This morning, the United States Court of Appeals for the Second Circuit entered an order, upholding protection under Title VII of the Civil Rights Act of 1964 (“Title VII") for sexual orientation discrimination in the workplace. The order followed an en banc review of a July 2017 decision by the Eastern District of New York. The panel held that “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of discrimination.”

This ruling aligns the Second Circuit with a landmark decision from the Seventh Circuit. Although the United States Supreme Court declined to review a contrary decisionfrom the Eleventh Circuit in December 2017, this may offer the Supreme Court another opportunity to resolve the growing Circuit split over the applicability of Title VII sexual discrimination protection to discrimination pertaining to sexual orientation and sexual identity.

The Equal Employment Opportunity Commission (“EEOC”) has previously taken the position that sexual orientation is a protected class. As such, the EEOC filed an amicus brief in support of the estate of the plaintiff in this lawsuit, arguing that he was wrongfully terminated for revealing to a client that he was gay. However, in support of the employer, the United States Justice Department took a contrary position and filed its own amicus brief, opposing the inclusion of LGBT protection under Title VII.

Employers should continue to be mindful of this developing issue of LGBT employment protection when implementing company policies and employment manuals.