Another Circuit Court Holds Sexual Orientation Discrimination Illegal in the Workplace

In our Transition Strategies, LLC Spring 2017 Newsletter, we reported that the Chicago-based Court of Appeals for the Seventh Circuit had issued a precedential opinion holding that sexual orientation discrimination in the workplace is illegal under the Civil Rights Act (Hively v. Ivy Tech Community College of Indiana).   This was the first and highest federal court to grant such LGBT employment protections.  Another appellate court, the Eleventh Circuit, reached the opposite conclusion last March (Evans v. Georgia Regional Hospital).

Now the influential New York Court of Appeals has lined up with the Seventh Circuit by holding that workplace sexual orientation discrimination is covered under the federal civil rights laws, and thus is illegal (Zarda v. Altitude Express, Inc.). 

It has been incongruous that LGBT workers could legally marry under federal law yet could then be legally fired if they put a wedding photo out in the workplace, and an employer decided to fire them merely because they were gay.  

The EEOC has strongly argued for including sexual orientation as a protected class under Title VII even though U.S. Attorney Jeff Sessions has reversed the Justice Department’s prior stance and now is arguing that sexual orientation should not be protected.

There is another case currently pending on this question before the Eighth Circuit (Horton v. Midwest Geriatric Management).    With pending appeals possible on any or all of these holdings, it leaves open the possibility that the issue of LGBT workplace discrimination protections could ultimately be decided by the U.S. Supreme Court.