RPJ Partner Larry Brocchini Notes U.S. Supreme Court’s Denial to Review Sexual Orientation Discrimination under Title VII

Supreme Court denies review for now, but will likely confront the issue at some point.

The U.S. Supreme Court refused to review a ruling of the United States Court of Appeals for the Eleventh Circuit affirming dismissal of a lesbian security guard’s Title VII discrimination claim based on her sexuality. The Eleventh Circuit relied on a 1979 precedent holding that “discharge for homosexuality is not prohibited by Title VII.”  It did, however, allow her to re-plead her complaint to allege discrimination based on the fact that she dresses and acts contrary to feminine stereotypes, a nature of complaint which the court found permitted under the Supreme Court’s 1989 Price Waterhouse v. Hopkins holding that Title VII bars discrimination based on acts contrary to sexual stereotypes.

One federal circuit court – the Seventh Circuit – has found that Title VII covers sexual orientation discrimination, in that case against a lesbian professor.  Other federal circuit courts that have addressed the issue have found that Title VII does not cover sexual orientation.  The Supreme Court often denies review to allow an issue to “percolate” among the circuit courts, and it is less surprising that the Supreme Court passed at this time because the full Second Circuit Court of Appeals (which includes New York) sitting en banc has heard re-argument on the issue, but has yet to weigh in.

This article is intended only as a general discussion of these issues. It is not considered to be legal advice or relied upon. If you need assistance with a particular situation, Larry Brocchini would be pleased to consider providing additional details or advice about specific situations.

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