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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

Case Summary


HOLDINGS: [1]-Plaintiff employee's sexual orientation discrimination claim against defendant employer was an actionable subset of sex discrimination, under 42 U.S.C.S. § 2000e-2(a)(1) and (m), because sexual orientation was defined by one's sex in relation to the sex of those to whom one is attracted, making such discrimination impossible without considering sex; [2]-Sexual orientation discrimination was a subset of sex discrimination because it was based on stereotypes about to whom members of a particular gender should be attracted; [3]-Sexual orientation discrimination was a subset of sex discrimination because it was motivated by an employer's opposition to association between members of particular sexes; [4]-The employee had a cognizable sex discrimination claim because he alleged he failed to "conform to the straight male macho stereotype."


Judgment vacated in part, affirmed in part.

LexisNexis® Headnotes



Constitutional Law > The Judiciary > Case or Controversy > Advisory Opinions

Constitutional Law > The Judiciary > Case or Controversy

HN1  Advisory Opinions

U.S. Const. art. III grants federal courts the authority to hear only "cases" and "controversies." U.S. Const. art. III, § 2, cl. 1. As a result, a federal court has neither the power to render advisory opinions nor to decide questions that cannot affect the rights of litigants in the case before them.


Civil Rights Law > Regulators > Civil Rights Commissions > Complaints

Business & Corporate Compliance > ... > Labor & Employment Law > Discrimination > Title VII Discrimination

HN2  Complaints

The United States Court of Appeals for the Second Circuit has squarely held that failure to present a Title VII claim to the Equal Employment Opportunity Commission before filing suit in federal court is not a jurisdictional prerequisite, but only a precondition to bringing a Title VII action that can be waived by the parties or the court.


Labor & Employment Law > Discrimination > Title VII Discrimination > Scope & Definitions

HN3  Scope & Definitions

In passing Title VII, Congress made the simple but momentous announcement that sex, race, religion, and national origin are not relevant to the selection, evaluation, or compensation of employees.

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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)