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Case Name Zarda v. Altitude Express, Inc. EE-NY-0289
Docket / Court 2:10-cv-04334-JFB-AYS ( E.D.N.Y. )
State/Territory New York
Case Type(s) Equal Employment
Case Summary
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 Sept. 23, 2010 against ... read more >
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 Sept. 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 defendants’ 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 provides areas where individuals can skydive. The plaintiff, Don Zarda, was seasonally employed at Altitude Express as a licensed skydiving instructor over several summers until July 2010. He was also 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 consequences. 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, and Zarda in response moved to compel discovery and sanction opposing counsel several times through 2013. Meanwhile, Zarda filed an amended complaint on March 11, 2011. The defendants moved for summary judgment on Feb. 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 wanted the court to grant him summary judgment as to the defendants' liability under Title VII. The court granted in part and denied in part the defendants' motion for SJ on Mar. 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 SJ. Zarda then filed a 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 defendants then moved to dismiss the case for lack of jurisdiction on Apr. 15, 2014, which the court denied on May 8.

Additionally, Zarda filed a letter on June 19 documenting a statement from opposing counsel that the 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 Oct. 7, 2014, Zarda’s lawyer filed notice that Don Zarda passed away due to an unfortunate miscalculation while he was base-jumping in Switzerland. The plaintiff moved to substitute Zarda’s estate for Zarda on Nov. 19, which the court granted on Dec. 3.

The plaintiff moved for reconsideration of partial summary judgment on Aug. 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 since 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 Oct. 28, ruling for the defendants. The plaintiff appealed on Nov. 20, 2015 to the Second Circuit.

At the appellate court, 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 Apr. 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. 855 F.3d 76. Only the entire court -- sitting en banc (all together) -- could change the precedent. 855 F.3d 76. On May 2, the plaintiff accordingly moved for a rehearing en banc, which was granted on May 25.

On June 23, 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 the Department of Justice filed an amicus brief against its sister federal agency and in support of the defendants, 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 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 defendants.

After both sides submitted a series of briefs, the en banc hearing was held on Sept. 26, 2017.

The case is ongoing.

Virginia Weeks - 10/03/2017


compress summary

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Issues and Causes of Action
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Issues
Discrimination-area
Discharge / Constructive Discharge / Layoff
Discrimination-basis
Sexual orientatation
General
Gay/lesbian/transgender
Plaintiff Type
Private Plaintiff
Causes of Action Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-219
State law
Title VII (including PDA), 42 U.S.C. § 2000e
Defendant(s) Altitude Express, Inc.
Plaintiff Description A gay man fired from his job and his estate
Class action status sought No
Class action status granted No
Prevailing Party Defendant
Public Int. Lawyer No
Nature of Relief None yet
Source of Relief None yet
Case Ongoing Yes
Additional Resources
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  Microsoft Gender Discrimination Class Action Lawsuit
Date: Oct. 14, 2016
By: Outten & Golden
[ Detail ] [ External Link ]

  Age Discrimination Class Action seeks Fair Employment for Older PwC Applicants
http://www.pwcagecase.com/
Date: Apr. 27, 2016
By: Outten & Golden
[ Detail ] [ External Link ]

  Smith Barney Gender Discrimination
https://www.lieffcabraser.com/employment/smith-barney/
Date: August 2008
By: Outten & Golden
[ Detail ] [ External Link ]

  Megacases, Diversity, and the Elusive Goal of Workplace Reform
Date: Mar. 1, 2008
By: Nancy Levit (University of Missouri-Kansas City School of Law Faculty)
Citation: 49 B.C. L. Rev. 367 (2008)
[ Detail ] [ External Link ]

  Second Generation Employment Discrimination: A Structural Approach
Date: Apr. 1, 2001
By: Susan Sturm (Columbia Law School Faculty)
Citation: 101 Colum. L. Rev. 458 (2001)
[ Detail ] [ External Link ]

Docket(s)
2:10-cv-04334-JFB-AYS (E.D.N.Y.)
EE-NY-0289-9000.pdf | Detail
Date: 12/10/2015
Source: PACER [Public Access to Court Electronic Records]
General Documents
Memorandum of Law In Support of Defendants' Motion For Summary Judgment [ECF# 109]
EE-NY-0289-0001.pdf | Detail
Date: 02/11/2013
Source: PACER [Public Access to Court Electronic Records]
Defendants' Rule 56.1 Statement of Material Facts [ECF# 110]
EE-NY-0289-0002.pdf | Detail
Date: 02/11/2013
Source: PACER [Public Access to Court Electronic Records]
Plaintiff's Counter 56.1 Statement [ECF# 122]
EE-NY-0289-0003.pdf | Detail
Date: 04/07/2013
Source: PACER [Public Access to Court Electronic Records]
Plaintiff's 56.1 Statement In Support and Further Opposition [ECF# 129]
EE-NY-0289-0004.pdf | Detail
Date: 04/09/2013
Source: PACER [Public Access to Court Electronic Records]
Memorandum of Law In Opposition and Support [ECF# 131]
EE-NY-0289-0005.pdf | Detail
Date: 04/09/2013
Source: PACER [Public Access to Court Electronic Records]
Order [granting and denying in part summary judgment] [ECF# 145] (E.D.N.Y.)
EE-NY-0289-0006.pdf | Detail
Date: 03/28/2014
Source: PACER [Public Access to Court Electronic Records]
Second Amended Complaint [ECF# 146]
EE-NY-0289-0007.pdf | Detail
Date: 03/28/2014
Source: PACER [Public Access to Court Electronic Records]
Defendants' Pre-Trial Memorandum of Law [ECF# 223]
EE-NY-0289-0036.pdf | Detail
Date: 10/06/2015
Source: PACER [Public Access to Court Electronic Records]
Brief of Lambda Legal As Amicus Curiae In Support of Plaintiffs-Appellants and Reversal [Ct. of App. ECF# BL-139]
EE-NY-0289-0012.pdf | Detail
Date: 03/18/2016
Source: PACER [Public Access to Court Electronic Records]
Brief of Amicus Curiae American Civil Liberties Union, et al. In Support of Plaintiffs-Appellants [Ct. of App. ECF# BL-140]
EE-NY-0289-0013.pdf | Detail
Date: 03/18/2016
Source: PACER [Public Access to Court Electronic Records]
Appellant's Brief [Ct. of App. ECF# BL-79]
EE-NY-0289-0009.pdf | Detail
Date: 03/19/2016
Source: PACER [Public Access to Court Electronic Records]
Appellees' Brief [Ct. of App. ECF# BL-109]
EE-NY-0289-0010.pdf | Detail
Date: 06/15/2016
Source: PACER [Public Access to Court Electronic Records]
Appellant's Reply Brief [Ct. of App. ECF# BL-119]
EE-NY-0289-0011.pdf | Detail
Date: 07/07/2016
Source: PACER [Public Access to Court Electronic Records]
Opinion [Ct. of App. ECF# BL-152] (855 F.3d 76)
EE-NY-0289-0014.pdf | WESTLAW| LEXIS | Detail
Date: 04/18/2017
Source: PACER [Public Access to Court Electronic Records]
Plaintiffs-Appellants' Petition For Rehearing En Banc [Ct. of App. ECF# BL-156]
EE-NY-0289-0015.pdf | Detail
Date: 05/02/2017
Source: PACER [Public Access to Court Electronic Records]
En Banc Brief of Amicus Curiae Equal Employment Opportunity Commission In Support of Plaintiffs/Appellants and In Favor of Reversal [Ct. of App. ECF# BL-185]
EE-NY-0289-0016.pdf | Detail
Date: 06/23/2017
Source: PACER [Public Access to Court Electronic Records]
Brief of New York State United Teachers As Amicus Curiae In Support of Plaintiffs-Appellant [Ct. of App. ECF# BL-190]
EE-NY-0289-0017.pdf | Detail
Date: 06/23/2017
Source: PACER [Public Access to Court Electronic Records]
Brief of Amici Curiae American Civil Liberties Union; New York Civil Liberties; National Women's Law Center; 9to5, National Association of Working Women, et al. [Ct. of App. ECF# BL-221]
EE-NY-0289-0008.pdf | Detail
Date: 06/26/2017
Source: PACER [Public Access to Court Electronic Records]
Brief of Lambda Legal Defense and Education Fund, Inc. As Amicus Curiae In Support of Plaintiffs-Appellants and Reversal [Ct. of App. ECF# BL-199]
EE-NY-0289-0018.pdf | Detail
Date: 06/26/2017
Source: PACER [Public Access to Court Electronic Records]
En Banc Brief of 50 Employers and Organizations As Amici Curiae In Support of Plaintiffs-Appellants [Ct. of App. ECF# BL-203]
EE-NY-0289-0019.pdf | Detail
Date: 06/26/2017
Source: PACER [Public Access to Court Electronic Records]
Brief of Amici Curiae GLBTQ Legal Advocates & Defenders ("GLAD") and National Center For Lesbian Rights ("NCLR") In Support of Plaintiffs-Appellants [Ct. of App. ECF# BL-217]
EE-NY-0289-0020.pdf | Detail
Date: 06/26/2017
Source: PACER [Public Access to Court Electronic Records]
Brief For Amici Curiae the LGBT Bar Association of Greater New York, et al. [Ct. of App. ECF# BL-220]
EE-NY-0289-0021.pdf | Detail
Date: 06/26/2017
Source: PACER [Public Access to Court Electronic Records]
Brief of the Legal Aid Society As Amicus Curiae In Support of Plaintiffs-Appellants [Ct. of App. ECF# BL-222]
EE-NY-0289-0022.pdf | Detail
Date: 06/26/2017
Source: PACER [Public Access to Court Electronic Records]
Brief For Amici Curiae States of New York, Connecticut, and Vermont In Support of Appellants [Ct. of App. ECF# BL-231]
EE-NY-0289-0023.pdf | Detail
Date: 06/26/2017
Source: PACER [Public Access to Court Electronic Records]
Brief of the National Education Association As Amicus Curiae In Support of Plaintiffs-Appellants and Reversal [Ct. of App. ECF# BL-258]
EE-NY-0289-0025.pdf | Detail
Date: 06/28/2017
Source: PACER [Public Access to Court Electronic Records]
Brief of Amici Curiae Matthew Christiansen & Professor Anthony Michael Kreis In Support of Plaintiffs-Appellants [Ct. of App. ECF# BL-263]
EE-NY-0289-0026.pdf | Detail
Date: 06/28/2017
Source: PACER [Public Access to Court Electronic Records]
Brief of Lambda Legal Defense and Education Fund, Inc. As Amicus Curiae In Support of Plaintiffs-Appellants and Reversal [Ct. of App. ECF# BL-266]
EE-NY-0289-0027.pdf | Detail
Date: 06/28/2017
Source: PACER [Public Access to Court Electronic Records]
Appellant's Brief & Special Appendix (corrected) [Ct. of App. ECF# 365-1]
EE-NY-0289-0024.pdf | Detail
Date: 06/28/2017
Source: PACER [Public Access to Court Electronic Records]
Appellees' Brief & Supplemental Appendix [Ct. of App. ECF# BL-271]
EE-NY-0289-0028.pdf | Detail
Date: 07/26/2017
Source: PACER [Public Access to Court Electronic Records]
En Banc Brief of Christian Legal Society and National Association of Evangelicals As Amici Curiae In Support of Defendants-Appellees and Affirmance [Ct. of App. ECF# BL-277]
EE-NY-0289-0029.pdf | Detail
Date: 07/26/2017
Source: PACER [Public Access to Court Electronic Records]
Brief For the United States As Amicus Curiae [Ct. of App. ECF# BL-281]
EE-NY-0289-0030.pdf | Detail
Date: 07/26/2017
Source: PACER [Public Access to Court Electronic Records]
Brief Amicus Curiae of Conservative Legal Defense and Education Fund, Public Advocate of the United States, and United States Justice Foundation in Support of Appellees and Affirmance [Ct. of App. ECF# BL-283]
EE-NY-0289-0031.pdf | Detail
Date: 07/26/2017
Source: PACER [Public Access to Court Electronic Records]
En Banc Brief of Court-Appointed Amicus Curiae [Ct. of App. ECF# BL-285]
EE-NY-0289-0032.pdf | Detail
Date: 07/26/2017
Source: PACER [Public Access to Court Electronic Records]
Appellees' Brief [Ct. of App. ECF# BL-295]
EE-NY-0289-0033.pdf | Detail
Date: 07/26/2017
Source: PACER [Public Access to Court Electronic Records]
Brief of the Legal Aid Society as Amicus Curiae In Support of Plaintiffs-Appellants [Ct. of App. ECF# BL-301]
EE-NY-0289-0034.pdf | Detail
Date: 08/03/2017
Source: PACER [Public Access to Court Electronic Records]
Appellant's Reply Brief [Ct. of App. ECF# BL-305]
EE-NY-0289-0035.pdf | Detail
Date: 08/09/2017
Source: PACER [Public Access to Court Electronic Records]
Judges Bianco, Joseph Frank (E.D.N.Y.)
EE-NY-0289-0006 | EE-NY-0289-9000
Jacobs, Dennis G. (Second Circuit)
EE-NY-0289-0014
Lynch, Gerard E. (Second Circuit, S.D.N.Y.)
EE-NY-0289-0014
Sack, Robert David (Second Circuit)
EE-NY-0289-0014
Shields, Anne Y. Court not on record [Magistrate]
EE-NY-0289-9000
Plaintiff's Lawyers Antollino, Gregory (New York)
EE-NY-0289-0003 | EE-NY-0289-0004 | EE-NY-0289-0005 | EE-NY-0289-0007 | EE-NY-0289-0009 | EE-NY-0289-0011 | EE-NY-0289-0015 | EE-NY-0289-0024 | EE-NY-0289-0035 | EE-NY-0289-9000
Bergstein, Stephen (New York)
EE-NY-0289-0009 | EE-NY-0289-0011 | EE-NY-0289-0015 | EE-NY-0289-0024 | EE-NY-0289-0035
Cardinale, Richard J. (New York)
EE-NY-0289-9000
Defendant's Lawyers Griner, Amanda R. (New York)
EE-NY-0289-0001 | EE-NY-0289-0002
Zabell, Saul D (New York)
EE-NY-0289-0001 | EE-NY-0289-0002 | EE-NY-0289-0010 | EE-NY-0289-0028 | EE-NY-0289-0033 | EE-NY-0289-0036 | EE-NY-0289-9000
Other Lawyers Amend, Andrew W. (New York)
EE-NY-0289-0023
Anten, Todd (New York)
EE-NY-0289-0019
Blum, Richard Elliot (New York)
EE-NY-0289-0022 | EE-NY-0289-0034
Bonauto, Mary L. (Massachusetts)
EE-NY-0289-0020
Burt, Thomas W. (Washington)
EE-NY-0289-0019
Cain, Heidi (New York)
EE-NY-0289-0022 | EE-NY-0289-0034
Colby, Kimberlee Wood (Virginia)
EE-NY-0289-0029
Cooper, Leslie (New York)
EE-NY-0289-0008
Cottler, Michael B. (New York)
EE-NY-0289-0022
DeWeese, Mary E. (District of Columbia)
EE-NY-0289-0025
Dodge, Christopher D. (Massachusetts)
EE-NY-0289-0020
Dunn, Christopher (New York)
EE-NY-0289-0008
Esseks, James Dixon (New York)
EE-NY-0289-0008
Goldstein, Jennifer S. (District of Columbia)
EE-NY-0289-0016
Gonzalez-Pagan, Omar (New York)
EE-NY-0289-0012 | EE-NY-0289-0018 | EE-NY-0289-0027
Graves, Fatima Goss (District of Columbia)
EE-NY-0289-0008
Harrington, Eric A. (District of Columbia)
EE-NY-0289-0025
Harrist, Erin Beth (New York)
EE-NY-0289-0008 | EE-NY-0289-0013
Horowitz, Jeremy D. (District of Columbia)
EE-NY-0289-0016
Kavey, Michael (New York)
EE-NY-0289-0018 | EE-NY-0289-0027
Lapidus, Lenora M. (New Jersey)
EE-NY-0289-0008
Lask, Susan Chana (New York)
EE-NY-0289-0026
Lee, James L. (District of Columbia)
EE-NY-0289-0016
Lehn, David (District of Columbia)
EE-NY-0289-0020
Mahmood, Tiffany (New York)
EE-NY-0289-0022
Mar, Ria Tabacco (New York)
EE-NY-0289-0008
Marcus, Stephanie (District of Columbia)
EE-NY-0289-0030
McGowan, Sharon M. (New York)
EE-NY-0289-0018 | EE-NY-0289-0027
Miller, Joseph W. (California)
EE-NY-0289-0031
Mooppan, Hashim M. (District of Columbia)
EE-NY-0289-0030
Morgan, Jeremiah L. (Virginia)
EE-NY-0289-0031
Mortara, Adam K. (Illinois)
EE-NY-0289-0032
Nevins, Gregory R. (Georgia)
EE-NY-0289-0018 | EE-NY-0289-0027
O'Brien, Alice (District of Columbia)
EE-NY-0289-0025
Occhialino, Anne Noel (District of Columbia)
EE-NY-0289-0016
Olson, William J. (Virginia)
EE-NY-0289-0031
Olson, Robert J. (Virginia)
EE-NY-0289-0031
Protess, Amanda B. (New York)
EE-NY-0289-0022
Readler, Chad A. (District of Columbia)
EE-NY-0289-0030
Reilly, Robert T. (New York)
EE-NY-0289-0017
Rein, Frederick H. (New York)
EE-NY-0289-0022
Reinheimer, Justin T. (New York)
EE-NY-0289-0019
Sapinski, Sigismund L. Jr. (Connecticut)
EE-NY-0289-0019
Scarborough, Charles W. (District of Columbia)
EE-NY-0289-0030
Schneiderman, Eric T. (New York)
EE-NY-0289-0023
Schoenfeld, Alan E. (New York)
EE-NY-0289-0020
Skinner, Matthew (New York)
EE-NY-0289-0021
Stoll, Christopher (California)
EE-NY-0289-0020
Struble, Cory D. (New York)
EE-NY-0289-0019
Tate-Naghi, Nicole S. (California)
EE-NY-0289-0022
Thomas, Gillian L. (New York)
EE-NY-0289-0008
Titus, Herbert W. (Virginia)
EE-NY-0289-0031
Underwood, Barbara D. (District of Columbia)
EE-NY-0289-0023
Wheeler, Tom E. II (District of Columbia)
EE-NY-0289-0030
Whitney, Jonathan J. (Massachusetts)
EE-NY-0289-0022
Wu, Steven C. (New York)
EE-NY-0289-0023

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