- The vice president of student affairs at SUNY College of Optometry failed to show that he was fired based on his sexual orientation, the 2nd U.S. Circuit Court of Appeals ruled, declining to revive his discrimination suit (Philpott v. State University of New York, No. 19-935 (2nd Cir. March 17, 2020)).
- Jeffrey Philpott sued the university after his termination, alleging he had been subjected to discrimination, retaliation and a hostile work environment. Philpott said his supervisor made discriminatory comments "in the months and years" before his firing, but a district court granted summary judgment for the employer.
- The school provided "overwhelming evidence that Philpott was terminated after declining work performance, extensive absences from the office during business hours, and insubordination in connection with his emergency leave request," the appeals court said, noting that a reasonable jury could not find that the university's reasons for the action were pretextual. The appeals court also noted that Philpott had not established a prima facie case alleging a hostile work environment because any alleged comments were "isolated" and did not meet the threshold of pervasiveness.
The U.S. Supreme Court last year heard arguments on whether sexual orientation discrimination is protected by Title VII of the Civil Rights Act of 1964 and is expected to decide the question soon.
For now, federal appeals courts are split on the issue. The 2nd (in which Philpoll was decided), 6th and 7th Circuits have found Title VII protection for such workers but the 5th and 11th Circuits have ruled otherwise.
The question also has divided federal agencies. The U.S. Equal Employment Opportunity Commission (EEOC) takes the position that Title VII prohibits discrimination based on sexual orientation and gender identity. However, the Trump Administration, through the U.S. Department of Justice, has opposed that position.
Many states and municipalities have devised their own protections. In fact, employment discrimination on the basis of sexual orientation and gender identity is prohibited in at least 21 states and the District of Columbia.
Employment law attorneys previously told HR Dive they recommend employers do not discriminate against applicants and employees based on their sexual orientation and transgender status, especially because EEOC is enforcing its position.