Second Circuit Prohibits Sexual Orientation Discrimination in the Workplace

Second Circuit Prohibits Sexual Orientation Discrimination in the Workplace

On Monday, February 26, 2018, the United States Court of Appeals for the Second Circuit became the second federal appeals court to declare that employees have the right to be free from discrimination in the workplace on the basis of their sexual orientation, as a discrimination lawyer  trusts can explain.  In a 10-3 decision, the court determined that an employee’s sexual orientation is a function of the employee’s gender.  Because Title VII of the Civil Rights Act of 1964 prohibits discrimination in the workplace on the basis of gender, the fact that sexual orientation is a function of gender brings this characteristic within Title VII’s protections against gender discrimination.

Rejecting the employer’s argument that Congress did not consider whether Title VII’s ban on gender discrimination included a ban on sexual orientation discrimination when it passed the law more than fifty years ago, Second Circuit Judge Robert Katzmann noted that laws “often go beyond the principal evil to cover reasonably comparable evils.”

This ruling from the Second Circuit came ten months after the United States Court of Appeals for the Seventh Circuit became the first federal appeals court to declare Title VII bars sexual orientation discrimination.  However, the Supreme Court of the United States has yet to weigh in on this issue.

In fact, in December 2017, the Supreme Court refused to hear an appeal from the United States Court of Appeals for the Eleventh Circuit, out of Georgia, on this same issue.  In that case, a woman filed a lawsuit alleging her former employer subjected her to harassment and terminated her employment because she is a lesbian. Both the district court and the Eleventh Circuit dismissed the lawsuit, and, thereafter, the Supreme Court refused to further review the matter.

While the Supreme Court refused to weigh in on Title VII’s protections against sexual orientation discrimination last December, there was no meaningful split among the appeals courts at that time, as only the Seventh Circuit had ruled in favor of extending such protections.  Now, with both the Seventh and Second Circuits ruling in favor of these protections, there may be more of reason for the Supreme Court to chime in. Regardless of when, it seems a review of this important issue by the Supreme Court is inevitable. This inevitably should give a glimmer of hope for LGTBQ employees in the state of Georgia who will have no such protections until either Congress or the Supreme Court decides this issue once and for all.

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