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Zarda v. Altitude Express, Inc.

Case Concerning Employment Discrimination Based on Sexual Orientation Under Title VII

Key Date: May 29, 2018
Status: Cert. Petition Pending Before U.S. Supreme Court
Legal Team: Gregory Antollino
Type: Employment Discrimination

Zarda v. Altitude Express Case Overview:

Zarda v. Altitude Express, Inc. is a case concerning employment discrimination based on sexual orientation. After revealing his sexual orientation to a customer at the skydiving business where he worked on Long Island, NY, Don Zarda was fired. The termination followed a history of anti-gay encounters from the employer. 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.

The case is especially significant on a national level because it argues, as many courts have ruled in the past, that existing federal laws prohibiting employment discrimination based on sex also extend to discrimination based on sexual orientation. Title VII prohibits employers from discriminating against people based on their sex – and many litigators over the course of many years have successfully argued that this also protects LGBT people from employment discrimination. The Zarda case has set the precedent for the entire 2nd Circuit and could be heard by the U.S. Supreme Court.

The case is being led by Gregory Antollino, a lawyer in New York with a long history of trying employment discrimination cases. Arguments in the case are being supported by Lambda Legal and the Equal Employment Opportunity Commission. 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 former partner Bill Moore.

Latest in the Case:

On February 26, 2018, an official en banc decision was granted by the 2nd Circuit Court of Appeals in favor of Zarda, stating that discrimination based on sexual orientation violates Title VII of the Civil Rights Act, which covers “sex discrimination.”

Altitude Express filed a petition for certiorari with the U.S. Supreme Court on May 29, 2018. The petition is being briefed throughout the summer of 2018. It was originally distributed for the September 24, 2018 conference but was rescheduled for a future, unspecified date.

Case History:

  • 2010: Don Zarda, after being fired for revealing his sexual orientation to a customer – an incident his employer referred to as sharing his “escapades” publicly – files a complaint with the EEOC.
  • March 28, 2014: District Court judge upholds Zarda’s claim of sexual orientation discrimination under the New York non-discrimination law that explicitly covers sexual orientation but rejects Zarda’s motion under Title VII.
  • October 28, 2015: A jury trial results in a verdict in favor of the defense. The Zarda team appeals.
  • January 5, 2017: A three-judge panel of the 2nd Circuit Court of Appeals hears oral argument in Zarda. 
  • April 18, 2017: The three-judge panel of the 2nd Circuit Court of Appeals rules against the plaintiff in Zarda, explaining that it is bound by existing precedent in the circuit that fails to recognize that Title VII prohibits discrimination based on sexual orientation. The Zarda team petitions for an en banc rehearing before the full 2nd Circuit.
  • May 25, 2017: 2nd Circuit Court of Appeals grants en banc rehearing in Zarda, meaning the full court will rehear the case and consider overturning outdated precedent in the circuit.
  • June 26, 2017: “Friend-of-the-court” briefs are submitted in favor of recognizing that Title VII prohibits discrimination based on sexual orientation. Among the briefs is one featuring 50 employers from across the country – including Microsoft, Viacom, Ben & Jerry’s, Google – calling for employment non-discrimination protections.
  • July 26, 2017: The United States Department of Justice takes a shameful stand against civil rights by filing a “friend-of-the-court” brief in Zarda opposing employment protections from discrimination based on sexual orientation.
  • September 26, 2017: The 2nd Circuit Court of Appeals holds oral argument.
  • February 26, 2018Judges of the 2nd Circuit Court of Appeals issue an en banc decision, ruling that discrimination based on sexual orientation constitutes “sex discrimination” under Title VII of the Civil Rights Act of 1964.
  • May 29, 2018: Altitude Express files a petition for certiorari with the U.S. Supreme Court. The petition is now fully briefed and pending before the Justices.

Last Updated October 17, 2018

Brief and Background on 'Zarda v. Altitude Express' U.S. Supreme Court Docket Profile: Melissa Zarda, Sister to Plaintiff Don Zarda

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