The panel determined that Christiansen made a successful Title VII claim with regard to gender stereotyping, but that the panel is compelled to upheld legal precedent set by the 2nd Circuit in 2000 that found that Title VII does not protect against discrimination based on sexual orientation. Two of the three judges, including the Chief Judge, explained in a concurrence why discrimination based on sexual orientation should indeed be prohibited under Title VII of the Civil Rights Act of 1964. It recommended that the full 2nd Circuit Court of Appeals reconsider the question since the precedent was set 17 years ago. Chief Judge Robert A. Katzmann wrote:
“[N]egative views of sexual orientation are often, if not always, rooted in the idea that men should be exclusively attracted to women and women should be exclusively attracted to men—as clear a gender stereotype as any. Thus, in 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.”
I respectfully think that in the context of an appropriate case our Court should consider reexamining the holding that sexual orientation discrimination claims are not cognizable under Title VII. Other federal courts are also grappling with this question, and it well may be that the Supreme Court will ultimately address it.”
“The concurrence in the 2nd Circuit’s ruling is a promising step toward greater protections under the law from discrimination based on sexual orientation,” said Matt McTighe, executive director of Freedom for All Americans. “The Chief Judge in his concurrence acknowledges that the legal landscape with regard to discrimination based on sexual orientation has evolved in the 17 years since the 2nd Circuit set its precedent on the question of whether Title VII prohibits anti-LGB discrimination. Judge Katzmann’s recommendation that the full appellate court reconsider this question is reflective of the fact that judges are increasingly aware of the role of gender-based stereotyping in discrimination against lesbian, gay, and bisexual people in America.”
The federal EEOC, which weighed in on this case in support of Christiansen, determined in a landmark 2015 decision that Title VII of the Civil Rights Act, which prohibits discrimination based on sex, should also include discrimination based on sexual orientation. The EEOC previously found that Title VII also extends to discrimination based on gender identity.
A similar case that considers whether Title VII covers sexual orientation discrimination is pending a decision at any point by the full 7th Circuit Court of Appeals in Indiana.
Freedom for All Americans is the bipartisan campaign to secure full nondiscrimination protections for LGBT people nationwide.