- The U.S. Supreme Court now has another chance to resolve a split among the federal circuit courts of appeal over sexual orientation discrimination in employment. Altitude Express, the employer at the center of a 2nd U.S. Circuit Court of Appeals case on the issue, has asked the High Court to take up the question.
- In a February en banc decision, the 2nd Circuit ruled ruled 10-3 that Title VII of the Civil Rights Act of 1964 protects employees from discrimination based on their sexual orientation (Zarda v. Altitude Express, Inc., No. 15‐3775, Feb. 26, 2018).
- The High Court declined to review an 11th Circuit opinion regarding the same issue in December. That court held that held that gender nonconformity is covered under the law's sex discrimination protections but that sexual orientation itself is not.
A split on this issue has rankled the circuit courts for some time. Currently, the 2nd and 7th Circuits say that sexual orientation discrimination is illegal, while the 11th Circuit takes the opposite stance. The High Court declined to address the question just a few months ago, but as the split may be ready to widen again, this request may be one to keep an eye on. Even the petition makes mention of such: "It is inevitable that this issue will come before the Court time and time again."
Altitude argues that Congress — not the courts — should take responsibility for any changes to the law. "The Constitution establishes a procedure for enacting and amending statutes: bicameralism and presentment," the petition said, essentially arguing that the courts have no place to upend 50 years of precedent, even in the face of a changed culture. "Rather, what must be resolved is whether, as a matter of law, Title VII encompasses sexual orientation discrimination," the employer argued. "The answer remains, as it has, no."
Regardless, the U.S. Equal Employment Opportunity Commission (EEOC) remains a staunch defender of the position that Title VII does in fact protect sexual orientation and gender identity (despite opposition from the Trump administration). In light of that, attorneys have advised that businesses should refrain from discriminating against applicants and employees based on sexual orientation.