Filed Date: Sept. 23, 2010
Closed Date: March 11, 2022
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This was one of the LGBT discrimination cases consolidated before the Supreme Court in 2020 when it held that "[a]n employer who fires an individual merely for being gay or transgender violates Title VII [of the Civil Rights Act of 1964]."
District Court
This case addresses the scope of the ban on sex discrimination in Title VII of the Civil Rights Act of 1964, and asks if employers are barred from discriminating against employees on the basis of their sexual orientation under the statute. A gay man filed this lawsuit on September 23, 2010 against Altitude Express and its CEO, arguing that he was terminated from his employment there on the basis of his sexual orientation. He argued that Altitude had thereby discriminated against him on the basis of sexual orientation and so violated Title VII and New York gender and sexual orientation discrimination state law. Title VII prohibits employers from discriminating against employees on the basis of race, color, religion, national origin, or sex. The plaintiff sought damages for the employer's conduct. The suit was filed in the U.S. District Court for the Eastern District of New York and assigned to Judge Joseph F. Bianco.
Altitude Express is a corporation that facilitates opportunities for individuals to skydive. The plaintiff, Don Zarda, was seasonally employed at Altitude Express as a licensed skydiving instructor over several summers until July 2010. Zarda was openly gay. In his complaint, Zarda stated that he was required to be at work seven days per week for approximately twelve hours per day, though he was only paid per jump. As a result, there were days when he did not earn any income. The complaint described the process of skydiving, which included the client being strapped to the instructor and sitting so strapped in the instructor’s lap in the airplane just prior to the jump. Zarda asserted that it is a tense situation for a client, and so instructors tried to “break the ice” by making jokes about the situation, including gay jokes. Though gay jokes were considered acceptable, one female client complained about such a joke that Zarda made on June 18, 2010, and he was subsequently suspended from work. Zarda asserted that he “merely stated he was gay” to the client. The complaint asserted that Altitude Express's CEO, who was “hostile to any expression of sexual orientation that did not conform to sex stereotypes,” stated he fired Zarda because he had discussed his “personal escapades” with the female client and had touched her inappropriately. Zarda argued that neither of those allegations were true, and that other employees often discussed their personal intimate lives at work without consequence. Further, he argued that there was no proof the client accused him of inappropriate touching or that such touching ever occurred. Ultimately, Zarda argued that any accusations of touching were a pretext to terminate him because of his sexual orientation.
The case immediately entered into discovery disputes. The employer moved for summary judgment on February 11, 2013, while Zarda moved for partial summary judgment as a matter of law a few weeks later. Zarda argued that the Second Circuit in Sassaman v. Gamache allowed litigants on a case-by-case basis to claim discrimination under Title VII on the basis of sex stereotypes. Based on this precedent, Zarda asked the court to grant him summary judgment as to the employer's liability under Title VII. The court granted in part and denied in part the employer's motion for Summary Judgment on March 28, 2014. The court denied the motion with respect to the sexual orientation discrimination and minimum wage claims under New York state law, and it granted the motion with respect to the gender stereotype discrimination, hostile work environment, and overtime claims. The court also denied Zarda's motion for partial Summary Judgment. Zarda then filed his second amended complaint the same day, which eliminated the claims of violation of the Federal Labor Standards Act and New York overtime state law. The employer then moved to dismiss the case for lack of jurisdiction on April 15, 2014, which the court denied on May 8.
Zarda filed a letter on June 19 documenting a statement from opposing counsel that Zarda believed to be homophobic. According to the letter, opposing counsel made references to Zarda’s “high-pitched voice”; Zarda believed this to be a direct use of known discriminatory stereotype specifically targeted at gay people.
In an unexpected turn of events, on October 7, 2014, Zarda’s lawyer filed notice that Don Zarda passed away due to a base-jumping accident in Switzerland. The plaintiff moved to substitute Zarda’s estate for Zarda on November 19, which the court granted on December 3.
The plaintiff moved for reconsideration of partial summary judgment on August 7, 2015 in light of new case law. The motion argued that a 1984 case, Chevron v. Natural Resources Defense Council, held that deference is owed to "agency interpretation in the absence of evidence of Congressional intent." The Equal Employment Opportunity Commission (EEOC) is charged with enforcing Title VII, and the plaintiff argued that the EEOC's interpretation of what constitutes sex discrimination under Title VII had developed over the years to be more expansive and include sexual orientation. Thus the plaintiff argued that as a matter of law, partial summary judgment should be granted because this court should defer to the EEOC's interpretation of sex discrimination. Moreover, the plaintiff argued that deference to the EEOC pursuant to Chevron should take precedence over a Second Circuit decision in Simonton v. Runyon that did not find that discrimination based on sexual orientation constituted discrimination based on sex under Title VII.
The trial was held in October 2015; the jury returned its verdict on October 28, ruling for the employer. The plaintiff appealed on November 20, 2015 to the Second Circuit.
Court of Appeals
With the case in the Second Circuit, the following parties filed amicus briefs: New York Civil Liberties Union, American Civil Liberties Union, 9 to 5, A Better Balance, Coalition of Labor Union Women, Equal Rights Advocates, Gender Justice, Legal Voice, National Women's Law Center, Southwest Women's Law Center, Women Employed, Women's Law Center of Maryland, Women's Law Project, and Lambda Legal Defense and Education Fund.
A Second Circuit panel of three judges confirmed the lower court judgment in a per curiam opinion on April 18, 2017. 855 F.3d 76. The judges explained that as a panel of the Second Circuit, they were bound by the prior Second Circuit precedent, under which sexual orientation discrimination was not encompassed by Title VII's ban on sex discrimination. Only the entire en banc court could change the precedent. On May 2, the plaintiff accordingly moved for a rehearing en banc, which was granted on May 25.
On June 23, 2017, the EEOC filed an amicus brief in support of the plaintiff, arguing that sexual orientation discrimination "necessarily involve[s] impermissible consideration of a plaintiff’s sex, gender-based associational discrimination, and sex stereotyping," and such sexual orientation discrimination falls under Title VII's discrimination ban. Dozens of other parties then filed amicus briefs in support of the plaintiff, including individuals, senators, organizations, and states.
In an unusually public inter-governmental dispute, on July 26, 2017 the Department of Justice filed an amicus brief against its sister federal agency and in support of the employer, arguing that the EEOC is not entitled to any "deference beyond its power to persuade." The DOJ argued that Title VII does not reach sexual orientation, and that it is the role of Congress rather than the court to expand its application. A Title VII claim as to sex discrimination is only triggered when an employer treats similarly situated individuals of different sexes unequally. Several other organizations also filed briefs in support of the employer.
After both sides submitted a series of briefs, the en banc hearing was held on September 26, 2017.
On February 26, 2018, the Second Circuit released its decision in this case, overruling the Simonton and Dawson circuit precedents, and holding that sexual orientation discrimination is motivated, at least in part, by sex, and thus a subset of sex discrimination for purposes of Title VII. 883 F.3d 100. The Court concluded that sexual orientation discrimination is a subset of sex discrimination because sexual orientation is defined by one's sex in relation to the sex of those to whom one is attracted, making it impossible for an employer to discriminate on the basis of sexual orientation without taking sex into account. Sexual orientation discrimination, the Court held, is also based on assumptions or stereotypes about how members of a particular gender should be, including to whom they should be attracted, which is forbidden by Title VII as impermissible discrimination based on sex. Finally, the Court determined that sexual orientation discrimination is associational discrimination because an adverse employment action that is motivated by the employer's opposition to association between members of particular sexes clearly discriminates against an employee on the basis of sex. Each of these three perspectives was sufficient to support the Court's conclusion and together they amply demonstrated that sexual orientation discrimination is a form of sex discrimination.
The Court vacated the District Court's judgment on the Title VII claim and remanded the case for further proceedings consistent with their opinion.
U.S. Supreme Court
On May 29, 2018 Altitude Express filed a petition for writ of certiorari to the Supreme Court of the United States in response to the Second Circuit’s en banc opinion. Specifically, they requested certiorari regarding the question of “whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination ‘because of…sex” within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e-2.”
Zarda filed a brief in response to the petition on August 16, 2018, stating that this case was a bad vehicle for answering the questions presented, largely because one of the petitioners was not Zarda’s employer for the purposes of Title VII liability, and because Altitude Express was dissolved, so it was unclear whether they remained liable or if a successor company not seeking review was actually liable.
Petition for writ of certiorari granted on April 22, 2019, and the case was consolidated with Bostock v. Clayton County and EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. for briefing and oral argument. More than three dozen amicus briefs were filed in support of Bostock and Zarda, including one brief joined by 206 companies--including businesses such as Apple, Google, Proctor and Gamble, Walt Disney, and Coca-Cola. The companies argued that a ruling that Title VII bans discrimination based on sexual orientation would not be “unreasonably costly or burdensome” for employers, but instead that this would create benefits for business, providing “consistency and predictability” nationwide and making it easier to “recruit and retain top talent.”
Oral argument occurred on October 8, 2019, with the ACLU and the Stanford Law School Supreme Court Clinic arguing for the plaintiffs. The Supreme Court rendered its decision on June 15, 2020. Writing for a 6-3 majority, Justice Neil Gorsuch wrote that Title VII prohibits employers from engaging in discrimination "because of" sex. Justice Gorsuch stated that the statutory language "because of" implies a but-for causation analysis, meaning "so long as the plaintiff's sex was one but-for cause of that decision [to fire], that is enough to trigger the law." The opinion stated that "if an employer would not have discharged an employee but for that individual's sex, the statute's causation standard is met and liability may attach." LGBT discrimination against employees met this test, because "an employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have question in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids." 590 U.S. ___. The United States Supreme Court affirmed the decision of the en banc Second Circuit and remanded the case back to the district court for further proceedings.
District Court
On remand, the case was reassigned to Judge Sandra J. Feuerstein and Magistrate Judge Anne Y. Shields. The plaintiff immediately With consent from the court, the plaintiff filed an amended complaint on December 28, 2020, which named Raymond Maynard as the sole shareholder to Altitude Express, which had dissolved while the case was on appeal.
The defendant moved to dismiss the case for failure to state a claim on March 9, 2021, and the plaintiff filed an opposition to the motion on the same day. Also on March 9, 2021, the plaintiff filed a motion to enforce judgment of the Circuit Court and the United States Supreme Court, and a motion for sanctions against the defendant for willfully refusing to comply with the judgment.
On June 11, 2021, the case was reassigned to Judge Eric R. Komitee, with Magistrate Judge Anne Y. Shields remaining on the case for pretrial, non-dispositive matters. Judge Komitee heard the parties’ oral arguments for the motion to dismiss, motion to enforce, and motion for sanctions on January 27, 2022. The judge reserved his decision on all pending motions, and instead ordered parties to submit post-hearing briefs clarifying their positions. In lieu of submitting post-hearing briefs, the parties agreed to dismiss the case for a settlement of $6,224.30 in attorneys fees. The parties jointly moved to dismiss the case on March 11, 2022, and the case was closed on the same day.
Summary Authors
Virginia Weeks (10/3/2017)
Michael Beech (3/23/2019)
Caitlin Kierum (6/15/2020)
Sarah Portwood (10/2/2023)
EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., Eastern District of Michigan (2014)
Bostock v. Clayton County, Northern District of Georgia (2016)
For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/6437755/parties/zarda-v-altitude-express-inc/
-, Alan E.
-, Andrew W.
-, Mary Lisa
-, Ria Tabacco
-, Christopher D.
Blum, Richard Elliot (New York)
Bonauto, Mary L. (Massachusetts)
Colby, Kimberlee Wood (Virginia)
Cottler, Michael B. (New York)
DeWeese, Mary E. (District of Columbia)
Dodge, Christopher D. (Massachusetts)
Esseks, James Dixon (New York)
Goldstein, Jennifer S. (District of Columbia)
Gonzalez-Pagan, Omar (New York)
Graves, Fatima Goss (District of Columbia)
Harrington, Eric A. (District of Columbia)
Horowitz, Jeremy D. (District of Columbia)
Lapidus, Lenora M. (New Jersey)
Lee, James L. (District of Columbia)
Lehn, David (District of Columbia)
Marcus, Stephanie (District of Columbia)
Miller, Joseph W. (California)
Mooppan, Hashim M. (District of Columbia)
Morgan, Jeremiah L. (Virginia)
O'Brien, Alice (District of Columbia)
Occhialino, Anne Noel (District of Columbia)
Readler, Chad Andrew (District of Columbia)
Reinheimer, Justin T. (New York)
Sapinski, Sigismund L. Jr. (Connecticut)
Scarborough, Charles W. (District of Columbia)
Schneiderman, Eric T. (New York)
Schoenfeld, Alan E. (New York)
Stoll, Christopher (California)
Tate-Naghi, Nicole S. (California)
Underwood, Barbara D. (District of Columbia)
Wheeler, Tom E. II (District of Columbia)
See docket on RECAP: https://www.courtlistener.com/docket/6437755/zarda-v-altitude-express-inc/
Last updated March 2, 2025, 10:07 a.m.
State / Territory: New York
Case Type(s):
Special Collection(s):
Key Dates
Filing Date: Sept. 23, 2010
Closing Date: March 11, 2022
Case Ongoing: No
Plaintiffs
Plaintiff Description:
A gay man fired from his job and his estate
Plaintiff Type(s):
Public Interest Lawyer: No
Filed Pro Se: No
Class Action Sought: No
Class Action Outcome: Not sought
Defendants
Altitude Express, Inc., Private Entity/Person
Defendant Type(s):
Case Details
Causes of Action:
Title VII (including PDA), 42 U.S.C. § 2000e
Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-219
Available Documents:
U.S. Supreme Court merits opinion
Outcome
Prevailing Party: Plaintiff
Nature of Relief:
Source of Relief:
Form of Settlement:
Amount Defendant Pays: $6,224.30
Issues
Discrimination Area:
Discharge / Constructive Discharge / Layoff
Discrimination Basis:
LGBTQ+: