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Media Alerts - Zarda v. Altitude Express
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April 18, 2017
  Zarda v. Altitude Express
Case Name: Zarda, et al. v. Altitude Express

Headline: Second Circuit Declines to Reverse Past Precedent That Title VII Does Not Cover Sexual Orientation Discrimination, Stating That Such Reversal Can Only be Done by En Banc Court

Area of Law: Employment Discrimination

Issue(s) Presented: Whether a three-judge panel of the Second Circuit can overturn the circuit's previous holding that Title VII does not cover employment discrimination based on sexual orientation.

Brief Summary: Donald Zarda filed suit against his former employer, Altitude Express, alleging that he had been terminated due to his sexual orientation, in violation of the New York State Human Rights Law and Title VII. Defendant successfully moved for summary judgment on the Title VII claim, on the basis that the Second Circuit's 2000 decision in Simonton v. Runyon had held that Title VII's prohibition of sex discrimination did not encompass sexual orientation discrimination. Plaintiff appealed, arguing that the Second Circuit should overturn Simonton and find that discrimination on the basis of sexual orientation constitutes impermissible sex discrimination under Title VII. Noting the recent decision in Christiansen v. Omnicom Group, Inc., which confronted a similar issue, the Second Circuit held that only the circuit sitting en banc may overturn Simonton. The Court further noted that the Court of Appeals for the Seventh Circuit - the only circuit so far to have overturned similar precedent and find that Title VII does prohibit discrimination on the basis of sexual orientation - did so sitting en banc when it decided Hively v. Ivty Tech Comm. Coll. earlier this month.

Extended Summary (if applicable):

Altitude Express, defendant, employed Donald Zarda,* plaintiff, as a skydiving instructor. In 2010, Mr. Zarda served as a skydiving instructor for the female partner of a heterosexual couple. Mr. Zarda dove in-tandem with the female partner, and informed her that he was gay to mitigate the awkwardness that might arise from a woman being so tightly strapped to a man. When she and her boyfriend compared notes, and she disclosed that Mr. Zarda had informed her that he was gay, the male partner called and complained about Mr. Zarda's behavior. Altitude Express fired him soon thereafter.

Mr. Zarda filed a wrongful termination suit under the New York State Human Rights Law, N.Y. Exec. Law. ยง 296(1)(a) ("NYSHRL"), and under Title VII. Altitude Express moved for summary judgment on the Title VII claim on the basis that the Second Circuit had held, in a 2000 case called Simonton v. Runton, that Title VII does not bar discrimination on the basis of sexual orientation. The District Court granted the defendant's motion but let the NYSHRL claim proceed to trial. While the case was pending in 2015, the Equal Employment Opportunity Commission (EEOC) issued a decision stating that discrimination on the basis of sexual orientation amounts to sex discrimination in violation of Title VII. Mr. Zarda moved the court to reconsider its summary judgment dismissal of his Title VII claim, in light of the EEOC's position, but the district court declined due to the Second Circuit's precedent in Simonton. Thus, only Mr. Zarda's state law discrimination claim - which requires a stronger showing of causation than Title VII requires - went to trial, and a jury ruled against him. He appealed to the Second Circuit, on the basis, inter alia, that it should overturn Simonton and find that Title VII prohibits discrimination on the basis of sexual orientation.

The defendant argued that the Court need not revisit this issue because a jury had found against the plaintiff on the state law claim. The Second Circuit rejected this argument, explaining that the District Court had instructed the jury to use "but-for" causation for the state law claim, which is a more difficult standard than the "substantial" or "motivating" factor test utilized by Title VII. Hence, had there been an actionable claim available to the plaintiff under Title VII, it could have been more easily won. However, the court held that as a three-judge panel, it could not reverse Simonton, reaffirming its recent holding in Christiansen v. Omnicom Group, Inc. that only the Court sitting en banc could overturn the prior precedent established in Simonton. Further, the Second Circuit, citing Hively v. Ivty Tech Comm. Coll., No. 15-1720, 2017 WL 1230393, at *1 - 2 (7th Cir. Apr. 4, 2017) (en banc), noted that the Seventh Circuit Court of Appeals only overturned its prior analogous precedent regarding Title VII's coverage of sexual orientation discrimination by sitting en banc. Accordingly, the Second Circuit affirmed the district court's dismissal of Mr. Zarda's Title VII claim.

*As the Court notes in fn. 1, Mr. Zarda died in a skydiving accident prior to going to trial, and the case proceeded with the two executors of his estate replacing him as plaintiff.

To read the full decision, please visit:

Panel: Circuit Judges Dennis G. Jacobs, Robert D. Sack, Gerard E. Lynch.

Argument Date: January 5, 2017

Argument Location: New York, NY

Date of Issued Opinion: April 18, 2017

Docket Number:
No. 15-3775

Decided: Affirmed

Case Alert Author: Vito J. Marzano

Counsel: Gregory Antollino and Stephen Bergstein for Appellants; Saul D. Zabell for Appellees.

Author of Opinion: Per Curiam

Circuit: Second Circuit Court of Appeals.

Case Alert Circuit Supervisor:
Professor Emily Gold Waldman

    Posted By: Emily Waldman @ 04/18/2017 08:32 PM     2nd Circuit  

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