In a recent en banc decision issued on February 26, 2018, the U.S. Court of Appeals for the Second Circuit held that Title VII of the Civil Rights Act of 1964’s prohibition against sex discrimination in employment includes discrimination based on sexual orientation. The case, Zarda v. Altitude Express, makes clear that employees working within the Second Circuit (New York, Connecticut and Vermont) have access to the remedial measures and administrative process under Title VII, a federal law. It is worth noting that employers in these states were already prohibited from discriminating on the basis of sexual orientation under express provisions of each state’s laws. Nonetheless, this decision is significant because it advances the split in federal circuit courts of appeal on this issue, making review by the U.S. Supreme Court more likely.
By its holding in Zarda, the Second Circuit joined the Seventh Circuit’s decision in Hively v. Ivy Tech. Comm. Coll., reversing relatively recent precedent finding sexual orientation to be beyond the reach of Title VII. These decisions are directly at odds with a recent decision by the Eleventh Circuit, Evans v. Georgia Regional Hospital, upholding its prior precedent, ruling that Title VII does not prohibit sexual orientation discrimination. With an additional court of appeals joining the split on this hot-button issue, the road to Supreme Court review seems likely to get shorter.
Employers should be aware that even in circuits where the court of appeals has not recently revisited this issue, some district courts have also changed course in this area, and many individual state and municipal laws prohibit this same conduct. With some federal courts changing their view on the breadth of Title VII’s protections, employers should take time to review their anti-discrimination policies to make sure they are in line with the law governing jurisdictions where they operate.