On February 26, the U.S. Court of Appeals for the Second Circuit joined the Seventh Circuit in holding that sexual orientation discrimination is prohibited by Title VII of the Civil Rights Act of 1964 (Title VII). Zarda v. Altitude Sys., Inc., No. 15-3775 (2d Cir. 2018); Hively v. Ivy Tech Cmty. Coll., 853 F.2d 339 (7th Cir. 2017). As recently as last year, the Second Circuit reached a contrary conclusion. Christiansen v. Omnicom Group, 852 F.3d 195 (2d Cir. 2017). The Second and Seventh Circuit decisions conflict with the 2017 decision of the Eleventh Circuit Court of Appeals, which the Supreme Court declined to review. See Evans v. Georgia Regional Hosp., 850 F.2d 1248 (11th Cir.), cert. denied, 138 S. Ct. 556 (2017). Now that there are two circuit court decisions ruling that sexual orientation is protected under Title VII, the Supreme Court might decide that it is time to address the question either in Zarda, if the decision is appealed, or in a future case.

Many states and some cities and other municipalities have enacted laws that expressly and directly prohibit sexual orientation discrimination. There is, however, no federal law that directly outlaws this type of discrimination.

Title VII prohibits an employer from taking discriminatory action because of an individual’s sex. The question of whether sexual orientation discrimination constitutes discrimination “because of sex” has been politically charged. In fact, two federal agencies took opposing positions in Zarda. The EEOC, which since 2015 has taken the position that sexual orientation discrimination is covered by Title VII’s prohibition of sex discrimination (see Baldwin v. Foxx, EEOC Decision No. 0120133080 (July 15, 2015)), filed an amicus brief in support of the employee, Zarda. The Department of Justice filed an amicus brief in support of the employer, Altitude Express, taking the opposite position that Title VII does not expressly prohibit sexual orientation discrimination and that any expansion of the law under Title VII should be addressed by Congress, not the courts. Attorney General Jeff Sessions reacted to the Second Circuit’s ruling in Zarda by stating of the Second Circuit’s reversal of its position, “We believe we’re on the right principle there, and I guess maybe the judges woke up that morning, read the New York Times or something, and decided their previous ruling was wrong.”

For now, sexual orientation discrimination is unlawful in the Second and Seventh Circuits and in many states, cities and municipalities, but lawful elsewhere unless Congress acts or the Supreme Court accepts an appropriate case for review. In the meantime, employers should consider treating sexual orientation as a protected class when making employment decisions and drafting employment policies.