The Second Circuit has denied a plaintiff’s request to rehear argument en banc (that is, before all of the court’s judges) in a case alleging that Title VII of the 1964 Civil Rights Act prohibits discrimination based on sexual orientation. As the court is already scheduled to hear argument en banc on this issue in another case in September, the court’s decision is not especially surprising. As we’ve discussed in several posts (see here, here and here), the federal appeals courts are currently divided on this issue and it is likely that the Supreme Court will ultimately have to decide whether Title VII’s language prohibiting discrimination “because of … sex” is broad enough to encompass discrimination based on an employee’s sexual orientation.
On Wednesday, the court declined to order en banc review of a three-judge panel’s ruling in Christiansen v. Omnicon Group, Inc., No. 16-748, affirming the dismissal of the plaintiff’s Title VII sexual orientation discrimination claim based on precedent in Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), holding that sexual orientation discrimination is not actionable sex discrimination under Title VII. However, last month, the court ordered en banc review in Zarda v. Altitude Express, No. 15-3775, after a panel followed the same reasoning to reach a similar decision, thus largely eliminating the need for immediate review in Christiansen.
Unlike the plaintiff in Zarda, whose claims were dismissed in their entirety, the court held that the plaintiff in Christiansen could proceed on his Title VII gender stereotyping claim, a distinct cause of action in which employers may be liable for discriminating against employees for failing to conform to gender norms. However, the critical question remains as to whether the Second Circuit will join the Seventh Circuit in holding that discrimination based solely on an employee’s sexual orientation violates Title VII, or will remain aligned with the Eleventh Circuit, which, so far, has declined to overturn its panel ruling that sexual orientation claims are not cognizable under Title VII. As always, Employment Matters will be closely monitoring these developments and will keep you apprised of the latest twists and turns as this issue continues to work its way through the courts.