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Justices Asked to Consider if Gay Job Bias Is Illegal

May 31, 2018, 6:12 PM

A gay skydiver’s former employer asked the U.S. Supreme Court to consider whether a federal law against sex discrimination in employment bars job bias based on sexual orientation.

If they take the case, the justices could resolve a split among federal circuit courts that have considered the question.

The case comes from the Second Circuit, which ruled in February for Greg Zarda, a skydiving instructor allegedly fired by Altitude Express Inc. because he was gay. The court took the same stance as the Seventh Circuit, which held in April 2017 that the prohibition on sex discrimination in Title VII of the 1964 Civil Rights Acts encompasses sexual orientation.

Greg Zarda’s sister, Melissa, and his former partner, William Moore, are litigating the case in their role as executors of his estate. Greg Zarda died in 2014.

Meanwhile, the Eleventh Circuit in March 2017 ruled that Title VII doesn’t encompass sexual orientation. An appeal filed in April asks the the Fifth Circuit to decide the issue.

“It’s a contentious hot button issue,” and the “time has come for the Supreme Court to weigh in,” Saul Zabell, a lawyer for Altitude Express, told Bloomberg Law May 31.

There’s no assurance that the May 29 request from Altitude Express will convince the Supreme Court to take up the issue. In December, the justices without comment declined to review the Eleventh Circuit’s decision on the issue.

The Zarda estate’s lawyer questioned who’s behind the petition. “We’re pretty sure it was ghostwritten by a firm that wants to get up there and argue,” Gregory Antollino told Bloomberg Law May 31. “We hope that the court doesn’t grant cert.”

Taking an adverse job action against someone for being gay is discrimination based on sex, say those who believe Title VII encompasses sexual orientation. If a man is fired because he’s in a relationship with another man but he wouldn’t be fired if his partner were a woman, that’s discrimination based on sex, they say. The opposing argument is that Title VII specifies the characteristics on which job discrimination is prohibited: sex, race, religion, and a few others. The law doesn’t mention sexual orientation.

Michigan this month became the first state to interpret its prohibition on sex discrimination as also barring sexual orientation discrimination, when its Civil Rights Commission adopted the more expansive view.

The case is Altitude Express, Inc. v. Zarda, U.S., no. not available, petition for certiorari 5/29/18.

To contact the reporter on this story: Jon Steingart in Washington at jsteingart@bloomberglaw.com

To contact the editor responsible for this story: Terence Hyland at thyland@bloomberglaw.com