On Monday, Chief Judge Robert Katzmann of the 2nd Circuit U.S. Court of Appeals wrote that anti-gay employment discrimination is almost certainly prohibited under existing federal law. Katzmann urged the 2nd Circuit to reconsider precedent holding that employees cannot sue for sexual orientation discrimination under Title VII of the Civil Rights Act of 1964, citing recent legal developments that support an expansive interpretation of “sex discrimination.” If Katzmann’s court accepts his challenge, the 2nd Circuit will further a growing consensus among the federal judiciary that Title VII already protects gay employees from workplace throughout the country. [...]
Katzmann first noted that anti-gay discrimination is, in a very literal sense, always sex discrimination: “Such discrimination,” he explained, “treats otherwise similarly‐situated people differently solely because of their sex.” When an employer mistreats a worker because she dates other women, sex is the key factor: If the employer were male, he could date women without a problem—but because she is female, she faces discrimination. That makes sex the “but for” cause of discrimination: But for the worker’s sex, he would not be mistreated. [...]
“[N]egative views of sexual orientation,” Katzmann wrote, “are often, if not always, rooted in the idea that men should be exclusively attracted to women and women should be exclusively attracted to men—as clear a gender stereotype as any. Thus, in my view, if gay, lesbian, or bisexual plaintiffs can show that they were discriminated against for failing to comply with some gender stereotype, including the stereotype that men should be exclusively attracted to women and women should be exclusively attracted to men, they have made out a cognizable sex discrimination claim.”
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