United States: UPDATE: The Second Circuit Finds Title VII Protects Against Sexual Orientation Discrimination

As we discussed in our May 22, 2017 blog post, the Second Circuit agreed to hold an en banc hearing to determine whether an estate for a gay man, who alleged he was terminated as a result of a customer complaint related to his sexual orientation, may revive its previously dismissed case against the deceased's former employer. Yesterday, the Second Circuit decided that the estate can.

In so doing, the Second Circuit held that "sexual orientation discrimination is motivated, at least in part, by sex, and is thus a subset of sex discrimination," which makes it sex discrimination under Title VII. This decision overturns the Second Circuit's prior precedent that held otherwise. The court based its decision on the text of the statute, the Supreme Court's test for determining whether an employment practice constitutes discrimination, and the fact that Title VII should be broadly interpreted and that the "legal landscape" has changed since the Court last considered the issue in 2000 in the Simonton case (as discussed in our post here). Specifically, the court cited the Equal Employment Opportunity Commission's position that sexual orientation is protected under Title VII as well as the Seventh Circuit's decision in Hively (as discussed in our post here). This is a significant ruling for the Second Circuit, and further solidifies the circuit split on this matter.

Although most employers in the Second Circuit have already been treating sexual orientation as a protected class due to state statutes, now would be a good time to review your policies and procedures to ensure not only that sexual orientation is listed as a protected class, but also that managers and human resources professionals are trained in how to enforce these policies. Likewise, employers should ensure that employees are properly trained on proper workplace behavior, including what constitutes harassment.

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