Recent Developments in Title VII Jurisprudence Regarding LGBT Employees

Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., as amended, provides protection to employees from illegal discrimination and retaliation in the workplace on the basis of, among other protected categories, “gender” or “sex.” For decades, the Circuit Courts have all uniformly held that protection on the basis of sex under Title VII does not encompass sexual orientation discrimination claims, thereby preventing LGBT employees from mounting successful Title VII gender-related claims to remedy homophobia in the workplace. However, recent developments at the U.S. Equal Employment Opportunity Commission (“EEOC”) and in reported cases at the district and circuit court level suggest that the courts may be re-thinking the narrow view of gender that has informed federal case law on this issue for so long.

This course, presented by Daniela Nanau, an experienced NYC-based plaintiff-side employment lawyer, provides a summary of recent cases that expand Title VII’s definition of gender, and understanding of gender discrimination, to afford protection to LGBT workers. The course begins with a focus on the 2012 decision in Macy v. Holder where the EEOC held, for the first time, that transgender discrimination is sex discrimination for the purposes of Title VII, and how this decision has benefitted transgender employees who have litigated under Title VII in the district courts. The course will also focus on recent circuit court cases, with particular emphasis on the Second and Fourth Circuits, where several appeals are now pending that seek to expand the definition of gender discrimination to encompass sexual orientation claims brought on behalf of LGBT employees.

The cases to be discussed will include Hively v. Ivy Tech. Community College, a sexual orientation case that was dismissed by a three-member panel of the Fourth Circuit, which the Seventh Circuit then sua sponte reversed and vacated, and also decided to rehear en banc on November 30, 2016. Other cases will include Zarda v. Altitude Express and Christiansen v. Omnicom Group, two cases where oral argument was held before the Second Circuit in January 2017, where the plaintiffs argued that Title VII protects against sexual orientation discrimination.

Learning Objectives: 

1. Review EEOC’s 2012 decision in Macy v. Holder, and progeny, that now afford transgender workers protection under Title VII
2. Gain insight into recently argued Fourth and Second Circuit cases where the plaintiffs are challenging the narrow reading of “sex” under Title VII and arguing that Title VII protects against sexual orientation discrimination
3. Discuss developments at the district court level in other Circuits
4. Provide practical guidance to attorneys evaluating potential claims on behalf of LGBT workers in light of recent developments