Dissing Circuit Precedent

by Ed Whelan

Third Circuit precedent, like that of every other court of appeals to address the question, has long held that Title VII’s bar on sex discrimination in employment does not encompass a bar on sexual-orientation discrimination. Specifically, the Third Circuit declared in 2001 in Bibby v. Philadelphia Coca-Cola Bottling Co., “It is clear … that Title VII does not prohibit discrimination based on sexual orientation.” In 2009, in Prowel v. Wise Business Forms, the Third Circuit reiterated that sexual-orientation discrimination “is not cognizable under Title VII,” as it distinguished between claims of sexual-orientation discrimination and claims based on gender stereotyping.

Precedent, schmecedent. That was the response of federal district judge (and Obama appointee) Cathy Bissoon (W.D. Pa.) as she issued an order last Friday (in EEOC v. Scott Medical Health Center) denying a defendant’s motion to dismiss the EEOC’s claim of sexual-orientation discrimination under Title VII.

Bissoon asserts that the Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins “informs and controls” her analysis. But the Third Circuit’s decisions in Bibby and Prowel, which came two years and ten years, respectively, after Price Waterhouse, already discussed that ruling and considered its implications.

Bissoon offers several feeble reasons why she “does not view Bibby as dispositive.” First, she says, the Third Circuit in that case “was not presented with the same arguments or analytical framework” that the EEOC presented in her case. But arguments will always vary some from case to case, and circuit precedent means nothing if it can be evaded on such flimsy grounds.

Second, Bissoon says, “since the publications of Bibby and Prowel, district courts throughout the country have endorsed an interpretation of Title VII that includes a prohibition on discrimination based on sexual orientation.” Yes, that’s right: “district courts throughout the country”! Never mind that she cites a grand total of four cases (two of which are from a circuit that has contrary circuit precedent). What sort of a basis is this for a district judge to refuse to apply the precedent of her own circuit?

Third, Bissoon contends that “significant intervening legal developments … call into question how the [Third Circuit] evaluated Title VII in Bibby.” Again, never mind the weakness of her contention. Any such developments are for the Third Circuit to consider (preferably en banc); they are not an excuse for Bissoon to run riot.

Finally, Bissoon claims that the Supreme Court’s same-sex-marriage decision in Obergefell v. Hodges “demonstrates a growing recognition of the illegality of discrimination on the basis of sexual orientation.” And here I thought that the Court was purporting to interpret the Constitution. Again, if Obergefell somehow has any bearing on the Title VII question, that is for the Third Circuit to determine.

(Bissoon’s utter contempt for Third Circuit precedent is further demonstrated by her resort to a “Contra Prowel” citation on one point. Yes, she is directly acknowledging that her analysis conflicts with Third Circuit precedent on that point.)

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