Two federal appellate courts recently revisited the issue as to whether discrimination on the basis of sexual orientation constitutes sex discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended (“Title VII”). In each case, the courts reached different conclusions.
In Christiansen v. Omnicom Group, Inc., 852 F.3d 195 (2d Cir. 2017), a three judge panel of the United States Court of Appeals for the Second Circuit was asked to determine whether the federal district court in which Matthew Christiansen filed his complaint properly concluded that the allegations in Christiansen’s complaint failed to state a claim upon which relief could be granted because the complaint alleged discrimination on the basis of sexual orientation, which does not constitute sex discrimination under Title VII. On appeal, Christiansen argued that the panel should reconsider prior decisions of that circuit which held that discrimination on the basis of sexual orientation does not constitute sex discrimination in violation of Title VII. The court disagreed with Christiansen in this regard and concluded that Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), and Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005), decisions the trial court relied on in dismissing Christiansen’s sex discrimination claim, remained the law of the circuit. In reaching this conclusion, the panel noted that it was “bound by the decisions of prior panels until such time as they are overruled either by an en banc panel of our Court or the [United States] Supreme Court” and “it [is] ordinarily . . . neither appropriate nor possible for [a panel] to reverse an existing Circuit precedent.” As such, the three judge panel concluded it “lack[ed] the power to reconsider Simonton and Dawson.”
Although the Second Circuit did not reverse its prior decisions in Simonton and Dawson, which held that discrimination on the basis of sexual orientation does not constitute sex discrimination in violation of Title VII, the panel seemed to be inviting an en banc review of the issue that may reverse those prior rulings. Indeed, the concurring opinion of two of the three judges did invite the opportunity to revisit Simonton and Dawson. In Christiansen, the Second Circuit also reversed the district court’s dismissal of Christiansen’s complaint and found that Christiansen had alleged a claim for sex discrimination based on a gender stereotyping theory. In this regard, the court noted that the Supreme Court recognized such a theory in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). To this end, the Second Circuit relied on numerous allegations in the complaint. For example, Christiansen had alleged that his supervisor had described him as “effeminate” to other employees in the office and depicted Christiansen to others in the office as “prancing around” in tights and a low cut shirt. In addition, Christiansen alleged that his supervisor attached a picture of his head to an image of a bikini-clad woman lying on the ground with her legs in the air, which at least one coworker found to depict Christiansen “as a submissive sissy.” The complaint included other similar examples, which the court found sufficient to allege a claim of gender stereotyping, which can give rise to a claim for sex discrimination under Title VII.
Approximately one week after the Second Circuit issued its decision in Christiansen, the United States Court of Appeals for the Seventh Circuit issued a decision of an en banc panel in a case where a three judge panel had previously determined that discrimination on the basis of sexual orientation does not constitute sex discrimination in violation of Title VII. A description of that earlier decision and the relevant facts can be found here. The en banc panel, however, reversed its prior ruling (and that of the district court) in Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339 (7th Cir. 2017), and held that “a person who alleges that she has experienced employment discrimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes.” In reaching this conclusion, the court made several observations about Congressional action (or, mostly, inaction), the Equal Employment Opportunity Commission’s decision in Baldwin v. Foxx, EEOC Appeal No. 0120133080, 2015 WL 4397641 (July 15, 2015) (where the EEOC concluded that discrimination on the basis of sexual orientation constitutes sex discrimination in violation of Title VII), and prior Supreme Court decisions, including Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998) (regarding same-sex sexual harassment), City of Los Angeles Dep’t of Water & Power v. Manhart, 435 U.S. 702 (1978) (regarding discrimination based on actuarial assumptions), and Hopkins, supra (regarding discrimination based on gender stereotyping). Perhaps the most interesting observation, however, was the Seventh Circuit’s simplest, where it found that “[t]he discriminatory behavior [in a sexual orientation case] does not exist without taking the victim’s biological sex (either as observed at birth or as modified, in the case of transsexuals) into account.”
The rulings in Christiansen and Hively are important in multiple respects. First, it shows that courts, even at the appellate level remain divided as to whether discrimination on the basis of sexual orientation constitutes sex discrimination in violation of Title VII. Second, although there is a split among the appellate courts, the decision in Hively obviously reversed the prior rule that held sexual orientation discrimination does not constitute sex discrimination, and the decision in Christiansen seemed to indicate an openness to revisiting the issue with an en banc panel and possibly reaching the same conclusion that the Seventh Circuit reached in Hively. Third, even if companies operate in jurisdictions where sexual orientation discrimination does not constitute sex discrimination, those companies must still be sensitive to and aware of the potential risks with discrimination based on gender stereotyping/gender non-conformity. Fourth, in addition to the potential for sexual orientation and gender stereotyping/gender non-conformity claims under Title VII, the decisions in Chistiansen and Hively are worthy of a reminder that companies should be mindful not only of Title VII, but also state and local laws which may prohibit discrimination on the basis of sexual orientation.