Sexual Orientation

Sexual Orientation Harassment Under Title VII is Uncertain


The law in the Second Circuit had been clear – sexual orientation discrimination was not prohibited by Title VII as held in Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000).  Victims must instead rely on the New York State Human Rights Law or local laws such as New York City Human Rights Law or Nassau County Administrative Code in pursuing their rights against being discriminated based on sexual orientation.

The Second Circuit, however, may be reconsidering it’s holding in Simonton.  The full Court (en banc) heard arguments in Zarda v. Altitude Express wherein it will determine whether Title VII’s prohibition against sex discrimination includes discrimination based on sexual orientation.

Interestingly, the Equal Employment Opportunity Commission, which submitted a friend of the court brief (amicus curie brief), argued for Simonton to be overruled while the Department off Justice in is amicus curie brief argued consistent with Simonton that Title VII does not encompass discrimination based on sexual orientation.

If the Second Circuit were to find Title VII does protect against discrimination based on sexual orientation, it would not be alone.  The Seventh Circuit en banc had likewise overruled it’s precedent case to find sexual orientation is protected by Title VII in Hively v. Ivy Tech Community College of Indiana.

In light of this uncertainty, act quickly to preserve your rights.  If you have been the victim of discrimination in New York or Connecticut, do not wait but call today.