January 9, 2019

Don Zarda loved to skydive.  He worked as a skydiving instructor at Altitude Express, a company on Long Island, N.Y. He was fired for being gay.

Don’s teaching often involved tandem skydives, in which he was strapped hip-to-hip and shoulder-to-shoulder with clients, who often were novices doing their first dives for fun.  In the summer of 2010, Don and a co-worker took a young couple – a man and a woman – up for tandem skydives.  As they were preparing for the dive and Don was strapping himself to the woman, Don told her that he was gay to assuage any concern she had about being strapped to a man she didn’t really know.  He never thought the comment would cause the end of his career at Altitude Express.  But after the dive, Don’s boss fired him because he had come out to the woman.

Don argued that he should not have been fired for sharing the fact that he was gay, when telling a client he was heterosexual would not have gotten him fired.  He also argued that he was fired because he did not conform to the straight male macho stereotype. The federal trial court ruled that federal employment law did not bar Altitude Express from firing Don because he is gay and threw out Don’s federal claim.

In February 2018, in a landmark ruling, the full United States Court of Appeals for the Second Circuit reversed and held that sexual orientation discrimination is a form of sex discrimination barred by Title VII of the Civil Rights Act of 1964, the federal law that prohibits workplace discrimination because of sex as well as race, color, national origin, and religion.  Altitude Express has asked the U.S. Supreme Court to review that ruling, and we are waiting for the court to decide whether to take up Don’s case.

Tragically, Don died in a skydiving accident in 2014.  His surviving partner, Bill Moore, and his sister, Melissa Zarda, have continued the lawsuit on behalf of Don’s estate.  The ACLU represents Don’s estate as co-counsel with N.Y. lawyer Greg Antollino and with Pam Karlan of the Stanford Law School Supreme Court Litigation Clinic.

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