Last week’s EmployNews reported an Eleventh Circuit Court of Appeals decision in which two of the three judges considering the case concluded that Title VII of the Civil Rights Act of 1964’s prohibition against sex discrimination did not directly include discrimination on the basis of sexual orientation. However, that court remanded the case to the district court for a determination on whether the employer engaged in illegal gender stereotyping under the U.S. Supreme Court’s Price Waterhouse decision.

Last week, the Second Circuit Court of Appeals reached a similar conclusion with regard to a gender stereotyping claim. The court first concluded that it could not overturn existing circuit precedent finding sexual orientation claims outside the scope of Title VII. However, the Second Circuit’s Chief Judge wrote a concurring opinion that urges the court to reconsider these older cases finding that Title VII does not include protections against sexual orientation discrimination in the absence of gender stereotyping.

In Christiansen v. Omnicom Group, Inc., the plaintiff alleged that he was subjected to a series of harassing and humiliating actions from his supervisor because he was gay. The alleged acts included sexually suggestive drawings of the plaintiff, and remarks about the connection between effeminacy, sexual orientation and HIV status. The district court dismissed the complaint on the basis of Second Circuit precedent from 2000 and 2005 which held that sexual orientation is not a protected classification under Title VII.

On appeal, the Second Circuit panel reversed this decision, concluding that under Price Waterhouse, the plaintiff’s claims included adequate allegations of gender stereotyping, because the supervisor’s alleged acts characterized the plaintiff as effeminate and submissive. The court rejected the district court’s conclusion that claims of sexual orientation and gender stereotyping cannot be logically distinguished. The district judge’s conclusion that most of the complaint involved claims of discrimination on the basis of sexual orientation does not erase the impact of the allegations of stereotyping behavior.

In his concurring opinion (joined by one of the other panel members), Chief Judge Katzmann suggested that the Second Circuit reconsider whether Title VII directly prohibits sexual orientation discrimination even absent evidence of specific gender stereotyping. Judge Katzmann used three arguments advanced by the Obama EEOC: (1) sexual orientation discrimination is sex discrimination because it treats similarly-situated people differently based on their sex; (2) the Supreme Court’s same-sex marriage decision, Obergfell, means Title VII now prohibits association discrimination against gay employees and applicants; and (3) under Price Waterhouse, sexual orientation discrimination inherently involves gender stereotypes.

This decision and the concurring opinion make it increasingly likely that the U.S. Supreme Court will eventually decide whether Title VII already prohibits discrimination on the basis of sexual orientation. The anticipated en banc decision of the Seventh Circuit Court of Appeals in a similar case may be the vehicle for this determination.