This week the U.S. Court of Appeals for the Second Circuit became the second federal appellate court to hold that Title VII of the Civil Rights Act of 1964 (“Title VII”) protects against workplace discrimination on the basis of sexual orientation. 

In Zarda v. Altitude Express, Inc., No. 15-3775, 2018 WL 1040820 (2d Cir. Feb. 26, 2018), the Second Circuit, sitting en banc, overturned a Second Circuit panel that had been bound by earlier precedents excluding sexual orientation claims from protection under Title VII. 

The Second Circuit in a 10-to-3 split decision, joined the Seventh Circuit, and held “that sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination.”

The Zarda decision, which is precedential for lower courts in Connecticut, New York and Vermont, adds to a circuit split that may provide the U.S. Supreme Court an opportunity to resolve the issue.  Recently, the Eleventh Circuit held that Title VII does not protect against workplace discrimination on the basis of sexual orientation.

If you wish to visit with us about this decision, please contact your Kutak Rock LLP attorney or a member of our Employment Litigation Practice Group.