In Positive Ruling, 2nd Circuit Panel Urges Full Appellate Court to Reconsider Anti-Gay Discrimination Claims

By Adam Polaski • March 27, 2017 • 3:44 pm

Today a three-judge panel from the 2nd Circuit Court of Appeals issued a decision in Christiansen v. Omnicom Group, a case featuring a gay man suing for employment discrimination based on sexual orientation and gender stereotyping. The case involves Matthew Christiansen, an HIV-positive gay man who faced extreme harassment and discrimination from his supervisor at work. Christiansen and his attorneys are seeking a ruling that finds Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on “sex” also prohibits discrimination based on “sexual orientation.”

Previously, a trial court dismissed Christiansen’s case, with the judge writing that essentially her hands were tied by the 2nd Circuit’s 2000 decision in Simonton, which found that Title VII does not protect against discrimination based on sexual orientation. The panel today similarly found that the panel itself cannot overturn the Simonton precedent, but that Christiansen has made a successful Title VII claim with regard to gender stereotyping.

In a concurrence, two of the panel’s judges, including the Chief Judge, explained why Title VII should prohibit discrimination based on sexual orientation and recommended that the en banc 2nd Circuit Court of Appeals reconsider its precedent on whether sexual orientation discrimination is precluded by Title VII. Chief Judge Robert Katzmann wrote:

“[N]egative views of sexual orientation are often, if not always, rooted in the idea that men should be exclusively attracted to women and women should be exclusively attracted to men—as clear a gender stereotype as any. Thus, in my view, if gay, lesbian, or bisexual plaintiffs can show that they were discriminated against for failing to comply with some gender stereotype, including the stereotype that men should be exclusively attracted to women and women should be exclusively attracted to men, they have made out a cognizable sex discrimination claim.”

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 with this question, and it well may be that the Supreme Court will ultimately address it.”

The full concurrence is embedded below:

Courtesy of Equality Case Files

Read this article in Slate for further analysis of Chief Judge Katzman’s concurrence. 


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