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August 08, 2017

Second Circuit Court of Appeals to again consider if discrimination based on sexual orientation is prohibited by Title VII


Second Circuit Court of Appeals to again consider if discrimination based on sexual orientation is prohibited by Title VII
Zarda v Altitude Express dba Skydive Long Island, USCA, Docket No. 15-3775

In Simonton v Runyon, 232 F.3d 33,* the Second Circuit said that "[w]hen interpreting a statute, the role of a court is limited to discerning and adhering to legislative meaning." The court then ruled that "[t]he law is well-settled in this circuit and in all others to have reached the question that Simonton has no cause of action under Title VII [the Civil Rights Act of 1964] because Title VII does not prohibit harassment or discrimination because of sexual orientation."

The Second Circuit Court of Appeals has voted to conduct an en banc** rehearing of a three-judge panel’s decision in Zarda v Altitude Express*** declining Zarda's request that it overturn Simonton, a 2000 decision by the Second Circuit.

Following disposition of Zarda's appeal by the three judge panel, a judge of the Court requested a poll be taken on whether to rehear the case en banc. A poll was conducted and a majority of the active judges of the court voted in favor of rehearing Zarda's appeal en banc and it was so ordered.

However, rehearing Zarda's appeal en banc may present additional arguments for the Appellate Division to consider.

It has been reported that the U.S. Department of Justice will file an amicus brief contending that Title VII does not include protection against discrimination based on sexual orientation while it has been also reported that the Equal Employment Opportunity Commission will file an amicusbrief arguing that Title VII does prohibit discrimination based on the sexual orientation of the individual.  

* The decision in Simonton v Runyon  is posted on the Internet at: http://caselaw.findlaw.com/us-2nd-circuit/1203810.html

** A case heard by all the judges of a court rather than by a panel of judges selected from the entire court is said to heard en banc

*** This decision of the three-judge panel is posted on the Internet at:


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