In really breaking news, the federal appeals court in NYC just agreed to have its full bench reconsider the issue “Does Title VII of the Civil Rights Act of 1964 prohibit discrimination on the basis of sexual orientation through its prohibition of discrimination ‘because of … sex’?”
This comes after a three-judge federal appeals panel of the same court held in March in Christiansen v. Omnicom Grp., No. 16-478, 2017 WL 1130183, at *2 (2d Cir. Mar. 27, 2017), that Title VII does not cover sexual orientation discrimination claims. A second such panel of the court thereafter issued a similar ruling in Zarda v. Altitude Express.
This reconsideration is in the Zarda case.
In Christiansen, the Court seemed to be unhappy with its decision, holding that it was nonetheless “hamstrung” by its own precedent in Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), and could not overrule it – that only the en banc Court could do that. (“En banc” means the appeals court sitting with all of its judges).
However, in a stunning concurring decision, two of the three judges on the panel bemoaned the fact that they were controlled by this precedent, seemingly adopting the EEOC’s rationale that “the legal landscape has changed and the understanding of sex and sexual orientation has evolved over time.”
Why Would The Full Court (“en banc”) Reconsider this Issue?
Well, because a similar situation arose in Chicago where the full appeals court heard a case with the identical issue and reversed its own panel in Hively v. Ivy Tech Comm. Coll., No. 15-1720, 2017 WL 1230393, at *1-2 (7th Cir. Apr. 4, 2017) (en banc), holding that Title VII indeed covers sexual orientation. And its decision is directly opposed to the decision of the NY panel.
As I noted in an earlier post, it is rare that a full court will reconsider a decision of one of its panels, but in this situation: (1) two of the three judges on the Christiansen appeals panel seemingly wanted to see Simonton overruled by the full court; (2) the full court in Chicago did just that and reversed its panel to overrule its own precedent; and (2) as the EEOC noted, “the legal landscape has changed and the understanding of sex and sexual orientation has evolved over time.”
So, will the full court reverse and hold that Title VII prohibits discrimination on the basis of sexual orientation through its prohibition of discrimination because of sex?
I think that there is a good chance.