Senior Judge Alvin K. Hellerstein of the U.S. District Court for the Southern District of New York, within the jurisdiction of the 2nd Circuit Court of Appeals, declined to dismiss a Title VII claim for sexual orientation discrimination, citing the “evolving state of the law on this question,” rather than abiding by the controlling precedent of the circuit. Philpott v. New York, 2017 U.S. Dist. LEXIS 67591, 2017 WL 1750398 (S.D.N.Y. May 3, 2017).
Following the lead of a senior district judge in Connecticut (also in the 2nd Circuit), Warren W. Eginton, Judge Hellerstein also reacted to the flurry of Title VII developments in the 2nd and 7th Circuits in the last two months (namely the Christiansen and Hively decisions), perhaps seeing the writing on the wall. See Boutillier v. Hartford Public Schools, 2016 U.S. Dist. LEXIS 159093, 2016 WL 6818348 (D. Conn. Nov. 17, 2016) (rejecting an employer’s motion to dismiss a Title VII sex discrimination claim brought by an openly gay employee despite 2nd Circuit precedent). Indeed, only 22 days after he denied this motion to dismiss, the 2nd Circuit announced it would go en banc to affirmatively reexamine this question in the case of Zarda v. Altitude Express, Inc., 855 F.3d 76 (2d Cir. 2017), with argument scheduled for September 26.