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Posts Tagged ‘Estate of Zarda v. Altitude Express’

New Supreme Court Term Potentially Momentous for LGBT Rights

Posted on: September 24th, 2018 by Art Leonard No Comments

The Supreme Court begins its October 2018 Term, which runs through June 2019, on October 1. During the week of September 24, the Court holds its “long conference,” during which the Justices consider the long list of petitions for review filed with the Court since last spring, and assembles its docket of cases for argument after those granted late last term are heard.  While there are several petitions involving LGBT-related issues pending before the Court, it is unlikely that there will be any announcement about these cases until late October or November at the earliest.

Three of the pending petitions raise one of the most hotly contested LGBT issues being litigated in the lower federal courts: Whether Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination because of an individual’s sex, can be interpreted to extend to claims of discrimination because of sexual orientation or gender identity. One of the three cases also raises the question whether an employer with religious objections gender transition has a defense under the Religious Freedom Restoration Act.  Another petition presents the question whether a judge who has religious objections to conducting same-sex marriages has a 1st Amendment right to refuse to do so.

Although many state civil rights laws ban such discrimination, a majority of states do not, so the question whether the federal law applies is particularly significant in the Southeast and Midwest, where state courts are generally unavailable to redress such discrimination.

With President Donald J. Trump’s nomination of Brett Kavanaugh to fill the seat vacated by Justice Anthony M. Kennedy, Jr.’s, retirement, which was effective on July 31, petitions pending at the Supreme Court took on heightened significance while the Senate confirmation process was taking place. The Senate Republican leadership had hoped to speed the process so that Trump’s appointee would be seated on the Court by the time the term began on October 1, but accusations of long-ago sexual misconduct by Kavanaugh have caused the Judiciary Committee’s vote to be delayed.  Meanwhile, the eight-member Court had to confront the question during their long conference of whether to grant review on cases as to which the justices were likely to be evenly divided, when they were unsure when the ninth seat would be filled and who would fill it.  As of the end of September, they had already scheduled oral arguments on cases granted last spring running through the first week of November.

In Bostock v. Clayton County Board of Commissioners, a three-judge panel of the Atlanta-based 11th Circuit Court of Appeals affirmed a decision by the U.S. District Court for the Northern District of Georgia to dismiss Gerald Lynn Bostock’s Title VII claim alleging employment discrimination because of his sexual orientation. The panel held that it was bound by prior circuit precedent, a 1979 ruling by the old 5th Circuit in Blum v. Gulf Oil Corporation, which was recently reaffirmed by a panel of the 11th Circuit in Evans v. Georgia Regional Hospital, which was denied by review by the Supreme Court last December.

Three-judge panels are required to follow circuit precedents, which can be overruled only by an en banc court (the full circuit bench) or the Supreme Court. The 11th Circuit Bostock panel also noted that Mr. Bostock had “abandoned any challenge” to the district court’s dismissal of his alternative claim of gender stereotyping sex discrimination, which is significant because an 11th Circuit panel had ruled in 2011 in Glenn v. Brumby that a transgender plaintiff could bring a sex discrimination claim under a gender stereotyping theory.  The panel relied on a Supreme Court ruling from 1989, Price Waterhouse v Hopkins, which held that requiring employees to conform to the employer’s stereotyped view of how men and women should act was evidence of discrimination because of sex.  The court noted that in Evans, a majority of the 11th Circuit panel had rejected extending the same theory to uphold a sexual orientation claim, and this, of course, is also now binding 11th Circuit precedent.

Mr. Bostock sought en banc reconsideration of the panel decision by the full 11-member bench of the 11th Circuit, but he also filed a petition with the Supreme Court on May 25.  On July 18, the 11th Circuit denied the petition for rehearing en banc, voting 9-2.  Circuit Judge Robin Rosenbaum, who was the dissenting member of the three-judge Evans panel, released a dissenting opinion, joined by Circuit Judge Jill Pryor.

Although the Evans and Bostock panel decisions may have been foreordained by circuit precedent, recent developments persuaded the dissenters that the issue raised in this case “is indisputably en-banc-worthy. Indeed,” continued Rosenbaum, “within the last fifteen months, two of our sister Circuits have found the issue of such extraordinary importance that they have each addressed it en banc.  See Zarda v. Altitude Express, Inc.; Hively v. Ivy Tech Community College of Indiana.  No wonder.  In 2011, about 8 million Americans identified as lesbian, gay or bisexual,” citing a demographic study published by the Williams Institute at UCLA Law School.  “Of those who so identify, roughly 25% report experiencing workplace discrimination because their sexual preferences do not match their employers’ expectations.  That’s a whole lot of people potentially affected by this issue.”

Judge Rosenbaum strongly argued that the 11th Circuit’s implicit decision to “cling” to a “39-year-old precedent” that predates Price Waterhouse by a decade is ignoring “the Supreme Court precedent that governs the issue and requires us to reach the opposite conclusion,” as she had argued in her Evans dissent. “Worse still,” she wrote, “Blum’s ‘analysis’ of the issue is as conclusory as it gets, consisting of a single sentence that, as relevant to Title VII, states in its entirety, ‘Discharge for homosexuality is not prohibited by Title VII.’  And if that’s not bad enough, to support this proposition, Blum relies solely on Smith v. Liberty Mutual Insurance Co. (5th Cir. 1978) – a case that itself has been necessarily abrogated not only by Price Waterhouse but also by our own precedent in the form of Glenn v. Brumby. I cannot explain why a majority of our Court is content to rely on the precedential equivalent of an Edsel with a missing engine,” Rosenbaum continued, “when it comes to an issue that affects so many people.”

Rosenbaum argued that regardless of what a majority of the court’s views might turn out to be on the substantive issue, it had an obligation to, “as a Court, at least subject the issue to the crucial crucible of adversarial testing, and after that trial yields insights or reveals pitfalls we cannot muster guided only by our own lights, to give a reasonable and principled explanation for our position on this issue – something we have never done.” But, shamefully, the 11th Circuit has absented itself from the current interpretive battle.

Bostock is represented by Thomas J. Mew IV, Timothy Brian Green, and Brian J. Sutherland of Buckley Beal LLP, Atlanta, who filed the petition for certiorari on May 25, with Sutherland listed as counsel of record. Clayton County filed a “Waiver” of its right to respond to the petition on June 27, and the petition was circulated to the justices’ chambers on July 3, anticipating the “long conference.” But evidently some of the justices were not satisfied to consider taking this case without hearing from the “other side,” so on July 13 it sent a request for a response, to be due August 13.  Clayton County retained counsel, Jack R. Hancock and William H. Buechner, Jr., of Freeman Mathis & Gary LLP, Forest Park, GA, who filed the County’s response to the petition on August 10, opposing the petition.  They argued that the appeal was an attempt to get the Court to do Congress’s work, which should be rejected.  On August 29, the Supreme Court clerk again circulated all of these papers to the Justices’ Chambers and the petition was scheduled for consideration at the “long conference.”

The other case pending before the Supreme Court presenting the same question, but this time appealing from the employer’s side, is Altitude Express v. Zarda, from the New York-based 2nd Circuit. A three-judge panel had affirmed the district court’s decision to dismiss a Title VII sex discrimination claim by Donald Zarda, a gay sky-diving instructor, who based his claim on alternative assertions of gender stereotyping or sexual orientation discrimination, on April 18, 2017.  Zarda died in a sky-diving accident while the case was pending, but his estate stepped in to continue the lawsuit.  The 2nd Circuit’s Chief Judge, Robert Katzmann, attached a concurring opinion to the panel ruling, calling for the 2nd Circuit to reconsider this issue en banc in an appropriate case, noting the then-recent ruling by the 7th Circuit in Hively and other developments.

Thus encouraged, Zarda’s Estate sought and obtained en banc review, resulting in the 2nd Circuit’s decisive repudiation of its past precedent on February 26, 2018.  Judge Katzmann’s opinion for the en banc court held that discrimination because of sexual orientation is, at least in part, discrimination because of sex, and thus actionable under Title VII.  The Estate of Zarda is represented by Gregory Antollino, New York, NY, with Stephen Bergstein, Bergstein & Ullrich, LLP, Chester, NY, on the brief.

Saul D. Zabell and Ryan T. Biesenbach, Zabell & Associates, P.C., of Bohemia, N.Y., counsel for Altitude Express, filed a Supreme Court petition on May 29. Responsive papers were filed over the summer, and all the papers were distributed on September 5 to the Justices’ Chambers anticipating the “long conference.”  The federal government, consistent with positions announced in various contexts by Attorney General Jeff Sessions, rejects the 2nd Circuit’s en banc ruling and, if certiorari were granted in Bostock or in Altitude Express v. Zarda, would presumably seek to participate in oral argument.

The third pending Title VII petition, in Equal Employment Opportunity Commission v. R.G. & G.R. Harris Funeral Homes, Inc., comes from the Cincinnati-based 6th Circuit, where a three-judge panel ruled on March 7 that the Funeral Home’s discharge of transgender funeral director Aimee Stephens violated Title VII.  The American Civil Liberties Union represents Stephens.  The EEOC, which had ruled years earlier that it considered discrimination because of gender identity or gender transitioning to be discrimination because of sex, initiated the lawsuit in the U.S. District Court in the Eastern District of Michigan.  Stephens intervened as co-plaintiff.

Although the district judge accepted the EEOC’s argument that this could be a valid sex discrimination case using the gender stereotype theory, he concluded that the funeral home had a right under the Religious Freedom Restoration Act (RFRA) to be free of government prosecution, because of the burden it placed on the funeral home owner’s religious beliefs.

The 6th Circuit affirmed in part and reversed in part. In an opinion by Circuit Judge Karen Nelson Moore, the court agreed with the district judge that gender identity discrimination can be the basis of a Title VII claim, but the court went a step further than prior panel opinions by deciding, as the EEOC had argued, that discrimination “because of sex” inherently includes discrimination against employees who are transgender, without any need to analyze the question of gender stereotypes. The court of appeals reversed the district court’s ruling on the RFRA defense, finding that requiring the employer to continue to employ a transgender funeral director would not substantially burden his right to free exercise of religion.  The court specifically rejected the employer’s reliance on presumed customer non-acceptance of a transgender funeral director as a legitimate justification for the discharge.  The court also rejected the employer’s argument that because of the religiosity of the owner and the way he conducted his business, his funeral directors should be treated as “ministers” as to whom the owner would enjoy a 1st Amendment-based “ministerial exception” from complying with Title VII.

One might anticipate that a petition to review a Court of Appeals decision that was issued on March 7 would generate the necessary paperwork in time to be considered during the “long conference,” but in this case Alliance Defending Freedom (ADF), the anti-gay religious litigation group that is representing the funeral home, obtained an extension of time to file their petition, which was not docketed until July 20. Responses were due August 23. Then the Court granted a request from the Solicitor General’s Office, representing the government, for an extension of time to file a response, which was granted to September 24, 2018, the date on which the “long conference” would begin.  But the Solicitor General wrote to the Court again as this deadline approached requesting a further extension to October 24, which was granted.

At the end of September the government’s official response to this petition had not been filed. With the change of administration since the EEOC started this case, and the position on these issues announced by the Justice Department last year, the Solicitor General would probably urge the Court to take the case and reverse the 6th Circuit on both the Title VII and RFRA rulings.    As to the former, last year Attorney General Jeff Sessions issued written guidance that gender identity discrimination does not violate Title VII, and, as to the latter, President Trump issued an executive order, recently amplified by Attorney General Sessions, directing the Executive Branch to give maximum play to free exercise of religion claims.

But there is a further twist to the government’s response. Although the Solicitor General represents the government in the Supreme Court, an administrative agency such as the EEOC could represent itself, if it gets permission from the Solicitor General.  The EEOC is the plaintiff in this case, and the winning party in the 6th Circuit.  Trump’s appointments of new EEOC commissioners may change the agency’s view of these issues, but as of now the agency’s position is that gender identity discrimination violates Title VII.   One of the Supreme Court’s most important functions is to deal with interpretations of federal statutes as to which the lower courts are divided, and there are precedents in several of the circuit courts that differ from the 6th Circuit’s view in this case, but the trend of lower court decisions around the country is to recognize gender identity discrimination claims under Title VII using the gender stereotype theory.  Neither the Solicitor General nor the EEOC has announced who will be filing a response on behalf of the government, and what position the government may take in the case.

Counsel for the Funeral Home filed a blanket consent with the court to allow amicus briefs in this case. On the original response date of August 23, the Clerk recorded filing of amicus briefs from the Jewish Coalition for Religious Liberty, the Foundation for Moral Law, the State of Nebraska on behalf of itself and fifteen other states, and Public Advocate of the United States (despite its name, a private organization), all urging the Court to take the case and reverse the 6th Circuit for a variety of reasons, taking issue with the 6th Circuit’s decision on every conceivable point.

ADF, counsel for the funeral home, sent a letter to the Court on September 13, suggesting that because the three Title VII petitions present common questions of statutory interpretation, they should be considered together. After receiving the letter, the Court removed the two sexual orientation cases from the agenda for the long conference, which means that the extension of time granted to all the respondents in the Funeral Home case may delay the Court’s consideration of the other two Title VII petitions for several months.

It would be very surprising if the Court did not grant the petitions in Altitude Express and Harris Funeral Homes, as both court of appeals rulings extend existing splits in circuit court interpretations of Title VII, the nation’s basic employment discrimination statute, and employ reasoning that potentially affects the interpretation of many other federal sex discrimination statutes, such as the Fair Housing Act, the Equal Credit Opportunity Act, Title IX of the Education Amendments Act, and the Affordable Care Act. But it takes four votes to grant a petition for review in the Supreme Court, and as long as the Court remains evenly divided between Democratic and Republican appointees, it is possible that both “camps” will shy away from taking on cases where a tie vote on the merits would affirm the lower court ruling without an opinion or a nationally-binding precedent.

Also pending before the Court is a petition filed on behalf of Oregon Judge Vance D. Day, who was disciplined by the Oregon Commission on Judicial Fitness and Disability in a report that was approved by the Oregon Supreme Court for, among other things, refusing to perform same-sex marriages, claiming a 1st Amendment privilege.  The petition, filed on July 23, asks the Court to decide whether Judge Day’s constitutional rights were violated both procedurally and substantively, and raises the contention that judges have a constitutional right to refuse to perform same-sex marriages, despite the Supreme Court’s ruling that same-sex couples have a fundamental right to marry as well as to equal protection of the law.  Judge Day is represented by James Bopp, Jr., and other members of his Terre Haute, Indiana law firm.  Mr. Bopp is a frequent advocate in opposition to LGBT and reproductive rights.  The petition is on the agenda for the Court’s October 11 conference.

There are several other controversies brewing in the lower courts that could rise to the level of Supreme Court petitions during the October 2018 Term.

Following its Masterpiece Cakeshop decision on June 4, the Court vacated a decision by the Washington State Supreme Court against a florist who had refused to provide floral decorations for a same-sex wedding and sent the case back to the Washington court for reconsideration in light of the Masterpiece ruling. This is one of several cases pending in the lower courts, some rising to the federal court of appeals or state supreme courts level, raising the question of religious freedom exemptions from compliance with anti-discrimination laws.  The Supreme Court’s evasion of the underlying issue in Masterpiece means that the issue will come back to the Supreme Court, possibly this term, especially as some lower courts have already seized upon language in Justice Kennedy’s opinion observing that the Court has never recognized a broad religious exercise exemption from complying with anti-discrimination laws.  Cases are pending concerning wedding cakes, wedding invitations, and wedding videos. And, in a different arena, the Court recently denied a request by Catholic authorities in Philadelphia to temporarily block the City from suspending referrals of children to a Catholic adoption agency that refuses to deal with same-sex couples.  The District Court upheld the City’s position, as Gay City News previously report, finding a likely violation of Philadelphia’s public accommodations ordinance that covers sexual orientation and rejecting an exemption for the Catholic adoption agency. This kind of issue could also rise to the Supreme Court, depending how lower court litigation works out.

Litigation continues over a claim by some Houston Republicans that the City is not obligated to provide equal benefits to the same-sex spouses of Houston employees. The case is pending before a state trial judge after the Texas Supreme Court, in a blatant misinterpretation of the Obergefell decision, held that the U.S. Supreme Court had not necessarily decided the issue. This was “blatant” because the Obergefell opinion specifically mentioned insurance as one of the important reasons why same-sex couples had a strong interest in being able to marry, making marriage a fundamental right.  Insurance was mentioned as part of a list of reasons, another listed being “birth certificates,” and the Supreme Court specifically quoted from that list in Pavan v. Smith, the 2017 case in which it reversed the Arkansas Supreme Court, rejecting that court’s opinion that Obergefell did not decide the question whether same-sex parents had a right to be listed on birth certificates.  Pavan was decided just days before the Texas Supreme Court issued its obtuse and clearly politically-motivated decision in Pidgeon v. Turner!  One need not guess too hard at the political motivation.  Texas Supreme Court justices are elected, and that court was deluged with communications of protest and pressure from the state’s top elected Republican officials after an earlier announcement that the court was declining to review the Texas Court of Appeals’ decision in this case, which had found Obergefell and the 5th Circuit Court of Appeals’ subsequent marriage equality ruling, DeLeon, to be controlling on the issue.

Before long the Court will probably take up the question whether transgender public school students have a right under Title IX of the Education Amendments of 1972 and the Equal Protection Clause to use restroom and locker room facilities consistent with their gender identity. The Court granted a petition in Gavin Grimm’s case from Virginia and scheduled argument to take place during the October 2016 Term, but the Trump Administration’s withdrawal of the Obama Administration’s interpretation of Title IX persuaded the Court to cancel the argument and send the case back to the 4th Circuit for reconsideration. The 4th Circuit sent the case back to the district court, where the school district argued that it was moot because Grimm had graduated.  But Grimm continues to battle the district’s policy as an alumnus.  The district court has refused to dismiss a revised version of Grimm’s lawsuit.   This is one issue as to which there is not a significant split of lower court authority, but the issue continues to rage, school districts continue to discriminate against transgender students, the U.S. Departments of Education and Justice in the Trump Administration have reversed the Obama Administration’s position that sex discrimination laws protect transgender people, and religious litigation groups such as ADF continue to generate lawsuits, representing parents and students who oppose school district policies that allow transgender students to use the desired facilities.  The issue is far from settled, and it may work its way to the Court again soon.

Another candidate for Supreme Court review is Trump’s transgender military service ban, first tweeted in July 2017. The issue that may bring it up to the Court quickly is the government’s refusal to comply with pre-trial discovery orders, in which plaintiffs in the four pending challenges are seeking information about the alleged basis for the ban, noting Trump’s vague reference to having consulted “my generals and military experts” before his tweet, and the undisclosed identity of the members of Defense Secretary Mattis’s “Task Force” that produced the memorandum he submitted in support of his version of the ban that Trump authorized him to adopt in March 2018.  As of now, preliminary injunctions from the four district judges have kept the ban from going into effect and required the Defense Department to accept applications from transgender people, beginning January 1, 2018.  On September 18, District Judge Jesus Bernal in Riverside, California, became the fourth district judge to reject the government’s motion for summary judgment, and to refuse to dissolve the preliminary injunction he had previously issued.   Seattle District Judge Marsha Pechman’s discovery order is being appealed to the 9th Circuit Court of Appeals.  The Solicitor General recently filed a petition with the Supreme Court to stay Judge Pechman’s order, since her deadline for compliance was looming and the 9th Circuit had not acted on the government’s motion to stay, but the 9th Circuit then granted the motion and the petition was withdrawn.  If any one of the four district courts grants the plaintiffs’ motion for summary judgment, of course, the government will appeal on the merits and the case may end up in the Supreme Court.  This litigation may provide the vehicle for the Court to determine the extent to which government discrimination against transgender people violates the Equal Protection requirement of the 5th Amendment.

Watch this space for further developments!

Sexual Orientation Discrimination Under Title VII in the 2nd Circuit: A Work in Progress

Posted on: May 11th, 2017 by Art Leonard No Comments

As the 2nd Circuit Court of Appeals ponders three petitions asking for en banc consideration of the question whether Title VII of the Civil Rights Act of 1964 can be interpreted to ban sexual orientation discrimination as a form of sex discrimination, a federal trial judge in Manhattan has ruled that “in light of the evolving state of the law,” it would be “imprudent” for the court to grant a motion to dismiss a gay plaintiff’s sexual orientation discrimination claim.

Senior District Judge Alvin K. Hellerstein, appointed by Bill Clinton in 1998, issued his ruling in Philpott v. State University of New York on May 3, the day after the third en banc petition was filed.   An en banc hearing in the 2nd Circuit involves participation by all eleven active judges in the circuit, plus any senior judges who participated in a three-judge panel decision that is being reheard en banc.  Appeals are normally heard by three-judge panels, which are bound to follow existing circuit precedents.  Only an en banc panel (or the Supreme Court) can reconsider and reverse such precedents.

The 2nd Circuit ruled in 2000, in the case of Simonton v. Runyon, that Title VII could not be interpreted to forbid sexual orientation discrimination.  This holding was reiterated by a second panel in 2005, in Dawson v. Bumble & Bumble, and yet again this year on March 27 in Christiansen v. Omnicom Group.  However, the 2nd Circuit’s Chief Judge, Robert Katzmann, who was sitting as a member of the panel in Christiansen, wrote a concurring opinion, joined by one of the other judges, arguing that the issue should be considered en banc in “an appropriate case.”  Katzmann’s discussion basically embraced the arguments articulated by the Equal Employment Opportunity Commission in its 2015 decision holding that David Baldwin, a gay air traffic controller, could bring a sexual orientation discrimination claim under Title VII against the U.S. Department of Transportation.

The first of the en banc petitions was filed on April 19 in Cargian v. Breitling USA, Inc., in which another Manhattan trial judge, George B. Daniels, dismissed a gay watch salesman’s Title VII sexual orientation discrimination claim, finding that 2nd Circuit appellate precedents binding on the court rejected sexual orientation claims as a form of sex discrimination.  Judge Daniels ruled on September 29, 2016, and Frederick Cargian filed an appeal to the 2nd Circuit.  When the Christiansen decision was issued on March 27, it became clear that Cargian’s appeal to a three-judge panel would be a waste of time and judicial resources, and the American Civil Liberties Union, representing Cargian along with the New York Civil Liberties Union and solo plaintiffs’ attorney Janice Goodman, decided to petition the Circuit to take the case up directly en banc.

The second petition was filed on April 28 by Matthew Christiansen’s attorney, Susan Chana Lask.   The three-judge panel in Christiansen’s case had refused to allow the case to continue on a sexual orientation discrimination theory, but had concluded that it was possible that Christiansen would be able to proceed under a gender stereotype theory.  The panel clarified the 2nd Circuit’s approach in such cases, rejecting the trial judge’s conclusion that if the factual allegations suggest that sexual orientation played a role in the discrimination suffered by the plaintiff, he would be not be allowed to proceed under Title VII.  The trial court’s approach overlooked an important element of Title VII, an amendment adopted in 1991 providing that a plaintiff is entitled to judgment if sex is a “motivating factor” in his or her case, even if other factors contributed to the employer’s discriminatory conduct.  The Supreme Court ruled in 1989 that discriminating against an employee because the employee fails to conform to gender stereotypes is evidence of discrimination because of sex.  In such a case, the sexual orientation of the plaintiff would be irrelevant, so long as the plaintiff could show that gender stereotyping was a motivating factor in their mistreatment.

At first it appeared that Christiansen would not seek en banc review, despite Judge Katzmann’s concurring opinion, as the panel unanimously voted to send the case back to the district court for consideration as a gender stereotyping case. Attorney Lask was quoted in newspaper reports as preparing to proceed to trial on the stereotyping theory.  The ACLU’s en banc petition changed the game plan, evidently, and Christiansen’s en banc petition was filed on April 28.

Meanwhile, on April 18, a different panel of the 2nd Circuit decided Zarda v. Altitude Express, once again holding that a gay plaintiff could not advance a sexual orientation discrimination claim under Title VII.  Gregory Antollino, an attorney for an executor of the Estate of Donald Zarda, a gay skydiving instructor who had died in a skydiving accident after the being discharged from his employment, filed a petition for en banc rehearing on May 2, with Stephen Bergstein of Bergstein & Ullrich as co-counsel representing a co-executor.

The very next day Judge Hellerstein issued his ruling, allowing Jeffrey Philpott, the gay former Vice President of Student Affairs at the State University of New York’s College of Optometry to pursue his Title VII sexual orientation discrimination, hostile environment and retaliation claims. Judge Hellerstein rejected the defendant’s alternative argument that even if sexual orientation discrimination is covered by Title VII, Philpott’s factual allegations were insufficient to support his claims.  However, Judge Hellerstein joined with several other district judges within the 2nd Circuit in ruling that an employee of an educational institution may not bring an employment discrimination claim under Title IX of the Education Amendments of 1992, which bans sex discrimination by educational institutions that receive federal money.  Although the plain language of Title IX can be interpreted to cover employment discrimination claims, Hellerstein agreed with other courts that have found that Congress did not intend to supplant Title VII, with its specific time deadlines and administrative exhaustion requirements, for employees of educational institutions who have sex discrimination claims.

After briefly describing the 2nd Circuit precedents, Hellerstein noted defendant’s argument that the court must dismiss the sexual orientation claims, and also Philpott’s request for leave to file an amended complaint focused on gender stereotyping.  “Neither relief is appropriate,” wrote the judge.  “The law with respect to this legal question is clearly in a state of flux, and the Second Circuit, or perhaps the Supreme Court, may return to this question soon.  In light of the evolving state of the law, dismissal of plaintiff’s Title VII claim is improper.”

Hellerstein then provided a summary of Judge Katzmann’s Christiansen concurrence, which he referred to more than once as a “majority concurrence” as it was signed by two of the three panel members. Hellerstein pointed to the 7th Circuit Court of Appeals en banc decision in Hively v. Ivy Tech Community College, issued on April 4, in which “the Seventh Circuit became the first Court of Appeals to unequivocally hold that ‘discrimination on the basis of sexual orientation is a form of sex discrimination’ and therefore cognizable under Title VII.”

“Among other reasons,” wrote Hellerstein, “the Seventh Circuit made this ruling ‘to bring our law into conformity with the Supreme Court’s teachings.’ The Seventh Circuit was also compelled by ‘the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without also discriminating on the basis of sex.’”

Hellerstein asserted that because Philpott “has stated a claim for sexual orientation discrimination, ‘common sense’ dictates that he has also stated a claim for gender stereotyping discrimination, which is cognizable under Title VII. The fact that plaintiff has framed his complaint in terms of sexual orientation discrimination and not gender stereotyping discrimination is immaterial.  I decline to embrace an ‘illogical’ and artificial distinction between gender stereotyping discrimination and sexual orientation discrimination, and in so doing, I join several other courts throughout the country.”

A few days after Hellerstein’s ruling, another panel of the 2nd Circuit avoided dealing with the same question in Magnusson v. County of Suffolk, an appeal from a May 2016 ruling by District Judge Sandra Feuerstein in the Eastern District of New York (Long Island).  Judge Feuerstein had rejected Arline Magnussen’s sexual orientation harassment Title VII claim on alternative grounds: that 2nd Circuit precedent does not allow sexual orientation claims, and that the employer could not be held liable under Title VII because Magnussen had unreasonably failed to invoke the employer’s internal grievance procedure to deal with her harassment complaint.  In a short memorandum signed by the Clerk of the Court, the 2nd Circuit ruled on May 11 that it need not address the Title VII interpretation issue in light of the district court’s finding that the employer could not held liable for whatever harassment the plaintiff might have suffered.

In terms of en banc review, in both Cargian and Zarda the court would face a case where the only stereotyping claim that would be viable would be that as gay men the plaintiffs did not conform to the stereotype that men should be attracted to women, so it would have to deal directly with the question whether sexual orientation is, as the EEOC stated and the 7th Circuit accepted, “necessarily” sex discrimination.  In Christiansen, the appellate panel found that the plaintiff might invoke other gender stereotype issues to make a viable claim under Title VII under the Circuit’s existing precedents, thus providing a less certain vehicle for getting the Circuit to confront the central legal issue.

If the 2nd Circuit grants the Christiansen or Cargian petitions, the en banc panel would consist of the eleven active members of the court.  If it grants the Zarda petition, those judges could be joined by two senior judges, Robert Sack and Gerard Lynch, who sat on the three-judge panel.  Of the eleven active judges, a majority were appointed by Democratic presidents: three by Clinton and four by Obama.  If the senior judges are added, a thirteen-member panel would include four appointed by Clinton and five appointed by Obama.  It is not clear from the Circuit’s published rules whether the senior judges could participate if the Circuit decides to consolidate the cases for rehearing en banc, but it is possible that they could only participate in deciding the Zarda case.