The argument that sexual orientation discrimination is discrimination “because of…sex” and so within the confines of Title VII is certainly not a new a one, although it has recently been gaining traction throughout the country. Currently, the federal circuit courts are divided on whether Title VII prohibits discrimination based on sexual orientation. It is likely that the Supreme Court, or legislative action by Congress, will ultimately have to decide whether Title VII’s language prohibiting discrimination “because of …sex” is broad enough to encompass this category of discrimination.

The issue was most recently examined in Christiansen v. Omnicom Group, Inc., 167 F. Supp.3d 598 (S.D.N.Y. 2016). In Christiansen, an openly gay advertising executive at Omnicom Group, Inc., alleged that he was subjected to a pattern of harassment by his direct supervisor based on his sexual orientation and effeminacy. A Southern District of New York court granted the employer’s motion to dismiss, finding that the employee’s allegations focused on discrimination stemming from his sexual orientation, rather than gender stereotypes and thus was “not cognizable” under the Second Circuit precedent established in Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000) and Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005).

Christiansen appealed to the Second Circuit, arguing that sexual orientation discrimination is sex discrimination under a plain reading of the law and the Second Circuit’s interpretation of Title VII should be expanded to recognize sexual orientation claims. Numerous amici curiae briefs were also filed in support of Christiansen’s position, including a submission from the Equal Employment Opportunity Commission (“EEOC”), which argued that the holdings of Simonton and Dawson were incompatible with the EEOC’s broad view that Title VII’s sex discrimination protections encompass discrimination based on sexual orientation.

Although the Second Circuit declined to revisit its prior holdings in Simonton and Dawson, the panel did reverse the district court’s conclusion that the employee failed to plausibly allege a Title VII claim based on a gender stereotyping theory first adopted by the Supreme Court in Price Waterhouse v. Hopkins, 490 U.S. 28 (1989). Moreover, the court acknowledged that the scope of Title VII protections when it comes to sexual orientation is by no means a settled issue.

Subsequently, in early April, the Seventh Circuit became the highest court to rule that Title VII protections were extended to discrimination on the basis of sexual orientation in the landmark ruling issued in Hively v. Ivy Tech Community College, 853 F.3d 399 (7th Cir. 2017). Therein, the Court noted that although discrimination based on sexual orientation has historically been deemed to be distinct from sex discrimination, the line between sexual orientation and sex has become increasingly blurred.

Following the Hively decision, Christiansen urged the Second Circuit to reconsider its March holding that revived his claims alleging he was harassed at work for failing to fit “male stereotypes,” but not his claims that he was mistreated because he is gay. Christiansen relied heavily on the ruling in Hively and argued that sexual orientation discrimination is sex discrimination under a plain reading of the law. Christiansen, again supported by several amici curiae, including the EEOC, argued that the holding in Simonton was now outdated and that several of the cases relied on by the court were no longer good law. The EEOC asked the court to erase the line between sex stereotyping and sexual orientation discrimination claims.

On June 28, 2017, the Second Circuit declined to reconsider its decision in Christiansen, affirming the dismissal of the plaintiff’s Title VII sexual orientation discrimination claim based on prior precedent. The Second Circuit offered no further comment on its decision. However, given the recent order for an en banc review of the Court’s decision in Zarda v. Altitude Express, 855 F.3d 76 (2d Cir. 2017), the ruling was not overly surprising.

In Zarda, New York skydiving instructor Donald Zarda, commenced suit in 2010, alleging he was fired from his job because of his sexuality. Zarda’s claim, now litigated by his estate in the wake of his 2014 death, was rejected by a three-judge panel on April 18th and the estate filed for an en banc review. On May 25th, the Second Circuit granted en banc review of the appeal on the limited question of whether sexual orientation discrimination is included in Title VII’s proscription of discrimination “because of sex”. If the question is answered in the affirmative Simonton will be overruled, signaling another victory for the LGBTQ community. The case will be heard by the full circuit on September 26th.

The question now remains on whether the Second Circuit will ultimately join the Seventh Circuit in holding that discrimination based solely on an employee’s sexual orientation violates Title VII, or whether it will remain aligned with the Eleventh Circuit, which recently declined to overturn its panel ruling that sexual orientation claims are not cognizable under Title VII in Evans v. Ga. Reg’l Hosp., 850 F.3d 1248 (11th Cir. 2017).

A decision by the Second Circuit in favor of Zarda would result in two of the eleven Circuits recognizing a cause of action for sexual orientation under Title VII. Currently, there are more sexual orientation discrimination laws at the state level, and almost half of the U.S. states, including the District of Columbia, have active laws that prohibit sexual orientation discrimination in both private and public workplaces. However, the remaining states have yet to follow suit, and thus the Circuit court decisions on these issues are significant to both employers and the LGBTQ community, particularly in the Circuits covering states where no such protections currently exist.

It is likely that Hively has opened the floodgates to making Title VII available to victims of sexual orientation discrimination, however it is unclear just how long this may last. Whether the Supreme Court will endorse the approach or outcome utilized in Hively, is uncertain, and even more so now that Justice Neil Gorsuch has assumed a place on the high court.

Ultimately, it continues to be imperative for employers operating in multiple states to remain cognizant of the varying federal and state laws when it comes to LGBTQ discrimination. As a general rule of thumb, and irrespective of the status of the law in the state or states in which the employer operates, it is advisable to have policies and procedures in place to prohibit discrimination against employees based on sexual orientation.