Full Panel of Second Circuit Agrees to Hear Sexual Orientation Discrimination Title VII Case


By: Megan J. Muoio, June 2, 2017

On March 27, 2017, a three-judge panel of the United States Court of Appeals for the Second Circuit decided in favor of the plaintiff in Christiansen v. Omnicom Group, Inc., a case involving the issue of sexual orientation discrimination under Title VII of the Civil Rights Act of 1964. In Christiansen, a gay employee brought a suit against his employer under the sex discrimination provision of Title VII. The employer moved to dismiss the complaint, arguing that sexual orientation discrimination is not discrimination based on sex under federal law.

The Second Circuit disagreed with the employer, but cited different reasoning. The Court held that the discrimination described by the employee, which involved crude drawings of the employee dressed as a woman and comments about his alleged effeminate conduct, was gender stereotyping, a cognizable sex discrimination claim under Title VII. The Court declined to extend Title VII further to hold that sexual orientation discrimination is sex discrimination, citing its precedents in Simonton v. Runyon and Dawson v. Bumble & Bumble. But a strong concurring opinion by two of the three judges on the panel urged the full court to reconsider and overturn their precedents on this issue. Now, the full Second Circuit Court of Appeals has agreed to hear Christiansen, setting up a possible significant shift in Title VII jurisprudence in the Second Circuit.  

Since the three-judge panel decision in Christiansen, the Seventh Circuit Court of Appeals, which covers Illinois, Indiana, and Wisconsin, became the first circuit court to rule that sex discrimination under Title VII includes sexual orientation discrimination. In Hively v. Ivy Tech Community College, a community college instructor brought a suit under Title VII, alleging that she was terminated after 14 years of employment because of her sexual orientation. The Seventh Circuit cited the 2012 Equal Employment Opportunity Commission ruling in Baldwin v. Foxx, which held that sexual orientation discrimination is sex discrimination under Title VII.

The Seventh Circuit in Hively advanced the same two arguments made by the Christiansen concurring justices in finding for the plaintiff. The first is that the employee was discriminated on the basis of sex because she would not have been terminated if she was a man in a relationship with a woman instead of a woman in a relationship with a woman. The second argument is that the employee was discriminated on the basis of sex because of her association with a woman in a relationship.

Employers should monitor the Second Circuit’s consideration and decision in Christiansen over the next few months because of its impact on employment law in the New York region.


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