Friday, July 14, 2017
Marcia recently had a wonderful blog post here about the U.S. Court of Appeals for the Seventh Circuit's decision en banc which held that sexual orientation was covered under Title VII. In Hively v. Ivy Tech., the Seventh Circuit specifically ruled that "a person who alleges that she experienced employment dis- crimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes." The Second Circuit, also siting en banc, will now consider the same question.
The Second Circuit case, Zarda v. Altitude Express, will re-consider a panel's decision that Sexual Orientation is not protected under Title VII. Oral arguments in the case are scheduled for the fall, and it will be interesting to see if the court follows the decision of the Seventh Circuit. There is a great article on the pending case in the New York Law Journal, which is available here.
My guess is that the Supreme Court will ultimately be faced with the decision as to whether sexual orientation discrimination is covered by federal law. It would not be surprising, however, if the Court waited until a few more appellate courts (like the Second and Seventh Circuits) weighed in before addressing the issue.
-- Joe Seiner