Zarda v. Altitude Express
2017 U.S. App. LEXIS 6578
| 2d Cir. | 2017Background
- Donald Zarda, a skydiving instructor, was fired by Altitude Express after a female client learned he had disclosed he was gay; Zarda alleged the termination was due to his sexual orientation.
- Zarda sued under Title VII (sex discrimination) and New York Executive Law § 296 (sexual-orientation discrimination). The district court denied Title VII relief (relying on Second Circuit precedent) but allowed the state-law claim to proceed to trial.
- At trial a jury found for the defendants on the state-law sexual-orientation claim; the district court had instructed the jury using a but-for causation standard for the state-law claim.
- Zarda appealed, arguing (1) Simonton v. Runyon was wrongly decided and Title VII’s prohibition of sex discrimination should encompass sexual-orientation discrimination, and (2) various trial errors warranted a new trial on the state-law claim.
- The Second Circuit panel declined to overrule Simonton (noting only an en banc court can), rejected Zarda’s trial-error arguments, and affirmed the district court’s judgment in all respects.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Title VII’s prohibition on sex discrimination covers sexual-orientation discrimination | Zarda: sexual-orientation discrimination is a form of sex discrimination and/or actionable as failure to conform to sex stereotypes | Altitude Express: Second Circuit precedent (Simonton) holds Title VII does not cover sexual orientation | Panel: Declined to overturn Simonton; issue is controlled by circuit precedent and must be addressed en banc |
| Whether Zarda was entitled to a Title VII jury instruction using the motivating-factor (not but-for) causation standard | Zarda: If Title VII covers sexual orientation, he was entitled to the less-stringent motivating-factor instruction | Defendants: District court correctly applied law per Simonton; state-law trial used but-for standard | Held: Because Simonton controls, no Title VII relief; had Title VII applied, different causation instruction might warrant new trial, but panel did not reach that substantive change |
| Whether admission of certain evidence (prior termination and deposition comments) was prejudicial under Fed. R. Evid. 403 | Zarda: Evidence was unduly prejudicial and should have been excluded | Defendants: Evidence was relevant to circumstances of termination and credibility; prejudice was not substantial | Held: No abuse of discretion in admitting the evidence |
| Whether defendants’ witness list practices or counsel’s remarks required a new trial | Zarda: Expanded witness list and allegedly prejudicial arguments (appeals to bias) deprived him of fair trial | Defendants: No gamesmanship; remarks were fair argument on credibility | Held: District court did not abuse discretion; no undue prejudice demonstrated |
Key Cases Cited
- Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000) (Second Circuit precedent holding Title VII does not prohibit discrimination based on sexual orientation)
- Price Waterhouse v. Hopkins, 490 U.S. 228 (U.S. 1989) (Title VII forbids discrimination for failing to conform to sex stereotypes)
- Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005) (reaffirming Simonton in the Second Circuit)
- Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72 (2d Cir. 2015) (motivating-factor causation standard under Title VII)
- Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517 (U.S. 2013) (but-for causation requirement for retaliation claims under Title VII; discusses causation standards)
- Gordon v. N.Y. City Bd. of Educ., 232 F.3d 111 (2d Cir. 2000) (erroneous jury instruction on burden can warrant new trial)
- United States v. Wilkerson, 361 F.3d 717 (2d Cir. 2004) (panel cannot overrule prior circuit precedent)
- Marcic v. Reinauer Transp. Cos., 397 F.3d 120 (2d Cir. 2005) (standard for granting new trial based on prejudicial counsel conduct)