Second Circuit Breaks Ground: Federal Protection Against Sexual Orientation Discrimination

March 7, 2018

On February 26, 2018, the Second Circuit ruled for the first time that discrimination based on sexual orientation is unlawful under Title VII of the Civil Rights Act of 1964. The question at issue in Zarda v. Altitude Express, No. 15-3775 (2d Cir. Feb. 26, 2018) – whether Title VII covers sexual orientation discrimination – has created a circuit split within the appellate courts. Currently, the Second and Seventh Circuits have ruled that Title VII prohibits sexual orientation bias, and the Eleventh Circuit has held that Title VII does not encompass sexual orientation discrimination. In making its ruling, the Second Circuit overturned its previous precedent dating back to 2000 and 2005. It is likely that the Supreme Court will take up this issue.

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