Today, the Supreme Court granted certiorari in two consolidated cases raising the question of whether sexual orientation discrimination violates Title VII.

One of the cases is Zarda v. Altitude Express, Inc., in which Judge Failla applied, but heavily criticized, binding Second Circuit precedent disallowing such claims.  The Second Circuit, sitting en banc, ultimately reversed

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:
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Last week, the Second Circuit reversed Judge Failla’s decision criticizing precedent that she concluded required dismissal of a Title VII claim focused on sexual orientation discrimination (see our coverage of Judge Failla’s ruling here).  The Second Circuit found that it lacked authority to overturn circuit precedent without an en banc panel or a subsequent U.S. Supreme Court decision, and so did not revisit its prior conclusion that Title VII does not authorize suits based on sexual orientation discrimination.  The panel did find, contrary to Judge Failla’s ruling, that the case could proceed as a plausible gender stereotyping claim:


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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:
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