Altitude Express v. Zarda: The Case That Expanded Title VII Protections

Altitude Express v. Zarda was a pivotal employment discrimination case about whether Title VII of the Civil Rights Act of 1964 protects employees from discrimination because they are gay. The dispute began after skydiving instructor Donald Zarda was fired following a tandem jump with a female customer. In 2020, the Supreme Court considered his case alongside two similar disputes and held that firing someone for being gay or transgender violates Title VII’s ban on discrimination “because of sex.” The ruling established a nationwide rule for covered workplaces.

What Was Altitude Express v. Zarda About?

The case concerned Donald Zarda, a gay man who worked as a tandem skydiving instructor for Altitude Express, a company operating in New York. During tandem jumps, an instructor is strapped closely to a customer. Zarda said he sometimes disclosed that he was gay to reassure female customers about the physical contact involved. After one jump, a customer reportedly told her boyfriend that Zarda had touched her inappropriately. Zarda denied the allegation and said his employer fired him because he was gay.

Altitude Express disputed Zarda’s account and argued that it dismissed him because of the customer’s complaint, not his sexual orientation. That disagreement mattered to the case: the legal question about Title VII did not, by itself, establish what motivated the firing. The case instead tested whether sexual-orientation discrimination is a form of sex discrimination under federal law.

Zarda filed a charge with the Equal Employment Opportunity Commission (EEOC) and later sued under Title VII. He died in 2014 in a skydiving accident. His estate continued the lawsuit on his behalf, and the case proceeded under his name.

What Title VII Says About Sex Discrimination

Title VII prohibits covered employers from discriminating against an individual “because of” that person’s race, color, religion, sex, or national origin. It applies to many employers with 15 or more employees, as well as certain other entities. The law covers decisions such as hiring, firing, compensation, and other terms and conditions of employment.

When Congress enacted Title VII in 1964, it did not expressly list sexual orientation or gender identity among the protected categories. For decades, courts disagreed about whether discrimination against gay and transgender employees nevertheless counted as discrimination “because of sex.” The wording of the statute—not a separate, explicit reference to sexual orientation—became central to the Zarda dispute.

The phrase “because of” is commonly understood through a “but-for” test: would the employer have made the same decision if the employee’s sex had been different, while other relevant circumstances stayed the same? The Supreme Court’s interpretation of that test ultimately resolved the legal issue.

How the Case Moved Through the Courts

A federal district court initially dismissed Zarda’s Title VII claim, following the legal approach then used by the U.S. Court of Appeals for the Second Circuit. The district court concluded that the existing circuit precedent did not recognize sexual-orientation discrimination as a form of sex discrimination under Title VII.

In 2018, the Second Circuit reconsidered the issue in a decision known as Zarda v. Altitude Express. Sitting en banc, meaning the full court reconsidered the matter, it overruled its earlier precedent and held that Title VII prohibits discrimination because of sexual orientation. The court explained that sexual orientation cannot be considered without considering a person’s sex, and that discrimination based on sex stereotypes can also violate Title VII.

Altitude Express appealed. The Supreme Court agreed to hear the case and combined it with Bostock v. Clayton County, involving a gay county employee in Georgia, and R.G. & G.R. Harris Funeral Homes v. EEOC, involving a transgender funeral-home employee. Together, the cases asked whether Title VII’s prohibition on discrimination because of sex covers gay and transgender employees.

The Supreme Court’s Decision in Bostock

On June 15, 2020, the Supreme Court issued one opinion resolving all three cases. In Bostock v. Clayton County, the Court ruled 6–3 that an employer violates Title VII when it fires an employee for being gay or transgender. The opinion, written by Justice Neil Gorsuch, treated the statutory text as decisive.

The Court reasoned that an employer cannot discriminate against a person for being gay or transgender without taking that person’s sex into account. Consider an employer that fires a male employee for being attracted to men but would not fire a female employee for being attracted to men. The employer has treated otherwise comparable employees differently based on sex. Under the Court’s reasoning, that is discrimination “because of sex,” even if the employer’s decision also depends on sexual orientation or gender identity.

The Court emphasized that Title VII’s “because of” language does not require sex to be the employer’s only motive or even its main motive. If changing the employee’s sex would change the outcome, sex is a but-for cause of the decision. Multiple factors can be but-for causes at the same time.

The Court also rejected the argument that Congress must have specifically anticipated every application of a law for the law to cover it. The question, the majority said, was what the statutory words mean—not whether lawmakers in 1964 foresaw the particular cases before the Court. The Court did not need to decide whether sexual orientation and gender identity should be treated as distinct categories for this analysis.

Why the Court Combined Three Cases

The three disputes involved different workers and circumstances, but they shared a legal question: whether an employer can fire someone for being gay or transgender without violating Title VII’s ban on sex discrimination. Combining the cases allowed the Court to address that question in a single ruling with nationwide effect.

The resulting opinion is commonly called Bostock, after the lead case, but its judgment resolved the appeals in all three matters. The Court’s holding therefore includes protections against employment discrimination because an employee is gay or transgender.

What the Ruling Means for Employees and Employers

After Bostock, employers covered by Title VII generally cannot fire, refuse to hire, or otherwise discriminate against an employee because the person is gay or transgender. The decision also informs how Title VII applies to other employment practices, including workplace policies and treatment connected to an employee’s sexual orientation or gender identity.

The ruling does not mean every workplace dispute involving a gay or transgender employee automatically violates federal law. A claimant still generally must show that a covered employer took a legally adverse action because of a protected characteristic. Employers may defend claims by showing, for example, that a decision was based on a legitimate reason unrelated to sex, subject to the rules and evidence in the particular case.

Nor did the Court decide every question about how Title VII applies in every context. The opinion said it was not addressing bathrooms, locker rooms, dress codes, religious defenses, or the relationship between Title VII and other statutes. Those issues may involve additional legal rules, facts, or later court decisions. The ruling also did not decide the scope of protections under state or local law, which can differ from federal law.

Title VII includes a religious-organization exemption for certain employment decisions, and employers may raise the statute’s religious-liberty provisions or constitutional protections in some disputes. Bostock acknowledged that the cases before it did not resolve all such questions. The availability of a defense depends on the facts, the employer, the job, and the applicable law; it should not be assumed from the case’s broad rule alone.

What the Case Did Not Decide

Altitude Express is often described as creating comprehensive legal protections for LGBTQ+ people. More precisely, the Supreme Court held that Title VII’s employment discrimination ban covers discrimination because an employee is gay or transgender. It did not create a general federal law covering every setting, such as housing, public accommodations, education, or health care. Other federal, state, and local laws may apply in those areas.

The decision also did not establish that every policy with different effects on LGBTQ+ employees is unlawful. Title VII claims depend on the specific policy, employment action, evidence, and legal theory. And because the Supreme Court did not decide every related workplace question, later cases and agency guidance may shape how the rule applies in particular circumstances.

Why Altitude Express v. Zarda Remains Important

The case is significant because it shows how a statutory rule can apply to circumstances not expressly named in the original text. Rather than add a new protected category to Title VII, the Supreme Court interpreted the words Congress enacted and concluded that discrimination against an employee for being gay or transgender necessarily involves sex under the law’s but-for test.

For employees, the ruling provides a federal basis for challenging covered workplace discrimination tied to sexual orientation or gender identity. For employers, it makes clear that policies and decisions cannot treat otherwise comparable workers differently because they are gay or transgender. In practice, organizations often review hiring, discipline, benefits, dress and conduct rules, complaint procedures, and training to ensure they comply with Title VII.

The underlying Zarda case also had a procedural outcome separate from the Supreme Court’s nationwide legal rule. After the Supreme Court decision, the Second Circuit sent the case back for further proceedings. In 2021, a jury found in favor of Zarda’s estate, and the Second Circuit later affirmed the judgment. That outcome addressed the evidence in Zarda’s individual case; Bostock established the broader interpretation of Title VII.

Key Takeaways

• Title VII covers discrimination because an employee is gay or transgender. The Supreme Court established this rule in Bostock v. Clayton County, which included the appeal known as Altitude Express v. Zarda.
• The Court relied on the statute’s “because of sex” language. Its reasoning was that an employer cannot make the challenged decision without considering the employee’s sex.
• The decision applies to covered employment, not every area of public life. Other laws may govern housing, education, public accommodations, and additional settings.
• Individual claims depend on their facts. The ruling does not automatically resolve whether a particular employer acted unlawfully or whether a defense applies.

Sources and Further Reading

• U.S. Supreme Court, Bostock v. Clayton County, 590 U.S. 644 (2020)
• U.S. Court of Appeals for the Second Circuit, Zarda v. Altitude Express (2018)
• U.S. Equal Employment Opportunity Commission, Title VII of the Civil Rights Act of 1964