- In an unusual move, the U.S. Court of Appeals for the 2nd Circuit has requested the Employment Opportunity Commission's (EEOC's) opinion on whether Title VII of the 1964 Civil Rights Act covers sexual orientation discrimination, says the National Law Review.
- The EEOC has made its stand on the issue clear, and has argued in court that, since Title VII prohibits sex discrimination, it also protects the rights of victims of sexual orientation bias. The agency's view is that sexual orientation discrimination is a form of associational discrimination, says the Review.
- The request came after the 2nd Circuit granted an en banc review of the plaintiff's claim in Zarda v. Altitude Express, Inc.
The Second Circuit Court of Appeals seems unusual, since the EEOC has made its position clear in court arguments and in written reports. The move then seems to signal that the Second Circuit may be looking for a way to turn around their original ruling, similar to what the 7th Circuit did earlier this year with Hively v. Ivy Tech.
Confusion about Title VII's protections have surfaced in court decisions, as courts wrestle with precedent they may no longer see as totally valid. The 7th Circuit made headlines when it called back a decision that ruled in favor of the defendant, saying that precedent made it difficult for the court to rule that sexual orientation could be protected under sex discrimination. When reviewed en banc, the court instead ruled in favor of the plaintiff — a potential landmark ruling for LGBT advocates and employees.
Conflict over precedent may continue and push the case to the Supreme Court if the 2nd Circuit retains its ruling in favor of the defendant. The 2nd Circuit had also ruled against the plaintiff in Christiansen v. Omnicom Group, Inc. in March. Employers will have to wait and see whether the EEOC will change the court's stand.