LGBT Rights Advocates See Hopeful Signs in Second Circuit Loss

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By Kevin McGowan

When do you celebrate a loss? When you think it might signal a win down the road.A federal appeals court ruling that Title VII of the 1964 Civil Rights Act doesn’t prohibit bias based on sexual orientation nevertheless left advocates for LGBT workers’ civil rights hopeful about the prospects for workplace protections ( Christiansen v. Omnicom Grp., Inc. , 2017 BL 95727, 2d Cir., No. 16-749, 3/27/17 ).

“It’s not the end of the road,” Omar Gonzalez-Pagan, a staff attorney for Lambda Legal Education and Defense Fund in New York, told Bloomberg BNA March 27.

Three federal appeals courts, including the U.S. Court of Appeals for the Second Circuit, currently are considering if Title VII’s sex discrimination ban prohibits bias based on sexual orientation. No federal circuit has yet ruled that it does.

A U.S. Court of Appeals for the Eleventh Circuit panel earlier this month said its precedents required a ruling that Title VII doesn’t prohibit sexual orientation bias. Lambda Legal is seeking review by the full Eleventh Circuit.

The Second Circuit March 27 reached a similar conclusion. A gay employee for Omnicom Group Inc. can’t pursue his claim that bias based on sexual orientation is discrimination “because of sex” under Title VII, a three-judge panel of the Second Circuit said.

The Second Circuit held in 2000 and again in 2005 that Title VII doesn’t extend to sexual orientation bias. The three-judge panel said it can’t overturn those precedents absent a contrary ruling by the full Second Circuit or the U.S. Supreme Court.

Concurring Opinion Called Significant

In a concurring opinion, however, Chief Judge Robert Katzmann and Judge Margo K. Brodie said the Second Circuit should revisit the issue “when the appropriate occasion presents itself.”

Katzmann “went out of his way” to provide the framework for a future appeals court ruling that Title VII bans sexual orientation bias, said Susan Chana Lask, the New York attorney who represented Matthew Christiansen, the Omnicom employee who sued.

Christiansen is “considering” asking the full Second Circuit for review, Lask told Bloomberg BNA.

Even if the full Second Circuit doesn’t review the case, Katzmann’s opinion “literally laid out the decision” for another federal appeals courts to follow in finding Title VII protection, Lask said.

‘Getting Closer’ to a Conclusion

It’s a “big step forward” for Katzmann to “find compelling” the EEOC’s arguments for Title VII coverage, said P. David Lopez, a partner with Outten & Golden in Washington who was EEOC general counsel until December 2016.

“We’re getting closer” to a federal appeals court ruling that Title VII prohibits sexual orientation bias, Lopez told Bloomberg BNA March 27.

The concurring opinion was “definitely good for us,” said Gregory Nevins, a senior attorney in Atlanta for Lambda Legal, which filed an amicus brief for Christiansen.

That Katzmann was part of the Second Circuit panel in 2000 that ruled Title VII doesn’t protect gay and lesbian workers makes his current opinion even more striking, Nevins told Bloomberg BNA March 27.

Advocates now are awaiting a decision by the full U.S. Court of Appeals for the Seventh Circuit in Hively v. Ivy Tech College, which was argued Nov. 30.

In that case, the full Seventh Circuit is considering a lesbian college instructor’s Title VII discrimination claim based on the argument that federal law prohibits sexual orientation bias.

Nevins, who represented the employee before the Seventh Circuit, noted that both the Eleventh Circuit and Second Circuit cases were argued later.

Shannon Minter, legal director for the National Center for Lesbian Rights, said he’s “encouraged” by the Second Circuit’s decision, which “acknowledges that there is no principled reason for excluding sexual orientation discrimination from Title VII.”

The opinion “shows that courts are finally giving these cases the serious consideration they deserve,” Minter said in a March 27 email to Bloomberg BNA. The courts “seem poised to reverse the line of older cases summarily rejecting Title VII claims by gay and lesbian persons,” he said.

The EEOC, which submitted an amicus brief supporting Christiansen, declined to comment.

An attorney representing Omnicom said the company had no comment on the decision.

Judge Debra Ann Livingston joined in the court’s unsigned opinion that it lacked power to overturn circuit precedent.

The Law Offices of Susan Chana Lask represented Christiansen. Davis & Gilbert LLP represented Omnicom Group.

To contact the reporter on this story: Kevin McGowan in Washington at kmcgowan@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

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