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Second Circuit Rules That Title VII Covers Sexual Orientation Discrimination

Published by and on April 23, 2018

The Second Circuit joins the Seventh Circuit holding that sexual orientation discrimination constitutes a form of sex discrimination, explicitly prohibited by Title VII.

In March 2017, in Christiansen v. Omnicon Group Inc., 852 F.3d 195 (2d Cir. 2017), the Second Circuit held that a plaintiff’s gender stereotyping claim was recognized under Title VII of the Civil Rights Act of 1964 (“Title VII”), however, his sexual orientation discrimination claim was not recognized under the same law. In the Christiansen decision, Chief Judge Robert Katzmann stated that while the Court had no power to overturn Circuit precedent that sexual orientation discrimination is not protected by Title VII, the Court should consider re-examining the issue in the context of the appropriate case. Later in 2017, the Second Circuit granted en banc review of Zarda v. Altitude Express, Inc., No. 15‐3775 (2d. Cir. Feb. 26, 2018), evaluating whether Title VII prohibits discrimination on the basis of sexual orientation. On February 26, 2018, the Second Circuit ruled that Title VII does prohibit discrimination on the basis of sexual orientation.

Since the 2017 Christiansen decision, the Seventh Circuit ruled that sexual orientation discrimination is protected under Title VII in Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339 (7th Cir. 2017). Conversely, the 11th Circuit (in Evans v. Georgia Regional Hospital, 850 F.3d 1248 (11th Cir. 2017) and the U.S. Department of Justice (“DOJ”), on behalf of the United States, have taken the opposite position that Title VII does not protect against sexual orientation discrimination in the workplace. Further, in July 2017, the DOJ filed an amicus brief in Zarda arguing the same, while the U.S. Equal Employment Opportunity Commission (“EEOC”) filed an amicus brief arguing that Title VII does prohibit discrimination on the basis of sexual orientation. The EEOC has taken the position that sexual discrimination includes sexual orientation discrimination since issuing its decisions in Baldwin v. Foxx, EEOC Decision No. 0120133080, 2015 WL 4397641 (July 15, 2015).

Following the reasoning of both the EEOC and the Seventh Circuit, the Second Circuit held in Zarda that sexual orientation discrimination constitutes sex discrimination, which is explicitly prohibited under Title VII. The Court applied three different theories ((1) the “because of sex” theory; (2) the “sex stereotype” theory; and (3) the “associational discrimination” theory) and reached the same conclusion that sexual orientation discrimination is prohibited under each. In the Zarda opinion, Chief Judge Katzmann acknowledged that Title VII may not have been intended to prohibit sexual orientation discrimination when it was initially passed, however, the reach of Title VII has expanded and the legal doctrine has evolved significantly since 1964.

The Eighth Circuit is currently considering this issue in Horton v. Midwest Geriatric Management, No. 18-1104 (8th Cir. 2018). If the Eighth Circuit reverses its current precedent, it will become the third Circuit to extend Title VII protection to sexual orientation discrimination claims. Since April 2017, there has been a Circuit split. The issue of whether sexual orientation discrimination is prohibited by Title VII may be ripe for consideration by the U.S. Supreme Court.

Welter Insight

Although the state of the law may be uncertain with the circuit split, employers must ultimately stay in compliance with the law in the place where they do business and have employees. This includes all state and local laws regarding sexual orientation discrimination in the workplace. Even if sexual orientation discrimination is not prohibited in all jurisdictions, employers should be keenly aware that issues pertaining to sexual orientation discrimination may have bearing on gender discrimination, which is explicitly prohibited under Title VII and similar state laws. As the law develops, employers should continue to develop and hone workplace anti-harassment and anti-discrimination policies regarding sex and gender discrimination. Employers who are unsure of compliance requirements under applicable federal, state and local laws regarding sexual orientation and gender discrimination should seek counsel.

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