For many years Federal Courts of Appeal have found that Title VII does not protect sexual orientation discrimination claims.  Recently in April of 2017, in Hively v. Ivy Tech Community College of Indiana, the Seventh Circuit held that a person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forth a case of sex discrimination under Title VII.  

In March, 2017, in Evans v. Georgia Regional Hospital, the Eleventh Circuit held that sex discrimination does not include sexual orientation discrimination under Title VII and cited opinions from almost all of the other federal circuit courts holding the same.

Recently, in Zarda v. Altitude Express, Inc. d/b/a Skydive Long Island, the entire Second Circuit agreed to reconsider a panel’s affirmance of a lower court decision dismissing claims alleging sexual orientation discrimination under Title VII.  In that case the EEOC filed a brief which argues in favor of sexual orientation discrimination protection under Title VII.  However, the Department of Justice has filed a brief arguing that sexual orientation discrimination is not protected under Title VII.  Therefore, there is currently a split in the federal courts on this issue as well as a split between federal agencies.