Wednesday, March 29, 2017

Second Circuit on Gender Stereotyping

  2nd cir

The U.S. Court of Appeals for the Second Circuit issued a fascinating per curiam opinion this week that addresses gender stereotyping and directly implicates sexual orientation issues. The opinion, Christiansen v. Omnicom Group, is available here. Of particular note is the separate concurring opinion of Chief Judge Robert Katzmann (with District Court Judge Brodie) which provides in part:

 "[I]n my view, if gay, lesbian, or bisexual plaintiffs can show that they were discriminated against for failing to comply with some gender stereotype, including the stereotype that men should be exclusively attracted to women and women should be exclusively attracted to men, they have made out a cognizable sex discrimination claim. In such a case, the gender stereotype theory of discrimination would encompass discrimination on the basis of sexual orientation."

If you are interested in this important and evolving issue I definitely recommend taking a look at this decision and the concurrence.

- Joe Seiner

http://lawprofessors.typepad.com/laborprof_blog/2017/03/second-circuit-on-gender-stereotyping.html

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Comments

This opinion is one of many examples of what makes America great.

Posted by: Reed James | Mar 29, 2017 2:00:57 PM

Chief Judge Katzmann’s concurrence is particularly important because Katzmann was a member of the panel in oft-cited Simonton v. Runyon (2000), which held that discrimination based on sexual orientation is not prohibited by Title VII.

An equally important case is the Eleventh Circuit’s 3/10/17 decision in Evans v. Georgia Regional Hospital, at http://media.ca11.uscourts.gov/opinions/pub/files/201515234.pdf, which reached the same result, for the same reason (binding circuit precedent), and had an opinion similar to Katzmann’s, but styled as a dissent, by Judge Rosenbaum.

The Evans case is particularly noteworthy in that Judge Rosenbaum believes the result that discrimination based on sexual orientation is sex discrimination is preordained by the Eleventh Circuit’s groundbreaking gender identity decision in Glenn v. Brumby (2011), at http://cases.justia.com/federal/appellate-courts/ca11/10-14833/201014833-2011-12-06.pdf. Judge Pryor concurred in Evans, disagreeing that Glenn dictated the outcome of the case. Pryor was a member of the panel that issued the Glenn opinion, an opinion that was particularly notable given that it was issued within a week after oral argument.

Plaintiffs in both cases will seek rehearing en banc. One such en banc case is already pending in the Seventh Circuit, Hively v. Ivy Tech Community College. The panel decision, which was vacated, is at http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D07-28/C:15-1720:J:Rovner:aut:T:fnOp:N:1801805:S:0, corrected http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D08-03/C:15-1720:J:PerCuriam:aut:T:orCo:N:1804513:S:0, vacated http://www.lambdalegal.org/sites/default/files/hively_in_20161011_en-banc-order.pdf. En banc oral argument seemed to favor the plaintiff (http://media.ca7.uscourts.gov/sound/2016/nr.15-1720.15-1720_11_30_2016.mp3).

Posted by: Christine Michelle Duffy | Mar 30, 2017 4:07:49 AM

On 5/3/17, SDNY Judge Alvin Hellerstein took Chief Judge Katzmann’s concurrence in Christiansen and the Seventh Circuit’s en banc Hively decision, which was decided one week later, as an invitation to rule that that “‘discrimination on the basis of sexual orientation is a form of sex discrimination’” and therefore cognizable under Title VII.” Philpott v. New York and SUNY, Civil Action No. 16 Civ. 6778 (AKH) (May 3, 2017), at http://law.justia.com/cases/federal/district-courts/new-york/nysdce/1:2016cv06778/462104/38/.

Posted by: Christine Michelle Duffy | May 6, 2017 8:10:39 AM

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