Sexual Orientation: Final Step Before Supreme Court (Or Congress) Acts?

For those keeping an eye on the issue, you may recall my post of August 8th – just a few weeks ago – in which I commented that “Lately there’s been a whole lotta hand wringing and finger pointing in the federal courts over the issue of  sexual orientation and Title VII.   A federal appeals court in Chicago just ruled that it is still legal under federal law to fire employees based upon their sexual orientation, as did a federal judge in NYC in her opinion — both lamenting their decisions, however.”

Title VII And Sexual Orientation:  Not Covered?  

I reported on a lower court in Illinois which, following this recent appeals court precedent, was forced to dismiss an egregious case in which the court called the harassment “appalling” and “disgusting conduct.”  The plaintiff was left without a remedy, and the trial court lamented that it had no authority to do anything because the court of appeals ruled that sexual orientation was not covered under Title VII.

Lord Stare Decisis

I said that “To lawyers this requirement to follow existing precedent is known as ‘stare decisis.’  The result may be cruel and unjust, but the law is the law.”

I asked then: What Can A Poor Judge Do?

Caricature, Man, Weak, Effort“Can’t do nuttin'” (?)

Although the court of appeals called for a “bold” new look at whether Title VII includes sexual orientation, and purportedly gave the issue a “bold” new look – it ultimately simply stood back wringing its hands and concluded that it was nonetheless forced to uphold the longstanding (unjust) precedent.

So I concluded — “The fingers on the wringing judicial hands are pointing at Congress, which is not likely to do anything about the issue, of course, and the Supreme Court, which, as politicized as it is, is clearly not going to do anything in the near future.  So what’s a poor federal judge to do, besides wring his/her hands or stomp his/her feet, and claim to be helpless to change anything?”

The Push To Change The Law

It is now reported by Corporate Counsel that the EEOC, and “numerous other amici, from the American Civil Liberties Union, to members of U.S. Congress,” are asking the appeals court to rehear the case “en banc” (i.e., to have the entire appeals court — all of the judges — rehear the case in which only the typical three-judge panel ruled).

On August 2d, I noted that “The EEOC has taken the position that ‘Title VII of the Civil Rights Act of 1964, [] protects employees from sex discrimination, including harassment based on gender identity and sexual orientation,’ even though Title VII does not explicitly forbid discrimination based upon gender identity and sexual orientation.

“The EEOC’s argument is that gender identity and sexual orientation are derivative of and included within the definition of sex discrimination in the statute.  However, the Courts have only recognized gender identity as being within Title VII – but not sexual orientation – a situation which the Seventh Circuit accurately called ‘illogical.'”

The 2d Circuit Appeal

This is not the first such case in which the EEOC, and others, have asked an appeals court to adopt this argument – by way of submitting amicus briefs.

In my post of July 4th I wrote about a new decision from a federal judge in NYC who, while reluctantly concluding that based upon NY federal appeals court precedent Title VII does not include sexual orientation, nonetheless explicitly “asked” the appeals court in her opinion to overrule its own precedent — because she was unhappy that she was forced to dismiss such a case.

She said that “In light of the EEOC’s recent decision on Title VII’s scope, and the demonstrated impracticability of considering sexual orientation discrimination as categorically different from sexual stereotyping, one might reasonably ask — and, lest there be any doubt, this Court is asking — whether that line should be erased.   Until it is, however, discrimination based on sexual orientation will not support a claim under Title VII; Plaintiff’s Title VII discrimination claim must therefore be dismissed.”

It was noteworthy that in that case, as in the current one, the EEOC and 128 Democratic members of Congress submitted amicus briefs with the appeals court seeking to reverse this lower court ruling.


EEOC Commissioner Chai Feldblum explained the position of the EEOC with regard to this latest attempt to get an appeals court to change precedent:

“Our most simple common-sense rationale for our decision at the EEOC was that if a man had a picture of his wife on his desk and he wasn’t fired, and a woman had a picture of her wife on her desk and she was fired, there is nothing but the different sex of the employee that has been taken into account in that decision.”  Good point!

Frame, Image, Together, Kiss“Do desks still have photos next to the computer?”


My Takeaway on August 8th:  “Whole lotta hand wringin’ goin’ on – and nothin’ changes!  And when is Congress or the Supreme Court going to give us some direction?”

Commissioner Feldblum’s recent seeming “response” to my takeaway:  “This is such an important issue that it’s hard for me to envision the Supreme Court not taking it up at some point in the near future”



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Richard Cohen

Richard B. Cohen is a partner in the New York City office of FisherBroyles, LLP, a national law firm. Richard Cohen has litigated and arbitrated complex corporate, commercial and employment disputes for more than 35 years, and is a trusted advisor to business owners and in-house counsel both in the United States and internationally. His clients have included Fortune 100 companies, domestic and foreign commercial and investment banks, Pacific-rim corporations and real estate development companies, as well as start-up businesses throughout the United States. Email Richard at [email protected]