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Appeal of Second Circuit Decision Sets Table for Supreme Court Review of Sexual Orientation Protections

    Client Alerts
  • June 11, 2018

As anticipated, the losing employer in the Second Circuit Court of Appeals’ Zarda v. Altitude Express decision has filed a petition for certiorari with the U.S. Supreme Court. If accepted by the court, this case could determine whether Title VII’s sex discrimination prohibitions also protect against discrimination and harassment based on sexual orientation. In an en banc decision, a divided Second Circuit reversed its own precedent, concluding that federal law prohibits discrimination on the basis of sexual orientation.
Currently, employees’ ability to file suit for sexual orientation discrimination or harassment under Title VII depends on where they work. The Second and Seventh Circuits concluded that Title VII’s sex discrimination prohibitions should be broadly read to cover sexual orientation. Other federal circuits have concluded over the years that Title VII was not intended to apply in this manner. The EEOC supports the Second Circuit’s decision, while interestingly, the Trump administration’s Department of Justice filed a brief in the Second Circuit case arguing for the employer’s exclusionary reading of the statute.
If accepted for review, this decision could set a nationwide standard for employment protections for LGBT employees. If the employer prevails, the law would revert to a division between states that prohibit national origin discrimination in employment and those that do not extend such protections. If the Supreme Court grants the petition, oral arguments and a decision would not occur before its next term, which begins in October.