In an opinion today, Judge Failla dismissed employment discrimination claims brought by a gay man under Title VII. She found the employer’s alleged conduct to be “reprehensible” but was “constrained to find that Plaintiff has not stated a cognizable claim” because the Second Circuit has held, in Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), that sexual orientation discrimination claims fall outside Title VII. Judge Failla was critical of that view because subsequent Supreme Court rulings “reflect a shift in the perception, both of society and of the courts, regarding the protections warranted for same-sex relationships and the men and women who engage in them.” She added that there was no “coherent” way to separate sexual orientation discrimination from sex-based discrimination:
Further highlighting the degree to which times have changed since Simonton, numerous cases have demonstrated the difficulty of disaggregating acts of discrimination based on sexual orientation from those based on sexual stereotyping . . . . This difficulty comes as no surprise, for, as the EEOC stated . . . , “sexual orientation is inherently a ‘sex-based consideration,’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.”
A simple example helps to illustrate the futility of treating sexual orientation discrimination as separate from sex-based considerations: If an employer fires her female employee because the employer believes that women should defer to men, but the employee sometimes challenges her male colleagues, such action would present a cognizable claim under Title VII. If the same employer fires her female employee because the employer believes that women should date men, but the employee only dates women, the prevailing construction of Title VII would find no cognizable claim under that statute. . . .
The lesson imparted by the body of Title VII litigation concerning sexual orientation discrimination and sexual stereotyping seems to be that no coherent line can be drawn between these two sorts of claims. Yet the prevailing law in this Circuit — and, indeed, every Circuit to consider the question — is that such a line must be drawn.