Will The NY Federal Appeals Court Reconsider Whether Title VII Covers Sexual Orientation?

A little more than a month ago, a three-judge federal appeals panel in New York City held in Christiansen v. Omnicom Grp., No. 16-478, 2017 WL 1130183, at *2 (2d Cir. Mar. 27, 2017), that Title VII does not cover sexual orientation discrimination claims.

The Court seemed to be unhappy with its decision, holding that it was nonetheless “hamstrung” by its own precedent in Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), and could not overrule it – that only the en banc Court could do that.  (En banc means the appeals court sitting with all of its judges). 

However, in a stunning concurring decision, two of the three judges on the panel bemoaned the fact that they were controlled by this precedent, seemingly adopting the EEOC’s rationale that “the legal landscape has changed and the understanding of sex and sexual orientation has evolved over time.”

Will The Full Court Reconsider?

The big news today is that the plaintiff in Christiansen has asked the entire appeals court in NY to re-hear his case.   

And it just may do it. Maybe.

Note that last month the full appeals court in Chicago heard a case with the identical issue and reversed its own panel in Hively v. Ivy Tech Comm. Coll., No. 15-1720, 2017 WL 1230393, at *1-2 (7th Cir. Apr. 4, 2017) (en banc), holding that Title VII indeed covers sexual orientation.  And its decision is directly opposed to the decision of the NY panel.

So now the plaintiff in NY is asking the full NY appeals court to do the same thing. 

Prediction:  It is rare that a full court will reconsider a decision of one of its panels, but in this case (1) two of the three judges on the appeals panel in NY seemingly want to see Simonton overruled by the full court; (2) the full court in Chicago did just that and reversed its panel to overrule its own precedent; and (2) as the EEOC noted, “the legal landscape has changed and the understanding of sex and sexual orientation has evolved over time.”

So maybe.


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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]