2nd Circuit cracks door for en banc hearing on Title VII sexual orientation claim

In possibly the first opinion issued since the 7th Circuit Court of Appeals found Title VII does provide protection against discrimination based on sexual orientation, a 2nd Circuit Court of Appeals panel has declined to reach the same conclusion.

However, in the ruling issued Tuesday, the New York-based court did not slam the door shut. The panel noted its own precedent which holds that Title VII does not prohibit discrimination based on sexual orientation was the sole barrier to the plaintiff taking his claim to a jury, but overturning a long-standing decision could only be done by the full circuit.

This is likely the first circuit court ruling on Title VII and sexual orientation since the 7th Circuit ruled on Hively v. Ivy Tech. There, the 8-to-3 majority of the Chicago court found there is not distinction between bias based on sexual stereotyping, which has been found to be prohibited by Civil Rights Act of 1964, and discrimination because of sexual orientation.

Attorney Gregory Antollino, who is representing Donald Zarda in the New York case, plans to file for a rehearing en banc. Pointing to the Hively decision, the New York attorney said the 2nd Circuit may now be more comfortable upending its own precedent since the Midwestern appellate court has already broken new ground on Title VII.  

“They don’t have to be the east coast elitists calling out the rest of the country on this issue,” Antollino said.  

Zarda filed a Title VII lawsuit against his former employer, Altitude Express, after he was fired from his job as a skydiving instructor. He argued the company terminated his employment because he was gay, but the U.S. District Court for the Eastern District of New York dismissed that claim because of 2nd Circuit precedent in Simonton v. Runyon, 232 F.3d 33, 36 (2d Cir. 2000).

The district court did allow Zarda to proceed with his claim that Altitude Express violated New York law by firing him because of his sexual orientation. At trial, the jury found for the defendants on the state-law claims.

Before his case went to trial, Zarda was killed in a skydiving accident. The lawsuit still moved forward with two executors of his estate replacing him as the plaintiff.

The estate appealed the dismissal of the Title VII claim. Altitude Express countered the appeal was moot since the jury already found the company did not discriminate. The 2nd Circuit did not agree, finding the district court held Zarda to a higher standard of causation than is typically required by Title VII.

When instructing the jury, the district court said Zarda could only prevail if he proved he would have been able to continue working for Altitude Express except for the fact that he was gay. The district court found the plaintiff was required to show but-for causation but the 2nd Circuit ruled he only had to meet the less stringent standard that his sexual orientation was a motivating factor in his termination.

Zarda would have been entitled to a new trial because of the jury instruction, the 2nd Circuit said. However, he will not get one since the circuit has ruled that Title VII does not protect against sexual-orientation discrimination.

In a per curiam decision, the 2nd Circuit said, “Zarda’s request that we overturn Simonton is therefore not mooted by the jury verdict on his state-law claim. Nonetheless, we decline Zarda’s invitation to revisit our precedent. A separate panel of this Court recently held that Simonton can only be overturned by the entire Court sitting in banc….”

Antollino said since the Hively decision overturned the 7th Circuit’s previous ruling in Ulane v Eastern Airlines on which Simonton is partly based, the 2nd Circuit already had grounds to reverse precedent.  

Even though the appellate panel did not make history with Zarda, Antollino believes the 2nd Circuit is issuing an invitation for the attorney to return. Prior to deciding the Zarda case, a 2nd Circuit panel dismissed the Title VII sexual orientation claim in Christiansen v. Omnicom Grp., but the chief judge called for the court reconsider its ruling in Simonton.

Antollino said the Zarda case is a better vehicle for examining the question of sexual orientation protections because, unlike Christiansen, it is not clouded by issues of sexual stereotyping. “My case is the cleanest sexual orientation case,” he said.   

The case is 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 v. Altitude Express, doing business as Skydive Long Island, and Ray Maynard, 15-3775.

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