On July 26, 2017, the U.S. Department of Justice (“DOJ”) filed an amicus brief in an employment discrimination case pending before the U.S. Court of Appeals for the Second Circuit. In Zarda v. Altitude Express, Inc., the plaintiff alleged he had been discriminated against based upon sexual orientation in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”).
The DOJ amicus brief argued that, although Title VII prohibits sex discrimination in employment, it does not proscribe sexual orientation discrimination. The brief emphasized that, until recently, federal Courts of Appeal uniformly held that sexual orientation bias is not unlawful under Title VII. The brief added: “Any efforts to amend Title VII’s scope should be directed to Congress rather than the courts.”
Nevertheless, on February 26, 2018, the Second Circuit ruled en banc that Title VII bars discrimination based on sexual orientation. Prior to the ruling, other Circuits had been evenly split on the issue. On April 4, 2017 an en banc decision by the Seventh Circuit in Hively v. Ivy Tech Community College of Indiana concluded “discrimination on the basis of sexual orientation is a form of sex discrimination” outlawed by Title VII. On March 10, 2017, the Eleventh Circuit in in Evans v. Georgia Regional Hosp. found (by a 2-1 vote) it could not recognize sexual orientation claims under Title VII.
For its part, the U.S. Supreme Court declined on December 11, 2017 to take up the issue of whether Title VII addresses sexual orientation discrimination.