Today, an en banc panel of the Second Circuit held that discrimination based on sexual orientation is a form of discrimination “because of . . . sex” in violation of Title VII, overturning Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000).  In 2017, a Second Circuit panel reviewing a decision of Judge Failla that was highly critical of Simonton, had ruled that it was bound by the Simonton rule until the en banc Court ruled otherwise (see our coverage here) — which is what happened today.

The majority found that Title VII’s legal framework had evolved substantially since its enactment in 1964, including a “sea change in the constitutional framework governing same-sex marriage.”  According to the majority:

Title VII’s prohibition on sex discrimination applies to any practice in which sex is a motivating factor . . . [S]exual orientation discrimination is a subset of sex discrimination because sexual orientation is defined by one’s sex in relation to the sex of those to whom one is attracted, making it impossible for an employer to discriminate on the basis of sexual orientation without taking sex into account. Sexual orientation discrimination is also based on assumptions or stereotypes about how members of a particular gender should be, including to whom they should be attracted.

The lead dissent argued that, while the end result of the majority opinion was laudable, the public understanding of “because of . . . sex” in 1964 would not have included discrimination based on sexual orientation:

The majority asserts that discrimination against gay people is nothing more than a subspecies of discrimination against one or the other gender. Discrimination against gay men and lesbians is wrong, however, because it denies the dignity and equality of gay men and lesbians, and not because, in a purely formal sense, it can be said to treat men differently from women. It is understandable that those who seek to achieve legal protection for gay people victimized by discrimination search for innovative arguments to classify workplace bias against gays as a form of discrimination that is already prohibited by federal law. But the arguments advanced by the majority ignore the evident meaning of the language of Title VII, the social realities that distinguish between the kinds of biases that the statute sought to exclude from the workplace from those it did not, and the distinctive nature of anti-gay prejudice. Accordingly,  much as I might wish it were otherwise, I must conclude that those arguments fail.