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The courts are in a delicate situation when it comes to discrimination based on sexual orientation in the workplace.
"It's not about sex per se -- it doesn't matter who you slept with last night," attorney Susan Chana Lask argued on Jan. 20 in a case pending before the Second Circuit Court of Appeal.
Lask represents plaintiff Matthew Christiansen, who alleges that his supervisor ridiculed and abused him by making extreme anti-gay comments, passed around a picture of Christiansen's face pasted over a woman in a bikini in the "gay sexual receiving position," and drew offensive pictures of Christiansen on an office whiteboard with comments about AIDS addressed to Christiansen, who is HIV-positive.
While the trial court found the defendant's conduct was "reprehensible," the judge dismissed the case because the plaintiff could not make a claim for discrimination based on sexual orientation under the current law. On appeal to the Second Circuit, Lask said times had changed and the court should broaden the definition of "sex" to include discrimination based on sexual orientation.
The appeals court is caught between a long-standing precedent in the Second Circuit decision and a recent policy change at the Equal Employment Opportunity Commission. In Simonton v. Runyon, the court said that discrimination did not include discrimination based on sexual orientation. But in 2015, the EEOC changed its position and said discrimination can be based on sexual orientation.
The issue has challenged judges around the country, including the Seventh Circuit, where a three-judge panel rejected sexual orientation in Hively v. Ivy Tech Community College. The full court there voted in October to vacate that opinion and rehear the case en banc.
The Second Circuit, in the meantime, has followed its own precedent in not recognizing discrimination based on sexual orientation since Simonton. In that case, the court reluctantly determined that "morally reprehensible" acts by an employer against a gay man did not violate the Civil Rights Act.
In the oral arguments last week, the appellate judges questioned whether they could reverse Simonton or call for an en banc hearing.
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