whether an employee may be subjected to employment discrimination
under Title VII because of his or her “association” with
gay or lesbian individuals as “friends, family, or even
members of the same church.” (Pet. 17-18). Petitioner,
however, did not assert any such “association” argument on appeal to the Eleventh Circuit. App. 36-59.
Therefore, the Court should not grant certiorari on the
basis of a legal theory that Petitioner did not deem to
have sufficient potential merit to include in his legal
arguments in the Eleventh Circuit.
Petitioner next asserts that the Court should
grant certiorari because of exhaustion issues that may
arise when a plaintiff seeks to assert a gender stereotyping claim. (Pet. 18 n.4). As Petitioner acknowledges,
however, Petitioner abandoned his gender stereotyping
32
claim on appeal to the Eleventh Circuit. Id. Thus, there
is no exhaustion issue presented by this case. In any
event, a charging party who intends to assert a gender
stereotyping claim may properly be required to include
sufficient facts and/or allegations in the particulars
section of the charge to inform the EEOC that he seeks
to assert a gender stereotyping claim, and Petitioner
has failed to cite any authority to the contrary. Accordingly, the Court should not grant certiorari on this
ground.
In addition, Petitioner contends that the Court
should grant certiorari in this case because of alleged
confusion in the lower courts as to whether a hostile
work environment claim is based on sexual orientation
(and thus not unlawful under Title VII) or based on a
gender stereotype or same-sex harassment (and thus
unlawful under Title VII). (Pet. 19-23). Petitioner, however, has not asserted a claim in this case that he was
subjected to a hostile work environment. Moreover, as
previously stated, Petitioner did not appeal the district
court’s dismissal of his claim that he was terminated
because of his failure to conform to a gender stereotype. Thus, Petitioner once again seeks to invoke issues
that have nothing to do with this case.
Petitioner also asserts that certiorari should be
granted because certain lower court decisions have erroneously dismissed cases where an employer’s decision may have been motivated by both lawful reason
(sexual orientation) and an unlawful reason (failure to
conform to a sex-based stereotype). (Pet. 25-26). Petitioner, however, did not assert any such “mixed motive”
33
claim in his pleadings in the district court and did not
present any “mixed motive” arguments either in the
district court or on appeal in the Eleventh Circuit. App.
5-33, 36-59. Moreover, because Petitioner has abandoned his gender stereotyping claim (Pet. 10 n.2; App.
41 n.1), the “mixed motive” issue Petitioner contends
needs to be addressed by this Court is not present in
this case. Petitioner’s request for certiorari on this basis thus should be denied.
IV. THIS COURT SHOULD DECLINE PETITIONER’S INVITATION TO GRANT CERTIORARI, SEIZE LEGISLATIVE POWER
FROM CONGRESS AND RE-WRITE TITLE
VII
Petitioner also contends that the Court should
grant certiorari because “justice demands” that the
Court rule that sexual orientation discrimination is
prohibited under Title VII. (Pet. 27). Petitioner then
contends as follows:
Because a person’s sexual orientation is immutable, Obergefell, 135 S. Ct. at 2596, discrimination against an employee on that basis
is at least as “reasonably comparable [an]
evil” as discrimination on the basis of biological sex alone, Oncale, 523 U.S. at 79. Accordingly, this Court must act to fulfill the
congressional intent behind Title VII “to
strike at the entire spectrum of disparate
treatment of men and women resulting from
sex stereotypes.” Oncale, 523 U.S. at 78
34
(emphasis supplied) (quoting Meritor Sav.
Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986)).
(Pet. 27).7
This argument vividly illustrates the stark reality
that Petitioner is urging the Court to grant certiorari,
seize legislative power from Congress and re-write Title VII to prohibit discrimination on the basis of sexual
orientation – because, in Petitioner’s view, discriminating on the basis of sexual orientation is “at least as reasonably comparable an evil” as discrimination on the
basis of sex. This Court should decline Petitioner’s invitation.
V.
THIS CASE IS NOT THE APPROPRIATE
VEHICLE TO RESOLVE WHETHER OR
NOT TITLE VII PROHIBITS DISCRIMINATION ON THE BASIS OF SEXUAL ORIENTATION
Lastly, this would not be the appropriate case to
evaluate whether or not Title VII prohibits discrimination because of sexual orientation. The County denies
that Petitioner’s sexual orientation was a motivating
factor in its decision to conduct an audit of the program
he managed or its decision to terminate his employment after the audit was completed. App. 7-8. The
7
This passage misquotes Oncale, which actually states that
Title VII “ ‘evinces a congressional intent to strike at the entire
spectrum of disparate treatment of men and women in employment.’ ” Oncale, 523 U.S. at 78 (emphasis added) (quoting Meritor,
477 U.S. at 64)).
35
County contends that it terminated Petitioner for legitimate, non-discriminatory reasons based on the results of the audit. Id. at 8. In this regard, the SAC does
not include any allegation that the audit did not conclude that Petitioner engaged in misconduct with respect to the program he managed. Id. at 7-8.
Thus, at the very least, the reasons for Petitioner’s
termination are disputed by the parties. In other
words, this is not a case where the record is undisputed
that the employee was terminated because of his sexual orientation, and the only issue to be resolved is
whether termination on the basis of sexual orientation
violates Title VII. Moreover, neither the district court
nor the Eleventh Circuit addressed the legal theories
Petitioner advances in support of his contention that
Title VII prohibits discrimination on the basis of sexual orientation. App. 1-3, 26-31.
Accordingly, this case is not the appropriate or desirable vehicle for the Court to address whether or not
Title VII prohibits discrimination on the basis of sexual orientation. The instant Petition therefore should
be denied.8
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8
On August 2, 2018, Petitioner filed a Supplemental Petition
for Writ of Certiorari. In his Supplemental Petition, Petitioner
contends that the dissent from the Eleventh Circuit’s decision not
to rehear this case en banc, Bostock v. Clayton Cty. Bd. of Comm’rs,
2018 U.S. App. LEXIS 19835, at *2-7, 2018 WL 3455013 (11th Cir.
July 18, 2018) (Rosenbaum, J., dissenting from the denial of rehearing en banc), provides further support for his Petition. The
36
CONCLUSION
For the reasons discussed herein, the Court should
reject Petitioner’s request that the Court grant certiorari, assume the role of a super-legislature and rewrite Title VII to prohibit discrimination on the basis
of sexual orientation. Instead, Petitioner and likeminded individuals should mobilize political support
for Congress to amend Title VII or enact other legislation prohibiting employment discrimination on the basis of sexual orientation.
Respectfully submitted,
JACK R. HANCOCK
Counsel of Record
WILLIAM H. BUECHNER, JR.
FREEMAN MATHIS & GARY, LLP
661 Forest Parkway
Suite E
Forest Park, Georgia 30297-2256
(404) 366-1000
jhancock@fmglaw.com
County notes that nine of Judge Rosenbaum’s colleagues on the
Eleventh Circuit bench disagreed with her position that the case
should be re-heard en banc and/or her conclusion that Title VII
prohibits discrimination on the basis of sexual orientation.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.