On March 27, 2017, the U.S. Court of Appeals for the Second Circuit in Christiansen v. Omnicom, No. 16-748, 2017 WL 1130183 (2d Cir. 2017), declined to overrule its own precedent holding that discrimination on the basis of sexual orientation is not prohibited by Title VII of the Civil Rights Act of 1964. The three-judge panel ruled that it was bound by the decisions of prior panels until such time as they are overruled by an en banc panel of the court or by the Supreme Court.
The court nevertheless reversed the district court and held that Christiansen had adequately pleaded gender stereotype discrimination under Title VII. In addition, Chief Judge Robert Katzmann authored a separate concurrence, arguing that sexual orientation discrimination is discrimination “because of such individual’s…sex” under Title VII, thus inviting a request for an en banc review.
