Sexual Orientation Discrimination Under Title VII: Will a “Second Look” in the Second Circuit Lead to a New Interpretation of Discrimination Based on Sex?

Posted by on 12.19.2016 in Posts | Comments Off on Sexual Orientation Discrimination Under Title VII: Will a “Second Look” in the Second Circuit Lead to a New Interpretation of Discrimination Based on Sex?

Over the past few years, the Equal Employment Opportunity Commission (EEOC) implemented its push to challenge sexual orientation discrimination under Title VII, based on the statute’s prohibition on discrimination “because of…sex.” For example, in March 2016, the EEOC filed a lawsuit in the Western District of Pennsylvania against a medical center, alleging that a gay employee was subjected to harassment due to his sexual orientation.

Around the same time that the EEOC filed suit in the Western District, the Southern District of New York, in Christiansen v. Omnicom Group, Inc., ruled that sexual orientation discrimination did not violate Title VII. In that case, the lower court adhered to Second Circuit precedent in Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), which “unequivocally held that ‘Title VII does not proscribe discrimination because of sexual orientation.’”

While holding to the precedent established by Runyon, the District Court noted that discrimination based on sexual orientation is “reprehensible,” and that there have been “significant changes” in the “broader legal landscape” since that decision, such as the Supreme Court striking down the Defense of Marriage Act (U.S. v. Windsor, 133 S. Ct. 2675 (2013)), and then later providing that same-sex couples have a right to marry based on the Due Process and Equal Protection Clauses of the Fourteenth Amendment (Obergefell v. Hodges, 135 S. Ct. 2584 (2015)).

Christiansen has since appealed the lower court’s decision, and the Second Circuit’s decision is pending.

Other circuit courts are also being confronted by this issue. For example, in Hively v. Ivy Tech Community College, the Seventh Circuit recently granted an en banc rehearing, and vacated its prior decision dismissing an employee’s claim for sexual orientation. In its previous holding, the Seventh Circuit had ruled that despite the EEOC’s position regarding sexual orientation discrimination, as well as the societal changes contained in Windsor and Obergefell, it nevertheless was compelled to find for the employer, based on Congress’s silence in amending Title VII to include sexual orientation.

It will be interesting to see whether the Second Circuit will overrule its prior decision, based on the EEOC’s policy considerations and the factors listed by the District Court, and possibly even look to the Seventh Circuit for guidance, and reinterpret Title VII to include sexual orientation as discrimination “because of…sex.”

For more information, please contact Erdal Turnacioglu at eturnacioglu@wglaw.com or 973.854.1075
Disclaimer: The contents of this post are for informational purposes only, are not legal advice and do not create and attorney-client relationship.