Zarda v. Moore, Jr., ____F.3d____(2d Cir. April 18, 2017), is an important decision to be aware of because the Court continues to hold that Title VII does not outlaw discrimination on the basis of sexual orientation. The Court reasoned in part:
[There is a] longstanding tension in Title VII caselaw. While this Court has stated that Title VII does not prohibit discrimination based on sexual orientation, Simonton v. Runyon, 232 F.3d 33, 36 (2d Cir. 2000), the Supreme Court has held that Title VII does forbid discrimination based on a failure to conform to “sex stereotypes,” Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989). See also Dawson v. Bumble & Bumble, 398 F.3d 211, 217-19 (2d Cir. 2005) (reaffirming Simonton). In light of these precedents, Zarda premised his Title VII cause of action on the ground that he had been terminated for failing to conform to sex stereotypes. Specifically, Zarda alleged that his employer “criticized [Zarda’s] wearing of the color pink at work” and his practice of painting his toenails pink, notwithstanding Zarda’s “typically masculine demeanor.”
* * *During these proceedings, the Equal Employment Opportunity Commission (“EEOC”) issued a decision setting forth the agency’s view that discrimination based on sexual orientation constitutes sex discrimination in violation of Title VII. See Baldwin v. Foxx, E.E.O.C. Decision No. 0120133080, 2015 WL 4397641, at *5 (July 16, 2015).
* * *Nonetheless, we decline Zarda’s invitation to revisit our precedent. A separate panel of this Court recently held that Simonton can only be overturned by the entire Court sitting in banc, see Christiansen v. Omnicom Grp., No. 16-478, 2017 WL 1130183, at *2 (2d Cir. Mar. 27, 2017), and the same is true in the case at bar,
I predict that eventually the 2d Circuit will overrule itself. Perhaps, it may even happen in this case if the Court grants an en banc hearing.
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