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Friday, October 13, 2017

Zarda and the Trump Administration's Surprising (and Largely Unrecognized) Approach to Anti-Discrimination Principles

The Trump Administration's Justice Department ("DOJ") attracted substantial public criticism for its decision to file an amicus brief before the en banc U.S. Court of Appeals for the Second Circuit in Zarda v. Altitude Express.  The main issue in the case whether Title VII of the Civil Rights Act's prohibition against sex-based discrimination prevents employers from discriminating based on sexual orientation.  DOJ argued that Title VII should not be interpreted to prohibit employment discrimination against homosexuals.  It contends, in part, that "sex discrimination" necessarily involves the belief that one sex is inferior to the other.  Because discrimination against homosexuals does not involve or arise from a belief that either males or females are superior to the other sex, it does not constitute "sex discrimination."  Many commentators have assailed DOJ's decision to get involved in the case at such a late stage to argue against gay rights, particularly since the EEOC is already a party litigant and urging the exact opposite interpretation of Title VII.  Putting aside the merits of DOJ's position for a moment, I wanted to point out an overlooked -- and potentially significant -- implication of DOJ's argument that might have escaped the notice of the Trump Administration's political appointees (who were the only people to sign the brief).

One of the most basic distinctions in Equal Protection caselaw (which applies equally to employment law) is between the "anti-classification" theory and the "anti-subordination" theory of the Fourteenth Amendment.  Modern Republicans generally prefer the anti-classification, or color-blind, theory of Equal Protection.  Under this approach, the Constitution and anti-discrimination laws forbid the Government or employers from drawing classifications on suspect grounds such as race, sex, or religion.  This anti-classification theory renders affirmative action programs, single-race "cultural" housing in public colleges, and single-sex public schools highly problematic because they all condition the availability of particular benefits on a person's race or other suspect classification (even if those programs are adopted to benefit traditionally marginalized communities that continue to suffer from widespread societal discrimination or implicit bias). 

Progressives and liberals generally advocate the anti-subordination theory of Equal Protection.  Under this approach, the purpose and role of the Equal Protection Clause is to prevent racial and other social hierarchies, particularly white supremacy.  Consequently, a racial, gender-based, or other distinction is suspect, and likely illegal/unconstitutional, only if it was enacted to perpetuate an unjust social hierarchy or caste system.  For example, under an anti-subordination view, the fact that affirmative action programs are not enacted out of animus to perpetuate the social positioning of one race "above" another means they are generally constitutionally valid.  (The anti-subordination theory, incidentally, is consistent with the notion embraced by some progressives that it is impossible for white people to be victims of racial discrimination, since they occupy a privileged racial caste in society.  Discrimination, in this sense, is seen as a reflection and incident of social power dynamics, rather than merely taking a person's race or gender into account.).  A recurring debate over Brown v. Board of Education is whether it is best read as an anti-classification or anti-subordination opinion; at different points, the opinion seems to integrate strands of both modes of analysis. 

DOJ's argument in Zarda is a classic example of anti-subordination theory -- whether or not the Government realized it or intended it that way.  DOJ contends, in part, that discriminating against gays is not sex discrimination because it does not target one particular sex or disadvantage one sex for the benefit of the other.  In other words, because such discrimination does not relegate women to a lesser position in society than men, or reinforce a lower social status for them, it is permissible.  That argument seems to advance a classic anti-subordination approach to sex discrimination.  One of the most remarkable, and seemingly overlooked, things about this argument is that the Trump DOJ would be unlikely to advocate such an anti-subordination interpretation of the Equal Protection Clause or employment laws in any other context; as mentioned earlier, most Republicans generally embrace Chief Justice Roberts' color-blind anti-classification approach.  If the DOJ were to win under this theory, it could have substantial ramifications across Equal Protection and anti-discrimination caselaw in a wide range of other situations having nothing to do with gay rights.  Although the brief was signed only by political appointees, I suspect it might not have been vetted carefully by the department's political leadership.  As a result, we have the ultimate irony:  the Trump Administration is mounting an uncharacteristically ultra-progressive argument to try to ensure that federal law continues to allow discrimination against gays and lesbians. 



Posted by Michael T. Morley on October 13, 2017 at 06:01 PM | Permalink


"If the DOJ were to win under this theory, it could have substantial ramifications across Equal Protection and anti-discrimination caselaw in a wide range of other situations having nothing to do with gay rights"

This assumes that methodology matters, a dubious proposition. Another way to look at the DOJ's position is to see the brief as a work of legal genius. After all, it might be exactly the type of methodological carrot that would allow someone like Kennedy or even Ginsburg to vote against homosexual rights in this context and then argue that their decision to do so is entirely consistent with Obergefell. Of course, I am equally dubious that they would fall for such an obvious ploy. But regardless of whether they do or do not fall for such a ploy it seems misplaced to criticize the DOJ for making it. I doubt that the political appointees themselves are bothered by such methodological niceties as consistency: they just want to win. This approach gives them their best chance of winning. What exactly is ironic about that?

Posted by: Daniel | Oct 13, 2017 7:02:14 PM

The theory of the DOJ brief in Zarda is that (1) sex discrimination is only illegal if it involves inferior treatment of men, or women, as a class and (2) sexual orientation discrimination does not involve such treatment.

Anti-subordination theory does not tell us whether (1) is true. The DOJ argument only gets off the ground if you accept its choice of comparison, women as a group compared to men as a group. If you change the comparison to be, say, people who deviate from sex stereotypes compared to people who conform to sex stereotypes, we reach a different conclusion.

Nor does anti-subordination theory suggest that (2) is true. To the contrary, standard feminist accounts of the subordination of women suggest that it is false, that sex stereotypes (even "equally applied" sex stereotypes) have everything to do with treating women as inferior. Just this argument is made by an amicus brief in support of certiorari filed in the Evans case, which presents the same issue as Zarda: http://files.eqcf.org/cases/17-370-anti-discrimination-scholars-amicus-brief/

The point of the classification at issue in Zarda is not to remedy or ameliorate group-based inequality, but to enforce traditional sex roles: men should only be sexually interested in women and women should only be sexually interested in men. I've never heard of an anti-subordination theorist who thinks that this kind of roles prescription should be legally permissible. It contributes to rather than alleviates sex-based inequality.

Posted by: JHW | Oct 14, 2017 2:51:20 AM

There's an even deeper problem here. "Equal application" is not an "ultra-progressive" argument; it's a conservative one. The point of an equal application argument (and the DOJ lawyer at oral argument in Zarda was explicit about this) is that the underlying groups are relevantly different, so merely treating the groups differently shouldn't violate the law (as long as the different treatment doesn't burden men more than women or women more than men). The point of an anti-subordination argument is very much opposed to this logic: because differences are usually socially constructed, we shouldn't tolerate differential treatment by an employer or a state simply because it lines up with background differences, and therefore we should insist on measures to ameliorate inequality even when the inequality is the result of a "neutral" standard. Anti-subordination theory in the context of Zarda should tell us to be very skeptical of any argument that legitimizes treating men and women differently based on traditional conceptions of what men and women are like or how men and women should behave and present themselves, whether it's dress codes or sexual orientation.

Posted by: JHW | Oct 14, 2017 10:13:41 AM

Daniel, you're right, DOJ could simply be seeking to "win at all costs." As Marc Galanter's work suggests, however, that type of mindset is usually more common among "one-shot players" than "repeat players" such as DOJ, who litigate related issues in numerous cases repeatedly across the country. Galanter contends that repeat players usually do not seek to win at all costs by presenting every possible argument. Rather, they carefully select the arguments they present -- sometimes refraining from pressing certain one -- to maximize the chance a court not only rules in their favor, but does so on grounds that further all of the entity's interests and will have the most advantageous long-term consequences for the entity. Repeat players often are not playing to win a particular case, but rather are "playing for the rules," seeking to ensure the adoption of principles that further their interests across a range of situations. One-shot players, in contrast, only care about the outcome of a particular case and are far less concerned about the court's reasoning or its implications in other matters. Relatedly, having represented politically involved entities in the past, I can say that they sometimes refrained from making certain potentially meritorious arguments, either due to the possible implications in other contexts or their ideological valance.

JHW, you're right, the anti-subordination argument is not the only point in DOJ's brief - it also presented at length the argument you outlined above, which drew largely upon Judge Sykes' dissent in Hively. What I think is remarkable is that at several points (particularly toward the end of the brief, in responding to the other side's arguments), DOJ chose to go beyond that basic framework and additionally offer an anti-subordination-type argument.

Posted by: Michael T. Morley | Oct 14, 2017 10:19:30 AM

Even JHW's argument sounds to me like it rejects anti-classification, whether or not it sounds in anti-subordination. I get how you could adapt it to affirmative action and reach the normal conservative conclusion, but how could you adapt it to a case like, say, Parents Involved? We don't normally say that discrimination takes treating one group worse as a group than another. For that matter, surely a gender-balancing program similar to Parents Involved would be reviewed, by the lights of the majority in Parents Involved, under intermediate scrutiny.

I was thinking the other day about how Scalia would decide this case were he alive, and I think it's almost certainly the case that he would agree with the government, but on what grounds? I suspect that, besides talking about the ordinary meaning of sex discrimination in 1964, he would have argued that sexual-orientation discrimination isn't really "about" sex at all, in the way that even a neutral gender-balancing program would be. And in this way he would evade reasoning on anti-anti-classificationist grounds. (Interestingly, I suspect that Posner circa 1992 and Sex and Reason would rule for the employer here on just the same grounds, with just a little less textualist rhetoric.) I tend to like that argument best as well, though I see why other arguments that have the merit of sounding more like arguments than intuitions have been made.

Posted by: Asher Steinberg | Oct 14, 2017 1:00:09 PM

Assuming we're talking about the same brief, I'm confused why at two points in your post you write that the brief was signed only by political appointees. The sole signature on the July brief is by an assistant director in Civ-Appellate, a career lawyer, and the attorney under him is also a career lawyer in Civ-Appellate. The signature block on this brief is classic DOJ--component lawyers at bottom, component DAAG above, and AAG at top. The only difference here is two AAGs, but that's not outside the ordinary either.

I don't think this has any real relevance to the substantive points you're making, but I've seen many posts and articles since January parsing DOJ signature blocks and more often than not erroneously claiming there were no career lawyers signing on.

Posted by: PJG | Oct 14, 2017 6:19:23 PM

PJG - The brief, available at https://docs.justia.com/cases/federal/appellate-courts/ca2/15-3775/417/, has 5 names in the signature block, including 2 Acting Assistant Attorneys General, 1 Deputy Assistant Attorney General, and two Attorneys. I do not have personal knowledge of any of these people's identities, and relied on several press reports, including the New York Times, for the proposition that the brief was signed by only political appointees. https://www.nytimes.com/2017/07/27/nyregion/justice-department-gays-workplace.html. The New York Times article, in turn, cited a former Justice Department official who claimed "only political appointees, not career employees, from her former office at the Justice Department had signed the brief." Neither the quoted official nor the article states that any career attorneys from any DOJ components had signed the brief. In any event, you're right, it doesn't matter to the main point of the blog post whether the brief was signed by only political appointees, and I'm more than happy to acknowledge that some of the signatories may be career employees.

Posted by: Michael T. Morley | Oct 14, 2017 6:52:20 PM

Got it. The NYT reference was to the Civil Rights Division, and there are no career employees from CRT on the brief, so it's accurate to that extent. But the brief was drafted and filed by Civil Division career employees, and it seems it was Civil that took the lead on the amicus participation rather than CRT.

Posted by: PJG | Oct 14, 2017 7:18:53 PM

"It contends, in part, that "sex discrimination" necessarily involves the belief that one sex is inferior to the other."

"Because discrimination against homosexuals does not involve or arise from a belief that either males or females are superior to the other sex, it does not constitute "sex discrimination."

Two things. One, granting the irony, it's a tell -- like suddenly suggesting the right to marry is really about one thing (some limited children related argument and all the others need to be handwaved away) -- the irony suggests the argument is a tad forced. It is really influenced by something more negative deep down. When "legitimate" purpose is problematic, it's a red flag.

Second, I am not really sure how that works even taking them at face value. The idea is that one sex is superior -- when a person is pairing, only one sex is appropriate. Consider if the discrimination arises because the person is attracted to a different race. Yes, illegitimate classifications is a red flag, but also the idea that only one race works for attraction. Other races are "inferior."

When race or sex is the basis of a classification and the "wrong" one is deemed inferior, it is a matter of discrimination. They don't have to be deemed inferior across the board here. The Baha'i faith encourages intermixture. If this belief leads to an employer to fire someone would it not be race discrimination because they don't think one race as a whole is inferior, just thinks marrying one is?

Posted by: Joe | Oct 14, 2017 10:17:59 PM

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