iAPPENDIXTABLE OF CONTENTSAppendix A Opinion on Rehearing in the UnitedStates Court of Appeals for the SecondCircuit(February 26, 2018) . . . . . . . . . . . App. 1Appendix B Opinion in the United States Court ofAppeals for the Second Circuit(April 18, 2017) . . . . . . . . . . . . App. 141Appendix C Judgment in the United StatesDistrict Court for the Eastern Districtof New York(October 28, 2015) . . . . . . . . . . App. 154Appendix D Order on Rehearing En Banc in theUnited States Court of Appeals for theSecond Circuit(May 25, 2017) . . . . . . . . . . . . . App. 156Appendix E Transcript of Telephonic HearingBefore Honorable Joseph F. Bianco inthe United States District Court,Eastern District of New York(March 28, 2014) . . . . . . . . . . . App. 158Appendix F EEOC Charge . . . . . . . . . . . . . . App. 177
App. 1APPENDIX AUNITED STATES COURT OF APPEALSFOR THE SECOND CIRCUITAugust Term, 2017(Argued: September 26, 2017 Decided: February 26, 2018)Docket No. 15-3775MELISSA ZARDA, co-independentexecutor of the estate of Donald Zarda, andWILLIAM ALLEN MOORE, JR., co-independentexecutor of the estate of Donald Zarda,)))))Plaintiffs-Appellants,))– v. –)))ALTITUDE EXPRESS, INC., doing business asSKYDIVE LONG ISLAND, and))RAY MAYNARD,)Defendants-Appellees.))
App. 2Before:KATZMANN, Chief Judge, JACOBS, CABRANES,POOLER, SACK, RAGGI, HALL, LIVINGSTON, LYNCH,CHIN, LOHIER, CARNEY, and DRONEY, CircuitJudges.*KATZMANN, C.J., filed the majority opinion in whichHALL, 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 toParts I, II.A, II.B.3, and II.C, and LOHIER, J., joined asto Parts I, II.A, and II.B.1.a.JACOBS, J., filed a concurring opinion.CABRANES, J., filed an opinion concurring in thejudgment.SACK, J., filed a concurring opinion.LOHIER, J., filed a concurring opinion.LYNCH, J., filed a dissenting opinion in whichLIVINGSTON, J., joined as to Parts I, II, and III.LIVINGSTON, J., filed a dissenting opinion.RAGGI, J., filed a dissenting opinion.Donald Zarda brought this suit against his formeremployer alleging, inter alia, sex discrimination inviolation of Title VII of the Civil Rights Act of 1964(“Title VII”), 42 U.S.C. § 2000e, et seq. In particular,*Judge Sack and Judge Lynch, who are senior judges, are eligibleto participate in this en banc pursuant to 28 U.S.C. § 46(c)(1) and28 U.S.C. § 294(c)
App. 3Zarda claimed that he was fired after revealing hissexual orientation to a client. The United StatesDistrict Court for the Eastern District of New York(Bianco, J.) granted summary judgment to thedefendants on the ground that Zarda had failed to showthat he had been discriminated against on the basis ofhis sex. After the Equal Employment OpportunityCommission (“EEOC”) decided Baldwin v. Foxx, EEOCDecision No. 0120133080, 2015 WL 4397641 (July 15,2015), holding that sex discrimination includes sexualorientation discrimination, Zarda asked the districtcourt to reinstate his Title VII claim. The district court,citing our decision in Simonton v. Runyon, 232 F.3d 33,35 (2d Cir. 2000), declined to do so. Zarda appealed anda panel of this Court affirmed.We convened this rehearing en banc to considerwhether Title VII prohibits discrimination on the basisof sexual orientation such that our precedents to thecontrary should be overruled. We now hold that sexualorientation discrimination constitutes a form ofdiscrimination “because of . . . sex,” in violation of TitleVII, and overturn Simonton and Dawson v. Bumble &Bumble, 398 F.3d 211, 217–23 (2d Cir. 2005), to theextent they held otherwise. We therefore VACATE thedistrict court’s judgment on the Title VII claim andREMAND for further proceedings consistent with thisopinion. We AFFIRM the judgment of the districtcourt in all other respects.GREGORY ANTOLLINO, New York, NY (StephenBergstein, Bergstein & Ullrich, LLP, Chester,NY, on the brief), for Plaintiffs-Appellants.
App. 4SAUL D. ZABELL, Zabell & Associates, P.C.,Bohemia, NY, for Defendants-Appellees.JEREMY HOROWITZ (James L. Lee, Deputy GeneralCounsel, Jennifer S. Goldstein, AssociateGeneral Counsel, and Anne Noel Occhialino,Senior Appellate Attorney, on the brief), EqualEmployment Opportunity Commission,Washington, DC, for Amicus Curiae EqualEmployment Opportunity Commission, insupport of Plaintiffs-Appellants.GREGORY R. NEVINS (Michael D.B. Kavey, Attorneyat Law, Brooklyn, NY; Omar Gonzalez-Paganand Sharon M. McGowan, on the brief), LambdaLegal Defense and Education Fund, Inc., NewYork, NY, for Amicus Curiae Lambda LegalDefense and Education Fund, Inc., Atlanta, GA,in support of Plaintiffs-Appellants.HASHIM M. MOOPPAN (Chad A. Readler and TomWheeler, Acting Assistant Attorneys General,Charles W. Scarborough and Stephen R. Marcus,Attorneys, on the brief), United StatesDepartment of Justice, Washington, DC, forAmicus Curiae United States of America, insupport of Defendants-Appellees.ADAM K. MORTARA, Bartlit Beck Herman Palenchar& Scott LLP, Chicago, IL, court-appointedAmicus Curiae in support of DefendantsAppellees.Erin Beth Harrist and Christopher Dunn, NewYork Civil Liberties Union Foundation, NewYork, NY; Fatima Goss Graves, NationalWomen’s Law Center, Washington, DC; Ria
App. 5Tabacco Mar, Leslie Cooper, James D. Esseks,Lenora M. Lapidus, and Gillian L. Thomas,American Civil Liberties Union Foundation,New York, NY, for Amici Curiae American CivilLiberties Union; New York Civil LibertiesUnion; National Women’s Law Center; 9to5,National Association of Working Women; ABetter Balance; California Women’s Law Center;Equal Rights Advocates; Feminist MajorityFoundation; Gender Justice; Legal Voice;National Organization for Women (NOW)Foundation; National Partnership for Women &Families; Southwest Women’s Law Center;Women Employed; Women’s Law Center ofMaryland, Inc.; and Women’s Law Project, insupport of Plaintiffs-Appellants.Richard E. Casagrande, Robert T. Reilly, Wendy M.Star, and Christopher Lewis, New York StateUnited Teachers, Latham, NY, for AmicusCuriae New York State United Teachers, insupport of Plaintiffs-Appellants.Richard Blum and Heidi Cain, The Legal AidSociety, New York, NY, for Amicus Curiae TheLegal Aid Society, in support of PlaintiffsAppellants.Alice O’Brien, Eric A. Harrington, and Mary E.Deweese, National Education Association,Washington, DC, for Amicus Curiae TheNational Education Association, in support ofPlaintiffs-Appellants.Mary Bonauto, GLBTQ Legal Advocates &Defenders, Boston, MA; Christopher Stoll,
App. 6National Center for Lesbian Rights, SanFrancisco, CA; Alan E. Shoenfeld, David M.Lehn, and Christopher D. Dodge, Wilmer CutlerPickering Hale and Dorr LLP, New York, NY,Washington, DC, and Boston, MA, for AmiciCuriae GLBTQ Legal Advocates & Defenders(“GLAD”) and National Center for LesbianRights (“NCLR”), in support of PlaintiffsAppellants.Thomas W. Burt, Microsoft Corporation, Redmond,WA; Sigismund L. Sapinski, Jr., Sun LifeFinancial (U.S.) Services Company, Inc.,Windsor, CT; Todd Anten, Justin T. Reinheimer,and Cory D. Struble, Quinn Emanuel Urquhart& Sullivan, LLP, New York, NY, for AmiciCuriae AdRoll, Inc.; Ben & Jerry’s; Beterment;Boston Community Capital; Brandwatch; CBSCorporation; Citrix Systems, Inc.; City Winery;Davis Steadman Ford & Mace, LLC; DoorDash,Inc.; Dropbox, Inc.; Eastern Bank; Edelman;FiftyThree, Inc.; Freedom for All AmericansEducation Fund; Google Inc.; Greater BurlingtonIndustrial Corporation; Gusto; Harvard PilgrimHealth Care, Inc.; IAC/InterActiveCorp; IHSMarkit Ltd.; Indiegogo; INUS Group LLC;Johnston, Kinney & Zulaica LLP; Kargo; KEOMarketing Inc.; Kickstarter, PBC; Levi Strauss& Co.; Linden Lab; Lyft, Inc.; Mapbox, Inc.;National Gay & Lesbian Chamber of Commerce;OBOX Solutions; On 3 Public Relations;Physician’s Computer Company; Pinterest;Puma Springs Vineyards; Quora Inc.; S&PGlobal Inc.; Salesforce; Shutterstock, Inc.;Spotify; Thumbtack; TodayTix; Trust Company
App. 7of Vermont; Vermont Gynecology; Viacom, Inc.;and Wealthfront Inc., in support of PlaintiffsAppellants.Peter T. Barbur, Cravath, Swaine & Moore LLP,New York, NY, for Amici Curiae Sen. Jeffrey A.Merkley, Sen. Tammy Baldwin, Sen. Cory A.Booker, and Rep. David N. Cicilline, in supportof Plaintiffs-Appellants.Matthew Skinner, LGBT Bar Association of GreaterNew York (“LeGaL”), New York, NY, for AmiciCuriae LGBT Bar Association of Greater NewYork (“LeGaL”), Anti Defamation League, AsianAmerican Bar Association of New York,Association of the Bar of the City of New York,Bay Area Lawyers for Individual Freedom,Hispanic National Bar Association, Legal Aid atWork, National Queer Asian Pacific IslanderAlliance, New York County Lawyers’Association, and Women’s Bar Association of theState of New York, in support of PlaintiffsAppellants.Eric T. Schneiderman, Attorney General, BarbaraD. Underwood, Solicitor General, Steven C. Wu,Deputy Solicitor General, Andrew W. Amend,Senior Assistant Solicitor General of Counsel,State of New York, New York, NY; GeorgeJepsen, Attorney General, State of Connecticut,Hartford, CT; Thomas J. Donovan, Jr., AttorneyGeneral, State of Vermont, Montpelier, VT, forAmici Curiae State of New York, State ofConnecticut, and State of Vermont, in support ofPlaintiffs-Appellants.
App. 8Joseph W. Miller, U.S. Justice Foundation,Ramona, CA; William J. Olson, Herbert W.Titus, Robert J. Olson, and Jeremiah L. Morgan,William J. Olson, P.C., Vienna, VA, for AmiciCuriae Conservative Legal Defense andEducation Fund, Public Advocate of the UnitedStates, and United States Justice Foundation, insupport of Defendants-Appellees.Kimberlee Wood Colby, Christian Legal Society,Springfield, VA, for Amici Curiae ChristianLegal Society and National Association ofEvangelicals, in support of Defendants-Appellees.KATZMANN, Chief Judge:Donald Zarda,1 a skydiving instructor, brought a sexdiscrimination claim under Title VII of the Civil RightsAct of 1964 (“Title VII”) alleging that he was fired fromhis job at Altitude Express, Inc., because he failed toconform to male sex stereotypes by referring to hissexual orientation. Although it is well-settled thatgender stereotyping violates Title VII’s prohibition ondiscrimination “because of . . . sex,” we have previouslyheld that sexual orientation discrimination claims,including claims that being gay or lesbian constitutesnonconformity with a gender stereotype, are not1Zarda died in a BASE jumping accident after the district courtawarded partial summary judgment but prior to trial on theremaining claims. The executors of his estate have beensubstituted as plaintiffs. Zarda and the executors of his estate arereferred to collectively as “Zarda” throughout this opinion.
App. 9cognizable under Title VII.2 See Simonton v. Runyon,232 F.3d 33, 35 (2d Cir. 2000); see also Dawson v.Bumble & Bumble, 398 F.3d 211, 217–23 (2d Cir.2005).At the time Simonton and Dawson were decided,and for many years since, this view was consistent withthe consensus among our sister circuits and theposition of the Equal Employment OpportunityCommission (“EEOC” or “Commission”). See, e.g.,Kalich v. AT&T Mobility, LLC, 679 F.3d 464, 471 (6thCir. 2012); Prowel v. Wise Bus. Forms, Inc., 579 F.3d285, 289 (3d Cir. 2009); Medina v. Income Support Div.,413 F.3d 1131, 1135 (10th Cir. 2005); Hamner v. St.Vincent Hosp. & Health Care Ctr., Inc., 224 F.3d 701,704 (7th Cir. 2000); Higgins v. New Balance AthleticShoe, Inc., 194 F.3d 252, 259 (1st Cir. 1999);3Wrightson v. Pizza Hut of Am., Inc., 99 F.3d 138, 143(4th Cir. 1996); Williamson v. A.G. Edwards & Sons,Inc., 876 F.2d 69, 70 (8th Cir. 1989) (per curiam); Blumv. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979) (percuriam); see also Johnson v. Frank, EEOC Decision No.01911827, 1991 WL 1189760, at *3 (Dec. 19, 1991). Butlegal doctrine evolves and in 2015 the EEOC held, forthe first time, that “sexual orientation is inherently a2This opinion assumes arguendo that “sex” in Title VII “meansbiologically male or female,” Hively v. Ivy Tech Cmty. Coll. of Ind.,853 F.3d 339, 362 (7th Cir. 2017) (en banc) (Sykes, J., dissenting),and uses the terms “sex” and “gender” interchangeably, as do theSupreme Court and other circuits cited herein.3The First Circuit has since qualified Higgins, holding that aplaintiff may “bring sex-plus claims under Title VII where, inaddition to the sex-based charge, the ‘plus’ factor is the plaintiff’sstatus as a gay or lesbian individual.” Franchina v. City ofProvidence, 881 F.3d 32, 54 (1st Cir. 2018).
App. 10‘sex based consideration;’ accordingly an allegation ofdiscrimination based on sexual orientation isnecessarily an allegation of sex discrimination underTitle VII.” Baldwin v. Foxx, EEOC Decision No.0120133080, 2015 WL 4397641, at *5 (July 15, 2015)(quoting Price Waterhouse v. Hopkins, 490 U.S. 228,242 (1989) (plurality opinion)). Since then, two circuitshave revisited the question of whether claims of sexualorientation discrimination are viable under Title VII.In March 2017, a divided panel of the Eleventh Circuitdeclined to recognize such a claim, concluding that itwas bound by Blum, 597 F.2d at 938, which “ha[s] notbeen overruled by a clearly contrary opinion of theSupreme Court or of [the Eleventh Circuit] sitting enbanc.” Evans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1257(11th Cir.), cert. denied, 138 S. Ct. 557 (2017). Onemonth later, the Seventh Circuit, sitting en banc, took“a fresh look at [its] position in light of developments atthe Supreme Court extending over two decades” andheld that “discrimination on the basis of sexualorientation is a form of sex discrimination.” Hively, 853F.3d at 340–41. In addition, a concurring opinion of thisCourt recently called “for the Court to revisit” thisquestion, emphasizing the “changing legal landscapethat has taken shape in the nearly two decades sinceSimonton issued,” and identifying multiple argumentsthat support the conclusion that sexual orientationdiscrimination is barred by Title VII. Christiansen v.Omnicom Grp., Inc., 852 F.3d 195, 202 (2d Cir. 2017)(Katzmann, C.J., concurring) (“Christiansen and amiciadvance three arguments, none previously addressedby this Court . . . .”); see also id. at 204 (“NeitherSimonton nor Dawson addressed [the but for]argument.”).
App. 11Taking note of the potential persuasive force ofthese new decisions, we convened en banc to reevaluateSimonton and Dawson in light of arguments notpreviously considered by this Court. Having done so,we now hold that Title VII prohibits discrimination onthe basis of sexual orientation as discrimination“because of . . . sex.” To the extent that our priorprecedents held otherwise, they are overruled.We therefore VACATE the district court’s judgmenton Zarda’s Title VII claim and REMAND for furtherproceedings consistent with this opinion. We AFFIRMthe judgment of the district court in all other respects.BACKGROUNDThe facts and procedural history of this case arediscussed in detail in our prior panel decision. SeeZarda v. Altitude Express, 855 F.3d 76, 79–81 (2d Cir.2017). We recite them only as necessary to address thelegal question under consideration.In the summer of 2010, Donald Zarda, a gay man,worked as a sky-diving instructor at Altitude Express.As part of his job, he regularly participated in tandemskydives, strapped hip-to-hip and shoulder-to-shoulderwith clients. In an environment where close physicalproximity was common, Zarda’s co-workers routinelyreferenced sexual orientation or made sexual jokesaround clients, and Zarda sometimes told femaleclients about his sexual orientation to assuage anyconcern they might have about being strapped to a manfor a tandem skydive. That June, Zarda told a femaleclient with whom he was preparing for a tandemskydive that he was gay “and ha[d] an ex-husband toprove it.” J.A. 400 ¶ 23. Although he later said this
App. 12disclosure was intended simply to preempt anydiscomfort the client may have felt in being strapped tothe body of an unfamiliar man, the client alleged thatZarda inappropriately touched her and disclosed hissexual orientation to excuse his behavior. After thejump was successfully completed, the client told herboyfriend about Zarda’s alleged behavior and referenceto his sexual orientation; the boyfriend in turn toldZarda’s boss, who fired shortly Zarda thereafter. Zardadenied inappropriately touching the client and insistedhe was fired solely because of his reference to hissexual orientation.One month later, Zarda filed a discriminationcharge with the EEOC concerning his termination.Zarda claimed that “in addition to being discriminatedagainst because of [his] sexual orientation, [he] wasalso discriminated against because of [his] gender.”Special Appendix (“S.A.”) 3. In particular, he claimedthat “[a]ll of the men at [his workplace] made light ofthe intimate nature of being strapped to a member ofthe opposite sex,” but that he was fired because he“honestly referred to [his] sexual orientation and didnot conform to the straight male macho stereotype.”S.A. 5.In September 2010, Zarda brought a lawsuit infederal court alleging, inter alia, sex stereotyping inviolation of Title VII and sexual orientationdiscrimination in violation of New York law.Defendants moved for summary judgment arguing thatZarda’s Title VII claim should be dismissed because,although “Plaintiff testifie[d] repeatedly that hebelieve[d] the reason he was terminated [was] becauseof his sexual orientation . . . [,] under Title VII, a
App. 13gender stereotype cannot be predicated on sexualorientation.” Dist. Ct. Dkt. No. 109 at 3 (citingSimonton, 232 F.3d at 35). In March 2014, the districtcourt granted summary judgment to the defendants onthe Title VII claim. As relevant here, the district courtconcluded that, although there was sufficient evidenceto permit plaintiff to proceed with his claim for sexualorientation discrimination under New York law,plaintiff had failed to establish a prima facie case ofgender stereotyping discrimination under Title VII.While Zarda’s remaining claims were still pending,the EEOC decided Baldwin, holding that “allegationsof discrimination on the basis of sexual orientationnecessarily state a claim of discrimination on the basisof sex.” 2015 WL 4397641 at *10. The Commissionidentified three ways to illustrate what it described asthe “inescapable link between allegations of sexualorientation discrimination and sex discrimination.” Id.at *5. First, sexual orientation discrimination, such assuspending a lesbian employee for displaying a photoof her female spouse on her desk while not suspendinga man for displaying a photo of his female spouse, “issex discrimination because it necessarily entailstreating an employee less favorably because of theemployee’s sex.” Id. Second, it is “associationaldiscrimination” because “an employee allegingdiscrimination on the basis of sexual orientation isalleging that his or her employer took his or her sexinto account by treating him or her differently forassociating with a person of the same sex.” Id. at *6.Lastly, sexual orientation discrimination “necessarilyinvolves discrimination based on gender stereotypes,”most commonly “heterosexually defined gender norms.”Id. at *7–8 (internal quotation marks omitted). Shortly
App. 14thereafter, Zarda moved to have his Title VII claimreinstated based on Baldwin. But, the district courtdenied the motion, concluding that Simonton remainedbinding precedent.Zarda’s surviving claims, which included his claimfor sexual orientation discrimination under New Yorklaw, went to trial, where defendants prevailed. Afterjudgment was entered for the defendants, Zardaappealed. As relevant here, Zarda argued thatSimonton should be overturned because the EEOC’sreasoning in Baldwin demonstrated that Simonton wasincorrectly decided. By contrast, defendants arguedthat the court did not need to reach that issue becausethe jury found that they had not discriminated basedon sexual orientation.The panel held that “Zarda’s [federal] sexdiscrimination claim [was] properly before [it] because[his state law claim was tried under] a higher standardof causation than required by Title VII.” Zarda, 855F.3d at 81. However, the panel “decline[d] Zarda’sinvitation to revisit our precedent,” which “can only beoverturned by the entire Court sitting in banc.” Id. at82. The Court subsequently ordered this rehearing enbanc to revisit Simonton and Dawson’s holdings thatclaims of sexual orientation discrimination are notcognizable under Title VII.DISCUSSIONI. JurisdictionWe first address the defendants’ challenge to ourjurisdiction. Article III of the Constitution grantsfederal courts the authority to hear only “Cases” and“Controversies.” U.S. Const. art. III, § 2, cl. 1. As a
App. 15result, “a federal court has neither the power to renderadvisory opinions nor ‘to decide questions that cannotaffect the rights of litigants in the case before them.’”Preiser v. Newkirk, 422 U.S. 395, 401 (1975) (quotingNorth Carolina v. Rice, 404 U.S. 244, 246 (1971)). Thedefendants argue that any decision on the merits wouldbe an advisory opinion because Zarda did not allegesexual orientation discrimination in his EEOC chargeor his federal complaint and therefore the question ofwhether Title VII applies to sexual orientationdiscrimination is not properly before us.Irrespective of whether defendants’ argument isactually jurisdictional,4 its factual premises arepatently contradicted by both the record and theposition defendants advanced below. Zarda’s EEOCcomplaint explained that he was “making this chargebecause, in addition to being discriminated againstbecause of [his] sexual orientation, [he] was alsodiscriminated against because of [his] gender.” S.A. 3.54This Court has squarely held that failure to present a Title VIIclaim to the EEOC before filing suit in federal court “is not ajurisdictional prerequisite, but only a precondition to bringing aTitle VII action that can be waived by the parties or the court.”Francis v. City of New York, 235 F.3d 763, 768 (2d Cir. 2000)(alterations and internal quotation marks omitted).5The full quotation is, “I am not making this charge on thegrounds that I was discriminated on the grounds of my sexualorientation. Rather, I am making this charge because, in additionto being discriminated against because of my sexual orientation,I was also discriminated against because of my gender.” S.A. 3.Although inartful and perhaps even confusing, the bestinterpretation of this statement, read in the context of the entirecharge, is that Zarda alleged that the sexual orientationdiscrimination he experienced was a subset of genderdiscrimination. Even if otherwise, the governing rule is that
App. 16Zarda specified that his supervisor “was hostile to anyexpression of [his] sexual orientation that did notconform to sex stereotypes,” and alleged that he “wasfired . . . because . . . [he] honestly referred to [his]sexual orientation and did not conform to the straightmale macho stereotype.” S.A. 3, 5. Zarda repeated thisclaim in his federal complaint, contending that he was“an openly gay man” who was “discharge[ed] because ofa homophobic customer” and “because his behavior didnot conform to sex stereotypes,” in violation of TitleVII. J.A. 65, 69, 75.Defendants plainly understood Zarda’s complaint tohave raised a claim for sexual orientationdiscrimination under Title VII. In their motion forsummary judgment, defendants argued that Zarda’sclaim “relies on the fact that Plaintiff is homosexual,not that he failed to comply with male gender norms.Thus, Plaintiff merely attempts to bring a defectivesexual orientation claim under Title VII, which islegally invalid.” Dist. Ct. Dkt. No. 109 at 9 (citingDawson, 398 F.3d at 221). The district court ultimatelyagreed.“[c]laims not raised in an EEOC complaint . . . may be brought infederal court if they are reasonably related to the claim filed withthe agency.” Williams v. N.Y.C. Hous. Auth., 458 F.3d 67, 70 (2dCir. 2006) (internal quotation marks omitted). A claim isconsidered reasonably related if the alleged conduct “would fallwithin the scope of the EEOC investigation which can reasonablybe expected to grow out of the charge that was made.” Id. (internalquotation marks omitted). Because Zarda’s charge gave theCommission “adequate notice to investigate discrimination on bothbases,” it is irrelevant whether Zarda’s EEOC complaintunequivocally alleged sexual orientation discrimination. Id.(internal quotation marks omitted).
App. 17Having interpreted Zarda’s Title VII claim as onefor sexual orientation discrimination for purposes ofinsisting that the claim be dismissed, defendantscannot now argue that there is no sexual orientationclaim to prevent this Court from reviewing the basis forthe dismissal. Both defendants and the district courtclearly understood that Zarda had alleged sexualorientation discrimination under Title VII. As a result,Zarda’s Title VII claim is neither unexhausted norunpled, and so it may proceed.6II. Sexual Orientation DiscriminationA. The Scope of Title VII“In passing Title VII, Congress made the simple butmomentous announcement that sex, race, religion, andnational origin are not relevant to the selection,evaluation, or compensation of employees.” PriceWaterhouse, 490 U.S. at 239. The text of Title VIIprovides, in relevant part:It shall be an unlawful employment practice foran employer . . . to fail or refuse to hire or todischarge . . . or otherwise to discriminateagainst any individual with respect to his [orher] compensation, terms, conditions, orprivileges of employment, because of such6Defendants’ additional argument, which is that the executors ofZarda’s estate lack standing to pursue this action, is premised onthe representation that the sexual orientation claim under TitleVII was not raised before the district court so the estate may notnow raise that claim on the deceased plaintiff’s behalf. Because wefind that the sexual orientation claim was properly raised, we neednot address this argument.
App. 18individual’s race, color, religion, sex, or nationalorigin . . . .42 U.S.C. § 2000e-2(a)(1). This “broad rule of workplaceequality,” Harris v. Forklift Sys., Inc., 510 U.S. 17, 22(1993), “strike[s] at the entire spectrum of disparatetreatment” based on protected characteristics, L.A.Dep’t of Water & Power v. Manhart, 435 U.S. 702, 707n.13 (1978) (quoting Sprogis v. United Air Lines, Inc.,444 F.2d 1194, 1198 (7th Cir. 1971)), “regardless ofwhether the discrimination is directed againstmajorities or minorities,” Trans World Airlines, Inc. v.Hardison, 432 U.S. 63, 71–72 (1977). As a result, wehave stated that “Title VII should be interpretedbroadly to achieve equal employment opportunity.”Huntington Branch, N.A.A.C.P. v. Town of Huntington,844 F.2d 926, 935 (2d Cir. 1988) (citing Griggs v. DukePower Co., 401 U.S. 424, 429–36 (1971)).In deciding whether Title VII prohibits sexualorientation discrimination, we are guided, as always,by the text and, in particular, by the phrase “becauseof . . . sex.” However, in interpreting this language, wedo not write on a blank slate. Instead, we mustconstrue the text in light of the entirety of the statuteas well as relevant precedent. As defined by Title VII,an employer has engaged in “impermissibleconsideration of . . . sex . . . in employment practices”when “sex . . . was a motivating factor for anyemployment practice,” irrespective of whether theemployer was also motivated by “other factors.” 42U.S.C. § 2000e-2(m). Accordingly, the critical inquiryfor a court assessing whether an employment practiceis “because of . . . sex” is whether sex was “a motivating
App. 19factor.” Rivera v. Rochester Genesee Reg’l Transp.Auth., 743 F.3d 11, 23 (2d Cir. 2014).Recognizing that Congress intended to make sex“irrelevant” to employment decisions, Griggs, 401 U.S.at 436, the Supreme Court has held that Title VIIprohibits not just discrimination based on sex itself,but also discrimination based on traits that are afunction of sex, such as life expectancy, Manhart, 435U.S. at 711, and non-conformity with gender norms,Price Waterhouse, 490 U.S. at 250–51. As this Courthas recognized, “any meaningful regime ofantidiscrimination law must encompass such claims”because, if an employer is “‘[f]ree to add non-sexfactors, the rankest sort of discrimination’” could beworked against employees by using traits that areassociated with sex as a proxy for sex. Back v. Hastingson Hudson Union Free Sch. Dist., 365 F.3d 107, 119 n.9(2d Cir. 2004) (quoting Phillips v. Martin MariettaCorp., 416 F.2d 1257, 1260 (5th Cir. 1969) (Brown,C.J., dissenting from denial of rehearing en banc)).Applying Title VII to traits that are a function of sex isconsistent with the Supreme Court’s view that Title VIIcovers not just “the principal evil[s] Congress wasconcerned with when it enacted” the statute in 1964,but also “reasonably comparable evils” that meet thestatutory requirements. Oncale v. Sundowner OffshoreServs., Inc., 523 U.S. 75, 79 (1998).With this understanding in mind, the questionbefore us is whether an employee’s sex is necessarily amotivating factor in discrimination based on sexualorientation. If it is, then sexual orientationdiscrimination is properly understood as “a subset of
App. 20actions taken on the basis of sex.” Hively, 853 F.3d at343.7B. Sexual Orientation Discrimination as aSubset of Sex DiscriminationWe now conclude that sexual orientationdiscrimination is motivated, at least in part, by sex andis thus a subset of sex discrimination. Looking first tothe text of Title VII, the most natural reading of thestatute’s prohibition on discrimination “because of . . .sex” is that it extends to sexual orientationdiscrimination because sex is necessarily a factor insexual orientation. This statutory reading is reinforcedby considering the question from the perspective of sexstereotyping because sexu
New York, NY, for Amici Curiae Sen. Jeffrey A. Merkley, Sen. Tammy Baldwin, Sen. Cory A. Booker, and Rep. David N. Cicilline, in support of Plaintiffs-Appellants. Matthew Skinner, LGBT Bar Association of Greater New York ("LeGaL"), New York, NY, for Amici Curiae LGBT Bar Association of Greater New York ("LeGaL"), Anti Defamation League .