Zarda v. Altitude Express, Inc.
en banc (2018)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on an individual's sexual orientation because such discrimination is a form of discrimination 'because of...sex'.
Facts:
- Donald Zarda, a gay man, worked as a skydiving instructor for Altitude Express during the summer of 2010.
- As part of his job, Zarda was often strapped hip-to-hip with clients for tandem skydives.
- To assuage a female client's potential discomfort with the close physical proximity, Zarda told her that he was gay and mentioned having an ex-husband.
- After the skydive, the client's boyfriend complained to Zarda's boss about Zarda's comment.
- Shortly after the complaint, Zarda's boss fired him.
- Zarda maintained that he was fired solely because of his reference to his sexual orientation, which he argued was not conforming to the 'straight male macho stereotype'.
Procedural Posture:
- Donald Zarda filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC).
- Zarda then sued Altitude Express in the U.S. District Court for the Eastern District of New York (a federal trial court), alleging sex stereotyping under Title VII and sexual orientation discrimination under New York state law.
- The district court granted summary judgment to Altitude Express on the Title VII claim, finding that binding circuit precedent precluded such a claim.
- The state law claims proceeded to a jury trial, where the jury found in favor of Altitude Express.
- Zarda appealed the district court's summary judgment ruling on the Title VII claim to the U.S. Court of Appeals for the Second Circuit.
- A three-judge panel of the Second Circuit affirmed the district court's decision, stating it was bound by the circuit's precedent in Simonton v. Runyon.
- The U.S. Court of Appeals for the Second Circuit then granted a rehearing en banc to reconsider its precedent.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does Title VII's prohibition on employment discrimination 'because of...sex' encompass discrimination based on sexual orientation?
Opinions:
Majority - Chief Judge Katzmann
Yes, Title VII prohibits discrimination on the basis of sexual orientation as a form of discrimination 'because of...sex'. The court provides three independent but related reasons for this conclusion. First, sexual orientation is a function of sex; one cannot define an individual's sexual orientation without reference to their sex and the sex of those to whom they are attracted. Under the 'but-for' comparative test, an employee is treated differently because of their sex when, for example, a man is fired for being attracted to men, but a woman attracted to men would not have been. Second, sexual orientation discrimination is a form of gender stereotyping, as it is based on the prescriptive stereotype of whom a person of a certain sex should be attracted to. Finally, it is a form of associational discrimination; just as Title VII prohibits discriminating against an employee for being in an interracial relationship, it also prohibits discriminating against an employee for being in a same-sex relationship, which is an adverse action based on the employee's own sex.
Concurring - Judge Jacobs
Yes. This case can be resolved solely on the grounds of associational discrimination. This Circuit has already held in Holcomb v. Iona College that Title VII prohibits discrimination based on an employee's interracial association. Because Title VII treats all protected categories (race, sex, religion, etc.) the same, this principle must apply with equal force to sex. Therefore, firing Zarda because he was a man in an intimate association with another man constitutes unlawful associational discrimination based on his own sex.
Dissenting - Judge Lynch
No, Title VII's prohibition on employment discrimination 'because of...sex' does not encompass sexual orientation. The original public meaning of 'sex' in 1964 referred to the biological distinction between male and female, not sexual orientation. The historical context shows Congress was focused on remedying discrimination against women, and the idea of protecting sexual orientation was not contemplated. Subsequent legislative history, including numerous failed bills to add 'sexual orientation' to Title VII, demonstrates that Congress has consistently understood the two concepts to be distinct. The majority's theories—'but-for' causation, stereotyping, and associational discrimination—improperly expand the statute beyond its text and intended purpose, which is to prevent employment practices that differentially disadvantage one sex versus the other, not to protect against all forms of prejudice.
Analysis:
This landmark en banc decision explicitly overrules prior Second Circuit precedent that had held sexual orientation discrimination claims were not cognizable under Title VII. By interpreting 'because of...sex' to include sexual orientation, the court deepened a circuit split, directly conflicting with the Eleventh Circuit and aligning with the Seventh Circuit's decision in Hively. This ruling significantly broadened workplace protections for LGBTQ+ employees within the Second Circuit and set the stage for the Supreme Court to resolve the issue definitively, which it later did in Bostock v. Clayton County.
Unlock the full brief for Zarda v. Altitude Express, Inc.