In Lorber v. Lew, 2017 U.S. Dist. LEXIS 21189, *14-15 (S.D.N.Y. Feb. 13, 2017), plaintiff -- an openly gay IRS employee -- filed suit against the former Secretary of the Treasury alleging discrimination and retaliation in violation of Title VII based on his gender. Among other things, plaintiff alleged that he had been passed over for promotions, excluded from meetings, and given poor performance reviews for discriminatory and retaliatory reasons. Although the Court granted the defendants’ motion to dismiss plaintiff’s hostile work environment claim, the court refused to dismiss plaintiff’s claim for discrimination under Title VII for nonconformity with male sex stereotypes.
Significantly, although plaintiff admitted (in response to the defendants’ motion to dismiss) that rulings from the Second Circuit Court of Appeals foreclose Title VII claims based exclusively on sexual orientation discrimination, the court in Lorber noted that “the Second Circuit has recently held oral argument in two cases that present the issue of whether Title VII protects against sexual orientation discrimination. See Zarda v. Altitude Express, No. 15- 3775 (2d Cir. argued Jan. 5, 2017); Christiansen v. Omnicom Group, Inc., et al., No. 16-748 (2d Cir. argued Jan. 20, 2017).” Thus, the court stayed adjudication of the plaintiff's sex stereotyping claim pending the Second Circuit's rulings.
While timing may not be "everything", it certainly can make a guge difference for the parties. In Lorber, plaintiff's Tilte VII claim survived solely on the fact that the determinative legal issues are expected to be resolved shortly by the Second Circuit.