Will Sexual Discrimination Gain Title VII Protection?
In Christiansen v. Omnicom Group, Inc., the District Court, upheld, albeit grudgingly, the current law in the Second Circuit that sexual orientation discrimination is not within Title VII’s prohibition against discrimination “based on sex” and, therefore, not protected by federal law, prompting 128 members of Congress, and scores of public interest groups, to submit amicus briefs in support of plaintiff’s appeal.
The relevant part of the Complaint, brought under Title VII, and the New York State Human Rights Law, alleged that plaintiff was targeted in a series of abusive episodes on the basis of his sexual orientation. The court, however, dismissed his complaint, reasoning that regardless of the severity of the conduct, he had not stated a claim of sex discrimination, and it declined to exercise supplemental jurisdiction over the pendent state law claim which offered plaintiff the benefit of protections against sexual orientation discrimination. However, in denying plaintiff relief under Title VII, Judge Faila appeared to suggest that the Second Circuit should overturn her decision, along with the controlling precedent, Simonton v. Runyon 232 F.3d 33 (2d Cir. 2000).
The Christiansen opinion casts doubt as to whether a “coherent line can be drawn” between sex-stereotyping discrimination, which is protected under Title VII, and sexual orientation discrimination, which is not. It also addresses whether the U. S. Supreme Court’s two recent decisions, one striking down the Defense of Marriage Act (United States v. Windsor, 133 S. Ct. 2675 (2013)) and the other finding a fundamental right to same-sex marriage (Obergefell v. Hodges 135 S. Ct. 2584 (2015)), reflect a shift in societal thinking that may indirectly impact the precedent set in Simonton. But, notwithstanding its dicta, the court held that “Simonton is still good law, and as such, this Court is bound by its dictates,” leaving the question open to review by the Second Circuit.
Christiansen follows a recent landmark EEOC decision, Baldwin v. Dep’t of Transp., Appeal No. 0120133080 (July 15, 2015), a case where the plaintiff alleged he was denied a permanent position because of his sexual orientation. After initially determining that the complaint failed to state a claim of discrimination, the EEOC reversed, finding that sexual orientation discrimination was protected under Title VII because animus toward homosexual relationships involves assumptions about gender norms, and sexual orientation discrimination cannot be understood without reference to sex. Since the EEOC’s decisions are entitled only to Skidmore deference (see E.E.O.C. v. Arabian Am. Oil Co., 499 U.S. 244, 257 (1991); Skidmore v. Swift & Co., 323 U.S. 134 (1944)), i.e., they are to be followed only insofar as they are persuasive, it remains to be seen how much weight the Baldwin decision will be accorded by the Second Circuit.
If the Second Circuit decides for the appellant, it will be the first circuit in the nation to determine that sexual orientation discrimination is covered by Title VII, but since all of the states in the Circuit (New York, Connecticut, and Vermont) currently maintain state and various local laws prohibiting sexual orientation discrimination, the practical effect of such decisions will be muted for persons working within the jurisdiction of the Second Circuit and its subordinate federal courts. Nevertheless, a Second Circuit decision determining that freedom from sex discrimination based on sexual orientation is granted by Title VII likely will have a significant impact on how the issue is decided in other circuits, and perhaps, ultimately, in the United States Supreme Court.