Judge Cabranes’ Zarda Concurrence: Just Do It

The Second Circuit could have dodged Zarda altogether. Donald Zarda died in a BASE jumping accident. His former employer, defendant Altitude Express, wasn’t fighting his claim that discrimination on the basis of sexual orientation was not covered by Title VII’s prohibition on discrimination “because of . . . sex,” but contending that his firing had nothing to do with his being gay. And the Second Circuit panel that heard the appeal of his partial summary judgment dismissal of his Title VII claim affirmed the district court.

Yet, the circuit took the case en banc anyway. One hundred and sixty-three pages later, only one thing is clear.

We now hold that sexual orientation discrimination constitutes a form of discrimination “because of . . . sex,” in violation of Title VII, and overturn Simonton and Dawson v. Bumble &
Bumble, 398 F.3d 211, 217–23 (2d Cir. 2005), to the extent they held otherwise.

Why? Chief Judge Katzmann writing for the majority offered myriad rationales, from the basic “law evolves” to a “but for sex” test that is broad enough to include sex with goats. The breakdown was thus:

KATZMANN, C.J., filed the majority opinion in which HALL, CHIN, CARNEY, and DRONEY, JJ., joined in full, JACOBS, J., joined as to Parts I and II.B.3, POOLER, J., joined as to all but Part II.B.1.b, SACK, J., joined as to Parts I, II.A, II.B.3, and II.C, and LOHIER, J., joined as to Parts I, II.A, and II.B.1.a.
JACOBS, J., filed a concurring opinion.
CABRANES, J., filed an opinion concurring in the judgment.
SACK, J., filed a concurring opinion.
LOHIER, J., filed a concurring opinion.
LYNCH, J., filed a dissenting opinion in which LIVINGSTON, J., joined as to Parts I, II, and III.
LIVINGSTON, J., filed a dissenting opinion.
RAGGI, J., filed a dissenting opinion.

No one suggested that discrimination based on sexual orientation wasn’t a terrible thing, but that no amount of judicial activism, semantic gymnastics or over-stretched analogies was sufficient to overcome the conceded fact that when Title VII was enacted, the one thing clear was that the word “sex” was never meant to include discrimination for sexual orientation. Indeed, one of the most difficult hurdles to leap was that Congress had repeatedly rejected bills to modify Title VII to include sexual orientation as a stand-alone basis for a violation.

So what was the rationale for the holding? Who knows?

Which is why Judge Jose Cabranes’ concurrence would have best served the majority.

I concur only in the judgment of the Court. It will take the courts years to sort out how each of the theories presented by the majority applies to other Title VII protected classes: “race, color, religion, . . . [and] national origin.” 42 U.S.C. § 2000e‐2(a)(1).

This is a straightforward case of statutory construction. Title VII of the Civil Rights Act of 1964 prohibits discrimination “because of . . . sex.” Id. Zarda’s sexual orientation is a function of his sex. Discrimination against Zarda because of his sexual orientation therefore is discrimination because of his sex, and is prohibited by Title VII.

That should be the end of the analysis.¹

¹ Cf. 1 Callimachus fr. 465, at 353 (Rudolfus Pfeiffer ed., 1949) (3d century B.C.) (μέγα
βιβλίον . . . μ[έ]γ[α] κακ[όν]).

What, you ask, was that? In his thorough, well-reasoned and, frankly, quite interesting dissent, Judge Gerard Lynch, former Vice Dean of Columbia Law School, characterizes it in a foot note:

[T]hat interpretation is so obvious and straightforward that nothing more need be said on the subject, and that we can dispense with the various arguments from precedent and principle that the majority opinion makes in support of its holding.

Perhaps that isn’t Judge Cabranes’ view at all, but that it was time to do what Congress refused to do, amend Title VII to include discrimination on the basis of sexual orientation because, well, it just was, and just make it happen. For all the gymnastics performed by Judge Katzmann, there is no rationale that overcomes the fact that homosexuality isn’t limited to males or females, such that discrimination on that basis had a disparate treatment of one sex versus the other.

Sure, the EEOC had, under President Obama, discovered that sexual orientation that wasn’t sex discrimination before was now sex discrimination, but the circuit already had precedent so it was under no Chevron deference duty. Rather, the en banc court just wanted Title VII to mean something it didn’t say, and was never intended to mean, and so it did.

So why not accept Judge Lynch’s understanding of Judge Cabranes’ rationale, that “sexual orientation is a function of his sex,” as being too obvious to be worthy of discussion?  Judge Cabranes is far too smart to actually believe such a silly rationale.*

What is far more likely is that Judge Cabranes understood two things: first, that the Second Circuit was going to do what a dysfunctional Congress refused to do, over and over, and fundamentally amend Title VII to mean something different than what it means because the court wanted it to.

The second thing is that Judge Cabranes understood Judge Katzmann’s herculean efforts to provide a rationale for the holding would wreak havoc with the law. Much as it achieved an outcome with which the judges agreed, it did so by such mischievous methods that discrimination law in the Second Circuit would be upended for everyone, for every classification, for decades.

What other types of unmentioned, unintended discrimination would now be covered? How would this impact the scrutiny to be applied to enumerated classifications? It is now all a toss-up, which is fine if your goal is to include discrimination on any possible basis imaginable, but makes it damn near impossible to know what will bring down the wrath of the law.

But will this decision stand? That’s what makes Zarda special, as it’s the perfect case for flagrant judicial activisim. Remember that the defendant, Altitude Express, never argued that Title VII doesn’t include sexual orientation discrimination, but that it didn’t fire Zarda because he was gay in the first place?** The court had to bring in a proxy to argue the point, but the proxy’s involvement was limited to the Second Circuit, and there is no standing to petition for certiorari.

Chances of anyone seeking Supreme Court review are slim to none, meaning that this will be the law in the Second Circuit until a case makes its way to the Supremes and is decided. By that time, it may well be sufficiently well-established because of Zarda that “sex” under Title VII means sexual orientation.

This goal may be important enough to ignore the gyrations necessary to achieve it, but even if that’s your position, the unintended consequences will be felt for a long time to come. If that’s the end game, then the court would have been far smarter to go with Judge Cabranes’ rationale. That should have been the end of the analysis.

*As Judge Lynch discusses in his dissent:

But what of a pool facility that requires different styles of bathing suit for male and female lifeguards? Judge Cabranes’s concurrence would seem to prohibit that practice, but I believe, and I expect Judge Cabranes would agree, that a pool that required both male and female lifeguards to wear a uniform consisting only of trunks would violate Title VII, while one that prescribed trunks for men and a bathing suit covering the breasts for women would not.

That Judge Lynch attributes this mischief to Judge Cabranes, but not to the majority opinion, is curious, as it readily derives from the laundry list of reasons offered by Judge Katzmann, but not from Judge Cabranes at all.

**Under the facts of the case, this seems to be a pretty persuasive argument, as the defendant knew Zarda was gay and didn’t care. They didn’t fire him until there was a complaint from a woman about an inappropriate touching.

13 thoughts on “Judge Cabranes’ Zarda Concurrence: Just Do It

  1. Lori Ecker

    See No. 10-cv-4334 (E.D.N.Y) Memorandum of Law in Support of Defendant’s Motion for Summary Judgment Document 109 filed 02/22/2013 pages 13 & 14 of 31

    1. SHG Post author

      It would probably be far more useful for you to include or explain what you’re referring to, since this isn’t at all helpful.

      1. Lori Ecker

        There are two pages of argument in Altitude Express’ memorandum in support of its MSJ arguing that sexual orientation discrimination is not covered by Title VII.

        1. SHG Post author

          It was not the basis of altitude Express’ defense, but a terciary point in its motion for SJ on the Title VII claim. This wasn’t the hill they were willing to die on.

          Edit: And I’m informed that since it wasn’t their defense, they lost interest (money?) in pursuing it at all en banc at the circuit.

  2. Dan

    So the Second Circuit chose to hear a case en banc, to decide a question that wasn’t at issue in the case in the first place. But the Supremes don’t have time to address the serious issues that are properly before them. Sounds like some poor allocation of resources there.

  3. John Barleycorn

    So let me get this straight… you think the circuits should be run by artificial intelligence bots but the whole shebang is getting a bad reputation because the supremes are too lazy to do the beta-testing?

    What’s for lunch?

  4. B. McLeod

    I noticed the media fanfare on this yesterday, as the case was being hailed as “a win over Trump.”

  5. Casual Lurker

    “The oatmeal I ate for breakfast was a win over Trump”.

    Having hit the big six-O, it’s good to see you’re getting some extra fiber in your diet. Besides, its digestive byproduct is far more environmentally friendly than what Darth Cheeto and his minions/sycophants produce on a daily basis, and which we can’t just flush away.

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