On February 26, 2018, the Federal appellate court covering New York State ruled that Title VII of the Civil Rights Act of 1964 protects employees from discrimination based on their sexual orientation. The case is Zarda v. Altitude Express, No. 15-3775 (2d Cir., Feb. 26, 2017).

The long-anticipated decision highlights a growing trend among Federal courts extending Title VII’s protections to employees based on their sexual orientation. With the decision, the Second Circuit Court of Appeals (covering New York, Vermont, and Connecticut) joins the Seventh Circuit (covering Wisconsin, Illinois, and Indiana) in explicitly ruling that sexual orientation discrimination constitutes discrimination “because of sex,” and is therefore unlawful under Title VII’s prohibition on sex discrimination. The Equal Employment Opportunity Commission (“EEOC”), which is charged with enforcing Title VII and processing complaints of discrimination, had strongly advocated for that position in recent years. EEOC Acting Chair Victoria Lipnic released a statement applauding the Second Circuit’s Zarda decision, stating that “this is a generous view of the law of employment protections, and a needed one.”

In Zarda, a skydiving instructor claimed he was fired by his employer because he was gay. The instructor first sued his former employer in 2010, arguing that his termination violated Title VII’s prohibition on sex discrimination. The Federal District Court hearing the case ruled against him, prompting the instructor to appeal to the Second Circuit. Last year, a three-judge panel of the Second Circuit heard the instructor’s appeal and again ruled against him—but only because the panel declared it was bound by the court’s precedent which ruled that Title VII does not protect sexual orientation. The precedential case in question was Simonton v. Runyon, a decision of the Second Circuit in 2000 which declared that Title VII does not protect sexual orientation.

Because three-judge panels of the court cannot overturn the court’s precedent, the instructor therefore asked the Second Circuit to sit en banc (i.e., to have all of the Second Circuit’s judges consider the case, rather than a panel of 3) and reconsider its past rulings on sexual orientation and Title VII. The court agreed, leading to this week’s ruling. In its 10-3 decision, the Second Circuit ruled that “sexual orientation discrimination, which is based on an employer’s opposition to association between particular sexes and thereby discriminates against an employee based on their own sex, constitutes discrimination because of sex.”

Employers in New York State should note that the decision brings Federal employment laws more in line with New York’s own employment laws. Under New York’s Human Rights Law, employee’s sexual orientation has been a protected charactieristic since 2003. But the Zarda decision signifies the expanding nature of employment law in recent years, both in the courts and in administrative proceedings before the EEOC or New York State Division of Human Rights.

And while a “generous” reading of Title VII and other employment laws is the general trend, not all are convinced that the actual text of Title VII protects sexual orientation. In an opinion concurring only with the outcome in Zarda, Second Circuit Judge Dennis Jacbos doubted the Second Circuit’s majority opinion that discrimination based on sexual orientation constitutes discrimination “because of sex,” and further dismissed the majority opinion as nothing but “woke dicta.”

More substantively, the Eleventh Circuit of Appeals, covering Alabama, Georgia, and Florida, last year ruled that Title VII does not protect sexual orientation. See Evans v. Georgia Regional Hospital. Given the Eleventh Circuit’s difference of opinion with the Second Circuit and Seventh Circuit, this “circuit split” appears ripe for review from the U.S. Supreme Court. The Supreme Court would then ultimately rule on whether Title VII protects sexual orientation, and the case would undoubtedly be one of the most closely watched cases in recent years. Whether such a case is coming in 2018 remains to be seen.