Zarda Redux: One Statute, Two Views

In the far-reaching decision of Zarda v. Altitude Express, the Court of Appeals for the Second Circuit recently ruled en banc in favor of the plaintiff Donald Zarda and held that Title VII’s prohibition on sex discrimination in the workplace also bars discrimination based on sexual orientation.

The decision — a prime example of plain language — analyzes each of Zarda’s three arguments. First, it considered whether sexual orientation is a function of sex; second, whether gender stereotyping was involved; and third, whether associational discrimination took place. Judge Katzman wrote the plurality opinion (which five judges joined in full and four in part, with another judge concurring and three dissenting), linking sexual orientation to a person’s sex based on elemental logic: "To operationalize this definition and identify the sexual orientation of a particular person, we need to know the sex of the person and that of the people to whom he or she is attracted." 

There’s a fundamental tension between the majority and the dissent, one that arises from a classic question of statutory interpretation. The dissent relies on a textualist reading of Congress’s intent when Title VII was enacted, while the more liberal majority allows the text to evolve along with the cultural mores in general.

Judge Lynch’s dissent notes that at the time Title VII was passed, the Legislature would not have fathomed that sexual orientation could be read into it. In fact, the dissent describes how sex came to be a protected category at all — it recalls that one representative from Virginia was so adamantly opposed to protecting the civil rights of race-based minorities that he decided to add sex as a protected category in the statute, in an effort to torpedo the whole thing. But (presumably to his chagrin) the law still passed. For the dissenters, this anecdote underscores how far sexual orientation was from the understanding of the legislators or society at large when Title VII was originally passed.

This interpretation goes the argument, is consistent with a plain-language reading of the statute itself. The dissent goes on to state that prohibitions on discrimination “because of sex” would have been understood to eliminate workplace inequalities that prevented women’s economic contributions — and this understanding would have been held not only by members of Congress, but by any politically engaged citizen deciding whether to urge his or her representatives to vote for the law. In this reading, sexual orientation cannot be a function of sex, because it would never have been understood as such.

After responding to the majority’s arguments regarding stereotyping and associational discrimination, the dissent sums up its qualms by noting that, "[i]n the end, perhaps all of these arguments on both sides boil down to a disagreement about how discrimination on the basis of sexual orientation should be conceptualized. Whether based on linguistic arguments or associational theories or notions of stereotyping, the majority's arguments attempt to draw theoretical links between one kind of discrimination and another: to find ways to re-conceptualize discrimination on the basis of sexual orientation as discrimination on the basis of sex." 

Whether one agrees with the plurality’s opinions or the dissenters’ (Judge Lynch himself notably expressed regret and dissatisfaction with the path his own reasoning required him to take), what’s clear is that the language of a statute can have future implications that might have once seemed unimaginable. Sometimes, even clarity and precision are no match for a changing Zeitgeist.