Just two weeks after the federal appeals court in New York City held that Title VII does not cover sexual orientation discrimination claims, another panel of the same court has come to the same conclusion.

And this comes on the heels of the federal appeals court in Chicago coming to the opposite conclusion on April 4th.

In the present case, the NYC appeals panel came up against the precedent set by the appeals court in Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), as affirmed by the decision in March in Christiansen v. Omnicom Grp., No. 16-478, 2017 WL 1130183, at *2 (2d Cir. Mar. 27, 2017), and held that “we decline [plaintiff’s] invitation to revisit our precedent. A separate panel of this Court recently held that Simonton can only be overturned by the entire Court sitting in banc.”

This decision is in stark opposition to the court in Chicago which, faced with the same situation, convened the entire court, en banc, and overturned precedent to hold that Title VII, indeed, covers sexual orientation discrimination claims. See Hively v. Ivy Tech Comm. Coll., No. 15-1720, 2017 WL 1230393, at *1-2 (7th Cir. Apr. 4, 2017) (in banc).

There is no doubt that there will be some resolution of the issue – likely before the Supreme Court.

“Is it time?”