Second Circuit Grants En Banc Review to Consider Whether Sexual Orientation Is a Protected Characteristic Under Title VII

Court Will Hear Zarda v. Altitude Express Appeal in September; May Become Second Federal Appellate Court to Protect Sexual Orientation Under Title VII May 26, 2017
The Second Circuit has granted en banc review in a case that has the potential to upend circuit law regarding sexual orientation discrimination under Title VII.  In Zarda v. Altitude Express, 855 F.3d 76 (2d Cir. 2017), a three-judge panel ruled on April 18 that it could not overturn circuit precedent holding that Title VII’s prohibition on sex discrimination did not encompass discrimination based on sexual orientation.  Zarda followed a similar decision in March, Christiansen v. Omnicom Group, Inc., 852 F.3d 195 (2d Cir. 2017), in which another three-judge panel also held that it was bound by the same precedent.  In Christiansen, Chief Judge Katzmann called for the Second Circuit to “revisit” that precedent “in the context of an appropriate case.”  That appropriate case appears to be Zarda, in which the plaintiff, a gay man, alleged that his employment was terminated because of his sexual orientation.  On appeal, the court will consider a single question:  “Does Title VII of the Civil Rights Act of 1964 prohibit discrimination on the basis of sexual orientation through its prohibition on discrimination ‘because of . . . sex’?”  Zarda v. Altitude Express, Inc., No. 15-3775 (2d Cir. Mar. 25, 2017).  Oral argument is scheduled for September 26, 2017.

Federal law in this area is rapidly changing.  On April 4, the Seventh Circuit became the first appellate court to hold that Title VII covers claims of sexual orientation discrimination.  See Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339 (7th Cir. 2017).   Many state and local governments already have barred sexual orientation discrimination under their anti-discrimination laws.  In New York, for example, the New York City and New York State Human Rights Laws prohibit discrimination on the basis of sexual orientation.

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