In March 2016, we reported on a trend in local and state legislatures offering workplace protections to individuals based on sexual orientation. We also noted that in the last few years, the United States Equal Employment Opportunity Commission has joined that trend by interpreting Title VII as precluding sexual orientation discrimination. Until very recently, however, the EEOC faced an uphill battle in expanding the coverage of Title VII, in part given decisions by the Third and Fourth Circuits to the effect that Title VII does not protect against sexual orientation discrimination.
The tide may now be turning. In April, the U.S. Court of Appeals for the Seventh Circuit in Hively v. Ivy Tech Community College of Indiana ruled that Title VII bans workplace bias based on sexual orientation. The court overruled its own precedent that held that federal civil rights law does not cover sexual orientation discrimination. The Seventh Circuit is the first federal court of appeals to find Title VII prohibits sexual orientation discrimination.
Last month, the U.S. Court of Appeals for the Second Circuit in Zarda v. Altitude Express, Inc., granted full court review of a case involving the termination of an individual allegedly because he was gay. A three-judge appeals court panel denied the claim based on applicable circuit precedent, which holds that Title VII does not cover sexual orientation. The Second Circuit is now the second court of appeals to reconsider whether sexual orientation bias falls within the purview of Title VII.
Additionally, a petition for full circuit court of appeal review of the same issue is pending in the U.S. Court of Appeals for the Eleventh Circuit in Evans v. Georgia Regional Hospital. In that case, a three-judge panel ruled that a lesbian security guard had no claim under Title VII for sexual orientation discrimination.
In all likelihood, one of these cases will eventually wind up before the U.S. Supreme Court to resolve a split in the circuit courts of appeal over this important issue. Stay tuned.