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Many state and federal lawsuits involve claims by workers that employers, including public schools, have acted in a discriminatory fashion in hiring, fi ring or subjecting litigants to adverse actions in the context of their employment. In a recent trend, courts and governmental agencies at both the state and federal level have been using their authority to broaden the scope of classes of individuals who are protected by these laws.

The cornerstone law invoked in the employment discrimination context is Title VII of the Civil Rights Act of 1964. What can be interpreted as actionable under this law and similar laws has been the subject of much controversy.

In 2018, the U.S. Equal Employment Opportunity Commission (EEOC) and the Trump administration’s Department of Justice fi led competing briefs that argued opposite sides of Zarda v Altitude Express, Inc, a case that involved a Long Island man who was fired after telling a female customer that he was gay. The employee (and, after his death, his estate) claimed his dismissal was a form of sexual discrimination under Title VII of the Civil Rights Act.

In Zarda, the U.S. Court of Appeals for the Second Circuit (with jurisdiction over all of New York State) ruled in favor of the fired worker. “Looking first to the text of Title VII, the most natural reading of the statute’s prohibition on discrimination ‘because of ... sex’ is that it extends to sexual orientation discrimination because sex is necessarily a factor in sexual orientation,” the court said. “To the extent that our prior precedents held otherwise, they are overruled.” The court explained this change by noting: “legal doctrine evolves.”

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