The Second Circuit Court of Appeals has agreed to let its full panel determine whether Title VII of the Civil Rights Act prohibits employment discrimination on the basis of an individual’s sexual orientation. Zarda v. Altitude Express, Inc., No. 15-3775 (2d Cir. May 25, 2017) (en banc review granted).
As we wrote about last month, the full Seventh Circuit concluded in Hively v. Ivy Tech Community College of Indiana (7th Cir. 2017), in an 8-3 decision, that Title VII prohibits workplace discrimination based on sexual orientation. In so doing, the Seventh Circuit overruled its own precedent and became the first federal appeals court to hold that sexual orientation is a federally protected status.
The Second Circuit may likely now follow suit. Oral argument is set for September 25, 2017. The attorney who represented Ms. Hively in her Seventh Circuit case has advised Zarda’s attorney in this pending case. Also notably, this case is continued on by Zarda’s estate, who has since deceased after filing a lawsuit against his former employer challenging that his termination was because of his sexual orientation. Zarda (a sky diving instructor) alleged he was fired after he disclosed his sexual orientation to a female customer, whose boyfriend then complained to Zarda’s employer.
To round out the full panel review discussion, there remains a pending request with the Eleventh Circuit for its full panel to reconsider a 3-judge panel decision in Evans v. Georgia Regional Hospital (11th Cir. March 10, 2017), that prevented a Title VII sexual orientation claim from proceeding.
All of these decisions will remain closely watched.