On Jan. 20 2017, the U.S. Court of Appeals for the Second Circuit will hear oral arguments in Christiansen v. Omnicom, a case addressing whether Title VII’s prohibition of discrimination “because of sex” includes a prohibition on discrimination based on “sexual orientation.”1 While the Second Circuit has previously held that Title VII does not prohibit discrimination based on sexual orientation, in recent years there has been a movement by other courts and the U.S. Equal Employment Opportunity Commission (EEOC) in the opposite direction.
In the 2015 case Baldwin v. Dept. of Transportation, the EEOC determined that discrimination “because of sex” included discrimination based on sexual orientation2 and a number of recent federal district courts have leaned toward the same conclusion. While no federal appellate court has yet held that Title VII prohibits discrimination based on sexual orientation, in October 2016 the U.S. Court of Appeals for the Seventh Circuit vacated a decision by a three-judge panel holding that Title VII does not include discrimination based on sexual orientation and granted a motion for rehearing en banc. Hivley v. Ivy Tech Community College, 830 F.3d 698 (7th Cir. 2016). Based on the questions asked at oral argument, there is speculation that the Seventh Circuit will hold that discrimination “because of sex” includes discrimination based on sexual orientation.
