2d Circuit En Banc Panel to Consider Sexual Orientation Discrimination Claims Under Title VII

In Zarda v. Altitude Express (2d Cir. No. 15-3775 April 18, 2017), the Second Circuit – in a per curiam opinion issued by a panel comprising Judges Jacobs, Sack, and Lynch – affirmed the summary judgment dismissal of a gay man’s claim that his employer terminated him because of his sexual orientation, in violation of Title VII of the Civil Rights Act of 1964.

Plaintiff, a male skydiving instructor, alleged that he was fired from his job because of his sexual orientation. While plaintiff’s state law claims proceeded to a jury trial, the district court held that the defendants were entitled to summary judgment on plaintiff’s Title VII claim, in light of Second Circuit precedent holding that Title VII does not protect against discrimination based on sexual orientation.

The court declined plaintiff’s invitation to “reconsider [its] interpretation of Title VII in order to hold that Title VII’s prohibition on discrimination based on ‘sex’ encompasses discrimination based on ‘sexual orientation[]’ [s]ince a three-judge panel of this Court lacks the power to overturn Circuit precedent.” It held that its decision was controlled by  Simonton v. Runyon, 232 F.3d 33, 36 (2d Cir. 2000).

The court recently indicated, however, that a full (en banc) panel will consider the issue.

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