Resolving the Paradox

On Monday, the 2nd U.S. Circuit Court of Appeals ruled 10–3 that Title VII of the Civil Rights Act of 1964 prohibits anti-gay employment discrimination. The court found that Title VII’s ban on discrimination “because of sex” encompasses sexual orientation, protecting gay employees in all 50 states. Its decision, Zarda v. Altitude Express, closely tracked the reasoning of Hively v. Ivy Tech, a 2017 decision by the 7th U.S. Circuit Court of Appeals that also interpreted Title VII to...

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