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The Second Circuit Court of Appeals Will Hold an en Banc Rehearing to Consider Whether Title Vii Prohibitions Include Sexual Orientation Discrimination

We previously blogged about the how the Seventh Circuit of Appeals held that discrimination on the basis of sexual orientation is a form of sex discrimination under Title VII of the Civil Rights Act of 1964, [Hively v. Ivy Tech Cmty. Coll. of Indiana, 2017 WL 1230393 (7th Cir. Apr. 4, 2017)] despite Title VII’s long history of dismissing sexual orientation discrimination lawsuits, on the grounds that Title VII does not identify sexual orientation as a protected category.

Other circuits now continue to debate this issue and the Second Circuit Court of Appeals (New York, Connecticut, and Vermont) has scheduled a rehearing in a sexual orientation discrimination case brought pursuant to Title VII, in Zarda v. Altitude Express, Inc., 15-3775 for September 26, 2017.

By way of background, Zarda was a skydriving instructor. In 2010, he told a female client that he was gay. She told her boyfriend, who complained to Zarda’s employer, Altitude Express. Altitude Express terminated Zarda’s employment and Zarda sued, claiming he was terminated because of his sexual orientation in violation of, inter alia, Title VII.

The U.S. District Court for the Eastern District of New York (EDNY) granted summary judgment on Zarda’s Title VII claim. The EDNY held both that Title VII does not prohibit sexual orientation discrimination and that Zarda had failed to establish a gender stereotyping claim under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). However, just before the EDNY ruled on summary judgment, the Equal Employment Opportunity Commission (EEOC) issued its decision in Baldwin v. Foxx, Appeal No. 0120133080, that sexual orientation discrimination is discrimination “because of sex” within the meaning of Title VII. On that basis, Zarda moved for reconsideration.

The court denied the motion for reconsideration. Zarda’s trial proceeded on his New York state law claims, and the employer won.

Zarda appealed to the Second Circuit. On April 18, 2017, the Second Circuit held that absent action by the Second Circuit sitting en banc, it was bound by Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), which 17 years ago held that sexual orientation is not protected by Title VII. “En banc” means that the case will be heard by all of the judges on the Second Circuit instead of a three-judge panel. The full court has the authority to overrule its precedent.
On May 25, 2017, in an unusual move, the Second Circuit has granted rehearing en banc limited to the issue of whether “…Title VII of the Civil Rights Act of 1964 prohibit[s] discrimination on the basis of sexual orientation through its prohibition of discrimination ‘because of…sex.’”

Oral argument is set for September 26, 2017.

We’ll keep you posted about all new developments in the Second Circuit with respect to the issue of sexual orientation discrimination under Title VII.

Meanwhile, New Yorkers are fortunate enough to be protected against sexual orientation discrimination by the New York State and New York City Human Rights Laws.

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