We previously discussed the conflict between a Second Circuit panel’s holding in April that Title VII of the 1964 Civil Rights Act did not prohibit discrimination on the basis of sexual orientation and the Seventh Circuit’s landmark ruling the same month reaching the opposite conclusion. The Second Circuit has now ordered en banc review of the April panel ruling, meaning that the entire court will rehear the case, and may be poised to follow the Seventh Circuit in extending Title VII to sexual orientation claims.

The Second Circuit’s reversal of its panel’s decision would not eliminate the circuit split on this issue, as a three-judge panel of the Eleventh Circuit ruled in March that Title VII does not protect individuals from discrimination in the workplace based on their sexual orientation. Moreover, even if both the Second and Eleventh Circuits were to reverse their earlier panel rulings and conclude that sexual orientation discrimination claims are cognizable under federal law, this issue could eventually make its way to the Supreme Court.

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