Sexual Orientation Discrimination under Title VII in the 2nd Circuit: A Work in Progress

The 2nd Circuit Court of Appeals announced on May 25 that it will hear argument en banc in Zarda v. Altitude Express, Inc., on September 26.   The court’s Order directed the parties to brief only the following question: “Does Title VII of the Civil Rights Act of 1964 prohibit discrimination on the basis of sexual orientation through its prohibition of discrimination ‘because of . . . sex’?”

A 2nd Circuit panel had ruled against the appeal from an adverse summary judgment on the plaintiff’s Title VII claim; see 855 F.3d 76, finding the sexual orientation discrimination claim to be barred by Circuit precedent. Counsel for the Zarda Estate executors, Gregory Antollino and Stephen Bergstein, filed a petition seeking rehearing en banc on May 2, but the 2nd Circuit’s Order implies that the wheels had already been put in motion for this en banc rehearing by the court itself, relating that “a judge of the Court requested a poll on whether to rehear the case en banc” following disposition of the appeal by a three-judge panel on April 18, and that a majority of the active judges voted in favor of rehearing. The court also indicated that the two senior judges who sat on the three-judge panel, Robert Sack and Gerard Lynch, would participate in the en banc rehearing. Mr. Antollino, who argued before the three-judge panel, will argue for the appellants in the en banc hearing.

For the full story, access the June 2017 issue of LGBT Law Notes.