As we observed in a recent post on the Seventh Circuit’s decision in Hively v. Ivy Tech Community College extending Title VII to sexual orientation claims, the Supreme Court will probably have to resolve the disagreement among the federal circuit courts over whether the statutory language “because of…sex” should be interpreted to include “because of…sexual orientation.” And sure enough, on the heels of one Second Circuit panel decision late last month that refused to extend Title VII to cover sexual orientation, a different panel of that court again declined last week to reverse its own precedent, finding that Title VII’s prohibition against sex discrimination does not extend to discrimination against lesbian, gay, and bisexual employees based purely on their sexual orientation.

In Zarda v. Altitude Express, No. 15-3775 (April 18, 2017), a gay man alleged that his employer terminated him for disclosing his sexual orientation to a customer. The court distinguished Zarda’s case from last month’s panel ruling in Christiansen v. Omnicon Group, observing that unlike in Christiansen, the trial court determined that Zarda had not adduced evidence sufficient to draw a causal link between his employer’s alleged gender stereotyping and his termination. Because Zarda failed to challenge the gender stereotyping ruling on appeal, the court could only review Zarda’s sexual orientation-based claim. While the court found error in the lower court’s instruction requiring the jury to analyze the evidence under a higher causation standard than Title VII requires, it nevertheless held Zarda could only prevail if sexual orientation discrimination were unlawful under Title VII. Because the court’s 2000 decision in Simonton v. Runyon foreclosed the possibility of sexual orientation discrimination claims prevailing independently in the Second Circuit, and because the panel found itself powerless to reverse the earlier panel ruling, Zarda lost on appeal.

While both Second Circuit panels to have recently considered this issue have concluded that sexual orientation claims are not cognizable under Title VII, the opinions appear somewhat limited in that they seem to rest upon the panels’ lack of authority to reverse precedent rather than on any firm belief in the soundness of that precedent. However, unless and until the Second Circuit agrees en banc to reconsider its precedent – or the Supreme Court steps in and resolves the current circuit split – Simonton’s rejection of Title VII sexual orientation claims remains the law in the federal courts of New York, Connecticut, and Vermont.

Earlier this month, the attorney for Matthew Christiansen asked the Second Circuit for more time to file a petition for en banc rehearing of that case; this move came about a week after Zarda filed a motion seeking the right to intervene in the Christiansen case and push for an en banc rehearing.  Jameka Evans, the plaintiff and appellant in a similar case, has recently asked the full Eleventh Circuit (Alabama, Florida, and Georgia) to rehear her case, Evans v. Georgia Regional Hospital.  Four members of Congress asked the Eleventh Circuit for permission to file an amicus brief in support of her request for rehearing.