On February 26, 2018, the Second Circuit Court of Appeals reversed its own 2000 precedent and held that Title VII prohibit sexual orientation discrimination.  The decision aligns the Second Circuit with the Seventh Circuit and puts it at odds with the Eleventh Circuit, heightening a circuit split that could entice the Supreme Court to weigh in.

The multi-faceted decision stated that, at the time Title VII was drafted, Congress could not have anticipated the “full spectrum of employment discrimination” individuals could experience, requiring the courts to fill the gap.  The Court bolstered its rationale by referencing Supreme Court precedent that gender stereotypes cannot be the bases for employment decisions and linked such stereotyping to discrimination on the basis of sexual orientation.  Finally, the Court held that associational discrimination protects sexual orientation, just as it protects an employee who marries a person of a different race.

The minority opinion looked to history to support its argument, noting that when Title VII was passed, same-sex relationships were not considered protectable at the time, with many states criminalizing them.  Therefore, Congress could not have intended to protect gay employees when drafting and passing the law.

The Court’s 10-3 en banc decision was a win for the EEOC and the plaintiff—the estate of a deceased skydiving instructor who was allegedly fired in 2010 for telling a client he was gay.  The plaintiff was backed by a number of corporations, including Alphabet Inc.’s Google, Microsoft Corp., CBS Corp., Viacom Inc, Lyft, Inc., and Ben & Jerry’s.  The defendant maintains that the plaintiff was not subjected to any discrimination during his employment.