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Zarda v. Altitude Express - 855 F.3d 76 (2d Cir. 2017)

Rule:

While Title VII of the Civil Rights Act of 1964 does not prohibit discrimination based on sexual orientation, Title VII does forbid discrimination based on a failure to conform to "sex stereotypes." A person arguing on the ground of this provision must demonstrate that sex was a "substantial" or "motivating" factor contributing to the employer's decision to take the adverse employment action. Accordingly, to show causation for sex discrimination under Title VII, it suffices to show that the motive to discriminate was one of the employer's motives, even if the employer also had other, lawful motives that were causative in the employer's decision.

Facts:

In 2010, Donald Zarda, a skydiving instructor, informed one of his employer's female clients that he was homosexual in order to mitigate any awkwardness that might arise from the fact that Zarda was strapped tightly to the client during the skydive. After the client's boyfriend learned that Zarda had disclosed his sexual orientation, the boyfriend called Zarda'a employer, Altitude Express, to complain. Zarda was fired shortly thereafter.

Plaintiff Zarda sued defendant "Altitude Express, his former employer, in the United States District Court for the Eastern District of New York, asserting (inter alia) sexual-orientation discrimination in violation of New York state law and sex discrimination in violation of Title VII of the Civil Rights Act of 1964. Predictably, the parties dispute why Zarda was terminated. Altitude Express observed that the client had had various complaints about Zarda's behavior, and defendant contended that Zarda was fired because he failed to provide an enjoyable experience for a customer. For his part, Zarda asserts 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 district court, relying on the decision in Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), declined to hold that discrimination based on sexual orientation constituted discrimination based on sex for purposes of Title VII. The state-law claim for sexual-orientation discrimination went to trial where a jury found for the defendants. On appeal, Zarda argues that Simonton should be overturned. Zarda argued that he was entitled to a new trial on his state-law claim because of alleged evidentiary errors, unfair discovery practices, and prejudicial arguments to the jury based on gay stereotypes.

Issue:

Was Zarda able to establish the required causation between his termination and the instances of gender non-conformity?

Answer:

No

Conclusion:

The Court of Appeals for the Second Circuit refused to entertain Zardo's argument to overturn Simonton because a panel of this Court cannot overturn another panel's decision. Furthermore, the appellate court rejected Zarda's argument that he is entitled to a new trial on his state-law claim because of alleged evidentiary errors, unfair discovery practices, and prejudicial arguments to the jury based on gay stereotypes. Under Title VII, a plaintiff must demonstrate that sex was a substantial or motivating factor contributing to the employer’s decision to take adverse employment action. Accordingly, to show causation for sex discrimination under Title VII, it suffices to show that the motive to discriminate was one of the employer’s motives, even if the employer also had other lawful motives that were causative in the employer’s decision. The jury was charged by the district court to require Zarda to prove but-for causation, which is a higher standard of causation than is necessary for Title VII sex-discrimination claims. The Court held that he failed to establish the requisite proximity between his termination and his proffered instances of gender non-conformity.

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