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Zarda v. Altitude Express, Inc.

United States Court of Appeals for the Second Circuit

September 26, 2017, Argued; February 26, 2018, Decided

Docket No. 15-3775


 [*107]  KATZMANN, Chief Judge:

Donald Zarda,2 a skydiving instructor, brought a sex discrimination claim under Title VII of the Civil Rights Act of 1964 ("Title VII") alleging [**8]  that he was fired from his job at Altitude Express, Inc., because he failed to conform to male sex stereotypes by referring to his sexual orientation. Although it is well-settled that gender stereotyping violates Title VII's prohibition on discrimination "because of . . . sex," we have previously held that sexual orientation discrimination claims, including claims that being gay or *** constitutes nonconformity with a gender stereotype, are not cognizable under Title VII.3See Simonton v. Runyon, 232 F.3d 33, 35 (2d Cir. 2000); see also Dawson v. Bumble & Bumble, 398 F.3d 211, 217-23 (2d Cir. 2005).

At the time Simonton and Dawson were decided, and for many years since, this view was consistent with the consensus among our sister circuits and the position of the Equal Employment Opportunity Commission ("EEOC" or "Commission"). See, e.g., Kalich v. AT&T Mobility, LLC, 679 F.3d 464, 471 (6th Cir. 2012); Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285, 289 (3d Cir. 2009); Medina v. Income Support Div., 413 F.3d 1131, 1135 (10th Cir. 2005); Hamner v. St. Vincent Hosp. & Health Care Ctr., Inc., 224 F.3d 701, 704 (7th Cir. 2000); Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Cir. 1999);4Wrightson v. Pizza Hut of Am., Inc., 99 F.3d 138, 143 (4th Cir. 1996); Williamson v. A.G. Edwards & Sons, Inc., 876 F.2d 69, 70 (8th Cir. 1989) (per curiam); Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979) (per curiam); see also Johnson v. Frank, EEOC Decision No. 05910858, 1991 EEOPUB LEXIS 2713, 1991 WL 1189760, at *3 (Dec. 19, 1991). But legal doctrine evolves and in 2015 the EEOC held, for the first time, that "sexual orientation is inherently a 'sex-based consideration;' accordingly an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII." Baldwin v. Foxx, EEOC Decision No. 0120133080, 2015 EEOPUB LEXIS 1905, 2015 WL 4397641, at *5 (July 15, 2015) (quoting Price Waterhouse v.  [*108]  Hopkins, 490 U.S. 228, 242, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989) (plurality opinion)). Since then, two circuits have revisited the question of whether claims of sexual orientation [**9]  discrimination are viable under Title VII. In March 2017, a divided panel of the Eleventh Circuit declined to recognize such a claim, concluding that it was bound by Blum, 597 F.2d at 938, which "ha[s] not been overruled by a clearly contrary opinion of the Supreme Court or of [the Eleventh Circuit] sitting en banc." Evans v. Ga. Reg'l Hosp., 850 F.3d 1248, 1257 (11th Cir.), cert. denied, 138 S. Ct. 557, 199 L. Ed. 2d 446 (2017). One month later, the Seventh Circuit, sitting en banc, took "a fresh look at [its] position in light of developments at the Supreme Court extending over two decades" and held that "discrimination on the basis of sexual orientation is a form of sex discrimination." Hively, 853 F.3d at 340-41. In addition, a concurring opinion of this Court recently called "for the Court to revisit" this question, emphasizing the "changing legal landscape that has taken shape in the nearly two decades since Simonton issued," and identifying multiple arguments that support the conclusion that sexual orientation discrimination is barred by Title VII. Christiansen v. Omnicom Grp., Inc., 852 F.3d 195, 202 (2d Cir. 2017) (Katzmann, C.J., concurring) ("Christiansen and amici advance three arguments, none previously addressed by this Court . . . ."); see also id. at 204 ("Neither Simonton nor Dawson addressed [the but-for] argument.").

Taking note of the potential persuasive force of these new [**10]  decisions, we convened en banc to reevaluate Simonton and Dawson in light of arguments not previously considered by this Court. Having done so, we now hold that Title VII prohibits discrimination on the basis of sexual orientation as discrimination "because of . . . sex." To the extent that our prior precedents held otherwise, they are overruled.

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883 F.3d 100 *; 2018 U.S. App. LEXIS 4608 **; 130 Fair Empl. Prac. Cas. (BNA) 1245; 102 Empl. Prac. Dec. (CCH) P45,990; 2018 WL 1040820

MELISSA ZARDA, co-independent executor of the estate of Donald Zarda, and WILLIAM ALLEN MOORE, JR., co-independent executor of the estate of Donald Zarda, Plaintiffs-Appellants, — v. — ALTITUDE EXPRESS, INC., doing business as SKYDIVE LONG ISLAND, and RAY MAYNARD, Defendants-Appellees.

Subsequent History: As corrected April 4, 2018.

US Supreme Court certiorari granted by Altitude Express v. Zarda, 2019 U.S. LEXIS 2931 (U.S., Apr. 22, 2019)

Prior History: Donald Zarda brought this suit against his former employer alleging, inter alia, sex discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq. In particular, Zarda claimed that he was fired after revealing his sexual orientation to a client. The United States District Court for the Eastern District of New York (Bianco, J.) granted summary judgment to the defendants on the ground that Zarda had failed to show that he had been discriminated against on the basis of his sex. After the Equal Employment Opportunity Commission ("EEOC") decided Baldwin v. Foxx, EEOC Decision No. 0120133080, 2015 EEOPUB LEXIS 1905, 2015 WL 4397641 (July 15, 2015), holding that sex discrimination includes sexual orientation discrimination, Zarda asked the district court to reinstate his Title VII claim. The district court, citing our decision in Simonton v. Runyon, 232 F.3d 33, 35 (2d Cir. 2000) [**1] , declined to do so. Zarda appealed and a panel of this Court affirmed.

We convened this rehearing en banc to consider whether Title VII prohibits discrimination on the basis of sexual orientation such that our precedents to the contrary should be overruled. We now hold that sexual orientation discrimination constitutes a form of discrimination "because of . . . sex," in violation of Title VII, and overturn Simonton and Dawson v. Bumble & Bumble, 398 F.3d 211, 217-23 (2d Cir. 2005), to the extent they held otherwise. [**2]  We therefore VACATE the district court's judgment on the Title VII claim and REMAND for further proceedings consistent with this opinion. We AFFIRM the judgment of the district court in all other respects.

Zarda v. Altitude Express, Inc., 2017 U.S. App. LEXIS 13127 (2d Cir., May 25, 2017)


sex, sexual orientation, stereotypes, sex discrimination, discriminated, gender, civil rights, homosexual, sexual, trait, attracted, man and woman, workplace, courts, cases, woman, female, male, Amendments Act, fired, same-sex, employment discrimination, religion, rights, words, interpreting, ***, subset, national origin, terms

Constitutional Law, The Judiciary, Case or Controversy, Advisory Opinions, Case or Controversy, Business & Corporate Compliance, Labor & Employment Law, Discrimination, Title VII Discrimination, Civil Rights Law, Regulators, Civil Rights Commissions, Complaints, Labor & Employment Law, Title VII Discrimination, Scope & Definitions, Gender & Sex Discrimination, Employment Practices, Scope & Definitions, Sexual Orientation, Harassment, Sexual Harassment, Hostile Work Environment, Disparate Treatment, Evidence, Burdens of Proof, Gender Stereotypes, Actionable Discrimination, Same-Sex Harassment, Governments, Legislation, Interpretation, Racial Discrimination