Second Circuit Joins Seventh Circuit in Recognizing Sexual Orientation Discrimination as Discrimination Because of Sex in Violation of Title VII

By Lehr Middlebrooks Vreeland & Thompson, P.C.

February 27, 2018

On February 26, 2018, the Second Circuit Court of Appeals (covering Connecticut, New York, and Vermont) joined the Seventh Circuit Court of Appeals (covering Illinois, Indiana, and Wisconsin) in finding that Title VII’s prohibition against discrimination because of sex includes discrimination due to sexual orientation. The Court heard the appeal en banc, which is required to overturn controlling precedent. (Like all other appellate courts to have considered the matter, the Second Circuit had previously ruled that sexual orientation discrimination was not prohibited by Title VII).

Five judges joined the full opinion, which embraced all three rationales advanced by advocates in favor of this interpretation of Title VII: (1) that sexual orientation inherently depends on an individual’s own sex because, for example, a woman who is attracted to other women who is discriminated against on that basis would not be discriminated against if she were a man attracted to women; (2) sexual orientation is inseparable from sexual stereotype discrimination; and (3) sexual orientation discrimination is associational discrimination and no different than, for instance, unlawful discrimination against someone for being in an interracial relationship. Four more judges joined parts of the opinion, with three filing separate concurrences. A tenth judge concurred inhe judgment but filed his own brief concurring opinion. Three judges dissented, each filing their own dissent.

As previously discussed, there is now a circuit split on these very recent sexual orientation decisions, with the Eleventh Circuit affirming the more traditional view that sexual orientation discrimination is not prohibited by Title VII and the Seventh Circuit finding that sexual orientation is prohibited by Title VII. The Supreme Court refused to hear the employee’s appeal from the Eleventh Circuit, and the employer in the Seventh Circuit case did not appeal the adverse decision against it. The defendants in the Second Circuit suit have said they do not plan to appeal the decision, but of course they still have some time to pursue an appeal if they change their minds.