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Title VII Bars Sexual Orientation Discrimination . . . But Not So Fast

By Katherine I. Tracy

This morning, the Second Circuit Court of Appeals became only the second federal appeals court to hold that the federal law barring sex discrimination (Title VII) also bars sexual orientation discrimination. In joining the Seventh Circuit Court of Appeals, the Second Circuit handed down a 10-3 decision in Zarda v. Altitude Express, finding sexual orientation discrimination is a form of discrimination “because of  . . . sex”. This morning’s decision puts the Second and Seventh Circuit Courts of Appeals at odds with another federal appeals court, the Eleventh Circuit.

The path to the decision in Zarda has been a long one that we have been monitoring for quite a while. With this morning’s decision, the Second Circuit overruled its prior decisions that held Title VII did not bar sexual orientation discrimination. Guided, in part, by guidance from the Equal Employment Opportunity Commission, the entire Second Circuit considered whether Title VII bars sexual orientation and a 10-3 majority held it does because “sex is necessarily a factor in sexual orientation.”

But, what does this mean for employees and employers in Kansas and Missouri? Well, the answer is . . . it depends. The decisions do not bind Kansas and Missouri federal courts. The opinions, however, may be useful to, and relied on by, Missouri and Kansas federal courts. If and when the issue comes before Kansas and Missouri federal courts, the courts will certainly consider the federal opinions from these Circuit Courts.

The U.S Supreme Court has yet to decide whether Title VII bars sexual orientation discrimination, and recently declined the opportunity to consider the issue when it decided against taking a case out of Georgia, Evans v. Georgia Regional Hospital, that raised a similar issue. Will the Zarda decision provide another opportunity for the U.S. Supreme Court to resolve the dispute between the federal courts? Time will tell.

If you have questions concerning sexual orientation discrimination, please contact us

 

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