Thursday, July 27, 2017

DOJ to En Banc 2nd Circuit: Sexual Orientation NOT protected by Title VII

We recently blogged here about the Second Circuit's recent decision to take en banc the issue of whether or not sexual orientation discrimination is protected by Title VII.  The Second Circuit case, Zarda v. Altitude Express, will re-consider a panel's earlier decision that sexual orientation is not protected. Oral arguments in the case are scheduled for the fall (see article in the New York law journal here), and it will be interesting to see if the court follows the decision of the en banc Seventh Circuit in Hively v. Ivy Tech., 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."

Yesterday, the Department of Justice filed an amicus brief in the case. DOJ is taking the position that sexual orientation is not protected under Title VII.   This position is obviously creating a lot of controversy, and there are already articles in numerous news outlets on the issue, including CNN and the New York Times. It will be interesting to see what other amicus briefs are filed in the case and the positions taken by other groups and organizations on this important issue. Again, this will likely be an issue that is ultimately resolved by the Supreme Court. 

-- Joe Seiner

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