Push for Title VII Precedent to be Overturned in Second Circuit

On January 20, 2017, the U.S. Court of Appeals for the Second Circuit heard oral arguments in Christiansen v. Omnicom Group, Inc. et al., 16-748, a case involving alleged sexual orientation discrimination under Title VII of the Civil Rights Act of 1964. The Court is tasked with determining whether Title VII’s prohibition of discrimination “because of sex” encompasses prohibition of discrimination based on sexual orientation, pursuant to 42 U.S.C. §2000e-2(a)(1).

While employed at Omnicom, Christiansen’s supervisor allegedly made anti-gay comments and severely harassed Christiansen, a gay man. Christiansen filed suit alleging that, as a result of his supervisor’s behavior, he suffers from PTSD, anxiety, and depression. Although the U.S. Equal Employment Opportunity Commission (“EEOC”) maintains the position that discrimination “because of sex” includes discrimination based on sexual orientation, the Second Circuit has previously held in Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000) that Title VII’s prohibition of discrimination “because of sex” does not extend to discrimination based on sexual orientation. Instead, the Simonton court determined that “sex” refers to membership in class delineated by gender. Christiansen has argued that the Court should overturn the precedent established in Simonton because it conflicts with the growing trend of recent EEOC decisions and district court rulings interpreting “sex” to include sexual orientation.

Christiansen’s complaint was dismissed by District Court Judge Katherine Polk Failla of the Southern District of New York based on precedent from Simonton. However, since the Simonton decision was rendered in 2000, the legal landscape has changed drastically. The LGBT community as a whole has received greater protection and expanded rights. For example, in 2013, the U.S. Supreme Court granted same-sex couples the right to be married in U.S. v. Windsor, 133 S. Ct. 2675 (2013). Furthermore, New York law prohibits discrimination on the basis of actual or perceived sexual orientation in employment, housing, public accommodations, education, credit, and the exercise of civil rights under the Sexual Orientation Non-Discrimination Act (“SONDA”). SONDA has provided protections from such discrimination since 2003.

Employers are urged to be mindful of their workplace practices and to adhere to both federal and state laws regarding employment practices.

If you have any questions about employment decisions or application to your business, please contact Lauren M. Levine at 516.393.0124 or llevine@garfunkelwild.com.

~ Authors Lauren M. Levine and  Brian Jasinski

Categories: Employment Law