Academic journal article St. John's Law Review

Endangered Deference: Separation of Powers and Judicial Review of Agency Interpretation

Academic journal article St. John's Law Review

Endangered Deference: Separation of Powers and Judicial Review of Agency Interpretation

Article excerpt


Donald Zarda, a skydiving instructor, did what he was paid to do: put a client at ease when tensions were running high before a big jump. For Zarda, that meant disclosing he was gay to a female client whose boyfriend was teasing her about being closely strapped to a man.1 The boyfriend called Zarda's employer to complain, and Zarda was subsequently fired.2 Zarda filed a complaint alleging, among other things, that he was fired for discrimination on the basis of sex under Title VII of the 1964 Civil Rights Act.3 The United States Court of Appeals for the Second Circuit, bound by its precedent in Simonton v. Runyon,4 affirmed the District Court's grant of summary judgment for the employer on that claim.5 While the Supreme Court has established a Title VII claim for "discrimination based on a failure to conform to 'sex stereotypes,' "6 it has not recognized a " 'sex stereotype' that men should date women."7 Based on the anomalous logic that a plaintiff alleging discrimination could prevail if she were a masculine woman but not if she were a masculine woman who is also a lesbian, the Second Circuit granted a rehearing en banc to revisit the question of whether the term "sex" encompasses sexual orientation.8

At the rehearing, the Equal Employment Opportunity Commission ("EEOC"), the agency charged with enforcing the Civil Rights Act, argued that Title VlI's prohibition against discrimination on the basis of sex includes discrimination on the basis of sexual orientation.9 The agency first established this position in Baldwin v. Foxx,10 which was decided during the pendency of Zarda's case and formed the basis for his appeal.11 Using its unique vantage point to adjudicate anti-discrimination hearings across the country, the EEOC construed a notoriously ambiguous statute to fulfill its congressionally delegated duty. The Second Circuit's en banc decision in Zarda cited the evolved position the EEOC took in the Baldwin case, and adopted its framework and analysis to hold that Title VII discrimination on the basis of sex includes sexual orientation.12

This is a critical issue to resolve, as states vary widely in their protections for LGBTQ workers, resulting in confusion and insecurity for employees.13 As the United States Courts of Appeals for the Seventh and Eleventh Circuits have reached divergent definitions of "sex,"14 the Second Circuit's en banc interpretation reinforces a circuit split that primes the issue for eventual certification to the United States Supreme Court. while the Second Circuit found statutory protection for the LGBTQ workforce, its refusal to explicitly state that it was persuaded by, or deferring to, the EEOC's position was a missed opportunity to shed critical light on who is best positioned to interpret statutes: agencies or courts.15

Agencies set and enforce a wide variety of rules and regulations that bring the federal government inside the homes of Americans, affecting everything from our paychecks to our prescriptions to the foods in our pantries. Since the inception of administrative agencies, courts and legislators have wrestled with agencies' proper role in government, and how to appropriately cabin the scope of agency power.

For over thirty years, courts have deferred to an agency's reasonable interpretation of an ambiguous statute through the framework of the Chevron doctrine. Subsequent judicial decisions have complicated this doctrine16 and questioned whether it amounts to a constitutional violation of separation of powers.17 Adding fuel to the fire is the bipartisan acknowledgment that the executive branch under President Obama expanded its authority, either to circumvent a gridlocked Congress,18 to further the President's own agenda,19 or both. As further evidence of Chevron's growing unpopularity, Congress is considering a bill that would overturn agency deference. In January 2017, the House passed a bill including the Separation of Powers Restoration Act ("SOPRA") to curtail agency authority by eliminating agency deference, shifting the primacy of statutory interpretation to courts through de novo review of agency construction. …

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