On April 4, the United States Court of Appeals for the Seventh
Circuit (covering Illinois, Indiana and Wisconsin) became the first
federal appellate court to recognize sexual orientation as being
protected by Title VII of the Civil Rights Act of 1964. What does
this mean for New York employers?
Title VII is best known for its prohibition on workplace
discrimination based on sex, race, national origin and other
"protected classes." But the omission of the phrase
"sexual orientation" has resulted in federal courts
consistently holding that such was not protected.
Stated another way, an applicant turned away, or an employee
discharged or otherwise treated less favorably based on their
sexual orientation had no viable claim under Title VII. States such
as New York, and cities including New York City, have enacted their
own laws forbidding such discrimination. The Seventh Circuit's
decision, which now conflicts with those in other federal appellate
courts, sets the stage for the issue to reach the United States
Overshadowed by the Seventh Circuit's decision was the March
27, 2017 decision from the Court of Appeals for the Second Circuit,
which covers New York, Connecticut and Vermont. In Chrisitansen
v. Omnicron Group, Inc., the Second Circuit declined to depart
from its prior rulings that Title VII did not extend to claims for
discrimination based on sexual orientation. However, it did leave
the door open by continuing its view that "gender
stereotyping" claims can be maintained as a form of unlawful
In short, "gender stereotyping" claims involve
harassment or discrimination based on an individual failing to
conform with the "usual" way in which members of their
gender are expected to act, present or conduct themselves. The
Court observed that while not every member of the LGBTQ community
would necessarily have a "gender stereotyping" claim,
where one could be established the individual's sexual
orientation would not factor in to the equation, and they would be
protected by Title VII's prohibition of "sex-based"
For the time being, employers in New York (and those in
Connecticut and Vermont as well) remain immune from harassment and
discrimination claims based on sexual orientation under federal
law. The Seventh Circuit's decision will almost certainly be
appealed and heard by the United States Supreme Court next year.
This makes Neil Gorsuch's confirmation to fill the vacancy on
the Supreme Court that much more important, to either extend Title
VII in the manner that many states and localities have, or to leave
it rooted as it has consistently been interpreted for more than 50
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