2d Circuit Issues Major En Banc Decision Holding Sexual Orientation Protected Under Title VII

Zarda v. Altitude Express, Inc., ___F.3d___(2d Cir. Feb. 26, 3018) (en banc), is a major decision that is undoubtedly on its way to the U.S. Supreme Court. The Second Circuit issued a 163 page decision with 8 separate opinions. The court ruled 9-3 that homosexuality or sexual orientation is protected under Title VII.  The court overruled Simonton v. Runyon, 232 F. 3d 33 (2d Cir. 2000) and largely adopted the EEOC's position as set forth in Baldwin v. Foxx, 2015 WL 4397641 (July 15, 2015).

What I found most interesting about the case was Chief Judge Katzmann's majority opinion where after recognizing that sexual orientation claims were consistently not cognizable under Title VII, he stated that "legal doctrine evolves..." (Slip Op. at 8). Nevermind that the statute simply uses the phrase "because of sex" and efforts to amend Title VII to include sexual orientation have failed. That of course, was the point of the dissent.

This decision, as you may expect, has generated substantial press coverage.

https://slate.com/news-and-politics/2018/02/second-circuit-rules-title-vii-bars-anti-gay-discrimination-in-zarda.html

https://www.reuters.com/article/legal-us-otc-titlevii/2nd-circuit-demolishes-key-doj-argument-against-workplace-protection-for-gays-idUSKCN1GA2OY

https://www.natlawreview.com/article/title-vii-bars-sexual-orientation-discrimination-says-us-second-circuit-court

I suspect such coverage will continue.

The real question is what will the Supreme Court do? My personal belief is that they have to take this case and that the Court for once and for all will recognize that sexual orientation is protected under Title VII. No matter how conservative the Court is, they recently recognized the constitutional right of homosexuals to marry. Obergefell v. Hodges, 135 S. Ct. 2584 (2015). In my view, it would be entirely illogical to believe that once married, an employer can terminate that employee for being gay.

Yes, I know Obergefell was decided on constitutional grounds and Title VII is a federal statute, so Obergefell will not technically be controlling, but come on?

For you law students out there, this case involves the classic issue about the role of judges in our society and what does "interpret the law mean?" Conservatives will stick to the exact language of the statute and examine what Congress intended in 1964 when they wrote the phrase "because of sex." Liberals recognize that legal doctrine, as Senior Judge Katzmann stated, "evolves" over time based upon the mores of society.

Before you jump into one camp or the other, consider another controversial issue-guns. Should the Second Amendment be interpreted conservatively only refer to the type of "arms" that existed in 1787 or should the right to bear arms include modern day weapons involving assault rifles? 

I also suspect the outcome of any Supreme Court case may also hing on whether President Trump gets another Supreme Court appointment and which Justice, if any, retirees. President Trump's Justice Department argued against protecting homosexuals from discrimination under Title VII. They lost big.

What do you think?

Mitchell Rubinstein

New York Court of Appeals Orders Disclosure of Facebook Information

The New York Court of Appeals issued a major lengthly decision concerning the disclosure of information on Facebook. Forman v. Henkin, ____N.Y.3d____(Feb. 13, 2018), was a personal injury action where Plaintiff claimed that she was impaired after a serious injury. The Defendant sought access to Plaintiff's entire Facebook account and Defendant claimed that it was private. Ultimately, the Court ordered limited disclosure, reasoning:

Rather than applying a one-size-fits-all rule at either of these extremes, courts addressing disputes over the scope of social media discovery should employ our well-established rules — there is no need for a specialized or heightened factual predicate to avoid improper "fishing expeditions." In the event that judicial intervention becomes necessary, courts should first consider the nature of the event giving rise to the litigation and the injuries claimed, as well as any other information specific to the case, to assess whether relevant material is likely to be found on the Facebook account. Second, balancing the potential utility of the information sought against any specific "privacy" or other concerns raised by the account holder, the court should issue an order tailored to the particular controversy that identifies the types of materials that must be disclosed while avoiding disclosure of nonrelevant materials. In a personal injury case such as this it is appropriate to consider the nature of the underlying incident and the injuries claimed and to craft a rule for discovering information specific to each. Temporal limitations may also be appropriate — for example, the court should consider whether photographs or messages posted years before an accident are likely to be germane to the litigation. Moreover, to the extent the account may contain sensitive or embarrassing materials of marginal relevance, the account holder can seek protection from the court (see CPLR 3103[a]). Here, for example, Supreme Court exempted from disclosure any photographs of plaintiff depicting nudity or romantic encounters.
Plaintiff suggests that disclosure of social media materials necessarily constitutes an unjustified invasion of privacy. We assume for purposes of resolving the narrow issue before us that some materials on a Facebook account may fairly be characterized as private ^[FN5]. But even private materials may be subject to discovery if they are [*5]relevant. For example, medical records enjoy protection in many contexts under the physician-patient privilege (see CPLR 4504). But when a party commences an action, affirmatively placing a mental or physical condition in issue, certain privacy interests relating to relevant medical records — including the physician-patient privilege — are waived (see Arons v Jutkowitz, 9 NY3d 393, 409 [2007]; Dillenbeck v Hess, 73 NY2d 278, 287 [1989]). For purposes of disclosure, the threshold inquiry is not whether the materials sought are private but whether they are reasonably calculated to contain relevant information.
Applying these principles here, the Appellate Division erred in modifying Supreme Court's order to further restrict disclosure of plaintiff's Facebook account, limiting discovery to only those photographs plaintiff intended to introduce at trial ^[FN6]. With respect to the items Supreme Court ordered to be disclosed (the only portion of the discovery request we may consider), defendant more than met his threshold burden of showing that plaintiff's Facebook account was reasonably likely to yield relevant evidence. At her deposition, plaintiff indicated that, during the period prior to the accident, she posted "a lot" of photographs showing her active lifestyle. Likewise, given plaintiff's acknowledged tendency to post photographs representative of her activities on Facebook, there was a basis to infer that photographs she posted after the accident might be reflective of her post-accident activities and/or limitations. The request for these photographs was reasonably calculated to yield evidence relevant to plaintiff's assertion that she could no longer engage in the activities she enjoyed before the accident and that she had become reclusive. It happens in this case that the order was naturally limited in temporal scope because plaintiff deactivated her Facebook account six months after the accident and Supreme Court further exercised its discretion to exclude photographs showing nudity or romantic encounters, if any, presumably to avoid undue embarrassment or invasion of privacy.

In addition, it was reasonably likely that the data revealing the timing and number of characters in posted messages would be relevant to plaintiffs' claim that she suffered cognitive injuries that caused her to have difficulty writing and using the computer, particularly her claim that she is painstakingly slow in crafting messages. Because Supreme Court provided defendant no access to the content of any messages on the Facebook account (an aspect of the order we cannot review given defendant's failure to appeal to the Appellate Division), we have no occasion to further address whether defendant made a showing sufficient to obtain disclosure of such content and, if so, how the order could have been tailored, in light of the facts and circumstances of this case, to avoid discovery of nonrelevant materials.