Zarda v. Altitude Express: Supreme Court to Hear First of Three Cases Regarding LGBTQ Discrimination

In 2010, New York skydiving instructor Donald Zarda was fired from his job, claiming it was because he told a customer he was gay. He died in 2014 in an accident, but Zarda’s sister, Melissa Zarda, and former partner Bill Moore are continuing to fight against the discrimination he allegedly faced. On Oct. 8, the Supreme Court will begin hearing his case as part of a series of cases that will determine whether LGBTQ rights are protected under Title VII of the Civil Rights Act of 1964.

Title VII grants protections against discrimination for various categories, such as race, sex, marital status, religion and disability. It does not explicitly list sexuality or gender identity as specific categories, so the question at hand is whether the text of the document can be interpreted to apply to LGBTQ people.

In August, the Department of Justice (DOJ) filed a Supreme Court brief that advised the justices to rule against Title VII applying to LGBTQ people. It specifically refers to R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, in which a transgender woman was fired for refusing to wear a men’s uniform. The DOJ argues that in 1964, the understanding of sexuality and gender identity was not mainstream, and therefore the law could only be applied to people who are cisgender.

Related Story: DOJ Files Brief Asking the Supreme Court to Rule Against Protecting Transgender Individuals from Workplace Discrimination Under Title VII

A proposed Labor Department rule would exempt certain federal contractors from facing charges of discrimination against LGBTQ people, based on religious views.

Related Story: Proposed Labor Department Rule Would Grant Federal Contractor Employers Religious Exemption from Discrimination Claims

Zarda had been working for Altitude Express on Long Island until he was fired in 2010. Altitude Express terminated his job when he was accused of touching a female client inappropriately during a jump in which the two were strapped together. The client said he used his sexual orientation as an excuse to touch her, but Zarda denied having ever inappropriately touched her and said his firing was based solely on the fact that he disclosed that he was gay.

Zarda filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC). The district court and the U.S. Court of Appeals for the Second Circuit ruled in favor of Altitude Express.

Arguments for Title VII not applying to LGBTQ people also include claims that it could undermine dress codes, fitness requirements and rules regarding separate restrooms for men and women, according to USA Today. Courts have backed all of these policies so far.

The landmark 2015 case which allowed for same-sex couples to get married nationwide was a victory for the LGBTQ community. However, with the Supreme Court leaning to the right because of Brett Kavanaugh taking the seat of Anthony Kennedy, the Court may vote against the LGBTQ plaintiffs.

On the state and local level, certain jurisdictions have taken it upon themselves to ensure businesses do not discriminate against LGBTQ employees or customers. In August, Ada County, Idaho, passed legislation against employment, housing and public accommodations discrimination based on gender or sexual orientation.

Related Story: Ada County, Idaho’s Employment Policy Now Protects Against LGBTQ Discrimination

Other topics high on the Court’s docket this year include immigration, abortion and gun ownership. The decisions will coincide with the 2020 presidential race.