New York Appellate Court Asked to Reconsider Whether Title VII Prohibits Sexual Orientation Discrimination

LGBT flag mapTitle VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of race, color, religion, national origin, and sex. Congress and the Supreme Court expanded the definition of “sex discrimination” in the 1970s and 1980s to include pregnancy discrimination and sexual harassment. The efforts to broaden Title VII’s concept of sex discrimination effectively stopped there. Neither Congress nor the federal judiciary has responded to calls to apply Title VII’s prohibition on sex discrimination to discrimination based on sexual orientation. A New York federal judge ruled against a Title VII claim for sexual orientation discrimination last year. Christiansen v. Omnicom Group, 167 F.Supp.3d 598 (S.D.N.Y. 2016). The plaintiff in that case is now asking the Second Circuit Court of Appeals in New York to reconsider its own precedent.

The Equal Employment Opportunity Commission (EEOC), the agency charged with enforcing Title VII and other federal employment statutes, has ruled that sexual orientation is covered by Title VII’s sex discrimination provisions. While it acknowledged that the statute does not explicitly mention sexual orientation as a protected category, the EEOC held that the proper question was “whether the [employer] has relied on sex-based considerations or taken gender into account when taking the challenged employment action.” Baldwin v. Foxx, App. No. 0120133080, dec. at 6 (EEOC, Jul. 15, 2015). This ruling is largely symbolic, however, since it is not binding on any federal court.

Two decisions by the U.S. Supreme Court have expanded the concept of sex discrimination under Title VII in ways that could support an interpretation that the statute already prohibits sexual orientation discrimination. In Price Waterhouse v. Hopkins, the court held that “sex stereotyping” can support a claim of sex discrimination, such as if “an employer…acts on the basis of a belief that a woman cannot be aggressive, or that she must not be.” 490 U.S. 228, 250 (1989). The court ruled in Oncale v. Sundowner Offshore Services that sexual harassment between members of the same sex can violate Title VII, as long as the plaintiff can “prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted discrimination because of sex.” 523 U.S. 75, 81 (1998).

Several federal appellate courts have held that Title VII does not apply to sexual orientation discrimination. The Second Circuit has cited “Congress’s refusal to expand the reach of Title VII” to expressly include sexual orientation. Simonton v. Runyon, 232 F.3d 33, 35 (2d Cir. 2000). The court further held that “the term ‘sex’ in Title VII refers only to membership in a class delineated by gender, and not to sexual affiliation.” Id. at 36. The Seventh Circuit has reached a similar conclusion. Hively v. Ivy Tech Cmty. Coll., South Bend, 830 F.3d 698 (7th Cir. 2016).

The plaintiff in Christiansen is “an openly gay man who is HIV-positive” and who filed suit for sexual stereotyping, disability discrimination, and retaliation in violation of Title VII. Christiansen, 167 F.Supp. at 604. Although the district judge found the defendants’ alleged conduct “reprehensible,” she granted their motion to dismiss on the ground that sexual orientation discrimination is “not…a cognizable claim for Title VII discrimination.” Id. at 618. The Second Circuit is now hearing the plaintiff’s appeal, which asks the court to overturn Simonton, partly based on the EEOC’s ruling in Baldwin.

If you need to speak to a sexual orientation discrimination attorney in New Jersey or New York, contact the Resnick Law Group online, at 973-781-1204, or at 646-867-7997.

More Blog Posts:

EEOC Rules that Title VII Already Prohibits Employment Discrimination Based on Sexual Orientation, at Least in Some Cases, The New Jersey Employment Law Firm Blog, August 14, 2015

Hundreds of Cities Enact Ordinances Prohibiting Sexual Orientation Employment Discrimination When States Fail to Take Action, The New Jersey Employment Law Firm Blog, September 16, 2014

Teacher Sues New York School, Alleging Discrimination and Firing Based on Age, Marital Status, Sex, and Sexual Orientation, The New Jersey Employment Law Firm Blog, July 7, 2014

Photo credit: New Jersey Outline Shaded map.svg/Gay_flag.svg: derivative work: Fry1989, 00:38, 11 January 2012 (UTC) [CC BY-SA 3.0], via Wikimedia Commons.

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