Full Second Circuit Asked To Revisit Prior Precedent That Title VII Does Not Protect Sexual Orientation

Executive Summary: On April 3, 2017, in Christiansen v. Omnicom Group, Inc., the Second Circuit held that it was bound by prior precedent in ruling that Title VII of the Civil Rights Act of 1964 does not prohibit sexual orientation discrimination. On the tails of the Seventh Circuit's en banc decision in Hively v. Ivy Tech Community College overruling prior Seventh Circuit precedent and holding that Title VII does, in fact, prohibit discrimination based on sexual orientation (as reported on April 25, 2017), Christiansen has now filed a petition for rehearing en banc, encouraging the Second Circuit to do the same.

Background: Title VII prohibits discrimination "because of sex." Until recently, all Circuit Courts that had considered the issue had concluded that sexual orientation discrimination was not "because of sex" and, therefore, was not prohibited by Title VII. This included the Second Circuit, which issued a panel decision in Christiansen on March 27, 2017, holding that until the Second Circuit sitting en banc rules otherwise, it is bound by Simonton v. Runyon, a prior Second Circuit decision which held that Title VII does not prohibit sexual orientation discrimination. Judges Katzmann and Brodie, however, issued a concurring opinion at that time, outlining precisely why Title VII should protect against sexual orientation discrimination, and encouraging review by the full panel. Just days later, on April 4, 2017, the Seventh Circuit, sitting en banc, issued the Hively decision, recognizing for the first time that sexual orientation discrimination is discrimination based on sex and, therefore, a violation of Title VII. Christiansen has now asked the Second Circuit to do the same.

In his April 28, 2017 petition for rehearing by the full Second Circuit panel, Christiansen urges the Second Circuit to take a new look at Simonton, as Judges Katzmann and Brodie urged in their concurring opinion, because his case is the "quintessential case" for such review. Christiansen notes that the Hively court relied heavily on the concurrence in Christiansen in reaching its decision. Christiansen also notes that, had Judges Katzmann and Brodie not been bound by precedent with which they disagreed, they would have held that Title VII prohibits sexual orientation discrimination. Consequently, he urges, absent further review by the Second Circuit en banc, the lower courts "will [similarly] perpetuate Simonton as bad law."

In further support of his petition...