permitting a Title VII failure-to-promote claim based on alleged sexual favoritism, where the defendant did not dispute that such a claim was within Title VII and where the court applied a now-discredited approach to pretext
How later courts described this case
- permitting a Title VII failure-to-promote claim based on alleged sexual favoritism, where the defendant did not dispute that such a claim was within Title VII and where the court applied a now-discredited approach to pretext
- approving the notion that "unlawful sex discrimination occurs whenever sex is for no legitimate reason a substantial factor in the discrimination"
- “Burdine makes it absolutely clear that a plaintiff who establishes a prima facie case of intentional discrimination and who discredits the defendants’ rebuttal should prevail, even if he or she has offered no direct evidence of discrimination.”
- party asserting intentional discrimination need not produce direct evidence of discriminatory intent but may demonstrate it through indirect evidence
Written by the judges who cited it.
Later courts went against this
Abrogated on other grounds by St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)
778 F.2d 878 (D.C.Cir.1985), abrogated on other grounds by St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (stating that “unlawful sex discrimination occurs whenever sex is for no legitimate reason a substantial factor in the discrimination.
Declined to follow in part by DeCintio v. Westchester County Medical Center, 807 F.2d 304 (1986)
To the extent that King and cases following King, e.g., Kersul v. Skulls Angels Inc., 130 Misc.2d 345, 495 N.Y.S.2d 886 (Sup.Ct.1985), can be interpreted as recognizing Title VII claims for non-gender based sex discrimination, we decline to adopt such a broad extension of Title VII protection.
The opinion
On Rehearing En Banc
Before: ROBINSON, Chief Judge; WRIGHT, WALD, MIKVA, EDWARDS, GINSBURG, BORK, SCALIA, STARR, SILBERMAN and BUCKLEY, Circuit Judges; McGOWAN, Senior Circuit Judge.
ORDER *
Per Curiam.
The suggestion for rehearing en banc of appellees has been circulated to the full Court and no member has requested the taking of a vote thereon. Upon consideration of the foregoing, it is
ORDERED, by the Court, that the suggestion is denied.
ORDER
PER CURIAM.
Upon consideration of the motion of the United States for an extension of time within which to file a brief as amicus curiae regarding rehearing en banc, it is
ORDERED, by the Court en banc, that the motion is denied.
BORK, Circuit Judge, with whom Circuit Judges GINSBURG, SCALIA, STARR, SILBERMAN and BUCKLEY join:
In voting to deny the suggestion of rehearing en banc and the motion of the United States for an extension of time within which to file a brief as amicus curiae regarding rehearing, we noted the concern of the United States that the panel decision “may represent a significant expansion of Title VII coverage.” The United States wished time to consider whether to file a brief addressing the question whether Title VII affords a claim for relief for sex-based discrimination to a woman who alleges that she was denied a promotion in favor of another woman who had a sexual relationship with their supervisor. Rehearing of that issue en banc would be inappropriate because no party challenged that application of Title VII on appeal, and the issue was not briefed or argued to the panel. Indeed, the losing parties’ petition for rehearing and suggestion of rehearing en banc again did not raise that issue. Because the point was not before the panel on appeal, there is no occasion to address the issue en banc.
Chief Judge Robinson did not participate in this order.