SDNY Judge Holds Sexual Orientation Discrimination is Cognizable Under Title VII

In Philpott v State of New York (SDNY Case No. 16 CIV 6778), U.S. District Court Judge Alvin K. Hellerstein decided he wouldn’t wait to see if the Second Circuit would grant en banc review in Christiansen v Omnicom Group to hold that Title VII prohibits discrimination on the basis of sexual orientation.  Relying on Chief Judge Katzmann’s persuasive concurrence in Christiansen discussed here, and the Seventh Circuit’s en banc ruling in Hively v Ivy Tech Community College of Indiana, Judge Hellerstein held that he would not embrace what he called an “‘illogical’ and artificial distinction between gender stereotyping discrimination and sexual orientation discrimination.”


Judge Hellerstein’s decision, although surprising that he declined to follow the Second Circuit’s controlling precedent in Simonton v Runyon, is just the latest step in what will in all likelihood culminate in an en banc ruling of the Second Circuit joining the Seventh Circuit to hold that Title VII protects against sexual orientation discrimination.

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