Third Circuit precedent does not permit litigants to bring sexual orientation discrimination claims under Title VII.

In May, a federal judge sitting in the Middle District of Pennsylvania dismissed a lawsuit filed by a gay aluminum manufacturing worker who had claimed he was subjected to harassment and a hostile work environment on the basis of his sexual orientation. The plaintiff alleged that he was verbally harassed and abused by coworkers over a four-year period after he revealed his sexual orientation, and when he complained to management, the harassment and abuse went unabated. Citing a two-decade old Third Circuit case, Bibby v. Coca Cola Bottling Co., 260 F.3d 257 (3d Cir. 2001), Judge Munley dismissed the plaintiff’s Title VII claims on the basis that sexual orientation is not a protected class under the statute.

Bibby may be overruled later this year when the United States Supreme Court decides whether the statute can be read to apply to discrimination based on sexual orientation or transgender status. The Court has granted certiorari in three cases: Altitude Express Inc. v. Zarda, No. 17-1623, Bostock v. Clayton Cnty., Ga., No. 17-1618, and R.G. & G.R. Harris Funeral Homes v. EEOC, No. 18-107, all of which concern whether Title VII’s protections extend to plaintiffs who identify as gay, lesbian, bisexual and/or transgender. 

_{Case Law Alerts, 3rd Quarter, July 2019}

_{Case Law Alerts is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2019 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.}