TABLE OF CONTENTS

BACKGROUND.......................................................................................................................... 1

PANEL DECISION.................................................................................................................... 2

ARGUMENT.. 3

CONCLUSION.. 15

CERTIFICATE OF COMPLIANCE.. 16

CERTIFICATE OF SERVICE.. 17

TABLE OF AUTHORITIES

Federal Court Cases

Baskin v. Bogan,

F.3d , 2014 WL 4359059 (7th Cir. Sept. 4, 2014)........................................................... 5

Bennefield v. Mid-Valley Healthcare et al.,
2014 WL 4187529 (D. Or. Aug. 21, 2014)............................................................................ 13

Birkholz v. City of New York et al.,
2012 WL 580522 (E.D.N.Y. Feb. 22, 2012).......................................................................... 13

Centola v. Potter,

183 F. Supp. 2d 403 (D. Mass. 2002)................................................................................... 7, 9

Clark County Sch. Dist. v. Breeden,

532 U.S. 268 (2001)................................................................................................................... 12

Dawson v. Entek Int’l,
630 F.3d 928 (9th Cir. 2011)................................................................................................... 13

Doe by Doe v. City of Belleville,

119 F.3d 563 (7th Cir. 1997),

vacated on other grounds, 523 U.S. 1001 (1998)................................................. 5, 9, 10, 11

EEOC v. Concentra Health Servs.,

496 F.3d 773 (7th Cir. 2007)..................................................................................................... 9

Gilbert v. Country Music Ass’n, Inc.,
432 Fed. Appx. 516 (6th Cir. Aug. 2, 2011).......................................................................... 15

Glenn v. Brumby,
663 F.3d 1312 (11th Cir. 2011)........................................................................................... 9-10

Hall & Uber et al. v. BNSF,
2014 WL 4719007 (W.D. Wash. Sept. 22, 2014)................................................................. 14

Hamm v. Weyauwega Milk Prods., Inc.,

332 F.3d 1058 (7th Cir. 2003)..................................................................... 4, 9, 10, 11, 12, 15

Hamner v. St. Vincent Hosp. & Health Care Ctr.,

224 F.3d 701 (7th Cir. 2000)...................................................................... 3, 7-8, 9, 12-13, 15

Federal Court Cases

Heller v. Columbia Edgewater Country Club,

195 F. Supp. 2d 1212 (D. Or. 2002)...................................................................................... 7-8

Holland v. Jefferson Nat’l Life Ins. Co.,
883 F.2d 1307 (7th Cir. 1989)................................................................................................. 13

Holloway v. Arthur Andersen & Co.,
566 F.2d 659 (9th Cir. 1977)............................................................................................... 9, 10

Koren v. Ohio Bell Tel. Co.,

894 F. Supp. 2d 1032 (N.D. Ohio 2012)................................................................................... 7

Magyar v. Saint Joseph Reg. Med. Ctr.,

544 F.3d 766 (7th Cir. 2008).......................................................................................... 3, 9, 12

Martin v. N.Y.S. Dep’t of Corr. Servs. et al.,
224 F. Supp. 2d 434 (N.D.N.Y. 2002)..................................................................................... 14

Muhammad v. Caterpillar, Inc.,
F.3d , 2014 WL 4418649 (7th Cir. Sept. 9, 2014)..................................... 2, 3, 9, 10, 12

Muhammad v. Caterpillar, Inc.,
2014 WL 664460 (C.D. Ill. Feb. 28, 2012).......................................................................... 1, 2

Newport News Shipbuilding & Dry Dock Co. v. EEOC,
462 U.S. 669 (1983)................................................................................................................... 11

Oncale v. Sundowner Offshore Oil Servs., Inc.,

523 U.S. 75 (1998)................................................................................................................. 4, 11

Price Waterhouse v. Hopkins,

490 U.S. 228 (1989).......................................................................................................... passim

Rodas v. Town of Farmington,
567 Fed. Appx. 24 (2d Cir. May 20, 2014)............................................................................ 15

Schroeder v. Hamilton Sch. Dist.,

282 F.3d 946 (7th Cir. 2001)................................................................................................. 6, 9

Schwenk v. Hartford,
204 F.3d 1187 (9th Cir. 2000)................................................................................................. 10

Federal Court Cases

Smith v. City of Salem,
378 F.3d 566 (6th Cir. 2004)................................................................................................... 10

Sommers v. Budget Marketing,
667 F.2d 748 (8th Cir. 1982)..................................................................................................... 9

Spearman v. Ford Motor Co.,

231 F.3d 1080 (7th Cir. 2000).................................................................................. 2, 9, 10, 12

Swift v. Countrywide Home Loans,
770 F. Supp. 2d 483 (E.D.N.Y. 2011)............................................................................... 13-14

Terveer v. Billington,

2014 WL 1280301 (D.D.C. Mar. 31, 2014)......................................................... 3, 6-7, 12, 13

Ulane v. Eastern Airlines, Inc.,

742 F.2d 1081 (7th Cir. 1984)......................................................................................... passim

U.S. EEOC Cases

Castello v. U.S. Postal Service,
EEOC Request No. 0520110649, 2011 WL 6960810 (Dec. 20, 2011)............................... 8

Complainant v. Dep’t of Homeland Security,
EEOC Appeal No. 0120110576, 2014 WL 4407422 (Aug. 20, 2014)................................ 8

Couch v. Dep’t of Energy,
EEOC Appeal No. 0120131136, 2013 WL 4499198 (Aug. 13, 2013)................................ 8

Culp v. Dep’t of Homeland Security,
EEOC Appeal 0720130012, 2013 WL 2146756 (May 7, 2013).......................................... 8

Veretto v. U.S. Postal Service,
EEOC Appeal No. 0120110873, 2011 WL 2663401 (July 1, 2011)................................... 8

Statutes

42 U.S.C. §§ 2000e – 2000e-17................................................................................................. 1

42 U.S.C. § 2000e-2(a)(1)....................................................................................................... 4, 6

42 U.S.C. § 2000e-2(m)............................................................................................................... 5

42 U.S.C. § 2000e-3(a).............................................................................................................. 12

Rules

Fed. R. App. P. 29(a)................................................................................................................... 1

Cir. R. 40(e)............................................................................................................................ 4, 11

Other

Gender Stereotyping: Preventing Employment Discrimination of LGBT Workers, available at:

http://www.eeoc.gov/eeoc/publications/brochuregender_stereotyping.cfm................... 14

Human Rights Campaign, Sexual Orientation and Gender Identity Definitions, available at:

http://www.hrc.org/resources/entry/sexual-orientation-and-gender-identity-terminology-and-definitions..................................................................................................................................... 6

Processing Complaints of Discrimination by LGBT Federal Employees,
available at:
http://www.eeoc.gov/federal/directives/lgbt_complaint_processing.cfm......................... 14

U.S. EEOC Strategic Enforcement Plan for FY 2013-2016,
available at:
http://www.eeoc.gov/eeoc/plan/sep.cfm.................................................................................. 14

STATEMENT OF INTEREST

The U.S. Equal Employment Opportunity Commission is the primary Agency charged by Congress with interpreting and enforcing Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e – 2000e-17. The panel here held, based on this Court’s precedent, that Title VII does not prohibit “sexual-orientation” discrimination, or retaliation against workers who oppose it. However, since the Court first announced this interpretation of Title VII over thirty years ago, an increasing number of courts (as well as the Commission) have recognized that intentional discrimination based on an individual’s sexual orientation can be proved to be grounded in sex-based norms, preferences, expectations, or stereotypes. If this Court does not rehear the panel’s decision, it will create considerable confusion for employers and employees. It also could chill effective enforcement of civil rights laws. The Commission therefore offers its views to the Court. Fed. R. App. P. 29(a).

BACKGROUND

Plaintiff-Appellant Warnether Muhammad worked for Defendant-Appellee Caterpillar, Inc. in Decatur, Illinois, as an assembler on a team on the wheel tractor scraper line. See Muhammad v. Caterpillar, Inc., 2014 WL 664460, at *1 (C.D. Ill. Feb. 28, 2012). While at Caterpillar, Muhammad experienced workplace harassment. Id. at *1-2. For instance, a co-worker called him a “black faggot ass.” Id. at *1. Around the same time, Muhammad found graffiti on the wall of the bathroom near his work station stating that he “has AIDS” and “is a fag, a know-it-all fag” and a “black nigger” who “should be killed.” Id. at *2. Similar graffiti reappeared on the bathroom wall two more times that month, including statements like Muhammad “sucks . . . dick.” Id.; see also F.3d , 2014 WL 4418649, at *1 (7th Cir. Sept. 9, 2014). Muhammad complained about the graffiti both to his supervisor and to other company officials. 2014 WL 664460, at *2. Later, the company suspended Muhammad indefinitely for insubordination over an ostensibly unrelated incident. Id. at *3. Muhammad filed a Title VII suit, alleging Caterpillar subjected him to an unlawful race- and sex- based hostile work environment, and retaliated against him for complaining about the harassment. Id. at *4. The district court granted Caterpillar’s summary-judgment motion on all claims. Id. at *13.

PANEL DECISION

A panel of this Court affirmed. 2014 WL 4418649, at *1, *6. The panel acknowledged that “[o]n appeal, Muhammad argues that his coworkers’ derogatory comments about sexual orientation were based on his sex” in part because “‘[i]t is . . . conceivable to believe that he was harassed because he was a male who did not, in the mind [sic] of his harassers, act like a male.’” Id. at *3 (emphasis added). However, the panel pointed out that this Court in Spearman v. Ford Motor Co., 231 F.3d 1080, 1085 (7th Cir. 2000), “held that the Title VII prohibition on discrimination based on sex extended only to discrimination based on a person’s gender, and not that aimed at a person’s sexual orientation.” 2014 WL 4418649, at *2. Moreover, the Court ruled, “another more fundamental obstacle blocks Muhammad’s claim that Caterpillar is liable for sexual and racial harassment: Caterpillar reasonably responded to Muhammad’s complaints.” Id. at *3.

The panel also reasoned that “Muhammad cannot maintain a retaliation claim based on a complaint of conduct that is not covered under Title VII, and summary judgment [as to that claim] was proper on that basis alone.” Id. at *4 (citing Hamner v. St. Vincent Hosp. & Health Care Ctr., 224 F.3d 701, 707-08 (7th Cir. 2000); Magyar v. Saint Joseph Reg. Med. Ctr., 544 F.3d 766, 771 (7th Cir. 2008)). The panel affirmed the district court’s grant of summary judgment as to Muhammad’s retaliation claim on the additional basis that Muhammad had not adduced sufficient evidence to survive summary judgment on whether Caterpillar suspended him because he had complained about either sex- or race-based harassment. 2014 WL 4418649, at *4-6.

ARGUMENT

Portions of the panel’s ruling rest on the sweeping proposition that Title VII’s prohibition on discrimination “because of sex” does not prohibit discrimination based on sexual orientation. Yet an increasing number of courts, as well as the EEOC (the primary Agency charged with enforcing the statute), have recognized that intentional discrimination based on an individual’s sexual orientation can be proved to be grounded in sex-based norms, preferences, expectations, or stereotypes. For example, in Terveer v. Billington, 2014 WL 1280301 (D.D.C. Mar. 31, 2014), the U.S. District Court for the District of Columbia held that a plaintiff’s allegation that discrimination occurred because of “plaintiff’s status as a homosexual” – without more – plausibly suggested the discrimination was based on gender stereotypes, and thus stated a Title VII sex-discrimination claim. Id. at *9. Accordingly, Title VII’s anti-retaliation rule protects individuals who in good faith oppose sexual-orientation discrimination in the workplace. Particularly in light of more recent judicial developments and EEOC rulings and enforcement activity, individuals who complain may have at least an objectively reasonable belief that Title VII prohibits employers from discriminating based on sexual orientation. For these reasons, the panel here should modify the categorical statements to the contrary in its opinion, overruling this Court’s precedent if necessary. See Cir. R. 40(e).

1. Title VII makes it unlawful for an employer to discriminate against any applicant or employee “because of such individual’s . . . sex . . . .” 42 U.S.C. § 2000e-2(a)(1). The Supreme Court has ruled that this statutory prohibition may “go beyond the principal evil” Congress contemplated when enacting the statute. Oncale v. Sundowner Offshore Oil Servs., Inc., 523 U.S. 75, 80 (1998). In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Supreme Court also held that Title VII’s prohibition on sex discrimination means that, absent a statutory defense, “gender must be irrelevant to employment decisions.” Id. at 240 (emphasis added). The Court explained that “we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group . . . .” Id. at 251. Thus, employers cannot consider gender-based expectations, preferences, norms, or stereotypes in making personnel decisions or setting terms and conditions of employment.[1]

Similarly, in Doe by Doe v. City of Belleville, 119 F.3d 563 (7th Cir. 1997), vacated on other grounds, 523 U.S. 1001 (1998), this Court held that “Title VII does not permit an employee to be treated adversely because his or her appearance or conduct does not conform to stereotypical gender roles.” 119 F.3d at 580-81 (citing Price Waterhouse, 490 U.S. at 235, 251). According to Doe, where the discrimination is “inseparable” from, “inextricably intertwined” with, or “inescapably and irrevocably linked” to gender, it is because of the victim’s sex. Id. at 578, 579. The Court explained that “gender stereotyping establishes the link to the plaintiff’s sex that Title VII requires” since “reliance upon stereotypical notions about how men and women should appear and behave” reasonably suggests that discrimination “can be attributed to [the victim’s] sex.” Id. at 581; cf. 42 U.S.C. § 2000e-2(m) (unlawful employment practice is established when plaintiff proves that sex was a “motivating factor” in the employer’s discrimination).

As a practical matter, discrimination motivated by sexual orientation will often be motivated by some sort of gender-based preference, assumption, expectation, norm, or stereotype. Purposeful discrimination against straight, gay, lesbian, or bisexual people may often be animated by stereotypes about sex-specific roles related to sexual relations and/or romantic relationships. Cf. Baskin v. Bogan,
F.3d , 2014 WL 4359059, at *5, *1-21 (7th Cir. Sept. 4, 2014) (acknowledging “the disparagement of their sexual orientation, implicit in the denial of marriage rights to same-sex couples, is a source of continuing pain to the homosexual community”; referring to “same-sex” relationships over 100 times) (emphasis added). “Sexual orientation” as a concept cannot be defined or understood without reference to sex/gender. See, e.g., Human Rights Campaign, Sexual Orientation and Gender Identity Definitions, available at http://www.hrc.org/resources/entry/sexual-orientation-and-gender-identity-terminology-and-definitions (“‘Sexual orientation’ [refers] to an individual’s physical and/or emotional attraction to the same and/or opposite gender.”) (emphasis added). For instance, in Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984), this Court cited a definition of “homosexuals” as individuals “who are sexually attracted to persons of the same sex.” Id. at 1083 n.3 (emphasis added).[2]

If a plaintiff can prove an employer harassed, or refused to hire, or fired, an employee because that employee’s sexual-orientation failed to comport with the discriminator’s gender-based stereotypes in contravention of Price Waterhouse, the plaintiff will have proven the discrimination is sex-based. In these cases, the victim’s gender is not “irrelevant to [the] employment decision[],” Price Waterhouse, 490 U.S. at 240, which is all Title VII requires to show the challenged act was “because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1).

A number of courts have embraced this common-sense conclusion. Most recently, in Terveer, the U.S. District Court for the District of Columbia denied the defendant’s motion to dismiss the plaintiff’s Title VII sexual-orientation discrimination-based claim. 2014 WL 1280301, at *9. The defendant argued the plaintiff had failed to state a claim because his complaint did not “indicate that his ‘supervisor’s conduct was motivated by judgments about plaintiff’s behavior, demeanor or appearance, and there are no facts to support an allegation that the employer was motivated by his views about Plaintiff’s conformity (or lack thereof) with sex stereotypes.’” Id. The district court disagreed, taking an expansive view of the potential types of permissible Price Waterhouse “sex-stereotyping” evidence a plaintiff might use to plead and prove a viable Title VII sex-discrimination claim:

Here, Plaintiff has alleged that he is “a homosexual male whose sexual orientation is not consistent with the Defendant’s perception of acceptable gender roles,” Am. Compl. ¶ 55, that his “status as a homosexual male did not conform to the Defendant’s gender stereotypes associated with men under [the alleged discriminating official’s] supervision or at the [defendant’s workplace],” id. ¶ 59, and that “his orientation as homosexual had removed him from [the alleged discriminator’s] preconceived definition of male,” id. ¶ 13. As Plaintiff has alleged that Defendant denied him promotions and created a hostile work environment because of Plaintiff’s nonconformity with male sex stereotypes, Plaintiff has met his burden . . . .

Id. (citing Price Waterhouse, 490 U.S. at 251); see also Koren v. Ohio Bell Tel. Co., 894 F. Supp. 2d 1032, 1037, 1038 (N.D. Ohio 2012) (denying defendant’s summary judgment motion where plaintiff alleged his supervisor discriminated against him based on sex stereotypes because he is married to a man and took his husband’s last name, holding that “[t]hat is a claim of discrimination because of sex”) (emphasis in original); Centola v. Potter, 183 F. Supp. 2d 403, 410 (D. Mass. 2002) (“Sexual orientation harassment is often, if not always, motivated by a desire to enforce heterosexually defined gender norms. In fact, stereotypes about homosexuality are directly related to our stereotype about the proper roles of men and women.”); Heller v. Columbia Edgewater Country Club, 195 F. Supp. 2d 1212, 1224 (D. Or. 2002) (belief that women should only be attracted to and date men is a gender stereotype).

Likewise, the Commission has ruled that certain sexual-orientation discrimination claims are cognizable under Title VII’s prohibition against sex discrimination because they entail gender stereotyping, and thus can constitute discrimination “because of” an individual’s sex under Title VII. In Complainant v. Department of Homeland Security, EEOC Appeal No. 0120110576, 2014 WL 4407422 (Aug. 20, 2014), the EEOC explained that “[w]hile Title VII’s prohibition of discrimination does not explicitly include sexual orientation as a basis, Title VII prohibits sex discrimination, including sex-stereotyping discrimination and gender discrimination” and “sex discrimination claims may intersect with claims of sexual orientation discrimination.” Id. at *7 (citing Price Waterhouse, 490 U.S. at 250).[3]

To be sure, this Court has squarely held that Title VII does not prohibit sexual-orientation discrimination. In 1984, in Ulane, its first decision on the issue, the Court stated that the statutory definition of “sex” “is not synonymous with sexual preference” and that “homosexuals” “do not enjoy Title VII protection.” 742 F.2d at 1084. This Court reasoned that the Title VII term only “implies that it is unlawful to discriminate against women because they are women and against men because they are men” and refers strictly to “biological male” and “biological female.” Id. at 1085-1087 (citing Sommers v. Budget Marketing, 667 F.2d 748, 750 (8th Cir. 1982), and Holloway v. Arthur Andersen & Co., 566 F.2d 659, 662-63 (9th Cir. 1977)).

But this Court decided Ulane five years before the Supreme Court decided Price Waterhouse. And since Price Waterhouse, this Court has never revisited the reasoning that supported its original ruling. Instead, except for in Doe (discussed below), subsequent panels – like the panel here, 2014 WL 4418649, at *2 – have simply reiterated Ulane’s core holding. See Magyar, 544 F.3d at 771; EEOC v. Concentra Health Servs., 496 F.3d 773, 781 (7th Cir. 2007); Hamm, 332 F.3d at 1062; Schroeder, 282 F.3d at 951; Hamner, 224 F.3d at 704; Spearman, 231 F.3d at 1084-85, 1086 (cited by the panel and district court here); see also Centola, 183 F. Supp. 2d at 413 (noting that this Court’s opinion in Hamner “does not even mention Hopkins or its sexual stereotyping analysis”).

Price Waterhouse rejected the narrow definition of sex adopted by Ulane and related decisions, and thus has called them into question. See, e.g., Glenn v. Brumby, 663 F.3d 1312, 1318 n.5 (11th Cir. 2011) (explaining that “federal courts have recognized with near-total uniformity that ‘the approach in Holloway, Sommers, and Ulane . . . has been eviscerated’ by Price Waterhouse’s holding that ‘Title VII’s reference to ‘sex’ encompasses both the biological differences between men and women, and gender discrimination, that is, discrimination based on a failure to conform to stereotypical gender norms’”) (quoting Smith v. City of Salem, 378 F.3d 566, 573 (6th Cir. 2004)) (emphasis added); see also Schwenk v. Hartford, 204 F.3d 1187, 1201 (9th Cir. 2000) (“The initial judicial approach taken in cases such as Holloway has been overruled by the logic and language of Price Waterhouse.”). Yet this Court has never resolved the tension between Ulane and Price Waterhouse and its progeny.[4]

In Doe, this Court did acknowledge that “to the extent that [a defendant may wish to infer] from Ulane that harassment stemming from the employee’s failure to meet the stereotypical expectations of his gender is not discrimination ‘against a man because he is a man,’ it is drawing an inference that is foreclosed by the Supreme Court’s subsequent decision in Price Waterhouse.” 119 F.3d at 592. But see Hamm, 332 F.3d at 1065; Spearman, 231 F.3d at 1085-86. And this Court in Doe also recognized the confluence between sexual-orientation discrimination and gender-stereotyping. See 119 F.3d at 593, 594. This Court realized that:

there is, of course, a considerable overlap in the origins of sex discrimination and homophobia, and so it is not surprising that sexist and homophobic epithets often go hand in hand. Indeed, a homophobic epithet like “fag,” for example, may be as much of a disparagement of a man’s perceived effeminate qualities as it is of his perceived sexual orientation. [This has] led a number of scholars to conclude that anti-gay bias should, in fact, be understood as a form of sex discrimination.

119 F.3d at 593 n.27.[5] Thus, while this Court in Doe was not prepared to classify all sexual-orientation discrimination as sex discrimination, id. (“We do not go so far here.”), or to overrule Ulane outright, id. at 592 (perceiving “no conflict” with Ulane), the Court’s analysis implies that Ulane rests on a crumbling foundation. Id. at 572-73 (emphasizing Title VII’s scope not limited “‘to the specific problem that motivated its enactment’”) (quoting Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 679 (1983)); see also Oncale, 523 U.S. at 79-80 (Scalia, J.) (rejecting idea that Title VII only proscribes precise acts specifically contemplated by Congress).

By relying on Ulane’s discredited reasoning and repeating this rule of law reflexively now – without acknowledging that other courts have rejected the Ulane rule in light of Price Waterhouse or the Court’s more skeptical approach in Doe – the Court could create considerable confusion for employers and employees. Therefore, the panel should withdraw or modify its ruling on this issue, overruling Ulane and related cases if necessary. See Cir. R. 40(e).

2. For all the same reasons, this Court should, at the very least, rescind the part of the panel’s opinion stating (and reverse its precedent holding) that employee complaints about sexual-orientation discrimination do not constitute “protected activity” for purposes of Title VII’s anti-retaliation rule. The statute prohibits retaliation against any employee who “has opposed any practice made an unlawful employment practice by this subchapter.” 42 U.S.C. § 2000e-3(a). This clause shields those who “oppose” adverse acts that are in fact illegal under Title VII, and those who in good faith object to practices they reasonably believe are illegal (even if the complained-of practices actually are not unlawful). See, e.g., Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 270 (2001) (assuming this interpretation of the statute is correct). A victim of retaliation “need only show that, when instituting her grievance, she had a ‘sincere and reasonable belief’ that she was opposing an unlawful practice.” Magyar, 544 F.3d at 771 (citing Hamner, 224 F.3d at 706-07). The objective “reasonableness” of the victim’s belief is assessed by examining “whether it falls into the category of conduct prohibited by the statute.” Id.

The panel here held that an individual who complains about sexual-orientation harassment is not complaining about discrimination that falls into the category of conduct Title VII prohibits. 2014 WL 4418649, at *4 (citing Hamner, 224 F.3d at 707-08; Magyar, 544 F.3d at 771). Other panels of this Court have ruled similarly. See Hamm, 332 F.3d at 1066; Spearman, 231 F.3d at 1086 n.5. However, in light of Price Waterhouse, cases like Terveer, and the Commission’s decisions and enforcement activity, this proposition is untenable. It now at least is reasonable for workers to believe Title VII’s prohibition against sex discrimination may encompass discriminatory conduct based on sexual orientation. Cf. Hamner, 224 F.3d at 707 (explaining that while a retaliation victim’s allegations “cannot be without legal foundation,” to be protected they simply “must concern ‘the type of activity that, under some circumstances, supports a charge of sexual harassment’”) (quoting Holland v. Jefferson Nat’l Life Ins. Co., 883 F.2d 1307, 1315 (7th Cir. 1989)) (emphasis added).

The Ninth Circuit has said so outright. See Dawson v. Entek Int’l, 630 F.3d 928, 936 (9th Cir. 2011) (“Title VII prohibits an employer from discriminating against an employee for opposing an unlawful employment practice, such as filing a complaint alleging sexual orientation harassment and hostile work environment.”) (emphasis added). Many districts courts agree. See, e.g., Bennefield v. Mid-Valley Healthcare et al., 2014 WL 4187529, at *4 (D. Or. Aug. 21, 2014) (denying summary judgment to defendant regarding plaintiff’s retaliation claim premised on sexual-orientation discrimination) (citing Dawson); Terveer, 2014 WL 1280301, at *11 (opposition to discrimination based on plaintiff’s status as a “homosexual” constituted protected opposition conduct under Title VII). And with good reason. To hold otherwise would require discrimination victims or witnesses – usually “lay” persons – to master the subtleties of sex-discrimination law before securing safe harbor in the broad remedial protections of Title VII’s anti-retaliation rule. See, e.g., Birkholz v. City of New York et al., 2012 WL 580522, at *7-8 (E.D.N.Y. Feb. 22, 2012) (reasoning that “[i]f opposition to sexual-orientation-based discrimination was not protected activity, employees subjected to gender stereotyping would have to base their decision to oppose or not oppose unlawful conduct on a brittle legal distinction” between “sexual-orientation” discrimination and sex-discrimination) (relying on Dawson; Swift v. Countrywide Home Loans, 770 F. Supp. 2d 483, 489 (E.D.N.Y. 2011); Martin v. N.Y.S. Dep’t of Corr. Servs. et al., 224 F. Supp. 2d 434, 448 (N.D.N.Y. 2002)); cf. Hall & Uber et al. v. BNSF, 2014 WL 4719007, at *2 (W.D. Wash. Sept. 22, 2014) (noting “it is often difficult to distinguish sex discrimination claims made by people identifying as homosexual from those claims based solely on alleged sexual orientation”).

This Court’s ruling also undermines the EEOC’s recent enforcements efforts. The Commission has been actively educating employers and employees about the interplay between Title VII and sexual-orientation discrimination. The Agency’s current Strategic Enforcement Plan, adopted in December of 2012, lists addressing “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions, as they may apply” as a top Commission enforcement priority. See U.S. EEOC Strategic Enforcement Plan for FY 2013-2016, available at http://www.eeoc.gov/eeoc/plan/sep.cfm, at Section III.B.3. The Agency has urged straight, lesbian, gay, and bisexual discrimination victims to come to the Commission to report sexual-orientation discrimination; its public website contains various resources suggesting that Title VII covers it. See, e.g., “Gender Stereotyping: Preventing Employment Discrimination of Lesbian, Gay, Bisexual or Transgender Workers,” available at http://www.eeoc.gov/eeoc/publications/brochure-gender_stereotyping.cfm. And the Commission’s federal-sector rulings (cited above) – also publicized on its website, see, e.g., “Processing Complaints of Discrimination by Lesbian, Gay, Bisexual, and Transgender (LGBT) Federal Employees,” available at http://www.eeoc.gov/federal/directives/lgbt_complaint_processing.cfm – amplify the EEOC’s message that Title VII prohibits certain acts of sexual-orientation discrimination. Because the primary federal agency charged with interpreting and enforcing Title VII has engaged in this overt outreach activity, individuals who sincerely oppose sexual-orientation discrimination in their own workplaces certainly have an objectively reasonable belief that they are objecting to “activity that, under some circumstances, supports a [Title VII] charge,” Hamner, 224 F.3d at 707.

The panel’s opinion to the contrary will further confuse employers and employees, chilling challenges to suspected discrimination and undermining vigorous civil-rights enforcement. The panel’s ruling – this Court’s first on this topic after the Ninth Circuit addressed it (in Dawson) – also revitalizes an apparent circuit split.[6] Therefore, the panel should withdraw or modify its ruling on this issue, overruling precedent if necessary. See Cir. R. 40(e).

CONCLUSION

For the foregoing reasons, the Commission urges this Court to rehear the case.

Respectfully submitted,

P. DAVID LOPEZ /s/ Daniel Travis Vail

General Counsel DANIEL TRAVIS VAIL

Attorney

CAROLYN L. WHEELER U.S. EQUAL EMPLOYMENT

Acting Associate General Counsel OPPORTUNITY COMMISSION

Office of General Counsel

131 M Street, NE

Washington, DC 20507

(202) 663-4571

daniel.vail@eeoc.gov

[1] Of course, a plaintiff must actually show that the employer did in fact rely on sex/gender in taking the challenged adverse employment action(s). Sex-stereotyping in and of itself doesn’t violate Title VII. See Price Waterhouse, 490 U.S. at 251; cf. Hamm v. Weyauwega Milk Prods., Inc., 332 F.3d 1058, 1068 (7th Cir. 2003) (Posner, J., concurring).

[2] See also Schroeder v. Hamilton Sch. Dist., 282 F.3d 946, 949 (7th Cir. 2001) (recounting incidents of anti-“homosexual” harassment targeting a gay teacher, including “bathroom graffiti identifying [him] as a ‘faggot,’ and describing, in the most explicit and vulgar terms, the type of sexual acts they presumed he engaged in with other men”; noting the school’s response included circulating a memo to staff warning that “students were continuing to use ‘inappropriate and offensive . . . gender-related words or phrases’”) (emphases added).

[3] The Commission cited numerous other recent federal-sector cases in support. 2014 WL 4407422, at *7 (citing Culp v. Dep’t of Homeland Security, EEOC Appeal 0720130012, 2013 WL 2146756, at *4 (May 7, 2013) (Title VII covers discrimination based on associating with lesbian colleague, which in the minds of the discriminator created an “improper perception”); Castello v. U.S. Postal Service, EEOC Request No. 0520110649, 2011 WL 6960810, at *2-3 (Dec. 20, 2011) (sex-stereotyping evidence entailed offensive comment by manager about female subordinate’s relationships with women); Veretto v. U.S. Postal Service, EEOC Appeal No. 0120110873, 2011 WL 2663401, at *3 (July 1, 2011) (complainant stated plausible sex-stereotyping claim alleging harassment because he married a man)); see also Couch v. Dep’t of Energy, EEOC Appeal No. 0120131136, 2013 WL 4499198, at *8 (Aug. 13, 2013) (complainant’s claim of harassment based on his “perceived sexual orientation” – including sexual-orientation based slurs – “based on the perception that he does not conform to gender stereotypes of masculinity”; “fag” and “faggot” have been historically used in the United States as highly offensive, insulting, and degrading sex-based epithets against gay men and men perceived as insufficiently masculine).

[4] In fact, the panel here declined to address this tension, disregarding Muhammad’s specific argument that his coworkers’ derogatory comments about sexual orientation were based on his sex, in part because “‘he was harassed because he was a male who did not, in the mind [sic] of his harassers, act like a male.’” 2014 WL 4418649, at *3 (emphasis added).

[5] See also Hamm, 332 F.3d at 1065 n.5 (acknowledging that “distinguishing between failure to adhere to sex stereotypes (a sexual stereotyping claim permissible under Title VII) and discrimination based on sexual orientation (a claim not covered by Title VII) may be difficult” and that “[t]his is especially true in cases in which a perception of homosexuality itself may result from an impression of nonconformance with sexual stereotypes”) (citing Doe, 119 F.3d at 593).

[6] See Rodas v. Town of Farmington, 567 Fed. Appx. 24, 26-27 (2d Cir. May 20, 2014) (no protected opposition); Gilbert v. Country Music Ass’n, Inc., 432 Fed. Appx. 516, 520 (6th Cir. Aug. 2, 2011) (same) (citing Hamm, 332 F.3d at 1066).