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Fate of Title VII sexual orientation question may lie with 7th Circuit

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It is now up to the 7th U.S. Circuit Court of Appeals in Chicago to decide whether a federal appeals court will finally rule that sexual orientation discrimination is protected under Title VII of the Civil Rights Act of 1964, following last week’s ruling by the 2nd Circuit U.S. Court of Appeals in New York, which did not do so.

Experts believe a federal appeals court will eventually rule that sexual orientation is protected, which means the issue will ultimately be considered by the U.S. Supreme Court.

Last week, in a long -awaited ruling, the 2nd Circuit ruled in favor of the plaintiff in a case filed under Title VII, but on the basis of gender stereotyping discrimination, not because of sexual orientation discrimination, as some had anticipated.

However, notably, a concurring opinion by the court’s chief judge, which was supported by a second judge on the three-judge panel, called on Congress or the U.S. Supreme Court to hold that Title VII covered sexual orientation discrimination.

The panel held in its March 27 ruling in Anonymous, Matthew Christiansen v. Unicom Group et al. that Mr. Christiansen can pursue his Title VII claim on the basis of gender stereotyping but not sexual orientation.

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

In her March 2016 ruling granting Omnicom summary judgment dismissing the case, U.S. District Court Judge Kathryn 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.’”

In June 2016, 23 senators and 105 representatives, all Democrats, filed an amicus brief in the case urging the 2nd Circuit to rule that Title VII prohibits discrimination based on an individual’s sexual orientation.

But the focus of the ruling was gender stereotyping, not sexual orientation. It cited the 1989’s U.S. Supreme Court ruling in Price Waterhouse v. Hopkins, in which the high court held a plaintiff can rely on gender-stereotyping evidence to show that discrimination occurred.

“Christensen’s complaint identifies multiple instances of gender stereotyping discrimination,” including his complaint that his supervisor described him as “effeminate” to others in the office and depicted him in tights and a low-cut shirt “prancing around,” said the ruling, in overturning the lower court decision and remanding the case for further proceedings.

The concurring opinion by Chief Judge Robert A. Katzmann states, “I respectfully think that in the context of an appropriate case our Court should consider reexamining the holding that sexual orientation discrimination claims are not cognizable under Title VII. Other federal courts are also grappling this question, and it well may be that the Supreme Court will ultimately address it.”

Meanwhile, oral arguments were held in November by the en banc 7th U.S. Circuit Court of Appeals in Chicago in Kimberly J. Hively v. Ivy Tech Community College, in which a lesbian instructor claimed discrimination because of her sexual orientation. 

A three-judge 7th Circuit panel had said in a July 28, 2016, ruling that it was obligated to affirm a lower court ruling that Ms. Hively’s claim was beyond the statute’s scope. But in what was described as a rare move, in October the 7th Circuit decided to vacate that ruling and rehear the case en banc. 

In March, in a divided ruling, the 11th U.S. Circuit Court of Appeals in Atlanta, which is regarded as conservative, said Title VII does not protect employees from discrimination on the basis of sexual orientation. 

The EEOC has taken the position that Title VII protects workers against sexual orientation although federal laws do not expressly prohibit it. It filed its first two lawsuits charging sex discrimination based on sexual orientation early last year. 

“The 2nd Circuit was saying that there’s enough in this complaint that is based on failure to conform to a sexual stereotype or allegation” that this was why he was discriminated against and able to survive a motion to dismiss, said Susan K. Lessack, a partner with law firm Pepper Hamilton L.L.P. in Berwyn, Pennsylvania.

“They punted” the issue of whether Title VII covers sexual orientation discrimination, said Richard B. Cohen, an attorney with FisherBroyles L.L.P. in New York. The issue “now rides on the on the appeals court in Chicago,” he said. “Just by virtue of them taking the case in front of the entire court seems to signal they wanted to change the law.”

However, Evandro C. Gigante, a partner with Proskauer Rose L.L.P. in New York, said: “I don’t think it was a punt.” The court “is really bound by the precedent in the circuit, and can’t revisit whether sexual orientation discrimination is covered under Title VII unless it’s being done so at the Supreme Court level or, at a minimum, through an en banc decision” by an appeals court.

For now, “every smart plaintiff lawyer in the country ought to come in” and charge sexual stereotyping because the Supreme Court has said this is a valid claim, said J. William Manuel, a partner with Bradley Arant Boult Cummings L.L.P. in Jackson, Mississippi.

Meanwhile, “It’s hard to say what the 7th Circuit will do,” said Mr. Gigante. He added, however, that “It’s a matter of time before some panel or some court at the circuit court level takes that step” of saying Title VII covers sexual orientation discrimination.

“But of course once that happens” there will be a circuit split, which “makes the whole question ripe for review by the Supreme Court,” said Mr. Gigante, who would not speculate as to how the high court is likely to rule on the issue.