On May 29, 2018, Zabell & Associates filed a petition for a writ of certiorari with the U.S. Supreme Court. This petition calls into question the Second Circuit’s February 26, 2018 en banc decision that reversed nearly fifty (50) years of precedent to hold sexual orientation to be a protected class as a subset of gender under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq (“Title VII”).
The underlying case involves a skydive instructor, Donald Zarda, who alleged, among other claims, to have been discriminated against because he “honestly referred to [his] sexual orientation and did not conform to the straight male macho stereotype.” Mr. Zarda was terminated from his duties as a skydive instructor in 2010 after a customer complained that Mr. Zarda had touched her inappropriately during a tandem skydive and attempted to excuse his behavior by telling her that he was homosexual. Mr. Zarda claimed he was trying to put the customer at ease during the experience by referring to his sexuality.
Following his termination, Mr. Zarda filed a claim with the Equal Employment Opportunity Commission prior to filing a lawsuit in the Eastern District of New York. The lawsuit alleged, inter alia, violations of the New York State Human law and, pertinent to the subject writ of certiorari, Title VII. The district court dismissed Mr. Zarda’s Title VII claims, holding that the civil rights statute did not prohibit discrimination based on an individual’s sexual orientation. Mr. Zarda’s surviving claims were tried before a jury, who dismissed the remainder of his claims.
On appeal, an en banc majority of the Second Circuit overturned decades of black letter law, holding that sexual orientation is motivated, at least in part, by gender and is thus protected by Title VII. The majority arrived at their decision on three grounds:
[S]exual orientation discrimination is a subset of sex discrimination because sexual orientation is defined by one’s sex in relation to the sex of those to whom one is attracted … Sexual orientation discrimination is also based on assumption of stereotypes about how members of a particular gender should be, including to whom they should be attracted. Finally, sexual orientation discrimination is associational discrimination because an adverse employment action that is motivated by the employer’s opposition to association between members of particular sexes discriminates against an employee on the basis of sex.
Zarda v. Altitude Express, Inc., 883 F.3d 100, 131 (2d Cir. 2018). With this decision, the Second Circuit joined the Seventh as the only two (2) federal circuits to hold that sexual orientation is protected from discrimination by Title VII.
The petition for a writ of certiorari questions the logic of the Second Circuit and the method employed in reaching its decision. It is argued that, in departing from the pre and post legislative history of Title VII – as well as the refusal of nearly every Congress to enact legislation amending the statute to prohibit sexual orientation discrimination – the Second Circuit essentially eschews the democratic and legislative process by reading into Title VII content that lawmakers excluded. The petition also draws doubt on the reasoning the Second Circuit used to reinforce its holding.
Whether the U.S. Supreme Court will grant the petition remains uncertain. Last year it declined, without comment, to hear a case to hear the appeal of a gay woman who brought a suit for discrimination under Title VII when she was fired from her job; an appeals court had ruled that Title VII didn’t cover sexual orientation. Notably, the Supreme Court has yet to rule on the scope of Title VII.
By: Ryan T. Biesenbach, Esq., on June 8, 2018.