WARNING!  DANGER!  This post is longer than usual!

Things are happening in employment discrimination law faster than I have ever seen or thought possible.  I don’t even have the time to post all of the blogs that I want about new significant events and cases – there are simply too many.

This latest event is emblematic of the rapidity of the changes in society and employment law – which is, in effect, a significant microcosm of society at large.

A federal judge in NY has explicitly “asked” in her opinion that the appeals court overrule its precedent that Title VII does not include within its protection sexual orientation because she was unhappy that she was forced to dismiss such a case under that precedent.  Now the appeals court may do just that — if the EEOC and 128 Democratic members of Congress have any influence.

posted the other day about the EEOC settling the first employment case involving sexual orientation discrimination.  This is significant because Title VII does not explicitly cover sexual orientation, and no court has ruled otherwise.  Still the EEOC brought the case, relying on the only authority that it could marshal — its own interpretation of Title VII, albeit applicable only to federal agencies.

And the case was settled!

Well, it has just been reported that the EEOC, as well as 128 members of Congress, have filed amicus (“friend of the court”) briefs challenging the NY court decision noted above in which the judge reluctantly dismissed a Title VII claim filed by a plaintiff who alleged, among other things, sexual orientation discrimination, based upon a 16-year old appeals court decision in Simonton v. Runyon.  If they are successful, the precedent established inSimonton – which refused to rule that Title VII covered sexual orientation — would be overruled.

Now that would be a big deal!

The instant case involves a supervisor who allegedly “frequently taunted and harassed both male and female co-workers, with behavior ranging from public name-calling, to telling a co-worker that ‘if he [the supervisor] were gay, he’d like to have gay intercourse with him,’ to throwing a soda can at an employee.  …  Plaintiff is an openly gay man, and alleges that [the supervisor] subjected him to ridicule and abuse almost immediately due to [his] animosity toward homosexuals.”

Will Sexual Orientation Be Covered by Title VII?

The Court stated that “[b]y any metric, the conduct alleged is reprehensible,” but that “[u]nder the law as it currently stands, the Court is constrained to find that Plaintiff has not stated a cognizable claim for Title VII discrimination [citing Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000)] which “unequivocally held that ‘Title VII does not proscribe discrimination because of sexual orientation.’”

But – and this is a very big but – the Court said that times have changed since Simonton, and that “[i]t is against this backdrop that in July 2015 the EEOC issued a decision, binding on federal agencies (though not federal courts), finding that claims for sexual orientation discrimination are cognizable under Title VII.”

The Lower Court Decision

I quote the Court’s decision more fully below, because this could become the rationale for overruling  Simonton — and, thus, including within Title VII the catergory of sexual orientation:

“The Simonton Court drew a distinction, however, between claims based on discrimination targeting sexual orientation and those based upon nonconformity with sexual stereotypes — the latter of which the Second Circuit has since recognized are cognizable under Title VII … Further highlighting the degree to which times have changed since Simonton, numerous cases have demonstrated the difficulty of disaggregating acts of discrimination based on sexual orientation from those based on sexual stereotyping. …

“The lesson imparted by the body of Title VII litigation concerning sexual orientation discrimination and sexual stereotyping seems to be that no coherent line can be drawn between these two sorts of claims. Yet the prevailing law in this Circuit — and, indeed, every Circuit to consider the question — is that such a line must be drawn.  Simonton is still good law, and, as such, this Court is bound by its dictates. Consequently, the Court must consider whether the Plaintiff has pleaded a claim based on sexual stereotyping, separate and apart from the stereotyping inherent in his claim for discrimination based on sexual orientation. The Court finds that he has not.…

“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.”

The Democrats’ Brief

The Congressional amicus brief submitted on the appeal argued that: “Different interpretations of Title VII have led to uncertainty in the workplace and left LGBT Americans inconsistently protected from workplace harassment and discrimination, despite applicable federal law.  We firmly believe that Title VII’s sex discrimination provision already prohibits discrimination based on an individual’s sexual orientation and gender identity, and we urge the Court to overrule erroneous Second Circuit [Court of Appeals] precedent to the contrary.”

And one commentator said that “The lawmakers signing the Democrats’ brief all are co-sponsors of the Equality Act (H.R. 3185/S. 1858), which would explicitly prohibit employment bias based on sexual orientation or gender identity. The proposed legislation doesn’t mean that Title VII’s sex discrimination ban doesn’t already cover lesbian, gay, bisexual and transgender workers, the Democrats said.”

The names of those lawmakers who signed the brief are here.

The director of the ACLU’s Lesbian Gay Bisexual Transgender & HIV Project, said: “This is a powerful and persuasive brief from leading members of Congress, all of whom are important partners in the fight for LGBT equality. We are grateful to have them join us in urging the Second Circuit to recognize the reality that discrimination against lesbians, gay men, and bisexual people is unlawful sex discrimination.”

Takeaway:  If there is any case which could spell the end — or the beginning of the end — for the exclusion of sexual orientation from Title VII, this may be it.

Stay tuned.