Are The Courts About To Include Sexual Orientation In Title VII?

A big change in the law and a new day may be near – or maybe not.

With the country poised, perhaps, to return to the (imagined) good ‘ol ’50’s, will the courts rule that Title VII includes sexual orientation?

Last week, the federal appeals court in New York City heard oral argument in a very significant case on this issue:  whether Title VII 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.

Is it time for a change?

Apparently, the argument did not go as well for the NY proponents of this argument as it did recently before the full federal appeals court in Chicago.

The EEOC’s Position

In 2016, both Amy and I did a number of posts on the issue of sexual orientation and Title VII – specifically the EEOC’s argument that gender identity and sexual orientation are derivative of and included within the definition of sex discrimination in the statute.  Courts, however, have only recognized gender identity as being within Title VII – but not sexual orientation.

Courts have said that this distinction is “illogical” (i.e., the federal court of appeals in Chicago which ruled on this) but those which have addressed the issue recently have bemoaned that they are unable to do anything about it because of the legal requirement to follow existing precedent, known as “stare decisis.”

(See our posts here, here, here, and here.) 

The Original Chicago Appeals Court Panel Decision

Although the three-judge court of appeals panel in Chicago 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.

The Full Appeals Court Agrees To A Rehearing

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

They agreed to this rare rehearing, and the full appeals court in Chicago decided to sit and re-hear oral argument on the appeal.  And by all accounts the oral argument went pretty well for the EEOC’s position.

As a reporter for Slate wrote, this case “marks LGBTQ advocates’ first opportunity to press the EEOC’s latest position in a federal circuit court. It’s a landmark case any way you slice it, but the molten tension in the courtroom on Wednesday is heightened by the looming possibility of Supreme Court review.”

Slate provided a fairly good re-cap of the oral argument and the fascinating exchanges between Court and counsel.  The Slate reporter interviewed EEOC Commissioner Chai Feldblum, who was apparently ecstatic after the argument: “Different judges discussed different theories, but they all led to one conclusion: Sexual orientation discrimination always involves gender. It is sex discrimination.”

The Court Oral Argument In New York

The same argument was made before a three-judge panel in New York last Friday – an appeal from a decision of a federal trial judge in NYC who reluctantly concluded that court precedent (Simonton v. Runyon , 232 F3d 33) required her to rule that Title VII does not include sexual orientation.  Nonetheless, she explicitly “asked” the appeals court in her opinion to overrule Simonton because she was unhappy that she was forced to dismiss such a case.

The trial judge 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.”

Like the trial judge, the appeals court panel also seemed “hamstrung” by its own precedent in Simonton (according to an article in the New York Law Journal), and wondered if the full NYC appeals court was required to overrule it.

And it also wondered why it should.

In response, the EEOC argued that its own views had changed a few years ago, and that “We recognize that the legal landscape has changed and the understanding of sex and sexual orientation has evolved over time.”

The Law Journal reported that Circuit Judge Livingston “later asked [the EEOC attorney] if she was arguing the EEOC shift in position ‘would give us the authority to reverse Simonton?’  Initially, [the EEOC attorney] said yes, but then relied on the changes in the legal landscape on sexual identity, highlighted by the Seventh Circuit’s reconsideration in Hively.”

All in all, the Law Journal article made it seem that the NY court may punt (shocking!) – and remand the case to the trial court, perhaps to reconsider a statute of limitations argument.

Takeaway:  The “legal landscape,” as well as the societal landscape, has indeed changed – but so has the electoral landscape.  In any event, we may see a “new day” in the Chicago court’s anticipated ruling … but the “old days” in New York.


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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]