TODAY: Jeff Sessions’ DOJ Urges Federal Appellate Court to Reject LGBTQ ProtectionsBy Angela Dallara • September 25, 2017 • 1:19 pm
Tuesday, September 26, marks an important day for a key federal case that deals with employment discrimination based on sexual orientation. The 2nd Circuit Court of Appeals in NYC will hear oral argument in Zarda v. Altitude Express, concerning plaintiff Don Zarda, a skydiving instructor who was fired for being gay. Freedom for all Americans has been involved for the past few months in amplifying the case, which is brought by attorney Gregory Antollino and supported by Lambda Legal.
Don Zarda, a hardworking and skilled skydiving instructor, 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, homophobic allusion to the false perception that gay men engage in promiscuous behavior (a long-disproven stereotype arising from decades of homophobia in America).
In 2010, Don sued under the New York Human Rights Law, which explicitly prohibits discrimination based on sexual orientation, and under Title VII of the Civil Rights Act of 1964. Now, the 2nd Circuit will hear the case en banc, meaning before every judge on the court, which is a very rare occurrence that has only taken place a handful of times over the past decade. If it rules in Don’s favor, it could become only the second federal appellate court to rule that Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on sex, also prohibits discrimination based on sexual orientation.
In June, FFAA recruited 50 businesses representing more than 370,000 employees to file a friend-of-the-court brief in support of the plaintiff. It marked the first time that businesses have explicitly taken the legal position that discrimination in employment based on sexual orientation is illegal under Title VII. The list of signers includes Google, Microsoft, Viacom, Spotify, CBS, Ben & Jerry’s, Levi Strauss & Co., and more.
FFAA will be on the ground tomorrow and will host a press conference immediately following oral argument. The press conference will feature Gregory Antollino, a private attorney with a long history of trying employment discrimination cases who brought forward the lawsuit; attorney Greg Nevins of Lambda Legal, who will be making supporting arguments in the courtroom; and Bill Moore, a dear loved one of the plaintiff and co-executor of his estate.
What’s at Stake
The case is especially significant for the national landscape of LGBTQ nondiscrimination protections because it argues that existing federal laws prohibiting employment discrimination based on sex also extend to discrimination based on sexual orientation. The Zarda case stands to change the precedent for the entire 2nd Circuit.
In recent years, several three-judge panels in the 2nd Circuit have considered cases around the question of how title Title VII applies to sexual orientation-based discrimination. In each of the rulings, the 2nd Circuit panels have deferred to existing legal precedent, set in 2000 in Simonton v. Runyon. An en banc hearing is one of the few ways to overturn that precedent.
Earlier this year, 2nd Circuit Chief Judge Robert Katzmann stated in a similar case, seemingly reluctantly, that the Simonton decision bound him to rule against a plaintiff who faced severe anti-gay harassment and discrimination at work. However, in a concurrence, he and another judge indicated that they thought the full court should reconsider this question and reverse the precedent. Judge Katzmann wrote: “I respectfully think that in the context of an appropriate case our Court should consider reexamining the holding that sexual orientation discrimination claims are not cognizable under Title VII. Other federal courts are also grappling with this question, and it well may be that the Supreme Court will ultimately address it.”
Introducing the Plaintiff and Those Continuing His Legacy
The plaintiff in the case, Don Zarda, passed away several years ago, and his lawsuit is being continued by his estate, which is managed by his sister Melissa Zarda and his dear friend Bill Moore.
“Don wanted to fly – his life mission was to be in the air,” Bill Moore told FFAA in an extensive interview about Don’s passion and commitment to doing his job well. “He always wanted to be a pilot, he always wanted to be in the air, and so it was no surprise that when he started skydiving as a hobby, he got addicted to the adrenaline.”
“He was so obsessive-compulsive,” Bill told Freedom for All Americans. “He would quadruple-check everything on every skydiving jump he did – every hook, every strap, every last thing about the parachute. He worked at many different companies at many different drop zones for many years. If you were going to jump on a skydive with anyone, you would want it to be with him.”
Melissa’s goals for the case are clear. “I want the Civil Rights Act of 1964 to include gay people. That law was meant to prevent discrimination – period. I couldn’t even believe it that LGBT people were not protected at the federal level – I was blown away. I just assumed that our country already afforded these basic protections to people.”
“Continuing this case was the only way I could honor my brother,” Melissa said. “It was so important to him and it would have meant everything to him. Fair is fair – and that’s why Don was so upset about being fired just for his sexual orientation. He wanted everything to be just – and that sounds obvious, but it’s true. To right a wrong would have meant the world to him.”
The federal government: a house divided
As the 2nd Circuit considers this landmark case that could revise decades of prior legal precedent, the U.S. government can’t even serve as a consistent arbiter on either side. The Trump administration’s Department of Justice is at odds with the Equal Employment Opportunity Commission, the federal agency that oversees discrimination complaints in the workplace. Earlier this summer, without any promoting by the court, the DOJ took the shocking step of filing an amicus brief urging the 2nd Circuit to rule that federal law banning discrimination based on “sex” is not inclusive of discrimination based on sexual orientation. This directly contradicts the position of the Equal Employment Opportunity Commission. Both agencies will argue on opposite sides tomorrow.
FFAA looks forward to oral argument tomorrow and continuing to update our supporters about developments in this important case.