Zarda v. Altitude Express, Inc.

883 F.3d 100

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, Plaintiffs–Appellants,

v.ALTITUDE EXPRESS, INC., doing business as Skydive Long Island, and Ray Maynard, Defendants–Appellees.

Docket No. 15-3775

August Term, 2017

United States Court of Appeals, Second Circuit.

Argued: September 26, 2017

Decided: February 26, 2018

Gregory Antollino, New York, NY (Stephen Bergstein, Bergstein & Ullrich, LLP, Chester, NY, on the brief ), for Plaintiffs–Appellants.

Saul D. Zabell, Zabell & Associates, P.C., Bohemia, NY, for Defendants–Appellees.

Jeremy Horowitz (James L. Lee, Deputy General Counsel, Jennifer S. Goldstein, Associate General Counsel, and Anne Noel Occhialino, Senior Appellate Attorney, on the brief ), Equal Employment Opportunity Commission, Washington, DC, for Amicus Curiae Equal Employment Opportunity Commission, in support of Plaintiffs–Appellants.

Gregory R. Nevins (Michael D.B. Kavey, Attorney at Law, Brooklyn, NY; Omar Gonzalez–Pagan and Sharon M. McGowan, on the brief ), Lambda Legal Defense and Education Fund, Inc., New York, NY, for Amicus Curiae Lambda Legal Defense and Education Fund, Inc., Atlanta, GA, in support of Plaintiffs–Appellants.

Hashim M. Mooppan (Chad A. Readler and Tom Wheeler, Acting Assistant Attorneys General, Charles W. Scarborough and Stephen R. Marcus, Attorneys, on the brief ), United States Department of Justice, Washington, DC, for Amicus Curiae United States of America, in support of Defendants–Appellees.

Adam K. Mortara, Bartlit Beck Herman Palenchar & Scott LLP, Chicago, IL, court-appointed Amicus Curiae in support of Defendants–Appellees.

Erin Beth Harrist and Christopher Dunn, New York Civil Liberties Union Foundation, New York, NY; Fatima Goss Graves, National Women's Law Center, Washington, DC; Ria Tabacco Mar, Leslie Cooper, James D. Esseks, Lenora M. Lapidus, and Gillian L. Thomas, American Civil Liberties Union Foundation, New York, NY, for Amici Curiae American Civil Liberties Union; New York Civil Liberties Union; National Women's Law Center; 9to5, National Association of Working Women; A Better Balance; California Women's Law Center; Equal Rights Advocates; Feminist Majority Foundation; Gender Justice; Legal Voice; National Organization for Women (NOW) Foundation; National Partnership for Women & Families; Southwest Women's Law Center; Women Employed; Women's Law Center of Maryland, Inc.; and Women's Law Project, in support of Plaintiffs–Appellants.

Richard E. Casagrande, Robert T. Reilly, Wendy M. Star, and Christopher Lewis, New York State United Teachers, Latham, NY, for Amicus Curiae New York State United Teachers, in support of Plaintiffs–Appellants.

Richard Blum and Heidi Cain, The Legal Aid Society, New York, NY, for Amicus Curiae The Legal Aid Society, in support of Plaintiffs–Appellants.

Alice O'Brien, Eric A. Harrington, and Mary E. Deweese, National Education Association, Washington, DC, for Amicus Curiae The National Education Association, in support of Plaintiffs–Appellants.

Mary Bonauto, GLBTQ Legal Advocates & Defenders, Boston, MA; Christopher Stoll, National Center for Lesbian Rights, San Francisco, CA; Alan E. Shoenfeld, David M. Lehn, and Christopher D. Dodge, Wilmer Cutler Pickering Hale and Dorr LLP, New York, NY, Washington, DC, and Boston, MA, for Amici Curiae GLBTQ Legal Advocates & Defenders ("GLAD") and National Center for Lesbian Rights ("NCLR"), in support of Plaintiffs–Appellants.

Thomas W. Burt, Microsoft Corporation, Redmond, WA; Sigismund L. Sapinski, Jr., Sun Life Financial (U.S.) Services Company, Inc., Windsor, CT; Todd Anten, Justin T. Reinheimer, and Cory D. Struble, Quinn Emanuel Urquhart & Sullivan, LLP, New York, NY, for Amici Curiae AdRoll, Inc.; Ben & Jerry's; Beterment; Boston Community Capital; Brandwatch; CBS Corporation; Citrix Systems, Inc.; City Winery; Davis Steadman Ford & Mace, LLC; DoorDash, Inc.; Dropbox, Inc.; Eastern Bank; Edelman; FiftyThree, Inc.; Freedom for All Americans Education Fund; Google Inc.; Greater Burlington Industrial Corporation; Gusto; Harvard Pilgrim Health Care, Inc.; IAC/InterActiveCorp; IHS Markit Ltd.; Indiegogo; INUS Group LLC; Johnston, Kinney & Zulaica LLP; Kargo; KEO Marketing Inc.; Kickstarter, PBC; Levi Strauss & Co.; Linden Lab; Lyft, Inc.; Mapbox, Inc.; National Gay & Lesbian Chamber of Commerce; OBOX Solutions; On 3 Public Relations; Physician's Computer Company; Pinterest; Puma Springs Vineyards; Quora Inc.; S&P Global Inc.; Salesforce; Shutterstock, Inc.; Spotify; Thumbtack; TodayTix; Trust Company of Vermont; Vermont Gynecology; Viacom, Inc.; and Wealthfront Inc., in support of Plaintiffs–Appellants.

Peter T. Barbur, Cravath, Swaine & Moore LLP, New York, NY, for Amici Curiae Sen. Jeffrey A. Merkley, Sen. Tammy Baldwin, Sen. Cory A. Booker, and Rep. David N. Cicilline, in support of Plaintiffs–Appellants.

Matthew Skinner, LGBT Bar Association of Greater New York ("LeGaL"), New York, NY, for Amici Curiae LGBT Bar Association of Greater New York ("LeGaL"), Anti–Defamation League, Asian American Bar Association of New York, Association of the Bar of the City of New York, Bay Area Lawyers for Individual Freedom, Hispanic National Bar Association, Legal Aid at Work, National Queer Asian Pacific Islander Alliance, New York County Lawyers' Association, and Women's Bar Association of the State of New York, in support of Plaintiffs–Appellants.

Eric T. Schneiderman, Attorney General, Barbara D. Underwood, Solicitor General, Steven C. Wu, Deputy Solicitor General, Andrew W. Amend, Senior Assistant Solicitor General of Counsel, State of New York, New York, NY; George Jepsen, Attorney General, State of Connecticut, Hartford, CT; Thomas J. Donovan, Jr., Attorney General, State of Vermont, Montpelier, VT, for Amici Curiae State of New York, State of Connecticut, and State of Vermont, in support of Plaintiffs–Appellants.

Joseph W. Miller, U.S. Justice Foundation, Ramona, CA; William J. Olson, Herbert W. Titus, Robert J. Olson, and Jeremiah L. Morgan, William J. Olson, P.C., Vienna, VA, for Amici Curiae Conservative Legal Defense and Education Fund, Public Advocate of the United States, and United States Justice Foundation, in support of Defendants–Appellees.

Kimberlee Wood Colby, Christian Legal Society, Springfield, VA, for Amici Curiae Christian Legal Society and National Association of Evangelicals, in support of Defendants–Appellees.

Before: Katzmann, Chief Judge, Jacobs, Cabranes, Pooler, Sack, Raggi, Hall, Livingston, Lynch, Chin, Lohier, Carney, and Droney, Circuit Judges.^*

Katzmann, C.J., filed the majority opinion in which Hall, Chin, Carney, and Droney, JJ., joined in full, Jacobs, J., joined as to Parts I and II.B.3, Pooler, J., joined as to all but Part II.B.1.b, Sack, J., joined as to Parts I, II.A, II.B.3, and II.C, and Lohier, J., joined as to Parts I, II.A, and II.B.1.a.

Jacobs, J., filed a concurring opinion.

Cabranes, J., filed an opinion concurring in the judgment.

Sack, J., filed a concurring opinion.

Lohier, J., filed a concurring opinion.

Lynch, J., filed a dissenting opinion in which Livingston, J., joined as to Parts I, II, and III.

Livingston, J., filed a dissenting opinion.

Raggi, J., filed a dissenting opinion.

Katzmann, Chief Judge:

Donald Zarda,¹ a skydiving instructor, brought a sex discrimination claim under Title VII of the Civil Rights Act of 1964 ("Title VII") alleging that he was fired from his job at Altitude Express, Inc., because he failed to conform to male sex stereotypes by referring to his sexual orientation. Although it is well-settled that gender stereotyping violates Title VII's prohibition on discrimination "because of ... sex," we have previously held that sexual orientation discrimination claims, including claims that being gay or lesbian constitutes nonconformity with a gender stereotype, are not cognizable under Title VII.² See Simonton v. Runyon , 232 F.3d 33, 35 (2d Cir. 2000) ; see also Dawson v. Bumble & Bumble , 398 F.3d 211, 217–23 (2d Cir. 2005).

At the time Simonton and Dawson were decided, and for many years since, this view was consistent with the consensus among our sister circuits and the position of the Equal Employment Opportunity Commission ("EEOC" or "Commission"). See, e.g. , Kalich v. AT&T Mobility, LLC , 679 F.3d 464, 471 (6th Cir. 2012) ; Prowel v. Wise Bus. Forms, Inc. , 579 F.3d 285, 289 (3d Cir. 2009) ; Medina v.Income Support Div. , 413 F.3d 1131, 1135 (10th Cir. 2005) ; Hamner v. St. Vincent Hosp. & Health Care Ctr., Inc. , 224 F.3d 701, 704 (7th Cir. 2000) ; Higgins v. New Balance Athletic Shoe, Inc. , 194 F.3d 252, 259 (1st Cir. 1999) ;³ Wrightson v. Pizza Hut of Am., Inc. , 99 F.3d 138, 143 (4th Cir. 1996) ; Williamson v. A.G. Edwards & Sons, Inc. , 876 F.2d 69, 70 (8th Cir. 1989) (per curiam); Blum v. Gulf Oil Corp. , 597 F.2d 936, 938 (5th Cir. 1979) (per curiam); see also Johnson v. Frank , EEOC Decision No. 01911827, 1991 WL 1189760, at *3 (Dec. 19, 1991). But legal doctrine evolves and in 2015 the EEOC held, for the first time, that "sexual orientation is inherently a 'sex-based consideration;' accordingly an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII." Baldwin v. Foxx , EEOC Decision No. 0120133080, 2015 WL 4397641, at *5 (July 15, 2015) (quoting Price Waterhouse v. Hopkins , 490 U.S. 228, 242, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (plurality opinion) ). Since then, two circuits have revisited the question of whether claims of sexual orientation discrimination are viable under Title VII. In March 2017, a divided panel of the Eleventh Circuit declined to recognize such a claim, concluding that it was bound by Blum , 597 F.2d at 938, which "ha[s] not been overruled by a clearly contrary opinion of the Supreme Court or of [the Eleventh Circuit] sitting en banc ." Evans v. Ga. Reg'l Hosp. , 850 F.3d 1248, 1257 (11th Cir.), cert. denied , ...