Title VII Sexual Orientation Discrimination Claim Will Be Reheard

By Nonnie L. Shivers May 31, 2017
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A gay skydiving instructor purportedly fired from his job due to his sexual orientation has no claim for sex discrimination under Title VII of the Civil Rights Act of 1964, a three-judge panel of the 2nd U.S. Circuit Court of Appeals has ruled. But the full 2nd Circuit has agreed to review the case afresh.

Donald Zarda worked for Altitude Express as a skydiving instructor for three summers. Altitude Express' customers skydive in tandem—strapped tightly to a seasoned instructor like Zarda. To diffuse the awkward and tense situation of a passenger being strapped tightly to the instructor and often sitting in the instructor's lap prior to a harrowing jump, skydiving instructors joked about sexual orientation with customers. The banter included male instructors saying to the male customers to whom they were strapped, "Does your girlfriend know you're gay?" Zarda himself often told female skydivers strapped to him, "Don't worry, I'm gay" to break the ice.

This wasn't the only sexual banter at Altitude Express. Zarda's boss told him it was "gay" for him to wear pink nail polish and a pink cast on his leg. Other instructors also purportedly ogled female customers' breasts and watched video recordings to see their breasts.

In the summer of 2010, a boyfriend and girlfriend went skydiving with Altitude Express. Zarda was the female's skydiving instructor for the jump. Zarda told her he was gay and allegedly that he had recently gone through a breakup. Afterward, her boyfriend complained to Altitude Express about Zarda's comment and that he had allegedly touched her inappropriately. Altitude Express suspended Zarda, but it failed to investigate the customer complaint. It then fired Zarda because he made the passenger "uncomfortable."

Zarda sued Altitude Express, alleging sexual orientation discrimination under Title VII and New York state law. After filing suit, Zarda died in a skydiving accident. Zarda's estate took over the case against Altitude Express. The trial court ruled that Zarda had no Title VII claim because "sex" does not include sexual orientation and because he had not successfully shown that gender stereotyping had led to his termination. Zarda got to trial on his surviving claim for sexual orientation discrimination under New York state law, but the jury found against him.

[SHRM members-only toolkit: Managing Equal Employment Opportunity]

Zarda asked the three-judge panel of the 2nd Circuit to overturn the circuit precedent that the trial court had relied on when it dismissed his sexual orientation claim under Title VII. The panel told Zarda it couldn't do so, noting that previous 2nd Circuit cases excluding sexual orientation from sex under Title VII tied its hands. The panel offered that reconsideration of that binding interpretation could only be done by all of the 2nd Circuit's judges sitting en banc, which now will take place.

This is precisely how a similar case proceeded earlier this year in the 7th Circuit. In that case, the judges of the 7th Circuit sitting en banc became the first appellate court in the country to find that sexual orientation is covered by Title VII. The 2nd Circuit could become the next court to do so, or, if it refuses, Zarda's case could go all the way to the U.S. Supreme Court.

Zarda v. Altitude Express, Inc., 2d Cir., No. 15-3775 (April 18, 2017).

Professional Pointer: Even though it's unclear if sexual orientation discrimination is prohibited outright as sex discrimination under Title VII, remember that myriad state, county and local laws already prohibit discrimination in private and public employment on the basis of sexual orientation, as well as on the basis of gender identity and gender expression.

Nonnie L. Shivers is an attorney with Ogletree Deakins in Phoenix.

 

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