The Second Circuit has announced that it is scheduling en banc review and has asked the EEOC to weigh in on the controversial question of whether Title VII covers discrimination on sexual orientation. The court has invited the EEOC to brief and participate in oral argument in the case of Zarda v. Altitude Express, Inc. (15-3775), where a gay skydiving instructor has accused his employer of unlawful discrimination.
The Seventh Circuit has already held that Title VII does prohibit sexual orientation discrimination. There is also a pending en banc appeal of this issue in the Eleventh Circuit.
We will be monitoring this and other Second Circuit cases closely and will let you know as things develop.