By:  Amy Epstein Gluck

The District Court of Connecticut decided Boutillier v. Hartford Public Schools, No. 3:13-CV-01303-WWE (November 17, 2016). So, when I exuberantly advised that the Second Circuit came to play, I should have written that federal courts within the Second Circuit were showing up to play! So let’s try this again:

Well, this year, we’ve seen courts effectively state that Title VII does not specifically proscribe discrimination based on sexual orientation. Courts have condemned the discriminatory behavior, but many will not make the leap and concur with the EEOC‘s oft-cited position that sexual orientation discrimination IS discrimination.

Why? I don’t know ’cause I don’t get it!

See, while we know that Title VII protects individuals from job discrimination on the basis of sex, one would think that sexual orientation discrimination is the same, i.e., discrimination on the basis of sex. Indeed, sexual orientation refers to which gender a person is attracted to or their sexual preference. Only those who prefer the same sex are subject to sex discrimination, so where’s the line?  It’s kinda like pregnancy discrimination since only women can get pregnant so pregnancy discrimination IS sex discrimination, but courts have steadfastly refused to see things this way. Until recently.

A few weeks ago, the Boutillier court stated, that sexual orientation and sex “are necessary intertwined.” (emphasis added) The court determined that if an employer has discriminated against an employee due to his or her sexual orientation with respect to compensation, terms, conditions, or privileges of employment, then “that employer has necessarily considered both the sex of the partner and the sex of the individual.”

That’s exactly the type of conduct Title VII is designed to prevent.

This Federal Court rejects Rejects Second Circuit’s Reasoning

The court also discussed Simonton v. Runyon, which my partner Rich Cohen posted about here, in discussing a New York federal judge’s disgust with Simonton. As Rich told you, the court there stated that “[b]y any metric, the conduct alleged is reprehensible,” but that “[u]nder the law as it currently stands, the Court is constrained to find that Plaintiff has not stated a cognizable claim for Title VII discrimination [citing Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000)] which “unequivocally held that ‘Title VII does not proscribe discrimination because of sexual orientation.’”

Now, let’s take a minute to remember the holding in Price Waterhouse v. Hopkins. As I wrote here, in Price Waterhouse v. Hopkins, the U.S. Supreme Court held that allegations of gender identity and transgender discrimination based on non-conformance with gender norms and outdated stereotypes necessarily involve sex discrimination.

In Simonton, the court recognized this, but distinguished between claims based on discrimination targeting sexual orientation and those based upon nonconformity with sexual stereotypes. It drew a line.

While Simonton remains “good” law in the Second Circuit, i.e., it has not been overruled, the court in Boutillier refused to draw that line or apply its holding (thereby rejecting its precedential value – note the spelling here), citing instead to Holcomb v. Iona Coll.  There, the Second Circuit recognized “associational” race claims and determined that discriminating against a white male employee for marrying an African-American woman constitutes race discrimination under Title VII.  The court in Holcomb explained that where an employee is subjected to adverse action because an employer disapproves of interracial association, “the employee suffers discrimination because of the employee’s own race.”

Does Boutillier‘s application of the Holcomb reasoning instead of Simonton portend the Second Circuit’s eventual overruling of Simonton?  Maybe, especially since the Simonton case waxed on about this line between discrimination based on sex v. sexual orientation while the court in Boutillier found sex and sexual orientation to be necessarily entwined. Perhaps the application of Holcomb in Boutillier will give the Second Circuit Court of Appeals a reason to revisit this issue.

Seventh Circuit Discussion

As we know, the Seventh Circuit is poised to go the same way as Boutillier but for different reasons. In the recent rehearing en banc in Hively v. Ivy Tech Community College, Judge Posner upbraided defendant’s counsel who harkened back to the beginnings of Title VII to suggest that the original intent was not to include sexual orientation in the definition of “sex.”

Judge Posner said to counsel that “’You seem to think that the meaning of a statute is frozen, or the meaning of a constitutional provision is frozen on the date of enactment.  Is that your position?’  But [defendant’s counsel] can’t really respond to that one, either, because Posner supplies the answer: ‘Of course that’s false.’ He then notes that Congress passed Title VII in 1964. ‘That’s a long time ago in terms of how people thought about sex,’ Posner reminds [defendant’s counsel], ‘and in particular, how they thought about homosexuality. So you think we’re bound by what people thought in 1964?’”

Not so much.

Takeaway:

Will the Second Circuit overturn Simonton?

Will the Seventh and Second Circuits join forces and rule definitively that Title VII prohibits discrimination based on sexual orientation as sexual orientation is discrimination?

If so, will both both of these circuits pave the way for the law in the rest of the country?

Will we ever be able to fully track all of the characters in Rogue One with the rest of the Star Wars franchise and establish a real timeline? (I certainly will not, but enjoyed watching it with my eleven year-old, Sam, once he connected the dots for me.)

We’ll see. Courts seem more willing to expand Title VII rather than relying on stare decisis, i.e., not being able to do anything because they are bound by precedent.  Though Boutillier did not overrule Simonton, it may have started to pave the way.   

What should employers do? Ensure your decisions are made without regard to an individual’s sex or sexual orientation. Just follow the golden rule: treat others how you would wish to be treated. Equitably.