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

2d Circuit Continues To Hold That Title VII Does Not Outlaw Sexual Orientation Discrimination

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.” 

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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). 

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 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.