The Second Circuit Gives Zarda v. Altitude Express a Second Wind
If an employer may not discriminate based on sex, may it do so based on sexual orientation? That’s the issue in Zarda v. Altitude Express.
First, the facts. In 2010, Donald Zarda worked as a skydiving instructor at Altitude Express on Long Island. A novice skydiver’s first few jumps are made while tightly attached to an instructor, and a female client became uncomfortable when Zarda’s hand touched her breast during the freefall. Upon landing, Zarda attempted to assuage her anxiety by noting that he was gay, implying that there was nothing sexual about the incident.
The client later told her boyfriend about this encounter, and the boyfriend called the skydiving company to complain. The company then fired Zarda, claiming that his termination was based on an unhappy customer experience. Zarda (or his estate; Zarda himself died during a jump in 2014) contends that he was dismissed as a direct result of his sexual orientation, claiming a violation of Title VII of the Civil Rights Act, which prohibits employment discrimination based on sex.
After Zarda sued his employer, the Eastern District of New York granted the employer’s motion for summary judgment on the Title VII claim. (Claims under New York state law went to trial, where a jury found in the employer’s favor.) The issue he appealed to the Second Circuit was this: Does Title VII's prohibition on sex discrimination encompass Zarda’s claim of discrimination based on sexual orientation?
This approach to Title VII conflicts with the Second Circuit’s past holding that sexual orientation is not protected under the broader umbrella of sex discrimination. In the 2000 case of Simonton v. Runyon, the court disagreed with the plaintiff’s assertion that the harassment his co-workers inflicted on him for being gay amounted to sex discrimination. The Simonton court relied on its own earlier ruling in DeCintio v. Westchester County Med. Ctr., which held that
the other categories afforded protection under Title VII refer to a person's status as a member of a particular race, color, religion or nationality. Sex, when read in this context, logically could only refer to membership in a class delineated by gender, rather than sexual activity regardless of gender.... The proscribed differentiation under Title VII, therefore, must be a distinction based on a person's sex, not on his or her sexual affiliations.
Zarda argued that these earlier rulings were an error. He offered three different theories to a three-judge appellate panel, in favor of overturning Simonton:
The first argument stemmed from the groundbreaking Supreme Court case Loving v. Virginia, which struck down state anti-miscegenation laws and allowed interracial marriage nationwide. Loving reasoned that when states prohibited a white individual from marrying a black individual, they were engaging in discrimination “because of race” — in other words, they were prohibiting a white person from doing something that a black person could. Likewise, Zarda argued, when an employer penalizes a gay employee for a same-sex relationship, the employer is prohibiting, for example, a man from doing something that a woman could. It follows that this is discrimination “because of sex,” and constitutes sex discrimination in the same way that anti-miscegenation laws constituted racial discrimination.
The next argument was based on sex stereotyping. In the 1989 case Price Waterhouse v. Hopkins, the Supreme Court ruled that sex stereotyping, i.e. punishing a worker for her failure to conform to “traditional” gender norms, qualified as prohibited sex discrimination. Zarda argued that this also applies to sexual orientation, in that a woman who’s attracted to other women may be singled out for defying the gender stereotypes which dictate that women should be attracted to men.
Zarda’s last argument asserts that discrimination based on sexual orientation constitutes associational discrimination. The First Amendment protects the freedom of association, and discriminating against gay people because they choose to associate with members of the same sex violates that freedom.
The appellate panel which first heard Zarda’s case noted that, as a three-judge panel, it was unable to overturn Simonton’s binding precedent. So it granted en banc review before all 11 active Second Circuit judges. I went to the oral argument — I’ve been on a federal-appeals-watching kick — and the consensus among the tea-leaf-readers I spoke with afterward is that the Second Circuit is ready to overturn outdated, pre-Windsor precedent. Even if the facts of the case don’t end up resolving in Zarda’s favor at trial, the court could still determine that Title VII at least allows his claim — and they have three viable avenues to help them get there.