Supreme Court Declines To Rule On Whether Title VII Covers Sexual Orientation

The Supreme Court said today that it would not hear an appeal from a federal appeals court in Atlanta which dealt with the issue of whether Title VII prohibits discrimination on the basis of sexual orientation through its prohibition of discrimination “because of … sex.”

This is significant because there is a split on this issue between two federal appeals courts – and one more is set to weigh in pretty soon.

And the federal EEOC differs on this issue from the federal Justice Department.

Back in May, I wrote that the federal appeals court in NYC had agreed to have its full bench reconsider this issue after a three-judge federal appeals panel of the same court held in March that Title VII does not cover sexual orientation discrimination claims.  It heard arguments a few months ago, and we can expect a decision from the full court soon.

A similar situation arose in Chicago where the full appeals court there also heard a case with the identical issue and reversed its own panel in Hively v. Ivy Tech Comm. Coll., No. 15-1720, 2017 WL 1230393, at *1-2 (7th Cir. Apr. 4, 2017) (en banc), holding that Title VII indeed covers sexual orientation.  Its decision is, of course, directly opposite to that of the NY panel.

The Atlanta appeals court ruled just the opposite as the Court in Chicago – that “sex” as set forth in Title VI does not cover discrimination based on sexual orientation.

So what does this no-decision decision from the Supreme Court mean?

Well, it could mean that the Court is waiting for other appeals courts, such as the one in NY, to rule. Or it could mean that by not taking up the Atlanta case it is implicitly endorsing its ruling – that Title VII does not cover discrimination based on sexual orientation.

We may be in a better position to predict after the NY court rules.

Takeaway:  Not a No, But A Not Yet?

The attorney for the plaintiff in the Atlanta case said today: “The Supreme Court is delaying the inevitable and leaving a split in the circuits that will cause confusion across the country.  But this was not a ‘no,’ but a ‘not yet.’”


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Richard Cohen

Richard B. Cohen is a partner in the New York City office of FisherBroyles, LLP, a national law firm. Richard Cohen has litigated and arbitrated complex corporate, commercial and employment disputes for more than 35 years, and is a trusted advisor to business owners and in-house counsel both in the United States and internationally. His clients have included Fortune 100 companies, domestic and foreign commercial and investment banks, Pacific-rim corporations and real estate development companies, as well as start-up businesses throughout the United States. Email Richard at [email protected]