New Petitions Request Supreme Court Review in Sexual Orientation Employment Discrimination Cases

By Adam Polaski • May 30, 2018 • 5:30 pm

Two new petitions for review have arrived at the United States Supreme Court – and both center on the question of whether Title VII of the Civil Rights Act, which prohibits discrimination based on “sex,” also prohibits discrimination based on sexual orientation. The filing of the cert petitions kicks off a weeks-long process where parties on both sides of the disputes weigh in. The Supreme Court Justices are likely to conference on the petitions and decide whether or not to grant review in the fall of 2018.

The first petition was filed in Zarda v. Altitude Express, decided by the 2nd Circuit Court of Appeals, sitting en banc, on February 26, 2018. In a decisive en banc decision, the judges officially recognized that discrimination based on sexual orientation constitutes “sex discrimination” under Title VII of the Civil Rights Act of 1964. The case was brought forward by private attorney Gregory Antollino. The case centered on plaintiff Don Zarda, a skydiving instructor who was fired for being gay. Don was fired from his job after disclosing to a female customer that he is gay in an effort to appease her potential discomfort over close contact during a tandem skydive. When the customer’s boyfriend complained to his employer, Altitude Express Inc. in Long Island, NY, the company subsequently reprimanded Zarda for sharing “personal information” about his “escapades” – a condescending allusion to a common gay stereotype. Sadly, Don passed away several years ago, but his lawsuit was carried on by his estate, managed by sister Melissa Zarda and former partner Bill Moore.

The employer in the case, Altitude Express, filed its petition for review this week. You can read it via our partners at Equality Case Files.

Read the Altitude Express Cert Petition

In February, the lawyer for Altitude Express said he “agreed with the ruling on Title VII.” That lawyer is now backpedaling and, in the cert filed with the Supreme Court, questioning whether Title VII does cover discrimination based on sexual orientation.

Masen Davis, Freedom for All Americans CEO said today:

“Our opponents in Zarda already conceded that Title VII protects people from discrimination based on sexual orientation – and now they’re backtracking and trying to get the Supreme Court to weigh in. It’s hard to imagine what’s causing such a sudden change of heart from the defendants, but they’re staking out an argument at odds with growing legal precedent and public opinion.”

The second petition was filed in Gerald Lynn Bostock v. Clayton County, Georgia, decided by a three-judge panel of the 11th Circuit Court of Appeals on May 10, 2018. In the decision, the panel wrote, “Title VII prohibits employers from discriminating against employees on the basis of their sex. This circuit has previously held that ‘[d]ischarge for homosexuality is not prohibited by Title VII.'” The panel refers to a precedent set in 1979, Blum v. Gulf Oil Corp, and Lambda Legal’s Evans v. Georgia Regional Hospital, the case of Jameka Evans, a Georgia security guard who was fired for being lesbian.

Read the Bostock Cert Petition
In October 2017, Freedom for All Americans helped recruit more than 75 businesses – a record number – who added their names to a friend-of-the-court brief urging the Supreme Court to review the case. The businesses included AirBnB, Apple, Ben & Jerry’s, Carnival Cruise, Deutsche Bank, Eastern Bank, Google, Levi Strauss & Co., LinkedIn, Lyft, Mastercard, Miami Heat, Microsoft, Morgan Stanley, PayPal, RBC Bank, Salesforce, Starbucks, Tampa Bay Rays, Trillium Asset Management, Viacom, and more.

Across the country, the legal consensus is building that no one should face discrimination because of who they are or who they love. In the past year and a half, the U.S. Courts of Appeals for the 7th Circuit and 2nd Circuit have ruled that federal law already prohibits employment discrimination based on sexual orientation. Other appellate courts – including the 6th Circuit and 11th Circuit, have found that federal law prohibits employment discrimination based on gender identity. And just last year the 7th Circuit found that the federal Title IX, which prohibits discrimination against students based on sex also covers transgender students. This groundswell of legal consensus is hard to ignore – read all about it in our Litigation Tracker here, including Where We Stand in the Courts. 

We are excited and grateful to see courts from coast to coast recognizing that discrimination based on LGBTQ identity violates federal law, and we’re hopeful that states and municipalities will continue to pass even more explicit and express protections for LGBTQ people. People should be evaluated on their hard work and commitment – not discriminated against based on their sexual orientation or gender identity. That’s the consensus that’s building, and that’s the imperative that we are proud to push along every day.

A separate case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, is currently awaiting a decision from the Supreme Court. Keep up to date on all of the LGBTQ-related litigation in the courts here.


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