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Dems' intervention in sexual orientation bias case 'influential'

Dems' intervention in sexual orientation bias case 'influential'

A rare amicus brief filed by 128 congressional Democrats urging the 2nd U.S Circuit Court of Appeals in New York to rule that Title VII of the Civil Rights Act of 1964 prohibits discrimination based on an individual's sexual orientation, in a case filed by a gay employee against his employer, is likely to be influential with the court, an expert says.

Another factor that may make it likely that the 2nd Circuit would rule this way is that the lower court judge essentially asked the appeals court to overturn an earlier ruling that bound her to rule against the plaintiff in Matthew Christiansen v. Omnicom Group Inc. et al., said Richard B. Cohen, an attorney with Fisher/Broyles L.L.P. in New York.

In the underlying case, Mr. Christensen had filed suit against his employer, New York-based DDB Worldwide Communications Group Inc., an Omnicom unit, charging harassment by a supervisor in violation of Title VII, among other charges

In her March 9, 2016, ruling granting Omnicom summary judgment dismissing the case, U.S. District Judge Kathryn Polk Failla in New York cited the 2nd Circuit's 2000 ruling in Simonton v. Runyon in which the court “unequivocally held that Title VII does not proscribe discrimination because of sexual orientation.”

“The broader legal landscape has undergone significant changes since the Second Circuit's decision in Simonton,” Judge Failla said. However, she added, “this Court is bound by its dictates.”

The June 28 amicus brief was signed by 23 senators and 105 representatives, who are all sponsors for the proposed Equality Act, which would expand civil rights law to include discrimination based on sexual orientation and gender identity, in addition to already protected classes such as sex, race and religion.

It states Simonton was wrongfully decided and should be overturned. “We firmly believe that Title VII's sex discrimination provision already prohibits discrimination based on an individual's sexual orientation and gender identity, and we urge the court to overrule erroneous Second Circuit precedent to the contrary,” says the amicus brief.

Others who have submitted briefs supporting Mr. Christiansen in the case include the U.S. Equal Employment Opportunity Commission.

The congressmen's amicus brief will be influential with the court, said Mr. Cohen, given the number of members of Congress who joined. Such briefs by Congressmen are not often submitted, and even less often involve such large numbers, according to Mr. Cohen.

Furthermore, “You don't often have a judge literally asking the court of appeals to overturn the precedent, or at least give guidance because she thinks the law has changed,” he said.

“To me, it's a clear, albeit tacit, acknowledgement from her the law should change. The judge is a respected judge,” and the appeals court “is a very well-informed court that tends to be somewhat liberal,” said Mr. Cohen who primarily represents management in litigation.

“I think, given the tenor of the times, and the fact that things are moving so fast in this area of the law, that the time is ripe for this,” Mr. Cohen said, of overturning Simonton.

Mr. Cohen said another factor that could influence the court is that both New York City and New York State have laws that make sexual orientation discrimination illegal.

However, Arthur S. Leonard, a professor at New York Law School and editor of the journal LGBT Law Notes, said, “I think it will be interesting to the court that a large number of members of Congress think federal sex discrimination law should be interpreted this way, but I don't know that it's going to carry any special weight as a matter of legal analysis.”

Mr. Leonard said he believes Mr. Christiansen's chances of a favorable ruling in this case would be enhanced if the court decides to issue an en banc ruling.

He added, “We're in a period of significant rethinking by many federal courts about how to approach sex discrimination issues,” with the whole concept of sex discrimination evolving and “courts taking a much broader view” of sex discrimination, gender discrimination and sexual stereotyping.

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