Nathaniel Glasser Quoted in “4 Takeaways From 2nd Circ. Ruling Rejecting Anti-Gay Bias”

Law360

Nathaniel M. Glasser, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Washington, DC, office, was quoted in Law360, in “4 Takeaways From 2nd Circ. Ruling Rejecting Anti-Gay Bias,” by Vin Gurrieri. (Read the full version – subscription required.)

Following is an excerpt:

By adopting the U.S. Equal Employment Opportunity Commission’s stance that workplace sexual orientation bias is within Title VII’s reach, the Second Circuit moved the ball forward on an evolving legal issue that affects workplaces nationwide and will likely land at the U.S. Supreme Court before long, experts say.

The Second Circuit’s en banc decision Monday, which featured four concurrences and three dissents, upended the circuit’s precedent on the reach of Title VII and established that sexual orientation discrimination is covered under the statute’s existing ban on sex-based bias. …

Given that the Second Circuit’s ruling is the second time a court has sided with the EEOC on the sexual orientation issue, attorneys told Law360 that any further appellate court decisions that deepen that split could spur the Supreme Court to settle it.

“Now that we have a third circuit opinion on the issue ... at some point we’re going to see this issue before the Supreme Court. The question is when,” Glasser said. …

Although the Second Circuit’s decision is notable in its importance, Glasser said it doesn’t really change much on a day-to-day basis for employers that operate within the court’s confines. While it gives individuals the ability to bring a federal Title VII lawsuit alleging sexual orientation bias, all three states in the circuit have state laws that include sexual orientation as a protected category.

“So employers operating in those jurisdictions should already have policies that prohibit such discrimination,” Glasser said.  …

“What may have been a surprise to some, although wasn’t completely unexpected, was the extent to which the majority opinion explored the issues and adopted each of the justifications that have been put forth by the EEOC for finding that sexual orientation discrimination is covered by Title VII,” said Nathaniel Glasser of Epstein Becker Green, adding that it serves as “an indication of how much weight employers should be giving to guidance that is issued by the EEOC.”