## Facts

- Donald Zarda worked as a skydiving instructor for Altitude Express (Skydive Long Island).
- During a tandem skydive, Zarda told a female customer he was gay, allegedly to make her more comfortable given the close physical contact required.
- The customer later complained (through her boyfriend) that Zarda had touched her inappropriately.
- Altitude Express terminated Zarda shortly thereafter.
- Zarda sued, alleging unlawful discrimination under Title VII and New York law, including claims that he was fired because of sexual orientation and for failing to conform to male sex stereotypes.

## Issues

1. Whether discrimination based on sexual orientation is discrimination “because of ... sex” prohibited by Title VII, 42 U.S.C. § 2000e-2(a)(1).

## Decision

- The Second Circuit, sitting en banc, held that sexual-orientation discrimination is a form of sex discrimination under Title VII.
- The court overruled prior circuit precedent to the extent it excluded sexual-orientation claims from Title VII coverage.
- The court vacated summary judgment for the employer on the Title VII claim and remanded for further proceedings.
- The court otherwise affirmed, leaving intact the defense verdict on the state-law claims.

## Legal Principles

- Title VII’s prohibition on discrimination “because of ... sex” includes adverse employment action taken because an employee is gay or lesbian.
- Under a comparative “but-for” analysis, treating a man adversely for being attracted to men, while not treating a woman attracted to men the same way, constitutes sex-based differential treatment.
- Sexual-orientation discrimination is actionable as sex stereotyping when it enforces gender-based expectations about whom men or women should be attracted to.
- Discrimination based on the sex of a person’s associates (here, the sex of the person to whom the employee is attracted) can constitute discrimination based on sex, by analogy to associational discrimination doctrine.
- Legislative inaction and historical expectations at enactment do not limit Title VII’s text where established interpretive methods and Supreme Court sex-discrimination precedent support the application.

## Conclusion

The en banc Second Circuit recognized sexual-orientation discrimination as discrimination because of sex under Title VII, vacated the dismissal of the federal claim, and sent the case back for further proceedings while leaving the state-law defense verdict undisturbed.


Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018) (en banc)