As a tiny crowd (we couldn’t resist) was gathering on the National Mall to witness the presidential inauguration of Donald Trump on Friday, January 20, a huge, enthusiastic coterie of LGBT rights supporters (again, we couldn’t resist) jammed into a courtroom in Foley Square in Manhattan to observe the oral argument before a 2nd Circuit panel of the appeal in Christiansen v. Omnicom Group, 167 F. Supp. 3d 598 (S.D.N.Y. 2016), in which District Judge Katherine Polk Failla had dismissed a Title VII sexual orientation discrimination claim by gay advertising executive Matthew Christiansen against DDB Worldwide Communications Group, having concluded that the district court was bound by 2nd Circuit precedent to dismiss the claim. (The complaint also alleged sexual orientation discrimination in violation of state and local law, but Judge Failla dismissed all of the plaintiffs’ federal claims and did not retain jurisdiction over the supplemental claims.)
A three-judge panel of the 11th Circuit heard argument on the same question in December, and the 7th Circuit heard argument en banc at the end of November. Press reports of the 7th Circuit argument suggest a good possibility that the 7th Circuit will break the unanimity of existing circuit precedents and adopt the EEOC’s new reading of the statute by a divided vote. A different 2nd Circuit panel actually heard argument in Zarda v. Altitude Express, presenting the same question, earlier in January. Zarda is an appeal from a little-noticed unpublished dismissal of a Title VII sexual orientation claim by a different district judge. It would be logical, one would think, for the circuit to consolidate the two appeals and go sua sponte to an en banc argument if any significant portion of the active 2nd Circuit bench is inclined to reconsider the question. The EEOC has weighed in as an amicus in some of the pending cases, and presented its views to the 2nd Circuit in the Christiansen case.