Employers are stuck with uncertainty over whether Title VII of the Civil Rights Act of 1964 prohibits sexual orientation discrimination. That’s because the U.S. Supreme Court announced Dec. 11 that it would not yet resolve a split among the appeals courts over this question.

Some predicted that the Supreme Court will eventually resolve the split, unless Congress passes legislation that clarifies the scope of Title VII.

But the high court may wait to see how other appeals courts rule on the issue before granting review. That way, the Supreme Court will know whether the 7th U.S. Circuit Court of Appeals—the one appeals court that has ruled that Title VII prohibits sexual orientation discrimination—is an outlier, said one attorney.

Shannon Farmer, an attorney with Ballard Spahr in Philadelphia, noted that the 2nd Circuit currently is considering the scope of Title VII. While a 2nd Circuit panel ruled that Title VII does not prohibit sexual orientation discrimination, the full 2nd Circuit has granted review in the case (Zarda v. Altitude Express, Inc.). Its upcoming decision "could widen that split and increase the likelihood that the Supreme Court will weigh in to resolve the issue," she said.

Read the full article here. Subscription may be required.

Related Practice