In Zarda v. Altitude Express, 883 F.3d 100, 109 (2d Cir. 2018), the U.S. Court of Appeals for the Second Circuit, sitting en banc, held that Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees on the basis of their sexual orientation. The U.S. Supreme Court took up this appeal, as well as two related appeals from the Sixth and Eleventh circuits, in Bostock v. Clayton County, and recently affirmed the Second Circuit’s decision, holding that Title VII protects employees from discrimination based on sexual orientation and transgender status. Both the majority decision in Bostock, authored by Justice Neil Gorsuch, and the majority en banc decision in Altitude Express, authored by Chief Circuit Judge Robert Katzmann, focused on the broad statutory text of Title VII, which makes it unlawful for an employer to “refuse to hire or to discharge” or “otherwise to discriminate against” any individual “because of” that individual’s “sex.” These landmark decisions mark a significant shift in employment law, making clear that Title VII provides federal protection to gay and transgender employees.
Title VII makes it unlawful for an employer to “fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” Title VII’s coverage extends to all private employers that have at least fifteen employees on each working day in at least twenty weeks in the current or preceding calendar year; and are engaged in an industry affecting interstate commerce. An employer has engaged in “impermissible consideration of … sex … in employment practices” when “sex … was a motivating factor for any employment practice,” irrespective of whether the employer was also motivated by “other factors.”
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