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In a suit brought by Donald Zarda, a skydiver, against his former employer, Altitude Express (doing business as Skydive Long Island), alleging that he was fired from his job as a skydiving instructor because of his sexual orientation, the United States Court of Appeals for the Second Circuit held that Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et seq., does not prohibit discrimination based on sexual orientation.

Zarda (who unfortunately died in a skydiving accident before the case went to trial and was substituted by estate executors), had a habit of telling female customers that he was a homosexual --especially when they were accompanied by a husband or boyfriend--in order to mitigate any awkwardness that might arise from the fact that he was strapped tightly to the woman.  Shortly after clients made complaints to Altitude Express about Zarda’s behavior, he was fired. 

Of course, the parties disputed the reason for Zarda’s behavior, with Altitude Express asserting it was based on various complaints about Zarda's behavior and because he failed to provide an enjoyable experience for customers. For his part, Zarda asserted that he acted appropriately at all times and was fired because of his sexuality: either because of his supervisor's prejudice against homosexuals or because he informed a client about his sexuality.

The Second Circuit affirmed the grant of summary judgment to Altitude Express, finding that Title VII does not protect against sexual-orientation discrimination.  The Court refused to overturn case law precedent holding Title VII does not proscribe discrimination because of sexual orientation.

Lexis subscribers can access the opinion at: Zarda v. Altitude Express, 855 F.3d 76, 81 (2d Cir. N.Y. Apr. 18, 2017)

Lexis Advance subscribers can find the opinion at: Zarda v. Altitude Express, 855 F.3d 76, 2017 U.S. App. LEXIS 6578, 130 Fair Empl. Prac. Cas. (BNA) 45, 101 Empl. Prac. Dec. (CCH) P45,782 (2d Cir. N . Y. Apr. 18, 2017)


Author:  Gabriela N. Nolen, Lexis-Nexis Case Law Editor


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