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Altitude Express v. Zarda

Facts of the Case

Provided by Oyez

Donald Zarda worked in 2010 as a sky-diving instructor at Altitude Express. Part of his job was to participate in tandem skydives with clients, in which he was necessarily strapped in close proximity to the client. A gay man, Zarda sometimes told female clients about his sexual orientation to address any concern they might have about being strapped to a man for a tandem skydive. On one occasion after Zarda informed a female client about his sexual orientation and performed the tandem jump with her, the client alleged that Zarda had inappropriately touched her and disclosed his sexual orientation to excuse his behavior. In response to this complaint, Zarda's boss fired him. Zarda denied touching the client inappropriately and claimed that he was fired solely because of his reference to his sexual orientation.

Zarda filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC) claiming that he was fired because of his sexual orientation and also because of he did not conform to male gender stereotypes. He brought a claim in federal court alleging, among other things, that Altitude Express violated Title VII of the Civil Rights Act of 1964 by terminating him because of his sexual orientation. The district court ruled for Altitude Express, finding that Title VII does not protect against discrimination based on sexual orientation. After the district court's ruling, the EEOC issued an opinion in a separate case (persuasive but not binding on federal district courts) that Title VII's “on the basis of sex” language necessarily includes discrimination “on the basis of sexual orientation.” In light of this decision, Zarda moved for the district court to reinstate his Title VII claim, but the district court denied the motion, citing binding Second Circuit precedent, Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), and Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005).

Zarda appealed to the US Court of Appeals for the Second Circuit, which ruled for Altitude Express as well. The panel declined Zarda’s request that it reconsider its interpretation of Title VII and overturn Simonton and Dawson, as only the court sitting en banc can do that. The Second Circuit then agreed to rehear the case en banc and expressly overruled Simonton and Dawson, finding, consistent with the EEOC’s position, that Title VII’s prohibition on discrimination because of sex necessarily includes discrimination because of sexual orientation.

This case is consolidated for oral argument with Bostock v. Clayton County, No. 17-1618.

Questions

  1. Does Title VII of the Civil Rights Act of 1964, which prohibits against employment discrimination “because of . . . sex” encompass discrimination based on an individual’s sexual orientation?

Conclusions

  1. An employer who fires an individual employee merely for being gay or transgender violates Title VII of the Civil Rights Act of 1964. Justice Neil Gorsuch authored the opinion for the 6-3 majority of the Court.

    Title VII prohibits employers from discriminating against any individual “because of such individual’s race, color, religion, sex, or national origin.” Looking to the ordinary public meaning of each word and phrase comprising that provision, the Court interpreted to mean that an employer violates Title VII when it intentionally fires an individual employee based, at least in part, on sex. Discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat employees differently because of their sex—the very practice Title VII prohibits in all manifestations. Although it acknowledged that few in 1964 would have expected Title VII to apply to discrimination against homosexual and transgender persons, the Court gave no weight to legislative history because the language of the statute unambiguously prohibits the discriminatory practice. 

    Justice Samuel Alito authored a dissenting opinion, in which Justice Clarence Thomas joined, criticizing the majority for attempting to “pass off its decision as the inevitable product of the textualist school of statutory interpretation,” but actually revising Title VII to “better reflect the current values of society.

    Justice Brett Kavanaugh authored a dissenting opinion arguing that, as written, Title VII does not prohibit discrimination on the basis of sexual orientation (or by extension, transgender status).