The Second Circuit Court of Appeals (which applies to Connecticut, New York and Vermont) has ruled that federal law prohibits employers from discriminating against workers based on their sexual orientation in Zarda v. Altitude Express, Inc., No. 15-3775 (Feb. 26, 2018).

The court made the ruling by a 10-3 vote, which overturned its earlier ruling in the case.

The court said that sexual orientation discrimination is motivated by sex (at least in part) so it is therefore a subset of sex discrimination, which is specifically outlawed by Title VII of the Civil Rights Act of 1964. Stereotyping of sex has long been considered a form of sex discrimination and “because sexual orientation discrimination is predicated on assumptions about how persons of a certain sex can or should be,” therefore it’s an impermissible basis for adverse employment actions (says the 2nd Circuit).

The ruling puts the 2nd Circuit in line with the 7th circuit, but the 11th Circuit remains firmly in opposition. The U.S. Supreme Court has declined to take up the question by refusing to review the 11th Circuit’s ruling. As the 2nd Circuit is now squarely in alignment with the 7th Circuit, but at odds with the 11th Circuit, the high court may need to review this issue, sooner rather than later. LGBTQ advocates continue to urge Congress to pass a law that specifically bans discrimination in the workplace based on sexual orientation and gender identity.

The U.S. Equal Employment Opportunity Commission (EEOC) maintains its position that Title VII does protect both sexual orientation and gender identity and continues to enforce that position.

As two Circuit Courts of Appeals and the EEOC are in agreement, many attorneys believe it prudent to have organizations refrain from discrimination against applicants and employees based on their sexual orientation. Furthermore, we believe it would be in an organization’s best interest to address harassment for these areas as they would any other protected characteristics. The task of separating gender non-conformity from sexual orientation is an involved legal one, and it may be safer to just add LGBTQ workers to your EEO policy. To ensure possible problems down the road, only add LGBTQ to your policy if you intend to administer those characteristics in the same fashion as others that are clearly listed as discriminatory. If you say it… do it, or you could open yourself up to other legal liability in the future.

If you are in Connecticut, this has been the law for a while, so you may have little to do to update your policies. This notification is being posted to ensure that you know that federal case law is now in agreement (at least in the Second Circuit). If you have facilities in other States, it may be a good time to review all of your state specific policies to ensure you are compliant in this area.