Choosing your wayUPDATE: 

On May 22, 2017, in Melissa Zarda et al. v. Altitude Express d/b/a Skydive Long Island et al., the Second Circuit agreed to hold an en banc hearing to determine whether an estate for a gay man, who alleged he was terminated as a result of a customer complaint related to his sexual orientation, may revive its previously dismissed case against the deceased’s former employer. By granting the en banc hearing, the Second Circuit is agreeing to reconsider its current precedent that Title VII does not protect against discrimination based on sexual orientation.

On June 1, 2017, the Second Circuit invited the Equal Employment Opportunity Commission (“EEOC”) to participate as amicus curiae and write a brief answering the question “Does Title VII of the Civil Rights Act of 1964 prohibit discrimination on the basis of sexual orientation through its prohibition of discrimination ‘because of sex’?” The EEOC has previously filed an amicus brief in the Christiansen case arguing that Title VII protects against sexual orientation discrimination based on the well settled precedent that it is sex discrimination under Title VII to discriminate against someone who fails to conform to gender norms (i.e., being attracted to the same sex is non-conformance to gender norms). It is likely that the EEOC will take a similar position in this case.

The fact that the Second Circuit decided to rehear this case and that it specifically invited the EEOC to act as an amicus, makes it appear likely that the Second Circuit is poised to follow the Seventh Circuit’s lead and find sexual orientation discrimination to be prohibited under Title VII through its prohibition on the basis of sex.


Following the Supreme Court decision that same sex marriages are legal, there has been a movement to further expand rights and protections against sexual orientation bias. That trend is appearing in federal courts, where plaintiffs are asking the courts to recognize, under federal law, that sexual orientation is a protected class. Although the Second Circuit seems somewhat reluctant to join the bandwagon, the momentum seems to be headed that way.

In a March 27, 2017, ruling in Christiansen v. Omnicom Group Inc. et al., a gay advertising executive at an Omnicom subsidiary alleged (among other things) that his employer violated Title VII by discriminating against him for his failure to conform to gender stereotypes. Christiansen asked the full Second Circuit to overturn its precedent in Simonton v. Runyon from 2000 that Title VII does not protect individuals alleging discrimination based on sexual orientation. Concluding that it lacked the power to reconsider its standing precedent, the panel held that Christiansen had stated a plausible gender stereotyping claim under the U.S. Supreme Court’s decision in Price Waterhouse v. Hopkins and ordered the lower court to consider that part of the suit. In a concurring opinion, Chief Circuit Judge Robert Katzmann opined sexual orientation discrimination is a form of sex discrimination, stating that “such discrimination treats otherwise similarly-situated people differently solely because of their sex” and that “sexual orientation cannot be defined or understood without reference to sex.” Judge Katzmann surmised that sexual orientation should be encompassed by Title VII, expressing hope for an “appropriate occasion” for the Circuit to reconsider its 2000 precedent.

Within just one week following the ruling in Christiansen, the Seventh Circuit, in Hively v. Ivy Tech Community College, became the first appellate court to decide that Title VII does encompass sexual orientation discrimination claims, overturning its own precedent and the precedent of other appellate courts. In Hively, the Seventh Circuit granted a lesbian professor’s petition for an en banc rehearing in a case she brought against her employer, alleging she was not considered for a full-time professorship position because of her sexual orientation. As a result, individuals in the Seventh Circuit (which covers Illinois, Indiana and Wisconsin) can now allege sexual orientation discrimination under Title VII in federal courts and with the U.S. Equal Employment Opportunity Commission. It remains to be seen whether other appellate courts will follow in the footsteps of Hively.

Despite the Second Circuit’s standing precedent, on May 3, 2017, Judge Alvin Hellerstein, in the Southern District of New York, ruled in Philpott v. State of New York that Title VII does, in fact, protect employees from discrimination and harassment based on sexual orientation. Although the Court acknowledged that the Second Circuit has previously held that sexual orientation is not a protected class under Title VII, the Court stated that the law was “in a state of flux,” and in reaching its decision, relied largely on the concurring opinion in Christiansen and the decision in Hively, concluding that “common sense” dictates that since the plaintiff had articulated a claim for discrimination on the basis of sexual orientation, he, too, had alleged a claim for gender stereotyping, which has long been held to be protected under Title VII. The court “decline[d] to embrace an ‘illogical’ and artificial distinction between gender stereotyping discrimination and sexual orientation discrimination.” Meanwhile, about two months ago, the Eleventh Circuit decided that Title VII does not protect individuals from discrimination and harassment based on sexual orientation.

These decisions have no immediate effect for New York City employers; however, it seems likely that individuals may cite the Philpott case and argue that other district courts in the state should follow suit and that the Second Circuit should overturn its precedent. This is particularly likely in the Eastern District of New York, which often shares views similar to the Southern District’s. Should other district courts adopt the Philpott view of Title VII, employers outside of New York City would be forced to contend with employees having the ability to seek attorneys’ fees under the federal law, which was not previously available under New York State law, providing plaintiffs with more bargaining power than before. Although New York employers outside of New York City should not have to alter any policies, since New York State law also protects against sexual orientation bias, they may have to change their thinking when coming to the bargaining table.

It seems likely that the Second Circuit may be forced to reconsider, in the near future, whether sexual orientation is protected under Title VII. Additionally, given the circuit split, the issue seems ripe for review by the United States Supreme Court. In the meantime, employers should continue to ensure fair treatment of all employees, regardless of sexual orientation status, even if not yet protected under federal or local law.