Sexual Orientation Discrimination: One Step Closer to Protection by Federal Law

April 10, 2017

On April 4, the United States Court of Appeals for the Seventh Circuit (covering Illinois, Indiana and Wisconsin) became the first federal appellate court to recognize sexual orientation as being protected by Title VII of the Civil Rights Act of 1964. What does this mean for New York employers?

Title VII is best known for its prohibition on workplace discrimination based on sex, race, national origin and other "protected classes." But the omission of the phrase "sexual orientation" has resulted in federal courts consistently holding that such was not protected.

Stated another way, an applicant turned away, or an employee discharged or otherwise treated less favorably based on their sexual orientation had no viable claim under Title VII. States such as New York, and cities including New York City, have enacted their own laws forbidding such discrimination. The Seventh Circuit's decision, which now conflicts with those in other federal appellate courts, sets the stage for the issue to reach the United States Supreme Court.

Overshadowed by the Seventh Circuit's decision was the March 27, 2017 decision from the Court of Appeals for the Second Circuit, which covers New York, Connecticut and Vermont. In Chrisitansen v. Omnicron Group, Inc., the Second Circuit declined to depart from its prior rulings that Title VII did not extend to claims for discrimination based on sexual orientation. However, it did leave the door open by continuing its view that "gender stereotyping" claims can be maintained as a form of unlawful sex-based discrimination.

In short, "gender stereotyping" claims involve harassment or discrimination based on an individual failing to conform with the "usual" way in which members of their gender are expected to act, present or conduct themselves. The Court observed that while not every member of the LGBTQ community would necessarily have a "gender stereotyping" claim, where one could be established the individual's sexual orientation would not factor in to the equation, and they would be protected by Title VII's prohibition of "sex-based" discrimination.

For the time being, employers in New York (and those in Connecticut and Vermont as well) remain immune from harassment and discrimination claims based on sexual orientation under federal law. The Seventh Circuit's decision will almost certainly be appealed and heard by the United States Supreme Court next year. This makes Neil Gorsuch's confirmation to fill the vacancy on the Supreme Court that much more important, to either extend Title VII in the manner that many states and localities have, or to leave it rooted as it has consistently been interpreted for more than 50 years.

Our Labor and Employment practice will continue to monitor and report on developments in this area.

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Drogin, Laurent S. Partner and Chair of Labor and Employment Practice and Co-Chair of Restrictive Covenant Practice Partner and Chair of Labor and Employment Practice and Co-Chair of Restrictive Covenant Practice 212.216.8016 VCard

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