Donald Zarda is one of three LGBTI people whose employment discrimination case will be heard by the Supreme Court of the United States (SCOTUS) this year.

The Supreme Court will decide whether LGBTI people are granted civil protections under Title VII of the Civil Rights Act. Zarda’s team are arguing the provision protecting people from sex-based discrimination must also apply to sexual orientation, as the two are inextricably linked.

If the Supreme Court rules in favor, this could mean LGBTI people cannot be fired from a job based on their sexuality under federal law. If ruled against, LGBTI people would have to rely on state and city statutes for protection, leaving many without.

Before the oral arguments are heard this fall, Gay Star News is posting guides for all three cases. The first is for  R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission & Aimee Stephens. The second is Bostock v. Clayton County.

The third one is Altitude Express, Inc, v Melissa Zarda. (Donald Zarda unfortunately passed away in a skydiving accident. His sister, Melissa, and partner, Bill, are now the petitioners)

What this Supreme Court case is about

Donald Zarda was an employee at Altitude Express, Inc, formerly doing business as Skydive Long Island, under New York laws.

During the summer of 2010, Rosanna Orellana and her boyfriend, David Kengle, went skydiving with Altitude Express. They both purchased tandem skydives. This means the instructor is strapped hip-to-hip and shoulder-to-shoulder with the client, allowing the instructor to deploy the parachute.

Zarda was Orellana’s instructor.

At some point during the experience, Zarda told Orellana that he was gay and ‘had an ex-husband’. Zarda said he tells female clients of his sexual orientation in order to avoid any awkwardness at being strapped so close together.

Afterwards, Orellana told her boyfriend Zarda touched her inappropriately during the dive. She claims he used his sexual orientation to excuse his ‘inappropriate behavior’.

Kenge complained to Altitude Express’ owner, Ray Maynard. He then fired Zarda, claiming he had a history of similar complaints of inappropriate behavior. However, when Zarda sought unemployment welfare, Altitude Express told the New York Department for Labor that Zarda was fired ‘for shar[ing] inappropriate information with [customers] regarding his personal life’.

A month after being fired, Zarda filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC).

In it, he claims ‘[a]ll of the men at [his workplace] made light of the intimate nature of being strapped to a member of the opposite sex’. However, he says he was fired because he ‘honestly referred to [his] sexual orientation and did not conform to the straight male macho stereotype.’

How the case progressed 

The District Court (and later affirmed by the Second Circuit court) dismissed Zarda’s original claims of discrimination on sex-based stereotypes.

Instead, in an appeal, Zarda asked the Second Circuit to reconsider its interpretation of Title VII to include sexual orientation with sex discrimination.

The Second Circuit court ruled in favor of Zarda, stating it’s impossible to discuss sexual orientation without referencing someone’s sex. Chief Judge Katzman of the Second Circuit explained that to ‘identify the sexual orientation of a particular person, we need to know the sex of the person and that of the people to who he or she is attracted.’

So, in this case, an employer who says a man attracted to other men cannot work at the business, but takes no action against a woman attracted to men, is discriminating based on the person’s sex.

Support and contest

Over 2,000 signatories submitted nearly 50 friend-of-the-court briefs in support of the three LGBTI cases. Friend-of-the-court briefs are documents offering expertise or insight to the court submitted by someone who is not part of the hearing, nor have they been solicited by a party involved.

Businesses – including heavyweights like Apple and the Bank of America – argue affirming protections for LGBTI workers would be beneficial. The companies argue this will allow them to recruit and retain top talent, as well as generate ideas from a diverse background. They can only do this if the employee doesn’t fear unemployment if they disclose their gender identity or sexuality.

Thirty-five high-ranking Republicans are in favor of the decision, arguing for civil rights protections from a conservative point-of-view.

Chairperson for the Republican National Committee (2005 – 2007), Kenneth Mehlman, wrote in an op-ed for the New York Times: ‘Our party should support people’s ability to reap the rewards of their labor – to earn a fair and honest living and to work where they want to work.

‘We are the party of economic freedom, personal liberty and limited governmental interference.’

Religious groups, such as the Synod of the United Church of Christ, the Central Conference of American Rabbis, and Muslims for Progressive Values filed a brief supporting the dignity and worth of all people, including LGBTI people.

However, not everyone is in support of affirming these rights. President Donald Trump’s Justice Department has argued against it.

In their brief, the Justice Department says: ‘The sole question here is whether, as a matter of law, Title VII reaches sexual orientation discrimination.

‘It does not, as has been settled for decades. Any efforts to amend Title VII’s scope should be directed to Congress rather than the courts.’

What happens now? 

The Supreme Court will hear oral arguments for the case on 8 October. A decision is likely to be handed down in spring 2020, during the presidential race.

The Supreme Court currently has a conservative majority. Trump has nominated two conservative justices, Neil Gorsuch and Brett Kavanaugh.

See also