In a 10-3 en banc decision with numerous concurring and dissenting opinions, the US Court of Appeals for the Second Circuit recently reversed its own precedent to hold, for the first time, that discrimination on the basis of sexual orientation is prohibited by Title VII of the Civil Rights Act of 1964 (Title VII). The Second Circuit’s decision reinforces a split between federal appellate courts on this issue, making it increasingly likely that the Supreme Court will ultimately feel the need to weigh in to resolve the dispute.
For decades following the enactment of Title VII, courts were unanimously of the opinion that the statute did not extend to sexual orientation discrimination. However, in recent years, plaintiffs have increasingly argued that sexual orientation discrimination is a type of sex-based discrimination that has been unlawful since the Supreme Court’s landmark 1989 decision in Price Waterhouse v. Hopkins, in which the Court held that discrimination on the basis of gender stereotypes is prohibited by Title VII. That argument did not meet with much success until 2015, when the Equal Employment Opportunity Commission decided for the first time that sexual orientation “is inherently a sex-based consideration,” such that discrimination on that basis necessarily constitutes sex discrimination.
Since then, two federal circuit courts of appeal have reconsidered the issue, with the Eleventh Circuit reaffirming that sexual orientation discrimination claims are not covered under Title VII, while the Seventh Circuit reached the opposite conclusion. The Second Circuit’s majority opinion adopted much of the logic of the Seventh Circuit’s decision, acknowledging that although Congress most likely did not intend to prohibit sexual orientation discrimination when it passed Title VII, the law’s prohibitions have been expanded over the years to cover “comparable evils.” For example, Title VII’s prohibition on sex-based discrimination has been interpreted to apply to certain “subsets” of sex discrimination, such as sexual harassment and discrimination based on “traits that are a function of sex, such as life expectancy.” The Second Circuit thus reasoned that prohibiting sexual orientation discrimination is simply a continuation of well-established principles of statutory interpretation because “sex is necessarily a factor in sexual orientation.”
Furthermore, the Court held that sexual orientation was also protected when “viewing this issue through the lens of associational discrimination.” Title VII has been interpreted to prohibit discrimination against an employee because of the employee’s association with a person of another protected class. Applying similar reasoning, the Court held that sexual orientation discrimination is unlawful because it constitutes discrimination because of an employee’s association with persons of a particular sex. The majority opinion stated that since the court has accepted the premise of associational discrimination, “it makes little sense to carve out same-sex romantic relationships as an association to which these protections do not apply.”
State and local law in the jurisdictions covered by the Second Circuit’s decision already prohibit discrimination on the basis of sexual orientation. Nonetheless, employers within the Second Circuit should take this opportunity to review their anti-discrimination and harassment policies to ensure that they state clearly that sexual orientation discrimination is prohibited.