128 Members of Congress Press Court to Proscribe Sexual Orientation Discrimination 17:42, July 10, 2016

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128 Members of Congress Press Court to Proscribe Sexual Orientation Discrimination

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128 members of Congress and the US Equal Employment Opportunity Commission (EEOC) are among advocates that have filed amici curiae (“friends of the court”) briefs urging the Second Circuit Court of Appeals to reverse a ruling that sexual orientation discrimination was not protected under Title VII.

The case, which we wrote about in the context of the EEOC’s landmark sexual orientation settlement, is on appeal from a New York trial court’s dismissal of an employee’s claim that he who was ridiculed and abused due to his supervisor’s animosity toward homosexuals, in violation of Title VII. In dismissing the claim, the trial court pointed to “the line the Second Circuit has drawn, rightly or wrongly, between sexual orientation and sex-based claims.” [Christiansen v. Omnicom Group, Inc., et al. (USDC SDNY 2016) no. 15 Civ. 3440 (KPF)]

Members of Congress Weigh In

In their brief, 23 Senators and 105 members of the House of Representatives argue that the Second Circuit should overturn Simonton v. Runyon, which was the case the trial court in Christiansen relied on as precedent for its decision. In Simonton, despite sexual orientation harassment so severe the court was initially hesitant to detail the facts “for the sake of decency and judicial propriety,” the court ruled that “Title VII does not proscribe discrimination because of sexual orientation.” [Simonton v. Runyon, 232 F.3d 33 (2000)]

The Congress members who filed the brief are all cosponsors of the Equality Act, which they refer to in the brief as a bipartisan effort to “clarify and expand current civil rights laws to better protect people of color, women and lesbian, gay, bisexual and transgender (‘LGBT’) Americans from discrimination.”  The brief also cites the Congress members’ unique ability to “advise the Court on draft and pending legislation” and states that “different interpretations of Title VII have led to uncertainty in the workplace and left LGBT Americans inconsistently protected from workplace harassment and discrimination, despite applicable federal law.”

Simonton, according to the brief, was wrongly decided because “Title VII’s protections against sex discrimination necessarily include discrimination based on a person’s sexual orientation.”

The EEOC Weighs In

The EEOC brief also urges the Court to overturn Simonton, reasoning that “the legal underpinnings for the decision have shifted” and that “the rule that Title VII does not prohibit discrimination based on sexual orientation is outdated” based on the Supreme Court’s decisions recognizing protections for sexual activity and marriage regardless of sexual orientation, as well as the agency’s own shifting evolution on the issue.

In a nutshell, the EEOC argues that because sexual orientation discrimination claims “necessarily involve sex stereotyping, gender-based associational discrimination, and consideration of an individual’s sex, they fall within Title VII’s ban on discrimination based on sex.”

The White House Stays Out

Although the Obama administration has previously weighed in on workplace sexual orientation matters (including by issuing an executive order prohibiting federal contractors from discriminating on the basis of sexual orientation or gender identity), the Justice Department of did not file a brief in this case, and reportedly declined to comment on the litigation.

Employers: Stay Vigilant

If your organization is not in a state ruled by the Second Circuit, does the result of this case matter to you? It does, for four primary reasons.

First, a reversal could prompt the US Supreme Court to step in and decide the issue nationally. According to employment law blogger Eric B. Meyer:

If the Second Circuit charts a new course and concludes that sexual-orientation discrimination violates Title VII, it would set up a Circuit split (e.g., Third Circuit precedent permits LGBT discrimination), and pave the way for possible Supreme Court review.

Second, the response to this case and others like it appears to be emblematic of the direction employment law is moving in LGBT issues: toward greater inclusiveness and stronger protections. Savvy employers will implement (or already implement) policies, procedures, and training to address sexual orientation discrimination in the workplace.

Third, even states that currently have stronger LGBT protections than federal law, such as California, may look to potentially broadened federal standards for guidance in interpreting their own.

Fourth, cultivating a culture of compliance with zero tolerance for discrimination in all its forms can lead to business success as well as fewer lawsuits. It’s also the right thing to do.

Compliance training is one way employers can incorporate appropriate responses to sexual orientation discrimination. If you’re unsure about how to do it, this case study on Namely, an HR-compliance startup that combined growth and culture with training, provides an inside look.

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  • Sexual Orientation Discrimination or Stereotyping?April 6, 2017 Sexual Orientation Discrimination or Stereotyping? On March 27, 2017, the Second Circuit Court of Appeals ruled that Title VII cannot protect a gay employee from sexual orientation discrimination; however, Title VII may protect the employee from sex-based stereotyping under the same set of facts. In a separate case about two weeks before […] Posted in workplace discrimination, sexual harassment
  • Workplace LGBT Law UpdateOctober 31, 2016 Workplace LGBT Law Update We have previously written that employment law for the LGBT community is moving toward greater inclusiveness and stronger protections. For example, the Equal Employment Opportunity Commission’s landmark settlement of a sexual orientation discrimination lawsuit, along with prior […] Posted in workplace discrimination, legal update
Steve Treagus
Stephen Treagus, JD's, previous practice as an attorney specializing in employment litigation exposed him to the rough-and-tumble world of employment relationships gone awry. Today, this experience informs his articles and courses, helping employers avoid costly litigation and get employment law right. Stephen earned his JD from John F. Kennedy University School of Law and his BA from Sonoma State University.

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