En Banc Second Circuit Agrees to Decide Whether Title VII Protects Against Sexual Orientation Discrimination

Following the Second Circuit’s opinion in Christiansen v Omnicom Group, where the Court held it was constrained to dismiss a sexual orientation discrimination claim under Title VII because a three-Judge panel of the Court could not overrule the binding precedent in Simonton v Runyon, which held that sexual orientation discrimination claims are not cognizable under Title VII, a different panel of the Second Circuit dismissed the plaintiff’s Title VII sexual orientation discrimination claim in Zarda v Altitude Express.  In Zarda, the plaintiff claimed that he was fired from his job as a sky diving instructor because of his sexual orientation. The District Court dismissed his Title VII claims because it was constrained by Simonton, but found a question of fact on Zarda’s discrimination claims under the New York Human Rights Law. The case proceeded to trial, where the jury found that Altitude Express did not discriminate in violation of the state anti-discrimination statute. 

Zarda appealed and specifically argued that Simonton should be overruled.  Like in Christiansen, the Second Circuit panel again held that it was constrained to dismiss the claim.  Only the full en banc Court can overrule prior precedent, it held.

Zarda thus petitioned for en banc review, and the full Second Circuit has agreed to hear the case.  The en banc Court will now take up whether Title VII protects against sexual orientation discrimination under the clause prohibiting discrimination “because of . . . sex.”

In light of Chief Judge Katzmann’s stirring concurrence in Christiansen, urging the Court to reconsider the Simonton decision en banc, the Court’s decision to take up the issue is unsurprising.  After the Seventh Circuit held in Hively v Ivy Tech Community College of Indiana that sexual orientation discrimination is barred by Title VII, Chief Judge Katzmann reached the same conclusion in his concurrence in Christiansen, and a Judge of the Southern District of New York held the same (unwilling to wait for the Second Circuit to take the issue en banc), the trend in the law in the Circuit seems to favor the Second Circuit joining the Seventh to further a Circuit split on the issue.  That split, if reinforced by the Second Circuit’s holding in Zarda,  would likely convince the Supreme Court to hear the cases and settle the issue nationwide.

According to the Second Circuit’s order, which can be found here, Zarda and the amici supporting him have until June 26th to file their briefs. Altitude Express and the amici supporting it have until July 26th to file theirs, and Zarda’s reply is due on August 9th. The Court sitting en banc with all 13 Judges will then hear arguments on September 26th at 2 p.m. 

Although the Court has not livestreamed arguments before, after the successful livestreams in the Fourth and Ninth Circuit travel ban arguments, I expect there will be much clamoring to have the Court make the Zarda en banc argument its first foray into live audio. Given the stakes of the issue the Court is considering, and the inevitably significant public interest, I think it would be a good place to start.