Legal Momentum: 2nd Circuit Court of Appeals Will Rehear Sexual Orientation Discrimination Case

By Adam Polaski • May 25, 2017 • 3:03 pm

Today, May 25 the U.S. Court of Appeals for the 2nd Circuit granted a request to consider en banc (the full court) a case concerning employment discrimination based on sexual orientation. The case is Zarda v. Altitude Express, Inc. and is being led by Gregory Antollino, a lawyer in New York with a long history of trying employment discrimination cases.

The 2nd Circuit Court of Appeals has jurisdiction over New York, Connecticut, and Vermont.

The Zarda case argues, as many courts have ruled in the past, that existing federal laws prohibiting employment discrimination based on sex also extend to discrimination based on sexual orientation. Title VII of the 1964 Civil Rights Act prohibits employers from discriminating against people based on their sex – and many litigators over the course of many years have successfully argued that this also protects LGBT people from employment discrimination.

Just a few months ago, in early April, the 7th Circuit Court of Appeals became the first federal appellate court to rule that Title VII prohibits discrimination based on sexual orientation. Several of the circuit courts have found similarly with regard to discrimination based on gender identity.

The news today from the 2nd Circuit comes after a barrage of litigation at the 2nd Circuit concerning discrimination based on sexual orientation. Several three-judge panels have considered a slate of cases around this very question. In each of the rulings, the 2nd Circuit panels have deferred to existing legal precedent, set in 2000 in Simonton v. Runyon. An en banc hearing, just granted by the full court, is one of the few ways to overturn that precedent, which has been a stumbling block for sexual orientation discrimination claims within the circuit.

Earlier this year, Chief Judge Robert Katzmann ruled in a similar case, seemingly reluctantly, that the Simonton decision bound him to rule against a plaintiff who faced severe anti-gay harassment and discrimination at work. However, in a concurrence, he and another judge indicated that they thought the full court should reconsider this question and reverse the precedent. Judge Katzmann wrote: “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.”

And earlier this month, a federal judge in New York ruled in Philpott v. New York that claims of discrimination based on sexual orientation can be brought under Title VII of the Civil Rights Act of 1964, which includes federal protections from discrimination based on sex.

In that order, the judge wrote: “The law with respect to this legal question is clearly in a state of flux, and the Second Circuit, or perhaps the Supreme Court, may return to this question soon. In light of the evolving state of the law, dismissal of plaintiff’s Title VII claim is improper. … I decline to embrace an ‘illogical’ and artificial distinction between gender stereotyping discrimination and sexual orientation discrimination, and in so doing, I join several other courts throughout the country. … For these reasons, and in light of the evolving state of the law on this question, I hold that plaintiffs sexual orientation discrimination claim is cognizable under Title VII.”

Clearly, momentum for LGBT non-discrimination is building and picking up steam. As Freedom for All Americans continues to pursue opportunities to advance legislation at the local, state, and federal level, we also applaud our indispensable legal partners for their work in the courts. This movement in the courts builds undeniable momentum toward federal resolution and provides critical education opportunities to help more Americans understand the need for non-discrimination. Together, with the strategies of securing court wins and encouraging policymakers to take action on inclusive laws, we can protect more people as quickly as possible and ensure that no one faces discrimination because of who they are or who they love, in any aspect of their daily lives.


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