On May 22, 2017, in Melissa Zarda et al. v. Altitude Express d/b/a Skydive Long Island et al., the Second Circuit agreed to hold an en banc hearing to determine whether an estate for a gay man, who alleged he was terminated as a result of a customer complaint related to his sexual orientation, may revive its previously dismissed case against the deceased's former employer. By granting the en banc hearing, the Second Circuit agreed to reconsider its current precedent that Title VII does not protect against discrimination based on sexual orientation.

On June 1, 2017, the Second Circuit invited the Equal Employment Opportunity Commission (EEOC) to participate as amicus curiae and write a brief answering the question "Does Title VII of the Civil Rights Act of 1964 prohibit discrimination on the basis of sexual orientation through its prohibition of discrimination 'because of sex'?" The EEOC had previously filed an amicus brief in the Christiansen case arguing that Title VII protects against sexual orientation discrimination based on the well-settled precedent that it is sex discrimination under Title VII to discriminate against someone who fails to conform to gender norms (e.g., being attracted to the same sex is nonconformance to gender norms). The EEOC took a similar position in this case.

On Feb. 26, 2018, the Second Circuit decided that the estate may revive its suit against the deceased's employer. In so doing, the Second Circuit held that "sexual orientation discrimination is motivated, at least in part, by sex, and is thus a subset of sex discrimination," which makes it sex discrimination under Title VII. This decision overturns the Second Circuit's prior precedent that held otherwise. The court based its decision on the text of the  statute, the Supreme Court's test for determining whether an employment practice constitutes discrimination, and the fact that Title VII should be broadly interpreted and that the "legal landscape" has changed since the Second Circuit last considered the issue in 2000 in the Simonton case. Specifically, the court cited the EEOC's position that sexual orientation is protected under Title VII as well as the Seventh Circuit's decision in Hively (which recently held that sexual orientation was a protected class under Title VII). This is a significant ruling for the Second Circuit, and further solidifies the circuit split on this matter.

Although most employers in the Second Circuit have already been treating sexual orientation as a protected class due to state statutes, now would be a good time to review your policies and procedures to ensure not only that sexual orientation is listed as a protected class, but also that managers and human resources professionals are trained in how to enforce these policies. Likewise, employers should ensure that employees are properly trained on proper workplace behavior, including what constitutes harassment.

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