In a May 16 Blog Post, I reviewed several cases dealing with the question of whether Title VII’s ban on discrimination “because of . . . sex” included a ban on discrimination “because of sexual preferences.”  I summarized three recent decisions by the United States Courts of Appeal – the Eleventh Circuit holding Title VII did not ban such discrimination, the Second Circuit reaching the same conclusion but criticizing that view in a case called Christiansen v. Omnicom Group Inc. (March 27, 2017), and the Seventh Circuit being the first Circuit Court to reach the opposite conclusion in a case called Hively v. Ivy Tech Community College (April 4, 2017).  I also noted that a court under the Second Circuit elected to follow the Seventh Circuit’s Hively decision, rather than the Second Circuit’s Christiansen decision.  I suggested that the “speed in which these decisions were issued could herald a major shift in the law.”

Now comes word that on May 31, 2017, the Second Circuit Court of Appeals may be reconsidering its Christiansen holding, albeit in a different case.  In a case called Zarda v. Altitude Express, Inc., Docket No. 15-3775, the Second Circuit invited the Equal Employment Opportunity Commission (“EEOC”) to participate as “a friend of the court” and present its views as to whether Title VII bans discrimination on the basis of sexual orientation.  The EEOC is the primary federal agency enforcing Title VII.  You can read the Court’s order here, and view an unusual letter the Clerk of the Court sent to the Acting Solicitor General of the United States here alerting the government to the case and the deadline for filing a brief.  (While the letter has a January 14, 2016 date on it, the letter was entered on the Court docket on May 31, 2017 and, thus, the date of the letter seems to be in error.)

What position will the EEOC take on the issue?  We cannot be sure at this stage.

In the Christiansen case, the EEOC filed a friend of the court brief arguing that VII was broad enough to prohibit sexual orientation discrimination.  Yet, the Trump Administration may have an entirely new view.  We do not know at this stage because President Trump has yet to nominate a new Solicitor General or had much of an impact on EEOC policy-making.  On one hand, the U.S. Census Bureau deleted a question asking about sexual orientation from the 2020 census.  On the other hand, the White house has been otherwise silent on the issue.

If the EEOC elects to participate, its brief is due to be filed by June 26.  Many will be watching.