In a case that has been closely watched, in Christiansen v. Omnicorp Grp., Inc., No. 16-749 (2d Cir. March 27, 2017), a three-judge panel of the Second Circuit decided that a gay, HIV-positive employee is not able to pursue a claim of sexual orientation discrimination under Title VII, concluding that Title VII does not protect against gay bias. The Second Circuit cut to the case and concluded that absent a ruling by the Supreme Court, or a full panel of the Second Circuit overturning the prior decisions, it was bound by its own precedent (from 2000 and 2005) that Title VII does not prohibit sexual orientation discrimination. The court did permit his Price Waterhouse gender stereotyping claim to proceed, however.
Earlier this month, an Eleventh Circuit panel similarly concluded that its precedent mandated a decision that Title VII does not prohibit sexual orientation bias. That case is being pursued further for review by the full panel. In fact, multiple federal appeals courts currently are considering whether Title VII’s sex discrimination ban includes in its protection sexual orientation discrimination. To date, no federal circuit has held it does.
The bigger news from this Second Circuit case is the concurring opinion, which provides significant optimism to those hoping for Title VII’s protection to reach sexual orientation. The concurring judges supported the EEOC’s view that Title VII bans sexual orientation discrimination. Indeed, Chief Judge Robert Katzmann wrote that the Second Circuit should revisit the issue “when the appropriate occasion presents itself.”
Chief Judge Katzmann deliberately set out the legal analysis and framework for a future appeals court ruling that justifies how and why Title VII prohibits sexual orientation discrimination. Notably, Katzmann was one of the judges on the 2000 panel that held sexual orientation was not then protected and declared “it would make sense for the Court to revisit the central legal issue confronted in [the 2000 and 2005 cases], especially in light of the changing legal landscape that has taken shape in the nearly two decades since…”